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Phillips v. Arkansas Department of Human Services and Minor Child

Court of Appeals of Arkansas, Division III

October 3, 2018

KEVIN PHILLIPS APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

          APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FJV-17-379] HONORABLE SHANNON L. BLATT, JUDGE.

          Churchwell Law Offices Inc., by: Joseph E. Churchwell, for appellant.

          Callie Corbyn, Office of Chief Counsel, for appellee.

          Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.

          BART F. VIRDEN, JUDGE

         Kevin Phillips appeals the Sebastian County Circuit Court's decision adjudicating his son, IP (born 02/20/09), dependent-neglected based on physical abuse and parental unfitness. Phillips presents several arguments on appeal. First, Phillips challenges the sufficiency of the evidence to support the circuit court's finding that he caused IP's bruises. Second, alternatively, Phillips contends that the Arkansas Department of Human Services ("the Department") did not present evidence that the corporal punishment administered by him was not subject to the parent-guardian exception and that the circuit court failed to address this issue. Third, Phillips argues that the circuit court improperly excluded a previous Department administrative opinion overturning a true finding against Phillips of substance misuse and sexual abuse. Fourth, Phillips asserts that the circuit court erroneously denied his motion to modify, vacate, and reopen the record. We affirm.

         I. Factual History

         On August 29, 2017, the Department filed a petition for emergency custody and dependency-neglect regarding IP. The attached affidavit set forth the following relevant facts to support the petition. On August 23, 2017, the Department received a hotline call describing a "huge bruise on the back of [IP's] leg" that was "bigger than a grapefruit and almost looks like a square area. The bruise is brown, red, and yellow." The affidavit set forth that when IP was asked about the bruise, he responded that if he gets in trouble, his father spanks him on his buttocks with a brown leather belt or a foot-long rectangular wooden paddle with holes in it, and he stated that his father sometimes hit him on the head with an open hand. IP stated that these spankings occur about twice a week "or something like that" and that he always has bruises after he is spanked.

         The affidavit sets forth that Phillips told family service worker Bobbie Gorman that he spanks IP with a belt or a paddle when IP gets in trouble at school and when he is defiant. Phillips stated to Gorman that he had spanked IP two days before the hotline report and that before that last spanking, it had been two weeks since he had spanked IP. Gorman showed Phillips photographs of bruises on IP's buttocks and legs, and he responded that he "would have to admit that then" as to the bruising on IP's bottom. Regarding the bruises on IP's legs, Phillips stated that "I'm not saying I did or didn't do it." Phillips agreed to a protection plan that entailed refraining from corporal punishment, and he agreed to attend anger-management classes and parenting-without-violence classes.

         The affidavit also contained statements from "school personnel" who told Gorman that IP had stated that his father spanked him with a paddle that Monday. She told Gorman that she was afraid of what IP would face at home when he got in trouble at school and that on August 24 and 25, IP had refused to talk "about anything that happened at home and was more defiant than he had been before, refusing to do work or talk to the counselors."

         The affidavit also recounted the events of a team decision meeting ("TDM") held August 25. At the meeting, Phillips told family service workers that he would continue to corporally punish IP if he saw fit. Phillips again admitted that he had likely caused the bruises on IP's buttock, but that he believed IP got the other bruises during a recent float trip. During a break, Phillips made a phone call in which he was heard telling the person on the phone that the meeting was not going his way, and that if she did not hear from him in an hour, to "go ahead and do what she needs to do." Phillips became upset and stated that he did not agree to refrain from corporal punishment and that he did not need anger -management classes or any other Department services. Phillips was informed that the Department was taking an emergency hold on IP. Phillips refused to bring IP to the office or cooperate until law enforcement became involved. IP was located with a grandparent who brought IP into the Department office. The affidavit listed six prior instances of referrals citing abuse or neglect by Phillips. Five reports were unsubstantiated. One referral for sexual abuse and substance misuse had been found true, but the finding was later overturned on appeal.

         The circuit court entered an ex parte order for emergency custody on August 29, 2018. The circuit court found that it was in IP's best interest to remove him from his father's custody and that removal was necessary to protect IP's health, safety, and welfare. The circuit court noted that along with the large bruise on his thigh, IP had bruises of different ages on his buttocks. In the order, the circuit court noted that the Department took custody of IP and transported him to Hamilton House for a forensic interview. When IP was asked about his bruises, IP curled into a fetal position, cried, and seemed very afraid. IP told the interviewer that his father had never hit him and that he had lied before. IP stated that he had gotten the bruises from falling out of a kayak.

         On October 6, 2017, the circuit court entered a probable-cause order finding that emergency conditions existed and that it was necessary to remove IP from Phillips's custody.

         On October 18, 2017, Phillips filed a motion to "shorten the time to respond." Phillips requested a copy of "the investigative file including all evidence, whether turned over to Central Registry or not as pertaining to the true finding on Kevin Phillips." Phillips also requested a transcript of the forensic interview of IP at Hamilton House. The circuit court refused to rule on the motion because Philips had not served IP's noncustodial mother, Fawn Henson, who was a party to the proceeding and representing herself.

         On November 3, 2017, the circuit court held an adjudication hearing. Phillips testified that he was not sure how the bruises on IP's buttocks had occurred, that IP had been under the supervision of the Boys and Girls Club, his mother, and himself, and that he had not been aware of the bruising until he was shown pictures of IP's backside. Phillips testified that just a few days before the hotline report, IP had wrecked his bike and had fallen on rocks and a canoe paddle during a float trip. Phillips also testified that once or twice a month he spanked IP with a belt or a paddle and that he could have caused some, but not all, of the bruises. Phillips denied telling family service worker Gorman that he used corporal punishment on IP on a regular basis, and Phillips denied that he previously stated that he had probably caused the bruising. Phillips testified that he had agreed to stop using corporal punishment when the case began. Phillips denied being "aggressive" toward Department personnel during the TDM meeting on August 25, though he admitted that he probably raised his voice and that after the meeting in the lobby, it would be fair to say that "things blew up." Phillips stated that he felt he had been bullied and falsely accused during the TDM meeting. Phillips explained that he tried to tell Department workers that he, his brother, and IP had gone on a fourteen-mile canoe trip and had capsized three times but "they wouldn't let me tell them."

         Phillips testified that he had been investigated by the Department six times and that each report had been unsubstantiated. Phillips explained that one report of drug misuse and sexual abuse had been found true, but it was later overturned. Phillips attempted to have the order overturning the true finding admitted into evidence, and the Department objected that the order was not certified. The circuit court sustained the objection but noted that the opinion overturning the true finding of sexual abuse and substance misuse had already been discussed at the probable cause hearing. Phillips was allowed to proffer the contents of the order including that the administrative law judge ("ALJ") found that IP's mother was not a credible witness and that she had shown motive for fabricating the report of substance misuse and sexual abuse. In the order, the ALJ found that IP's answers seemed very coached and that he was likely lying about the abuse.

         Henson, who was pro se at the hearing, cross-examined Phillips about when they had first seen IP's bruises. Phillips testified that he could not remember if Henson and he had met on August 23 after he had spoken with Gorman. Phillips could not recall whether he had actually seen the bruises or if they were successful in getting IP to pull down his pants so that they could see them. Phillips's attorney objected, asserting that Henson was being argumentative, and the court responded that "[y]our client seems to have a selective memory on what he wants to remember some specifics with DHS and can't remember a specific conversation with the mother of the child."

         Officer Mark Mergen, a sergeant with the Greenwood Police Department, testified that on Thursday, August 24, Phillips told him that he had spanked IP on Monday and that he believed he had caused the bruises on IP's buttocks. Mergen explained that he did not clarify with Phillips whether he meant the immediately preceding Monday or two Mondays before, but he believed Phillips meant the immediately preceding Monday. Mergen testified that Phillips stated he did not believe he was "overzealous in his punishment."

         Chrissy Thompson, a counselor who had worked with IP from time to time when IP was in kindergarten until he was removed from Phillips's custody, testified at the hearing. Thompson stated that Phillips used corporal punishment to address IP's behavioral issues. Thompson explained that up until the present school year, IP's school had used corporal punishment when disciplining IP. Thompson opined that corporal punishment was not appropriate for IP because

it was used so much that it had no effect whatsoever. Because every week, I would see him and he would tell me, you know, when he would get in trouble or get in-school suspension, he would go home and I'd see him the next day and I'd say, you know, "what happened?" He'd tell me he got spanked.

         Thompson testified that IP lied to her sometimes but that she could tell ...


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