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Salinas v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

February 6, 2019



          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          Anna Imbeau, Office of Chief Counsel, for appellee.

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

          LARRYD. VAUGHT, Judge.

         Secia Salinas appeals the Washington County Circuit Court's adjudication and disposition order finding AF (DOB February 27, 2003), MS1 (DOB June 4, 2009), MS2 (DOB March 31, 2013), and SN (DOB February 18, 2017) dependent-neglected.[1] We affirm.

         After a hearing in a family-in-need-of-services case on May 15, 2018, the circuit court entered an order authorizing the removal of AF, MS1, and MS2 from Salinas for seventy-two hours based on allegations that despite being warned repeatedly to properly supervise her children, MS1 had been sexually abused by a thirteen-year-old neighbor. The order provided that the Arkansas Department of Human Services (DHS) had been recently providing services to the family based on a separate incident in 2016 when MS1, seven years old at the time, had been sexually abused by her eighteen-year-old half brother. The order further provided that Salinas had failed to provide ADHD medication to MS1 for two months and did not take MS1 to inpatient treatment that was recommended for her after the second instance of sexual abuse.

         On May 18, 2018, DHS filed a petition for emergency custody and dependency-neglect of AF, MS1, and MS2. The affidavit of a DHS family-service worker attached to the petition stated that the family had a history with DHS dating back to 2012 that included four unsubstantiated findings (medical neglect; inadequate food and shelter; educational neglect; and environmental neglect) and four substantiated findings (sexual abuse; failure to protect; inadequate supervision and threat of harm; and educational neglect). The affidavit also stated that AF, MS1, MS2, and SN had been removed from Salinas's custody based on her lack of supervision after MS1 had been sexually abused by a thirteen-year-old neighbor. It was stated that this was the second time that MS1 had been sexually abused while in Salinas's custody and that Salinas had been warned by the circuit court to provide proper supervision. The affidavit further stated that Salinas had not given MS1 her ADHD medicine for two months. An ex parte order for emergency custody was entered that same day.

         A probable-cause hearing was held on May 22, 2018. The circuit court found there was probable cause to issue the ex parte order for emergency custody of AF, MS1, and MS2. A separate order was entered the same day removing SN from Salinas's care, authorizing DHS's seventy-two-hour hold on SN, and finding that probable cause existed to issue the emergency hold on SN.

         At the July 5, 2018 adjudication hearing, Corporal Patrick Hanby of the Fayetteville Police Department testified that he responded to a sex-offense call on April 20, 2018. When he arrived on the scene, he spoke to the neighbor who made the report. The neighbor told the officer that she was standing outside on the balcony of her apartment looking toward the dumpster when she observed a young teenage male (later identified as LC) lying on his back with a girl about seven to nine years old (later identified as MS1) sitting on his lap having vaginal intercourse. The neighbor said that she yelled at the children to stop, but they did not. She ran inside, called the police, ran back outside and downstairs to where the children were and saw LC's penis in MS1's mouth. She said that LC's pants were at his ankles and that MS1 was not wearing pants. The neighbor yelled at the children again, telling them that she had called the police. She said the children stood up, put on their pants, and ran away.

         A detective with the Fayetteville Police Department, Garrett Levine, testified that he interviewed LC, who stated that MS1 was sitting on his lap playing a game when a lady yelled at him. After the interview, Detective Levine arrested the young man for sexual assault.

         Michael McHenry, an investigator with the Crimes Against Children Division of the Arkansas State Police, testified that he observed MS1's interview. McHenry stated that MS1 told the interviewer that she sat on LC's lap, and he penetrated her vagina with his fingers. MS1 said that LC also forced his penis into her mouth.

         McHenry also testified about Salinas's interview. Salinas said that she had been cleaning her house on the day in question but also was keeping an eye on MS1 and LC because of "red flags" she had recently noticed. Salinas said that the previous day she had found MS1 sitting on LC's lap and that she told MS1 not to do that because it was inappropriate. Salinas also said that MS1 was not allowed to play alone with LC because on another occasion he asked if MS1 could come to his house to see some paintings, and Salinas thought that was inappropriate based on their age difference. Salinas stated that she took her eyes off the children for no more than eight minutes while she vacuumed, which she claimed is when the assault occurred. On May 4, 2018, McHenry concluded his investigation with a true finding of "sexually aggressive behavior." Major Jeff Drew of the Arkansas State Police testified that because the case concerned an out-of-home offender, the state police did not remove MS1 from Salinas's custody.

         DHS family-service worker Eugenia Marks testified that AF, MS1, MS2, and SN should not be returned to Salinas's custody because she failed to protect them. Marks further testified that since October 2016 ...

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