APPEAL
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72 JV-18-761]
HONORABLE STACEY ZIMMERMAN, JUDGE.
Leah
Lanford, Arkansas Public Defender Commission, for appellant.
Andrew Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
MEREDITH B. SWITZER, Judge.
Joseia
Libokmeto appeals from the November 2, 2018 adjudication and
disposition order finding MO dependent-neglected. MO, who was
thirteen years old when this case began, had been living in
the custody of Joseia and Katrinda Libokmeto.[1] A petition for
emergency custody and dependency-neglect concerning MO and
two male juveniles living in the same household, JL and RO,
was filed on September 12, 2018.[2] Emergency custody was
ordered the same day, the probable-cause order was entered on
September 17, 2018, and the dependency-neglect hearing was
held on November 1, 2018. The trial court specifically found
that Joseia had sexually abused MO; therefore, MO was
adjudicated dependent-neglected. Joseia contends the trial
court clearly erred in making this finding. We disagree and
affirm.
A
dependent-neglected juvenile includes any juvenile who is at
substantial risk of serious harm as a result of sexual abuse
or parental unfitness. Ark. Code Ann. § 9-27-303(18)(A)
(Supp. 2017). Dependency-neglect allegations must be proved
by a preponderance of the evidence. Araujo v. Ark.
Dep't of Human Servs., 2019 Ark.App. 181, ___ S.W.3d
___. The purpose of adjudication hearings is to determine
whether the allegations in a petition are substantiated by
the proof. Id. In our review of a dependency-neglect
adjudication, we defer to the trial court's superior
position to observe the parties and judge the witnesses'
credibility. Id. We will not reverse the trial
court's findings unless they are clearly erroneous.
Id. A finding is clearly erroneous when, even though
there is evidence to support it, on the entire evidence we
are left with a definite and firm conviction that the trial
court made a mistake. Id.
In this
appeal, Joseia contends the trial court clearly erred in
finding dependency-neglect based on sexual abuse because the
finding "rested solely on the mere allegation of a
thirteen-year-old intellectually disabled girl who never
testified, thus preventing the circuit court from adequately
assessing her credibility." We hold that the trial court
did not err.
At the
hearing, Amber O'Malley was qualified as an expert
witness and testified that she conducted a sexual-assault
physical examination of MO. O'Malley found no anal or
genital injury but testified that the lack of physical
findings did not negate sexual contact. She explained that
she made a record of her examination, and it was admitted
without objection as State's exhibit No. 5.
On
cross-examination, O'Malley explained she did not get a
report of abuse directly from MO. O'Malley documented in
her examination record a third-party advocate's account
of the initial interview with MO. In the interview, MO
reported penile-genital contact, penile-anal contact, and
forced use of MO's hand on the offender's penis. MO
also reported she was afraid to go home because the offender
had raped her, and MO reported "it hurts down
there," pointing to her vaginal area. The advocate
provided O'Malley these "disclosures" before
her examination so that she did not have to ask MO questions
that could revictimize her. O'Malley further stated that
the information was used for diagnosis and treatment
purposes. She testified that she was told MO was
intellectually disabled, and although she wrote in her report
that MO was not able to give full answers due to
"intellectual disability," she still documented the
answers MO was able to give.
Michael
McHenry, who works with the Arkansas State Police Crimes
Against Children Division, testified without objection that
he observed Lindsey Carter, a child advocate and forensic
interviewer at the Children's Safety Center, conduct an
interview with MO. MO disclosed the sexual assault during the
interview and stated she had told Katrinda in March 2018 what
Joseia was doing to her.
Still
without objection, McHenry continued to testify regarding
specific allegations MO had made during her interview. MO
revealed that on at least two occasions Joseia told her to
take off her clothes, rubbed her "boobs," and
"put his thing" in her "bottom hole,"
which she clarified was her "butt." MO stated that
on one occasion Joseia did not have anything on his penis,
but nothing came out of his penis that time because the
family returned to the house in "the middle of the
incident." MO also disclosed that he had rubbed her
vagina with his "thing" until white stuff came out.
MO also
reported in the interview that Joseia had put his
"thing" in her hole where she poops, that he used
baby oil, and that he stopped when white stuff came out of
his "thing." She said that Joseia would have her
touch his "thing" and move her hand back and forth
on it until white stuff came out, telling her to squeeze
harder. Finally, MO reported in the interview that Joseia had
shown her videos of a girl and a guy with their clothes off
having sex. Joseia told her not to tell anyone what they were
doing and that he was just teaching her things she needed to
know when she got a boyfriend. She told the interviewer she
was very scared to go home and did not want to be around
Joseia or Katrinda.
McHenry
then testified that his investigation resulted in a true
finding against Joseia on MO's allegations of sexual
abuse. He explained that Joseia and Katrinda were interviewed
by another detective and that Joseia denied the allegations
and described MO as a liar. McHenry did not witness those
interviews but read or was told about them as part of his
investigation.
McHenry
acknowledged that the Washington County Prosecutor's
Office declined to pursue charges. He further stated he had
made a true finding against JL regarding MO's allegations
that he, too, had sexually abused her, but he was not aware
the finding was found to be unsubstantiated by the
administrative law judge. McHenry was also aware MO was
temporarily placed with two school teachers but had no
knowledge ...