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Libokmeto v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

May 15, 2019



          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 ...

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