Linda Pippenger v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

K. MAX KOONCE, II, Judge

DIVISION III

LINDA PIPPENGER

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA 00-266

October 25, 2000

APPEAL FROM THE CHANCERY COURT OF WHITE COUNTY, JUVENILE DIVISION

[J99-229]

HON. ROBERT EDWARDS

CIRCUIT/CHANCERY JUDGE

AFFIRMED

On December 20, 1999, the White County Chancery Court, Juvenile Division, found J. P., a minor, dependent/neglected and ordered her to remain in Department of Human Services (DHS) foster care custody. Appellant, Linda Pippenger, contends that the chancellor made three reversible errors. Two of the alleged errors concern evidentiary rulings; the third error, appellant argues, was the failure of the trial court to place the child in her maternal grandmother's home rather than foster case. We disagree.

Appellee, Arkansas Department of Human Services, filed a petition for emergency custody on October 29, 1999, alleging dependency/neglect of J.P., a minor, based on sexual abuse. In support of the petition, Sherrill Middleton, a child abuse investigator with the Arkansas State Police Family Protection Unit, stated that J.P. had admitted to having sexual relations with a forty-five year old neighbor named Randy Boyce. On November 17, 1999, the trial judge appointed an attorney to represent J.P.'s mother, appellant Linda Pippenger (hereinafter Linda). The trial court set a hearing

date of December 2, 1999. On November 30, appellant's attorney filed a "request for production." A "Home Study" report was filed with the trial court on December 2, 1999, which offered the opinion that the home of the maternal grandparents "is an appropriate relative placement for J.P." A written order of the court's findings was entered on December 20, 1999, from which appellant takes this appeal.

At the adjudication hearing, the court heard testimony from Sherrill Middleton. Middleton testified that an allegation of sexual abuse regarding J.P. was made to the child abuse hotline on October 22, 1999. Middleton took a written statement from J.P. on October 25, 1999, at which time she denied any sexual relationship with Randy Boyce. Middleton re-interviewed J.P. on October 27, at which time she admitted to a sexual relationship with Boyce on four or five occasions, most recently about two weeks prior to the interview. In her statement, J.P. said she was twelve years old the first time she had a sexual relationship with Boyce.

During the adjudication hearing, J.P. testified that she did not remember talking to Mr. Middleton on the 27th, and that she was upset and had been given a tranquilizer after being taken to the White County Hospital. J.P. testified that she had no memory of having a sexual relationship with Boyce.

Roseann Brass, a-fifteen-year old friend of J.P., testified that she had never seen Randy Boyce and J.P. "in a bad way." The DHS attorney contradicted Brass's trial testimony with a prior written statement she had made to investigators. Appellant's attorney objected because he had not been provided with the statement. The court noted that appellant had not timely requested the statement through written discovery. The court allowed appellant to review the statement, and provided Roseann Brass with a copy of the statement to review while she was being questioned. Roseann Brass testified that she wrote the statement due to a threat from the police chief. The court then accepted the written statement into evidence over appellant's objection. The written statement detailed Brass' knowledge of sexual conduct between J.P. and Boyce.

Carolyn Skinner, J.P.'s grandmother, testified that she did not believe Boyce had molested J.P. J.P.'s mother, Linda, testified that she currently has a personal "nonsexual" relationship with Boyce and did not believe Boyce had done anything "improper" with her daughter.

In rebuttal testimony, a tape of the October 27th DHS interview with J.P. was played over the objection of appellant. Appellant argued that J.P. did not recall making the statement, which appellant contends is different than a denial. The trial court stated: "She denied that she had sex with Mr. Boyce, and this tape is offered for the purpose of rebutting that testimony." The tape was played in open court .

The court announced from the bench that it found by a preponderance of the evidence that J.P. had engaged in sexual relations with Randy Boyce, and that J.P.'s mother, Linda, "either knew or should have known." The court ordered that J.P. remain in DHS custody, with continued visitation with her mother.

This court reviews appellant's first point, the introduction of a tape recorded interview during rebuttal, using an abuse of discretion standard. Edwards v. Stills, 335 Ark. 470, 514, 984 S.W.2d 366, 389 (1998).

Appellant argues that since J.P. testified for appellee during their case in chief, her own statement should not be admitted in rebuttal because rebuttal is meant to address issues raised in the appellant's case-in-chief. Appellant asserts that allowing the statement to be played during rebuttal amounts to an "unfair advantage"; however, appellant fails to cite any authority for this proposition. Appellant conceded that she failed to raise an objection that J.P.'s statement was taken without another adult present, and therefore it is not preserved for appeal. Appellee correctly asserts that J.P.'s tape-recorded statement also served to rebut evidence that was put on in the appellee's case in chief, including testimony by Linda Pippinger and Carolyn Skinner. Based on these facts, the taped statement played during rebuttal does not amount to an abuse of discretion.

The second point on appeal, refusing to place J.P. with her grandmother rather than in foster care, is based on a trial court's finding of fact, and will therefore not be reversed unless it is clearly erroneous. Wade v. Arkansas Dep't. of Human Servs., 337 Ark. 353, 356, 990 S.W.2d 509, 511 (1999). Under such a standard, this court must be left with a definite and firm conviction that a mistake has been made. Gregg v. Arkansas Dep't of Human Servs., 58 Ark. App. 337, 340, 952 S.W.2d 183, 184 (1997). Further, this court gives due regard to the opportunity of the trial judge to assess the credibility of witnesses. Ullom v. Arkansas Dep't of Human Servs., 340 Ark. 615, 621, 12 S.W.3d 204, 208 (2000). Finally, we will give great weight to the trial judge's personal observations in matters involving the welfare of young children. Id.

Appellant relies on the home study for support in her argument that J.P. should have been placed in her grandmother's home, rather than continued foster care. Appellant cites statutory authority favoring consideration of placements with relatives where appropriate. Appellant fails to cite any case law suggesting that this amounts to reversible error. Also, appellant failed to request that the trial court place J.P. in her grandmother's custody. "It is incumbent upon appellant to file an abstract that reflects that an issue was raised in the trial court, and the trial court either erred or refused to correct an error. We will not reach an issue where the abstract does not show that it was raised in the trial court." Arkansas Dep't of Human Servs. v. Harris, 322 Ark.167 at 466, 910 S.W.2d 221 at 222 (1995). Additionally, the grandmother's failure to recognize the improper relationship between J.P. and Boyce supports a finding that placement with the grandmother was not in J.P.'s best interest. Based on the standard of review, and the great deference given to the trial court in such determinations, it is impossible to say that it was error for the court to continue custody in DHS foster care.

The third point on appeal, the admission of Roseann Brass's written statement, will not be reversed absent an abuse of discretion and a showing of prejudice. Edwards, 335 Ark. at 503, 984 S.W.2d at 383. Appellant's final argument cites no authority for the proposition that she was prejudiced because certain statements were not produced to the defense prior to the adjudication hearing. Clearly, the statements were subject to discovery; however, appellant did not file a discovery motion until a few days before the scheduled hearing. She did not request that the hearing be delayed, and she did not request that DHS be ordered to respond to the discovery motion in an expedited fashion pursuant to Rule 6 of the Arkansas Rules of Civil Procedure. Appellant's abstract of the discovery request is minimal at best, and appellee accurately cites Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996), for the proposition that the court cannot consider whether the statements were encompassed by the discovery request when the terms of the discovery request are not abstracted. Further, appellant has failed to articulate any way that she was prejudiced by the statement. Finally, we agree with appellee that any error was "invited" when appellant failed to take steps to obtain discovery, and refused the trial court's offer for a continuance. Under the standard of review applicable here, appellant has failed to show either an abuse of discretion or any resulting prejudice.

Affirmed.

STROUD and GRIFFEN, JJ., agree.