Terry Huitt v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

TERRY HUITT

APPELLANT

V.

ARKANSAS DEPARTMENT OF

HUMAN SERVICES

APPELLEE

CA 02-962

April 16, 2003

APPEAL FROM THE SALINE

COUNTY CIRCUIT COURT

[J-02-075]

HONORABLE GARY M. ARNOLD,

CIRCUIT JUDGE

AFFIRMED

Appellant, Terry Huitt, appeals from an adjudication and disposition order, which found that his three children were dependent neglected and ordered their removal from the home. The matter originated when appellant's oldest daughter, A.H., disclosed to one of her teachers that appellant had sexually abused her. Appellee, Arkansas Department of Human Services, filed a petition for emergency custody on April 16, 2002, and on April 18, 2002, the court found probable cause to believe that the children were dependent neglected and that the emergency situation continued, requiring custody to remain with appellee until the adjudication hearing. Following the adjudication hearing, the court entered its adjudication and disposition order on May 28, 2002. We affirm.

Appellant raises the following points of appeal:

The ruling of the trial court was clearly erroneous in that the trial court's finding of fact that the allegations of sexual abuse were true based on the testimony of the alleged victim was contrary to the preponderance of the evidence.

A. The testimony of the investigators from the State of Arkansas contradicted the testimony of the alleged victim, and therefore the trial court's finding of fact was clearly erroneous.

B. The testimony of the witnesses called by both parties did not portray the complaining witness as a victim of abuse and, therefore, her testimony should not be accepted as the preponderance of the evidence and the trial court's finding of fact is clearly erroneous.

The trial court's assignment of credibility of the alleged victim is contrary to the totality of the remaining testimony and therefore, contrary to the preponderance of the evidence.

III. Following adjudication in a concurrent disposition hearing the trial court's order for the parties to attend the Family Treatment Program was in contradiction to the plain and clear wording of the applicable section of the Arkansas Code, therefore, this matter should be remanded to the trial court with instructions to comply with the statute.

Points I and II focus on whether the trial court was clearly erroneous in finding that A.H.'s allegations of sexual abuse by appellant were true. Therefore, they can best be discussed together.

The juvenile code requires proof by a preponderance of the evidence in dependency-neglect proceedings. Johnston v. Arkansas Dep't of Human Servs., 55 Ark. App. 392, 935 S.W.2d 589 (1996). This court reviews the findings of fact de novo and will not set them aside unless they are clearly erroneous, giving due regard to the trial court's opportunity to judge the credibility of the witnesses. Id. A finding is clearly erroneous when, although there is evidence to support the finding, after reviewing all of the evidence the reviewing court is left with the definite and firm conviction that a mistake has been made. Id.

Appellant contends that a review of the totality of the evidence reveals inconsistencies and contradictions that make the trial court's ultimate finding clearly erroneous. In particular, he argues that the State investigators' testimony contradicted that of A.H. and other witnesses with respect to A.H.'s personality and that their testimony about A.H.'s report of the sexual abuse differed from A.H.'s trial testimony. The "differences" in personality descriptions consist of statements that A.H. was shy and withdrawn compared to those that she was bright, funny, popular, sweet, happy, and cheerful. We do not regard these descriptions as particularly contradictory, considering that the investigators saw A.H. in an investigatory setting, where one would expect a child to be shy and withdrawn, and the teachers and friends would have seen her in a wider variety of settings, where her full range of personality would be more evident. Moreover, even if these descriptions were regarded as contradictory, they do not rise to a level that leaves us with a definite and firm conviction that a mistake has been made.

With respect to the descriptions of the sexual abuse, the only "discrepancies" were that A.H. revealed more at the adjudicatory hearing than she had to the investigators and Ms. Chapdelaine, her teacher and neighbor. A.H. testified at trial that she disclosed the sexual abuse to Ms. Chapdelaine because she needed to get it off her chest because "it was driving [her] nuts." She said that a couple of nights before she told Ms. Chapdelaine, her father had thought that she had run away; that one night she was actually home and the other night she was at Ms. Chapdelaine's house; that she did not know why he was more upset than ever before; and that she told Ms. Chapdelaine because she was afraid that appellant was tryingto keep her under his eye so that she would not tell anybody about anything. She stated that the abuse started around the beginning of the fourth grade, which she later corrected and said was the fifth grade, and that it ended somewhere around seventh grade. She said that she was currently in the ninth grade. She said that she did not know why she waited two years to tell. She acknowledged that her dad got angry, maybe a week or two before she made the disclosures, and that he made her mad by grounding her from all of her close friends, "not letting me babysit as much and things like that." She denied wanting to get back at him by making the disclosures. She stated that "it just needed to be out in the open," and that she could not stand it any more "with all this stuff that happened and him accusing me or my brother and sister of doing something that we didn't do."

A.H. testified that her dad would come into the room and close the door, locking it. She said that he would ask her questions; that he would start asking her to take off her clothes or he would ask her to lie on his bed; that he would start touching her; that it was uncomfortable for her, but that she would do it because she did not want to get in trouble; and that he would touch her breasts and her vagina. She said that her siblings would either be asleep or at friends' homes. She testified that he would ask her to scratch his back and that he would then ask her to take her clothes off or to "feel under him" and to lie down afterwards. She said that he would tell her things that adult men and women like, that some nights he would masturbate himself and ask her to help, and that he would try to teach her different things to do to please herself. She stated that she stayed there most of the night quite a few times and that the next day she would try to forget it and just go on with her life. She said that he would be totally naked and that he told her what went on in that room was nobody else's business and not to tell. She said that she did not tell any of the women that she was close to before because it was embarrassing. She testified that she has never been sexually active with a boy; that she has never seen anyone else's penis besides her dad's; that her dad touched her vagina with his fingers, tongue, and penis, but did not insert them into her vagina; and that he would have her "masturbate him" until he ejaculated. She acknowledged that she had never told anyone about the tongue before the hearing. She also stated that he would sometimes stick his penis in her mouth, but that she did not tell people because it was embarrassing.

The descriptions of sexual abuse that A.H. gave to Ms. Chapdelaine, to the family service worker, and to the state police investigator were similar to that which she reported at trial, but omitted any references to masturbation or oral penetration. The trial judge made special note that, in these circumstances, he believed A.H.'s additional testimony at the hearing, including her testimony that appellant touched her vagina with his tongue and that he inserted his penis in her mouth; and that this additional testimony added, rather than detracted, from A.H.'s credibility. We find no clear error in that determination.

The final "discrepancy" urged by appellant revolves around the state police investigator's testimony that A.H. told her she had no plan compared to the same investigator's statement of facts in an affidavit that reported A.H. saying that she could live with a neighbor. It is sufficient merely to say that this "difference" between theinvestigator's affidavit and testimony is not significant or sufficient to convince us that the trial court was clearly erroneous in finding that the allegations of abuse were true.

Appellant further contends that the testimony presented at the hearing did not portray A.H. as a victim of abuse. He notes that there was no expert testimony concerning her mental state and that several witnesses portrayed her as happy, cheerful, and a good student. He points out that she had several close relationships and that she attended an abstinence program, which gave her opportunities to disclose the abuse, yet she did not do so until after she was grounded, after her phone privileges were taken away, and after she had a conversation with Ms. Chapdelaine about Chapdelaine's own history of sexual abuse as a child. The fact remains, however, that A.H. testified in detail about the abuse, which was sufficient. Appellant's reliance upon the case of Baumer v. State, 300 Ark. 160, 777 S.W.2d 847 (1989), is misplaced. His assertion that Baumer stands for "the proposition that a finding of fact cannot rest on the mere allegation of a complaining witness without a specific finding of fact to corroborate the charges," is simply wrong. Baumer is not applicable to this case.

Finally, appellant takes the approach of arguing that A.H.'s testimony was contrary to the totality of the other witnesses' testimony and therefore contrary to the preponderance of the evidence. It is sufficient to say that we disagree with his basic premise. We do not find that her testimony contradicted that of the other witnesses to any significant degree, and the fact that she did not disclose the abuse for so long is not unusual.

For his last point, appellant contends that the trial court ordered him to cooperate with the Family Treatment Program, in direct contradiction to the language of Arkansas Code Annotated section 9-27-334(c) (Repl. 2002), which provides that the court shall not specify a particular provider for family services. First, appellant did not raise this issue at trial and we do not address issues for the first time on appeal. Arkansas Dep't of Human Servs. v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002). Moreover, even if we were to address this issue we would note that the court only ordered appellant to cooperate with the Family Treatment Program, where the children were already receiving counseling. The court did not, therefore, specify the Family Treatment Program as the particular provider that was to be used.

Affirmed.

Griffen and Roaf, JJ., agree.