Court of Appeals Upholds Trial Decision in DHS Sexual Abuse Case

One of the initial determinations in a DHS case is whether the child is dependent-neglected.  One of the reasons that may be cited for a juvenile being dependent-neglected is if the juvenile is at "substantial risk of serious harm as a result of sexual abuse."  A.C.A. 9-27-303 et. seq.  DHS must prove this allegation by a preponderance of the evidence (better than 50-50 chance that it happened) at a hearing.

In this Arkansas case just decided by the Court of Appeals, a father is accused of sexually abusing his adopted daughter.  The daughter, age 13, alleged that her father rubbed her breasts and vagina over a period of two years, and that he may have put his fingers inside her but that she did not know what that felt like so she was unsure.  The father denied these allegations.  The mother told DHS that she did not believe the allegations and that her daughter is a "pathological liar."

The daughter stated that this activity by the father began when she was 11 years old, when after a day of swimming, she was sleeping next to her mother in her mother's bed and she awoke to find her father groping her while her mother slept beside her.

A nurse with extensive experience in examining child victims of sexual abuse testified at the hearing.  She testified that there were two unusual findings:  1) adhesions in the labial area that lent credibility to the child's version of events (although she admitted this was not conclusive); and 2) the child had unusually small genital structures for her age.  Small structures would lead one to believe that what the child described as happening to her would be very painful and would cause a lot of bleeding.  In addition to other factors, the father pointed to a lack of evidence on the issue of extreme pain and bleeding to support his case.

The trial court felt that this evidence was enough to meet the preponderance of the evidence standard and found the child as dependent-neglected.  The Court of Appeals affirmed the trial court.

Not real sure what to do with this one.  Its very hard to evaluate when you have what appears to have been a credible teenager and a nurse evaluator with evidence (albeit not conclusive) to corroborate the teenager's testimony of events.  Then you have a father and mother denying the allegations and the mother stating openly that her daughter has a problem with lying.  It should also be added that the 17 year old son that lived in the home also denied the allegations - he was also allowed to stay in the home.

What can definitely be said is that this is yet another example of how a family can fall into the DHS system rather easily - for better or worse.