McKay v. Ark. Dep't of Human Servs. , 2014 Ark. App. 95 ( 2014 )

Cite as 2014 Ark. App. 95
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-13-904
CHARIS MCKAY Opinion Delivered February 12, 2014
APPELLANT
APPEAL FROM THE CONWAY
V. COUNTY CIRCUIT COURT
[NO. JV-2013-35]
ARKANSAS DEPARTMENT OF HONORABLE TERRY SULLIVAN,
HUMAN SERVICES, TIMOTHY JUDGE
GRAY, and MINOR CHILDREN
APPELLEES AFFIRMED
ROBIN F. WYNNE, Judge
Charis McKay appeals from an order of the Conway County Circuit Court
adjudicating her children, H.G. and J.G., dependent-neglected. She argues on appeal that the
circuit court erred by allowing a witness to testify regarding the credibility of allegations made
by one of the children against her. We affirm the order of the circuit court.
In May 2013, the Arkansas Department of Human Services (DHS or the Department)
filed a petition for emergency custody and dependency-neglect wherein it requested that it
be granted custody of the children. In an affidavit filed in support of the petition, the family-
services worker stated that the Department exercised an emergency seventy-two-hour hold
on the children based on allegations that appellant utilized corporal punishment on H.G. to
the extent that it left bruising on the child’s buttocks and left thigh. The petition for
emergency custody was granted by the circuit court. The circuit court later determined,
Cite as 2014 Ark. App. 95
following a hearing, that there existed probable cause to believe that the children were
dependent-neglected.
An adjudication hearing was held on July 11, 2013. Among the witnesses who testified
at the hearing was Tracy Childress, a forensic interviewer with the Cooper Anthony Mercy
Child Advocacy Center who conducted an interview of H.G. Ms. Childress testified that
H.G. relayed information regarding what the child referred to as a “beating” by appellant.
Ms. Childress further testified that H.G. indicated that the punishment was administered by
appellant because H.G. did not get a spelling word correct. During direct examination of Ms.
Childress, counsel for DHS asked her whether she found H.G. credible. Counsel for
appellant objected to the question as improper opinion testimony. The circuit court
overruled the objection, and Ms. Childress was allowed to testify that she found H.G. to be
very credible.
H.G., who was eight years old at the time, also testified at the hearing. She testified
that her mother spanked her hard enough on one occasion that it left bruises on her buttocks
and her leg. She stated that she was spanked because she could not figure out how to spell
one of her assigned spelling words.
The hearing was reconvened on August 1, 2013. On that date, no testimony was
taken; however, appellant’s counsel argued that the circuit court had committed error during
the July 11, 2013 hearing by allowing Ms. Childress to give her opinion of H.G.’s credibility
during her interview. Appellant moved for a mistrial, which was denied by the circuit court.
At the conclusion of the hearing, the circuit court was asked to make a finding regarding the
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child’s credibility, and it stated that it found the child very credible. The circuit court had
previously also stated,
If I did [err] on my decision regarding the lady that testified earlier, I did hear the
child, the eight-year-old child. She was adamant. She testified that, there was
testimony about the bruising. She was whipped by her mother. She cried. It hurt,
and this child, there’s sufficient testimony from the child itself, from the child, herself.
In an order entered on August 12, 2013, the circuit court adjudicated the children dependent-
neglected based on its finding that the allegation that appellant physically abused H.G. was
true and correct. This appeal followed.
Appellant’s sole point on appeal is that the circuit court committed reversible error by
allowing a witness to testify regarding her opinion of H.G.’s credibility during a forensic
interview. We review assertions of evidentiary error under an abuse-of-discretion standard.
Sparkman v. Ark. Dep’t of Human Servs., 96 Ark. App. 363, 368, 242 S.W.3d 282, 285– 86
(2006). The circuit court has broad discretion in its evidentiary rulings; hence, the circuit
court’s findings will not be disturbed on appeal unless there has been a manifest abuse of
discretion. Id.
Our court has previously held that it is error to allow testimony regarding the
credibility of a victim of a crime. Purdie v. State, 2010 Ark. App. 658, 379 S.W.3d 541; Cox
v. State, 93 Ark. App. 419, 220 S.W.3d 231 (2005). Accordingly, the circuit court’s decision
to allow testimony at the adjudication hearing in the instant case was error.
A determination of error by the circuit court does not end the analysis. We will not
reverse based on evidentiary error without a showing of prejudice, as prejudice is not
presumed. Cheney v. Ark. Dep’t of Human Servs., 2012 Ark. App. 209, 396 S.W.3d 272.
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Appellant asserts that this type of error has been determined by the Arkansas Supreme Court
not to be harmless, citing Clinkscale v. State, 269 Ark. 324, 602 S.W.2d 618 (1980). In
Clinkscale, the court stated that while there is a presumption that a trial judge will consider
only competent evidence, the presumption can be overcome when there is an indication that
the trial judge did give some consideration to the inadmissible evidence. 269 Ark. at 326, 602
S.W.2d at 620. The court then reversed and remanded the judgment of the trial court based
on statements by the trial court indicating that it had considered the inadmissible evidence.
Clinkscale is distinguishable from the instant case. While, in Clinkscale, the statements
of the trial court indicated that it had considered inadmissible evidence in reaching its
decision, the statements by the circuit court in the case at bar indicate the opposite. At the
August 1, 2013 hearing, the circuit court acknowledged the possibility that it erred by
allowing the testimony by Ms. Childress. The circuit court then went on to expressly state
that it was basing its determination of H.G.’s credibility solely on the child’s testimony.
Therefore, there is no indication that the circuit court considered the inadmissible testimony
by Ms. Childress.1 Appellant has thus failed to demonstrate prejudice from the error
committed by the circuit court.
Affirmed.
HARRISON and GLOVER, JJ., agree.
Jeff Rosenzweig, for appellant.
The Streett Law Firm, P.A., by: Alex G. Streett, James A. Streett, and Robert M. Veach;
Tabitha Baertels McNulty, DHS Office of Policy and Legal Services; and Chrestman Group,
PLLC, by: Keith Chrestman, for appellees.
1
Although the trial court in Clinkscale also stated that it was considering only admissible
evidence, it made other statements to belie this, which formed the basis for our supreme
court’s ruling. There are no such statements from the circuit court in this case.
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