Middlebrook v. Ark. Dep't of Human Servs.
2015 Ark. App. 161
Ark. Ct. App.2015Background
- Child E.M. (born 2009) alleged that appellant Diha Middlebrook’s boyfriend, Brian Holcomb, touched E.M.’s vagina with his penis while Middlebrook was at the store. Middlebrook conceded sexual abuse occurred.
- Arkansas State Police and DHS investigated; E.M. gave varying accounts and showed trauma responses in the children’s advocacy-center interview.
- DHS assumed emergency custody and filed a petition; the circuit court found probable cause and held an adjudication hearing.
- Testimony conflicted about whether Middlebrook cut off contact with Holcomb or believed/protected E.M.; Middlebrook and others testified Holcomb no longer lived in Arkansas.
- A forensic psychological evaluation of Middlebrook was admitted without contemporaneous objection at trial and considered by the court.
- The circuit court adjudicated E.M. dependent-neglected, finding Middlebrook failed to take reasonable action to protect E.M. from sexual abuse; Middlebrook appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supported adjudication of dependency-neglect | DHS: Sexual abuse occurred and Middlebrook’s failure to protect placed child at substantial risk of harm | Middlebrook: She cut off contact and kept child separated from alleged offender; thus no neglect | Court: Adjudication upheld — credibility determinations supported finding of failure to protect and risk of harm |
| Whether admission of psychological evaluation was improper | Middlebrook: Evaluation should not have been admitted (argued on appeal) | DHS/Court: Evaluation was admitted at trial; no contemporaneous objection | Court: Issue not preserved for appeal due to lack of trial objection; affirmed |
Key Cases Cited
- Eason v. Arkansas Department of Human Services, 423 S.W.3d 138 (Ark. Ct. App. 2012) (standard of review and deference to factfinder in DHS adjudications)
- Atkinson v. Atkinson, 32 S.W.3d 41 (Ark. Ct. App. 2000) (reviewing standard for clearly erroneous findings)
- Hoffman v. State, 711 S.W.2d 151 (Ark. 1986) (deference to trial court on credibility and weight of testimony)
- Seago v. Arkansas Department of Human Services, 360 S.W.3d 733 (Ark. Ct. App. 2009) (focus of adjudication is the child; neglect may be imputed without reference to which parent committed the abuse)
- Lipscomb v. Arkansas Department of Human Services, 2010 Ark. App. 257 (Ark. Ct. App. 2010) (a parent can be unfit for failing to protect even if not the abuser)
- Sparkman v. Arkansas Department of Human Services, 242 S.W.3d 282 (Ark. Ct. App. 2006) (parent’s duty to take affirmative steps to protect child)
- Blanchard v. Arkansas Department of Human Services, 379 S.W.3d 686 (Ark. Ct. App. 2010) (appellate courts will not second-guess trial court credibility determinations)