Crosby v. Crosby

• Decision Date: 07 February 2007
• Docket Number: No. CA 06-756.,CA 06-756.
• Citation: Crosby v. Crosby, 97 Ark. App. 316, 249 S.W.3d 144 (Ark. App. 2007)
• Court: Arkansas Court of Appeals
• Parties: Carl CROSBY, Appellant, v. Carmen CROSBY, Appellee.

249 S.W.3d 144

97 Ark.App. 316

Carl CROSBY, Appellant, v. Carmen CROSBY, Appellee.

No. CA 06-756.

Court of Appeals of Arkansas.

February 7, 2007.

Worsham Law Firm, P.A., by Richard E. Worsham, Little Rock, AR, for appellant.

John C. Throesch, Pocahontas, AR, for appellee.

JOSEPHINE LINKER HART, Judge.

Carl Crosby appeals from a Randolph County Circuit Court order prohibiting his stepsons from having contact with his twin four-year-old daughters when he exercises his visitation with his daughters. On appeal, he argues that the trial court erred in finding that it was in the best interest of the minor children to limit his visitation rights. We affirm.

Carl Crosby and appellee Carmen Crosby divorced on December 27, 2004, and pursuant to a settlement agreement, Carmen was awarded custody of the parties' two children and Carl received visitation. The two children, As. and Al., are twin girls, born January 25, 2002. Almost immediately, problems with visitation ensued.

Carl remarried in August 2005. His new wife, Jennifer, brought with her two sons, J. and A.¹ In October 2005, As. and Al. allegedly told their maternal grandmother that their new stepbrothers had sexually assaulted them. After this revelation, Carmen restricted Carl's access to the twins, and on November 18, 2005, she filed a petition to modify Carl's visitation. Carl answered, and on December 6, 2005, he filed a motion asking the trial court to find Carmen in contempt for obstructing his visitation.

At the ensuing February 6, 2006 hearing, Stan Rogers, an investigator for the Arkansas State Police Crimes Against Children Division, testified that on October 11, 2005, a complaint was filed on the child-abuse hotline. Acting on the complaint, he conducted separate interviews of As. and Al. Each of the girls stated that while they were staying at their father's house, J. and A. pulled down their pants, touched them on their vaginas, and poked them in their pubic area with a purple stick. They both also stated that their father had spanked the boys "really hard." Rogers believed that the twins' stories were consistent. Rogers also interviewed Carmen and obtained statements from Carmen's mother, Frances Rose, and Dr. Howell Beret, who had examined the girls at Carmen's and Rose's request. After completing his initial inquiry, Rogers passed the information to investigators in Little Rock. Ultimately, however, the case was referred to Sgt. Curtis Wood of the Benton Police Department, who found insufficient evidence to pursue a sexual-abuse case.

Teresa Sain, a licensed clinical social worker for Life Strategies Counseling, testified that she began counseling As. and Al. on December 28, 2005. Sain stated that Carmen had contacted her about counseling the girls because the twins had disclosed that they had been sexually molested by their stepbrothers. Sain further testified that, after she established a rapport with the children in her counseling sessions, the twins made similar disclosures to her. She opined that there was no indication that the girls had been coached in their statements. Carmen testified that she had taken the twins to Stan Rogers after she had made a complaint through the child-abuse hotline. She stated she was directed to take the girls to Hot Springs for further investigation of the sexual-abuse allegations. Carmen described how As. and Al. were apparently traumatized by the physical examination that they were subjected to at the child advocacy center at St. Joseph's Mercy Hospital. She described how she had to hold the children down and how they screamed and cried during the physical examination. She then noted that the twins were interviewed shortly after their physical exam and that the interviews each lasted less than twenty minutes. Carmen was then approached by Sgt. Wood, who suggested to her that he believed that she had made up the allegations.

Carmen asserted that As. and Al. had been consistent in their allegations of sexual abuse. Carmen stated that prior to the disclosures that the girls had made to Frances Rose, she had noticed significant changes in the girls' behavior. Carmen claimed that she had disciplined the girls for sexually acting out. She also noted that the girls had complained about "their bottoms hurting a lot" after visits at their father's house, which she at first ascribed to problems with toilet training.

On cross-examination she testified that she was aware that Carl had an extramarital affair with his current wife Jennifer. She admitted that she referred to the woman as "a whore and a bitch." However, she denied harboring resentment against her ex-husband for having married his paramour. Carmen stated that she had not allowed Carl to have overnight visits with the twins at his home in Benton since October because that was where the stepchildren resided and she was protecting her children.

Dr. Howell Beret, a retired but still-licensed physician, testified that he examined As. and Al. He insisted on seeing the twins individually. According to Dr. Beret, they each stated that their stepbrothers had been "poking and touching" them. He stated that "this information just flowed out of them." He examined their perineum and did not find any evidence of scratches or abrasions, but he contended that lack of obvious physical findings "did not cause [him] to discount what they were telling [him]." Dr. Beret stated unequivocally that neither the State Police nor the Benton Police Department contacted him directly concerning his findings.

Sgt. Wood testified that he was in charge of the criminal investigation division of the Benton Police Department. Although he conceded that he did not have any special expertise in investigating child sexual-abuse cases, he investigated the allegations after he received a report from the Crimes Against Children Division of the Arkansas State Police. After reviewing the report that he received from the State Police, Wood concluded that the twins needed to be interviewed again because, in his opinion, some of Rogers's questions "could be interpreted as being leading and may have prompted some of the answers."

According to Wood, the boys were interviewed first, but he only observed the interview with the younger boy, J. Wood claimed that he saw "no signs of deception." He also interviewed Carl Crosby, who stated that he was only interested in finding the truth. Wood claimed that he called Dr. Beret from the child advocacy center and spoke to him about his findings that there was no physical evidence suggesting sexual abuse.

Wood stated that neither twin "passed" the portion of the interview where it was sought to establish whether they understood what was true and not true. He also noted that As.'s interview was terminated "early" because she was "moving around." Wood conceded that if he had been conducting the interview, he probably would have taken a break and tried to complete the interview. Wood admitted that he did not believe the girls' stories were credible. He did, however, note that both of the girls told him without being able to provide details that their father was "mean" to their mother.

According to Wood, he also spoke with Carmen and told her that the allegations of sexual abuse could not be substantiated. He found it remarkable that Carmen was not relieved to hear that it would be the disposition of the case. He also recalled that "she could not believe that Carl...