The opinion
Dale Price, Justice, dissenting. I respectfully dissent. The appellant argues that Ark. Code Ann. § 12-12-511 (Supp. 1989) was intended to apply only to civil proceedings, not criminal proceedings, and I agree.
The state argues that the broad privilege provided in Ark. Code Ann. § 17-39-107 (1987) is limited by the earlier enactment of § 12-12-511 and that, under § 12-12-511, no privilege exists at any proceeding when evidence involves child abuse, sexual abuse, or neglect of a child. However, when examining § 12-12-511 in light of the other provisions contained in the Child Abuse Reporting Act, it is clear that the “proceeding” to which § 12-12-511 directs itself is one for dependency or neglect, not a criminal proceeding. Section 12-12-513 (a)(1), for example, provides that the court, when it makes a finding of dependency or neglect, may order, on its own motion or one by a guardian ad litem, the examination by a physician, psychologist, or psychiatrist of any parent or other person responsible for the care of the juvenile at the time of the alleged abuse, sexual abuse or neglect. Clearly § 12-12-513, by its own terms, refers to a civil dependency/ neglect proceeding, not a criminal one. In addition, § 12-12-513(c) specifically excludes any evidence acquired from the court ordered examination from use against the parent or person in any subsequent criminal proceeding.
Other statutory provisions of the Child Abuse Reporting Act also appear to involve civil juvenile proceedings. For example, § 12-12-501 sets forth the purposes of the Act and in doing so alludes not only to the Act’s intent to prevent further harm to the child, but also to the Act’s intent to stabilize the home environment and preserve family life. The Department of Human Services, upon receiving reports of abuse, is required to initiate an investigation of any suspected child abuse or neglect, see § 12-12-507, and, where necessary, the juvenile court is required to order the parents or persons responsible for the care of the child to allow the investigating agency to enter the child’s residence for interviews, examinations, and investigations. See § 12-12-508.
Reports made under the Act, including those reports and information possessed by the Department of Human Services, are confidential and can only be disclosed for the six purposes listed under § 12-12- 515. In reading those purposes, no mention is made of criminal proceedings. To the contrary, the focus of those limited disclosures is primarily directed at the administration of plans or programs involving the child. In this regard, § 12-12-515 (a) (3) allows disclosure of child abuse or neglect reports to be used in a civil proceeding connected with the administration of a plan or program where the court determines that information is necessary for the determination of an issue before the court.
The Child Abuse Reporting Act fosters the reporting of suspected child abuse and neglect. At the same time, the Act encourages or mandates all parents or custodians of the child to participate in any required investigation and juvenile court proceeding that ensues. To achieve such participation, § 12-12-511 provides that evidence or confessions resulting from counseling between the person accused of child abuse or neglect and any professional person shall not be excluded from the proceeding. If, as the state suggests, such evidence can later be used in a criminal proceeding against the accused person, that person is unlikely to participate in any plan or program designed by the Department of Human Services or adopted by the juvenile court to protect the child, preserve the family and stabilize the home environment.
For the reasons given, I believe that, while information gathered by professional persons from parents or custodians of children can be used in a dependency or neglect proceeding before a juvenile court, the General Assembly, by its enactment of the Child Abuse Reporting Act, did not intend to, permit such information to be introduced against the parent or custodian in a criminal proceeding. Therefore, I would reverse and remand.
Newbern, J., joins in this dissent.