concurring.
I agree that this case should be affirmed, but I simply cannot subscribe to the majority’s rationale. Unlike the majority, I am not “puzzled” by the trial judge’s reasons for excluding Nurse Samantha Costner’s testimony under Arkansas Rule of Evidence 804(b)(6). The trial judge clearly stated her reasons for her evidentiary rulings, and I disagree with those reasons because they are not well-grounded in the law. Nurse Costner testified that the child made her statement in response to her question regarding whether she felt safe with her mother. Certainly such a question does not suggest an answer or even that the child should talk about her prior allegations of sexual abuse allegedly perpetrated by her father.
Nonetheless, the trial judge excluded the testimony because she did not believe that the “testimony of the child” had a “reasonable guarantee of trustworthiness” for several reasons. First, the judge stated that although Nurse Costner was a licensed mental-health professional who is “allowed to do therapy with this license,” she did not have the same training and education of a licensed therapist. Second, the judge noted that Nurse Costner was aware that the child had recanted to other persons and may have “consciously or unconsciously” asked questions resulting in the child repeating the statement, and she expressed doubt as to whether the child’s statement “would have resulted in the course of the 1 (¡appropriate protocol.” Finally, the trial judge noted her “biggest concern” was the testimony that the child had talked to the case manager and that she “has absolutely no information about what the case manager said or did not say, what the case manager asked or did not ask or where the conversation occurred or who was present.” Further, the judge opined that “generally, case managers do not have the education and training and licensure that is required to interview children about sexual offenses.”
It is obvious to me, and apparently also to my puzzled brethren, that the trial judge was suffering from the misguided belief that only a statement elicited in a formal forensic child-sexual-abuse interview would constitute competent evidence in this circumstance, and only individuals trained in conducting such interviews should even be allowed to speak to an alleged child-victim. This is clearly not the law, and this mistaken belief on the part of the trial judge has tainted not only the proceedings that we have before us, but also the prior adjudication where the trial judge prohibited Mr. Austin’s trial counsel from attempting to question the child on the witness stand. It is wholly disingenuous for the majority to excuse such an obvious abuse of discretion by asserting that Mr. Austin suffered “no prejudice.” I submit that it is highly probable that Mr. Austin suffered prejudice; he chose to base his entire case on Nurse Costner’s testimony.
I nonetheless believe that this case must be affirmed because Mr. Austin failed to meet the heavy burden required by Rule 60(c) of the Arkansas Rules of Civil Procedure. It is settled law that we may affirm if the trial court reaches the right result but asserts the wrong reason. Hyden v. Circuit Court of Pulaski County, 371 Ark. 152, 264 S.W.3d 493 (2007). As 17grounds for setting aside the adjudication, Mr. Austin asserted both that he had newly discovered evidence and that the child’s original testimony had been procured by fraud.
As the majority correctly notes, newly discovered evidence is not favored as a reason for justifying a new trial. Sims v. First State Bank of Plainview, 73 Ark. App. 325, 331, 43 S.W.3d 175, 179-80 (2001). Generally, the reviewing court will find no abuse of discretion in refusing to grant a new trial where a trial court bases its decision on a credibility determination. Lee v. Lee, 330 Ark. 310, 954 S.W.2d 231 (1997) (holding that the trial court did not abuse its discretion in refusing to grant a new trial where it was asserted by the noncustodial parent that the custodial parent had made statements that were contrary to his trial testimony). In the instant case,- the trial court was made aware that the child had accused a person other than her father of committing the sexual abuse and that this accusation had been determined to be unfounded. Accordingly, I cannot find an abuse of discretion on the part of the trial court for rejecting Mr. Austin’s claim that there was newly discovered evidence.
Likewise, I find Mr. Austin’s case lacking with regard to his proof of fraud. The party seeking to set aside a judgment for fraud pursuant to Rule 60(c)(4) has the burden of proving fraud by clear, cogent, and convincing evidence or clear, strong, and satisfactory proof. Bullock v. Barnes, 366 Ark. 444, 236 S.W.3d 498 (2006). As noted previously, the child’s credibility was impeached by subsequent unfounded allegations, and this fact was brought to the attention of the trial court.
| sClearly Mr. Austin could have attempted to present a stronger case. In his petition, he alleged that the child had made statements similar to the one she made to Nurse Costner to other individuals, yet he only called the nurse. In her statement, the child claimed that her mother, Cassie Dieu, had coerced her to make a false accusation against Mr. Austin. However, Mr. Austin did not confront Ms. Dieu or even attempt to call her as a witness. At the hearing, Mr. Austin did not even attempt to show in what respect the child’s statement differed from the statement that was admitted in the adjudication hearing. Under these facts, I cannot conclude that the trial court abused its discretion in refusing to set aside the adjudication.