FORT SMITH -- A van driver with Area Agency on Aging of Western Arkansas was arrested Wednesday on a Franklin County accusation of failing to act when he witnessed a 9-year-old boy being raped by a 14-year-old boy in the agency's van.
A warrant filed June 2 in Franklin County Circuit Court's Charleston District said Jordan Byrd, 71, of Paris is charged with permitting abuse of a child-involved sexual activity, serious physical injury or death, a felony punishable by five to 20 years in prison.
He also is charged with failure to notify by mandated reporter, a misdemeanor. A mandated reporter is required by law to report instances of child abuse to the Arkansas Department of Human Services' Child Abuse Hotline.
Heather Patton, deputy prosecutor for Franklin County, said Byrd was arrested Wednesday on the warrant and was being held in the Franklin County jail in Ozark pending a bail hearing.
Patton said it was agreed between her office and the prosecutor's office in Sebastian County that Sebastian County would pursue any juvenile charges involving the 14-year-old. She said the offenses alleged in the charges occurred as the van was traveling from one county to the other March 4.
Neither Prosecuting Attorney Dan Shue nor chief assistant prosecutor Linda Ward returned calls Wednesday for comment on any charges filed against the 14-year-old.
The Franklin County charges came to light after Fort Smith attorney Joey McCutchen sent out a news release Wednesday that said he had filed a civil suit June 13 in Sebastian County Circuit Court on behalf of the father of the then-9-year-old, who is now 10.
The suit named as defendants the Area Agency on Aging of Western Arkansas; Valley Behavioral Health System, a mental-health institution; and the 14-year-old boy, who McCutchen said is under the care and treatment of Valley Behavioral Health System.
An administrative assistant at the Area Agency on Aging office in Fort Smith, Shannon Gomez, said Wednesday that the agency does not comment on pending litigation.
The Arkansas Democrat-Gazette left a message at Valley Behavioral Health System in Fort Smith for comment Wednesday but received no response.
McCutchen's lawsuit said that on March 4 the two boys were passengers on the Area Agency on Aging van being driven by Byrd. The Area Agency on Aging was under contract to provide transportation services for Valley Behavioral Health System patients.
Byrd is a relative by blood or marriage with the 14-year-old, McCutchen said in the lawsuit.
A probable-cause affidavit with the Franklin County criminal charges said the boys were being transported from their alternative school in Fort Smith.
McCutchen's lawsuit said the 14-year-old, sitting in the bench seat with the 9-year-old, forced him to perform oral sex on him. The 14-year-old then removed his pants and raped the 9-year-old, the complaint said.
The assaults were recorded on two surveillance cameras in the front and back of the van, according to the affidavit.
The lawsuit and the affidavit said that during the attacks the 9-year-old screamed in pain, which could be heard over the music playing on the radio, but Byrd did not intervene. The affidavit said the video showed Byrd looking into the rearview mirror several times as he drove.
According to the affidavit, after Byrd had dropped off the 14-year-old and the 9-year-old was about to get off at his stop, the 9-year-old asked Byrd, "Did you see what he did to me?" Byrd responded by saying "Huh?"
When the boy told him about the assault, Byrd did not reply and turned away, the affidavit said.
Byrd admitted to Sebastian County sheriff's investigator Lt. Philip Pevehouse in a March 14 interview that he saw the 14-year-old's naked bottom.
"I asked him if he believed [the 14-year-old] was having sex with [the 9-year-old], he said that was his opinion," Pevehouse said in the affidavit. "Byrd was asked if he could hear [the 9-year-old] hollering, he said he did."
McCutchen's lawsuit said that another employee became aware of the 14-year-old's attacks but that neither employee made reports to the Child Abuse Hotline.
The probable-cause affidavit said Area Agency on Aging supervisor Dina Newman was contacted and said Byrd did not report the attacks to her. She learned of them through a third party.
McCutchen's complaint accuses both agencies of negligence, and says it was Byrd's responsibility to keep his passengers safe, to protect them from harm and to intervene when they called for help.
The lawsuit said the Area Agency on Aging was negligent in hiring, training and supervising its drivers, including Byrd.
McCutchen said Valley Behavioral Health System was negligent for failing to notify the Area Agency on Aging, its passengers and their parents that the 14-year-old had an obsession with violence and sex and that it failed to treat and medicate him so he would not be dangerous.
The lawsuit said the 14-year-old had committed other sexual acts in the Area Agency on Aging van in the month before the March 4 attacks that involved other passengers, including a young girl in one case. In at least one of those occasions, Byrd was driving, the suit said.
McCutchen said his client seeks monetary damages for present and future medical expenses, for past and future emotional harm, and for pain and suffering.
State Desk on 06/23/2016