Dependency of M.P., s. 31290-1-

• Court: Court of Appeals of Washington
• Citation: 76 Wn.App. 87,882 P.2d 1180
• Decision Date: 31 October 1994
• Docket Number: Nos. 31290-1-,31291-0-,31292-8-I and 31293-6-I,s. 31290-1-
• Parties: In the DEPENDENCY OF M.P., J.P., D.P., S.P., Minor Children. D.P., Appellant, v. THE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

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76 Wn.App. 87 882 P.2d 1180 In the DEPENDENCY OF M.P., J.P., D.P., S.P., Minor Children.
D.P., Appellant,
v.
THE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent. Nos. 31290-1-I, 31291-0-I, 31292-8-I and 31293-6-I. Court of Appeals of Washington,
Division 1. Oct. 31, 1994.

[882 P.2d 1181]

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Catherine Lynn Floit, Wa Appellate Def Assoc Seattle, for appellant.

[882 P.2d 1182] Delores A. Peterson, Charlotte Ennis Clark Mahoney, Asst. Atty. Gen., Social & Health Services, Office of the Atty. Gen., Seattle, for respondent.

BECKER, Judge.

D.P., a divorced father of four young children, appeals from an order determining that his children

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are dependent and an order limiting his contact with the children. We affirm, concluding that substantial evidence supports the orders and that the trial court did not err in its rulings admitting child hearsay and opinion testimony.

I.

In June, 1990, the mother left the family home with the children and stayed for a week in a domestic violence shelter. Three months later, she filed for divorce from the father, her husband of 6 years. The divorce, which became final in August, 1991, allowed the father unsupervised visitation. ¹ In that same month, the State petitioned for dependency as to all the children. At this time the children--D, a boy, and J, S, and M, three girls--were aged 5, 4, 2, and 3 months, respectively.

The dependency petition alleged, among other things, that the mother told the Child Protective Services social worker the father had raped the mother a year before and that their daughter, J, had witnessed the rape; that the mother saw blood in J's panties a year before that, in 1989, and was concerned the father might have sexually abused J; and that the mother said the father had physically abused the three oldest children.

At the fact-finding hearing, the mother testified that the marriage had been troubled by the father's anger, his controlling behavior, and his physical and emotional abuse of her, which in turn affected the children. Counselors generally agreed the mother was unassertive, dependent on her husband, and afraid of his disapproval. Evidence showed this pattern continued after the couple separated. The court heard evidence of conduct by the father that was abusive toward the children. In addition, a counselor testified about J's statements indicating that J was afraid of the father and that the father had molested her.

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II. DEPENDENCY DETERMINATION

The State is required to prove dependency by a preponderance of the evidence. In re Welfare of J.K., 49 Wash.App. 670, 673-74, 745 P.2d 1304 (1987), review denied, 110 Wash.2d 1009 (1988); RCW 13.34.130.

The court made a determination of dependency applying to all four children under the statute defining a dependent child as one:

Who has no parent, guardian, or custodian capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development[.]

RCW 13.34.030(2)(c).

The court made a determination of dependency specific to J under the statute defining a dependent child as one:

Who is abused or neglected as defined in chapter 26.44 RCW by a person legally responsible for the care of the child[.]

RCW 13.34.030(2)(b). ²

To evaluate the father's claim of insufficient evidence of dependency, we determine [882 P.2d 1183] whether substantial evidence supports the court's findings of fact and whether the findings support the conclusions of law. In re Dependency of S.S., 61 Wash.App. 488, 504, 814 P.2d 204, review denied, 117 Wash.2d 1011, 816 P.2d 1224 (1991). In a dependency proceeding, evidence is substantial if, when

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viewed in the light most favorable to the party prevailing below, it is such that a rational trier of fact could find the fact in question by a preponderance of the evidence. See In re Dependency of C.B., 61 Wash.App. 280, 285-86, 810 P.2d 518 (1991). This court is not to weigh the evidence or the credibility of witnesses. In re Sego, 82 Wash.2d 736, 739-40, 513 P.2d 831 (1973).

A. Admissibility of Evidence of Sexual Abuse Under Medical Diagnosis or Treatment Exception to Hearsay

The trial court found significant an event that occurred during a church camping trip shortly after the couple separated. J (then 3 years old) was next to her mother in the tent when the father began sexual advances on the mother. The mother begged him to stop when J woke up and started to cry. The father pinned the mother's hands to her side, told J to go back to sleep, and had intercourse with the mother.

The father contends that the court erred in admitting J's subsequent disclosures to Carol Lee Smith, her therapist, under ER 803(a)(4), ³ the medical diagnosis or treatment exception to hearsay.

During the first counseling session, J (then 4 years old) told Smith that on the camping trip, Daddy got on top of Mommy and would not stop. J also said during her last visit with her father she could not sleep because he bothered her the whole time. During the next session, J portrayed the incident in the tent using dolls, at Smith's request. Smith then reminded J that she had said the last time she was with her father she could not sleep and asked J to show her what happened. Smith said J put the dad doll face down on the [J] doll and made a "masturbating motion" with her hand. Smith asked J what happened next. J said she could not hear; she put the head of the dad doll close to the ear of

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the J doll and explained the dad doll was making a lot of noise.

During a later session, Smith and J were playing a game involving drawing cards that requested an action or response. J drew a card that said "tell about a time when your feelings were hurt." Smith said J responded:

when daddy jumped on my tummy like I told you last time. He went like this ... and she...