Dependency of A.E.P., Matter of

• Decision Date: 21 May 1998
• Docket Number: No. 65205-8,65205-8
• Citation: 956 P.2d 297,135 Wn.2d 208
• Court: Washington Supreme Court
• Parties: In the Matter of the DEPENDENCY OF A.E.P. and W.M.P., Minor Children. Michael Petcu, Petitioner, and The Department of Social and Health Services, Respondent.

Page 208

135 Wn.2d 208

956 P.2d 297

In the Matter of the DEPENDENCY OF A.E.P. and W.M.P., Minor Children. Michael Petcu, Petitioner, and The Department of Social and Health Services, Respondent.

No. 65205-8.

Supreme Court of Washington En Banc.

Argued Jan. 28, 1998.

Decided May 21, 1998.

Gene M. Grantham, Seattle, Amicus Curiae for Washington Association of Criminal Defense Lawyers.

Norm Maleng, King County Prosecutor, James M. Whisman, Deputy King County Prosecutor, Seattle, Amicus Curiae For Washington Association of Prosecuting Attorneys.

Preble Law Firm, Gary A. Preble, Olympia, for Petitioner.

Christine O. Gregoire, Attorney General, and Edward J. Dee, Assistant Attorney General, Olympia, for Respondent.

DOLLIVER, Justice.

In the course of a dependency hearing concerning the welfare of five- and three-year-old sisters, Judge Toni A. Sheldon allowed A.E.P., the five year old, to testify concerning allegations of sexual abuse by her father, Michael Petcu. The judge also admitted into evidence numerous hearsay statements made by A.E.P. to seven different individuals. Michael Petcu (Petitioner) claims A.E.P. was incompetent to testify, and he claims her hearsay statements were inadmissible under RCW 9A.44.120.

Our summary of the facts has been derived from the trial court's findings of fact and from the testimony of the numerous witnesses. The record contains nearly 1,500 pages of transcripts of testimony given during the dependency hearing. Since the second issue involves the reliability and admissibility of A.E.P.'s hearsay statements, the content of those statements and the circumstances surrounding the making of those statements will be explained in detail.

Petitioner and Elizabeth (Liz) Petcu are the biological parents of A.E.P., born on November 22, 1987, and W.M.P., born on February 6, 1990. The parents are divorced, and Petitioner had custody of the girls. Petitioner and the girls resided in Mason County at the time the dependency petition was filed in 1993.

Prior to fall 1992, Petitioner had paid Alice Eccelston and her husband Tom Nelson to provide child care for A.E.P. and W.M.P. Eccelston testified they had provided child care for approximately one and one-half years. She normally bathed the girls every other day, and she never observed any sexualized behavior between the girls in the bathtub.

From October or November 1992 until the filing of the dependency petition in April 1993, Deanne Montgomery and her husband Dan provided child care to A.E.P. and W.M.P. Deanne and Dan have four children of their own. A.E.P. and W.M.P. would usually spend ten hours a day, five days a week, at the Montgomery house; but on occasion the girls would stay six or seven days a week, and on some days they would stay for longer hours as well.

Deanne testified she observed many instances of inappropriate sexualized touching between A.E.P. and W.M.P. in the course of her providing child care. During bathing, A.E.P. would allegedly try to wash W.M.P.'s vaginal area. One time in a bath, A.E.P. allegedly attempted to insert a little sailor toy into W.M.P.'s vagina. Deanne discussed these matters with her husband, and he supposedly would relay the information to Petitioner when Petitioner arrived in the evenings to pick up his daughters. Petitioner testified the Montgomerys never informed him of any problems with A.E.P. and W.M.P. prior to April 1993.

In late March or early April 1993, Deanne caught her seven-year-old son, C.M., under a blanket with A.E.P. A.E.P.'s pants and underpants were down and C.M. was tickling A.E.P. in the vaginal area. Petitioner introduced testimony from two other children who rode the same school bus as C.M., and both of those children testified C.M. would inappropriately touch and fondle other kids on the bus. The trial court's fact findings make no mention of these allegations about C.M.'s apparent pattern of behavior.

On April 13, 1993, Deanne and her friend, Shawn Murphy, caught A.E.P. and W.M.P. lying on the floor in a bedroom. W.M.P. was on her back with her pants pulled down, A.E.P.'s hand was on W.M.P.'s vaginal area, and W.M.P. was screaming and fighting to get away. Deanne and Shawn separated the girls and punished A.E.P. by making her stand in a corner for a period of time. After Deanne called Petitioner at his place of work, she and Shawn questioned A.E.P. for somewhere between 45-to-90 minutes trying to discover where A.E.P. had learned such behavior. At the beginning of the interview, A.E.P. was upset, was crying, and did not want to discuss the matter. Deanne and Shawn comforted A.E.P., told her she could trust them, and calmed her down.

In the course of the interview, A.E.P. said her father had touched her inappropriately, skin to skin, and the touching was not during baths. A.E.P. also said her mother had touched her, and her mother knew about her father touching her. When Deanne's husband Dan came home after work, he took A.E.P. into the kitchen and also questioned her for close to an hour. A.E.P. again stated her father had touched her inappropriately.

A.E.P.'s disclosures to Deanne, and to Dan, were in response to completely closed, leading questions. Deanne Montgomery, herself a victim of sexual abuse as a child, had questioned A.E.P. 12-to-15 times on prior occasions whether anyone had touched her, and on several of those occasions Deanne had asked A.E.P. if her father had touched her. Both Montgomerys admitted they had no training in interviewing techniques.

On the same day as these interviews, Deanne called Child Protective Services (CPS) and reported the alleged abuse. Kyle Smith, a CPS worker, received the report the next day, on April 14, 1993. Kyle spoke with Deanne on the 14th, and both girls were taken into protective custody by law enforcement. The details surrounding A.E.P.'s being taken into custody are relevant to the circumstances of A.E.P.'s hearsay statements to Kyle.

According to Kyle's testimony, she and Sheriff Deputy O'Brien picked up A.E.P. from the Blackwell home around 5:30 p.m. Someone at the Blackwell residence was apparently baby-sitting A.E.P. When Kyle took A.E.P. from the residence, A.E.P. was crying. In the car, Kyle held A.E.P. in her lap to comfort her. The deputy stopped at a substation to use the restroom, and Kyle took A.E.P. inside the substation. Kyle began chatting with A.E.P. about where and with whom she lived. Kyle then saw Petitioner drive up to the front of the substation, so Kyle took A.E.P. to the back of the station, where they sat on the stairs and continued talking. A.E.P. had also seen her dad pull up, and she was distracted because she wanted to see him, but Kyle would not let A.E.P. speak with her father. In the back of the substation, Kyle discussed with A.E.P. whether A.E.P. knew the difference between truth and lies. Kyle then started talking about good touches and bad touches, but she stopped questioning A.E.P. because Kyle did not have any interviewing tools with her. Kyle also realized "that that was the place not to do the interview sitting on the stairs." Narrative Report of Proceedings at 122 (Kyle Smith).

After Petitioner left the substation, Kyle took A.E.P. and drove to Kyle's office. It was approximately 8:30 p.m. when they arrived at the office. Kyle took A.E.P. to McDonald's, which was within walking distance. Kyle bought A.E.P. a "Happy Meal," and they took their food back to the office. While still eating, Kyle showed A.E.P. a body map and began to discuss it with A.E.P. In the interview, A.E.P. stated she had been inappropriately touched by C.M. (age 7) and K.B. (age 4). After A.E.P. had disclosed the touching by C.M. and K.B., Kyle asked if any bigger person or adult had touched her, and A.E.P. got tears in her eyes and said she was not supposed to talk about it. A.E.P. explained her dad told her she should not talk about it and would get put in a corner or spanked.

In response to Kyle's questioning, A.E.P. stated "her father touched her privates with his hand in his bedroom; that her father made her touch his bare buttocks; that her father tried to make her touch him in addition to touching his bare buttocks and she pulled her hand away; that while her father was touching her, he was wiggling his penis; and that her father stuck his tongue in her mouth and on her leg." Clerk's Papers at 38-39. The specific details given to Kyle included bits of information such as it did not hurt when her dad touched her privates; it occurred in the nighttime; and it occurred on the floor of dad's bedroom. When asked where W.M.P. was during this alleged touching, A.E.P. said W.M.P. was sleeping in dad's bed.

On cross examination, Kyle admitted the CPS intake sheet indicated "that Mom had touched both [A.E.P.] and [W.M.P.] in their privates." Narrative Report of Proceedings at 177 (Kyle Smith). The information on the intake sheet assumedly came from Deanne Montgomery's call to the CPS. Despite this information, Kyle never asked A.E.P. about seeing her mother touch W.M.P. Kyle asked A.E.P. one time whether her mother had touched her, and after A.E.P. said no, Kyle stopped pursuing that line of questioning.

The day of April 14, 1993, A.E.P. and W.M.P. were placed with Judy Brewer, a foster mother. Judy received W.M.P. in the early afternoon, but she did not get A.E.P. until around 9:30 p.m., after A.E.P. had been interviewed by Kyle Smith. A.E.P. was tired when Judy picked her up. Judy had the girls for nearly six weeks, but she never observed any sexual acting out between the girls during baths. Judy also never observed any sexualized touching when the girls were left in a room to play together.

Two days after receiving the girls, Judy took them to Dr Victor Cillis for an examination. One month later, Dr. Cillis conducted a second examination. After this second visit, A.E.P. was very upset in the car on the way home. She was upset about being touched by the doctor during a pelvic exam. ...