Dependency of S.S., In re

• Citation: 814 P.2d 204,61 Wn.App. 488
• Parties: , 814 P.2d 204 In re the DEPENDENCY OF S.S., b.d
• Decision Date: 12 May 1983
• Court: Court of Appeals of Washington

Page 488

61 Wn.App. 488

61 Wn.App. 1004, 814 P.2d 204

In re the DEPENDENCY OF S.S., b.d. 5/12/83 David SAMPSON, Appellant, v. STATE of Washington, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

No. 23669-5-1.

Court of Appeals of Washington,

Division 1.

April 29, 1991.

Publication Ordered June 3, 1991.

Washington Appellate Defender Deborah Whipple, Seattle, for appellant.

Kenneth Eikenberry, Atty. Gen., Stephen Hassett, Seattle, Lori Larcom, GAL Program, Seattle, for respondent.

SCHOLFIELD, Judge.

David Sampson appeals the trial court's order declaring that his child, S.S., is dependent as to him, pursuant to RCW 13.34.030(2)(b). We affirm.

FACTS

S.S. was born on May 12, 1983. Her parents are divorced. The child's mother, Lori Sampson, is the custodial parent, and until this case arose, David Sampson had visitation every other weekend. On February 24, 1988, an amended dependency petition regarding S.S. was filed by the Department of Social and Health Services (hereinafter the Department), alleging that the child was dependent based on RCW 13.34.030(2)(b)--that the child was abused or neglected as defined in RCW 26.44.

A fact-finding dependency hearing was held from July 26, 1988 through August 1, 1988. The Department apparently indicated its intention to introduce S.S.'s hearsay statements pursuant to RCW 9A.44.120. The trial court held a hearing to determine S.S.'s competency to testify. S.S. was 5 years old at the time of the trial. The trial court applied the competency factors set forth in State v. Allen, 70 Wash.2d 690, 424 P.2d 1021 (1967). ¹ In determining that S.S. was incompetent to testify, the trial court stated:

My problem with [S.S.] in testifying is whether or not she has the mental capacity, had the mental capacity at the time of any occurrence, and to receive an accurate impression of it.

Her flat statements to the effect, and her testimony is replete with the fact that, "David stuck his penis in my mouth and in my bottom," or words to this effect, are just flat statements.

In regard to what happened before or after, although she related, through my examination, what occurred, but then she came to the ultimate fact that nothing happened on those occasions, raises some question to me whether or not she had the mental capacity at the time of the occurrence to sufficiently testify and give an accurate impression of it.

Again, in regard to her memory, sufficient to retain an independent recollection, again, these are just flat statements, "That he stuck his penis in my mouth and put it in my bottom, period." And without any elucidation of how this occurrence came about, but just bare statements, leads me that for this purpose, she would be incompetent to testify.

The Department's case consisted of the testimony of Lori Sampson, S.S.'s mother; Myrtle Eriksson, S.S.'s grandmother; Megan Crouse, a social worker with the Eastside Sexual Assault Center; Hiltrud Verdier, a counselor for the Children's Home Society; Denise Granberg, a teacher at S.S.'s school; and Robert Vallor, a police investigator.

The Department presented the following testimony relating to S.S.'s hearsay statements regarding sexual abuse: ² In December 1987, S.S. told her grandmother that her Daddy shoves his "wee wee" into her face when he comes out of the bathroom. That same month, S.S. told her mother that Daddy put his "wee wee" in front of her when he came out of the bathroom. In May 1988, S.S. also indicated to her grandmother that her father had put his "wee wee" in her mouth and "wee weed" in her mouth.

In February 1988, S.S. told Megan Crouse that her father touched her genital area with his toe and his ankle, "[a]t his house, my bedroom". On March 7, 1988, S.S. used anatomically correct dolls to demonstrate to Crouse the male doll placing his penis in the mouth and vaginal area of the female doll.

Finally, in one of S.S.'s therapy sessions with Hiltrud Verdier, the child indicated to Verdier that "My dad touched me down there", during a discussion about it being inappropriate for adults to touch children's private parts. The child went on to say that "he put something in there."

After considering the Dutton ³ and Ryan ⁴ factors, the trial court found that S.S.'s hearsay statements had the requisite indicia of reliability. The court went on to note, in addition, that because of its earlier ruling that the child was incompetent to testify, corroboration of the statements was necessary. The trial court noted that corroboration must consist of " ' "evidence of sufficient circumstances which would support a logical and reasonable inference' " that the act of abuse described in the hearsay statement occurred." State v. Swan, 114 Wash.2d 613, 622, 790 P.2d 610 (1990) (quoting State v. Hunt, 48 Wash.App. 840, 849, 741 P.2d 566, review denied, 109 Wash.2d 1014 (1987)).

The corroborating evidence here consisted of the sexualized behavior exhibited by S.S. S.S.'s grandmother testified that in December 1987, S.S. was nude after her bath, and she lay down on the bed and began thrusting her pelvis in the air, just prior to her statement about Daddy and his "wee wee". Prior to this time, S.S. had kissed and licked her grandmother's buttocks and attempted to put her hand up the leg of her grandmother's pajamas. Lori Sampson also testified that S.S. had been rubbing her vaginal area with a turkey baster and that S.S. had kissed and licked Lori's buttocks. Lori Sampson also testified that S.S. pulled down her own pants, looked at herself in the mirror, and commented on what a "pretty bottom" she had.

In addition, Denise Granberg, one of S.S.'s teachers, indicated that the child was angry and hostile and acted out aggressively after weekend visitations with David Sampson, and that the child had attempted to masturbate with a screwdriver. Hiltrud Verdier also reported that she had seen S.S. engage in sexualized behavior by grabbing an 18"'-long wand and letting it glide in and out of her mouth in a rhythmic fashion, and S.S. asked if it would all fit in her mouth.

In addition to the child hearsay statements admitted pursuant to RCW 9A.44.120, Megan Crouse testified that on March 25, 1988, during an interview with a police detective and the prosecutor, S.S. indicated that she had had what the detective described as "oral and vaginal sexual contact" with her father. Crouse's testimony regarding the police interview was admitted over objection, pursuant to ER 803(a)(4), the medical diagnosis and treatment exception. Although the State originally sought to admit this testimony under RCW 9A.44, the trial court declined to do so because of inadequate notice to the defense.

In an order entered on January 25, 1989, the trial court found S.S. to be dependent as to Sampson, and a dispositional plan providing for counseling and no contact between S.S. and David Sampson was also entered. Following the denial of his motion for reconsideration, Sampson appealed to this court.

The Department filed a motion on the merits. The motion was denied and this court remanded the case to the trial court for the following reason:

The trial court's oral findings regarding S.S.'s competency do not clearly indicate whether the court found that S.S. lacked the mental capacity at the time of the events to "receive accurate impressions" of them, or whether the court found only that she lacked sufficient memory to retain an independent recollection of the events. Clarification of the oral findings regarding testimonial competency is necessary in order to resolve the issue raised on appeal.

The trial court entered supplemental findings and conclusions. In pertinent part, these findings and conclusions state:

B. [S.S.] demonstrated an understanding of her obligation to speak the truth while on the witness stand, and she had the capacity to understand simple questions about the occurrence in question and to express in words her memory of it. However, it appeared to this court that [S.S.] did not have sufficient memory, at the time of the competency hearing, to retain an independent recollection of the occurrence or occurrences in question. In addition, this court was unable to determine, at the time of the competency hearing, what [S.S.'s] mental capacity was at the time of the occurrence or occurrences in question or whether she was able to receive an accurate impression of said occurrence[s]....

(Italics ours.)

II. CONCLUSIONS OF LAW

[S.S.] was incompetent to testify at the dependency fact finding in this matter based upon her lack of memory sufficient to retain an independent recollection of the occurrence[s] in question. This court could not determine what her mental capacity was at the time of the occurrence[s] and to receive accurate impressions thereof....

CHILD HEARSAY STATEMENTS

RCW 9A.44.120 reads in pertinent part:

A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, not otherwise admissible by statute or court rule, is admissible in evidence in dependency proceedings under Title 13 RCW and criminal proceedings in the courts of the state of Washington if:

(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and

(2) The child either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness: Provided, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

In State v. Ryan, supra, the Washington Supreme Court noted that it had adopted a set of factors applicable to determining the reliability of out-of-court declarations in State v. Parris, supra. Those factors are:

"(1) whether there is an apparent motive to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the...