Gina D., In re, 92-772

• Decision Date: 22 July 1994
• Docket Number: No. 92-772,92-772
• Citation: 645 A.2d 61,138 N.H. 697
• Parties: In re GINA D.
• Court: New Hampshire Supreme Court

Page 61

645 A.2d 61

138 N.H. 697

In re GINA D.

No. 92-772.

Supreme Court of New Hampshire.

July 22, 1994.

Jeffrey R. Howard, Atty. Gen. (Nancy J. Smith, Asst. Atty. Gen., on the brief and orally), for State.

McKenney & Perreault, P.C., Amherst (Laurie S. Perreault, on the brief; Robert V. McKenney, orally and on the brief), for Jon D.

Bolton & Kiely, P.A., Nashua (Steven A. Bolton, orally and on the brief; Michael J. Kiely, on the brief), for Susan D.

BROCK, Chief Justice.

The respondent, Jon D., appeals the superior court's (Dalianis, J.) finding pursuant to RSA chapter 169-C that he sexually abused his daughter, Gina D. Relying on our recent decision in State v. Cressey, 137 N.H. 402, 628 A.2d 696 (1993), he argues that the superior court erroneously based its finding on insufficient evidence because the expert psychological testimony concluding that Gina had been sexually abused was unreliable. In addition, he contends that the superior court improperly reviewed the district court file as part of the de novo trial, and drew an improper inference from his decision not to testify, thus burdening his right against self-incrimination. Because the superior court's decision was based on erroneously admitted evidence, we reverse and remand for further proceedings.

When Gina D. was two years and ten months old, her mother, Susan D., brought her to Ann Bastille, a child and adolescent therapist. Bastille holds a master's degree in counseling and psychotherapy and has acquired specialized knowledge in the evaluation and treatment of child sexual abuse. Gina's mother was concerned about the effects on Gina of her divorce from the respondent, including the custody proceedings. She reported that Gina was engaging in sexualized play and was experiencing nightmares, behavioral difficulties, and mood swings. Gina's mother also told Bastille that another family member had made allegations of sexual abuse against the respondent. Because of the possibility of sexual abuse, Bastille first began an evaluation to "rule out" the possibility of sexual abuse as the cause of Gina's reported problems. Bastille had received training with regard to sexual abuse allegations in child custody disputes, and she took care to discount Gina's mother's reports and to conduct the major evaluation sessions with Gina without her mother being present.

Bastille eventually came to the conclusion that the respondent had sexually abused Gina. Her conclusion was based largely on verbal and nonverbal disclosures Gina made during the course of Bastille's evaluation, but was bolstered by Bastille's observations of Gina's behavior and emotions. Bastille reported Gina's disclosures to the division for children and youth services (the division). The division then filed a petition in the Nashua District Court (Howorth, J.), pursuant to RSA chapter 169-C, alleging that the respondent had sexually abused Gina. Following a hearing, the court found that Gina had been abused within the meaning of RSA chapter 169-C and that the respondent was the perpetrator. He appealed to the superior court for a de novo hearing. See RSA 169-C:28 (1990).

The superior court heard testimony on behalf of the State from Gina's mother, Bastille, and Barbara Blue, the child protective services worker who filed the abuse petition. Christopher Garner, Gina's guardian ad litem in her parents' divorce action, and Wilfred Derby, a clinical forensic psychologist, testified for the respondent, who did not testify. Like the district court, the superior court concluded that the respondent had sexually abused Gina. The respondent appealed.

The first issue we address is whether the superior court properly admitted and relied on Bastille's testimony. At the superior court trial, the respondent objected to Bastille's qualifications to testify as an expert in the field of child sexual abuse. The respondent's argument on appeal is based on our holding in Cressey, which was not decided until after the respondent filed his notice of appeal. Because the question of the reliability of Bastille's expert opinion was sufficiently raised below and the parties briefed and argued the issue citing Cressey, we will review the superior court's ruling in light of our holding in Cressey.

Expert testimony must meet a threshold level of reliability to be admissible under New Hampshire Rule of Evidence 702. Cressey, 137 N.H. at 405, 628 A.2d at 698. Under Rule 702, a psychologist's expert opinion is not sufficiently reliable to be admitted in a criminal trial as evidence that alleged victims have been sexually abused. Cressey, 137 N.H. at 407, 628 A.2d at 699; State v. Chamberlain, 137 N.H. 414, 417, 628 A.2d 704, 706 (1993); State v. Luce, 137 N.H. 419, 421, 628 A.2d 707, 709 (1993). The present case, however, is a civil proceeding, not a criminal matter, see RSA 169-C:18, I (1990). In addition, the New Hampshire Rules of Evidence do not apply to abuse and neglect proceedings; instead, the court "may admit evidence which it considers relevant and material." RSA 169-C:12, :18, III (1990). Consequently, the evidentiary holding in Cressey does not directly control the issue of Bastille's testimony in this case. Nevertheless, we must determine whether the expert opinion testimony by Bastille was relevant and material in light of our conclusion in Cressey that "a psychological evaluation of a potentially abused child does not present the verifiable results and logical conclusions that work to ensure the reliability required in the solemn matter of a criminal trial." Cressey, 137 N.H. at 407, 628 A.2d at 699.

Because abuse proceedings are not governed by the New Hampshire Rules of Evidence, we look to New Hampshire common law of evidence for guidance in analyzing the materiality and relevancy of the challenged testimony. To be relevant, evidence must have probative value that logically supports a resulting conclusion. Goldsmith v. Kingsford, 92 N.H. 442, 448, 32 A.2d 810, 814 (1943). To be material, evidence must be offered to prove a fact in issue. Welch v. Bergeron, 115 N.H. 179, 182, 337 A.2d 341, 344 (1975). Therefore, "testimony must have some tendency to establish a fact of consequence to the determination of the action" in order to be admissible into evidence. Id. Opinion testimony is relevant and material if the witness is qualified to give the opinion offered and if the opinion will aid the trier of fact in the search for the truth. See Peters v. McNally, 123 N.H. 438, 440, 462 A.2d 119, 121 (1983); Rau v. Stores, 97 N.H. 490, 494-95, 92 A.2d 921, 924 (1952).

At the appeal hearing, Bastille testified about her observations, evaluations, and conclusions concerning the possibility that Gina had been sexually abused. Bastille stated that Gina told her, " 'My daddy hurts my back,' " and that "her daddy hurts her with a funny-looking stick." She testified about a session when Gina talked about her daddy hurting her and Bastille asked her to show on an anatomical drawing where her daddy hurts her with the "funny-looking stick." The anatomical drawing showed the back of a young girl on one side and the front view on the other side. On the back view of the girl, Gina circled her buttocks area and part of her upper back. After marking the back view, Gina spontaneously turned over the paper to the front view and made marks in the genital area and the area of the breasts. She then began scribbling on the paper very hard and said, " 'He hurts me all over.' "

Bastille's testimony about Gina's disclosures and her own observations of Gina's behavior is merely factual and was not generated by her particular expertise. Her factual testimony is both relevant and material to the question of whether Gina was sexually abused by her father, the respondent. Absent other infirmities that have not been demonstrated on appeal, her factual testimony was properly admitted under RSA 169-C:12.

Bastille's expert opinion that Gina was sexually abused by her father, however, must assist the court in its search for the truth to be relevant and admissible. Relying on Cressey, the respondent contends that Bastille's conclusion was unreliable, and therefore inadmissible, because it lacked a sufficient scientific basis. Generally, the basis for an expert opinion is tested through cross-examination of the witness, and objections may affect the weight of the testimony but do not render it inadmissible. Tullgren v. Phil Lamoy Realty Corp., 125 N.H. 604, 609-10, 484 A.2d 1144, 1148 (1984). Expert psychological evidence must be based on factors in addition to the child's accounts of abuse; otherwise, the testimony is inadmissible as merely an opinion of the child's credibility. Cressey, 137 N.H. at 407, 628 A.2d at 700; see State v. Huard, 138 N.H. 256, 259, 638 A.2d 787, 789 (1994). In Cressey, however, this court decided that a thorough cross-examination of the psychologist was likely to be ineffective in exposing any infirmity in the interpretive component of an expert opinion that a child had been sexually abused. Cressey, 137 N.H. at 410, 628 A.2d at 701. "The methodology used in the psychological evaluations makes [the psychologist's] presentation of evidence effectively beyond reproach." Id.

Bastille testified that her conclusion that Gina had been sexually abused by the respondent was based on the following factors:

"[Gina's] disclosure and the ongoing emotional disturbance that [Bastille] saw in the office at times, behavioral difficulties when any kind of even nondirective questioning was used, the--the anxiety, the--especially the extensive play and talk around issues of nightmares, which certainly appeared very genuine."

Gina's symptoms, according to Bastille, were indicators that Gina had been traumatized. Based on Gina's disclosures, Bastille concluded that the traumatization was due to sexual abuse. Bastille used a prepared chart showing the signs and symptoms of child sexual abuse in evaluating Gina. She explained...