Handrahan v. Malenko

• Decision Date: 25 January 2011
• Docket Number: Docket No. Cum–09–545.
• Citation: 12 A.3d 79,2011 ME 15
• Parties: Lori HANDRAHANv.Igor MALENKO.
• Court: Maine Supreme Court

12 A.3d 79

2011 ME 15

Lori HANDRAHAN

v.Igor MALENKO.

Docket No. Cum–09–545.

Supreme Judicial Court of Maine.

Submitted on Briefs: July 7, 2010.Decided: Jan. 25, 2011.

Kenneth P. Altshuler, Esq., Childs, Rundlett, Fifield, Shumway & Altshuler, Portland, ME, for Lori Handrahan.Michael J. Waxman, Esq., Portland, ME, for Igor Malenko.Panel: SAUFLEY, C.J., and LEVY, SILVER, GORMAN, and JABAR, JJ.JABAR, J.

[¶ 1] Following the testimony of two expert witnesses in support of Lori Handrahan's complaint for protection from abuse filed against her ex-husband, Igor Malenko,¹ on behalf of the parties' minor child, the District Court (Portland, Moskowitz, J.) entered a judgment in favor of Malenko. Handrahan asks us to conclude that the expert witness testimony compelled a finding that Malenko was abusing the child. Because we conclude that the trial court's evaluation of the evidence was not clearly erroneous, we affirm the judgment.

I. CASE HISTORY

[¶ 2] In July 2009, two individuals made reports to the Department of Health and Human Services that Igor Malenko was sexually abusing his two-year-and-eight-month-old daughter. The Department began an investigation and referred the child to the Spurwink Child Abuse Program for a sex abuse evaluation.

[¶ 3] As part of the Spurwink evaluation, Dr. Lawrence Ricci performed a physical examination of the child and found no signs of any “genital or rectal trauma, either acute or prior.” Ricci then consulted with the Department; counsel for each parent; and Joyce Wientzen, L.C.S.W., who was the co-director of Spurwink, about proceeding with a forensic interview, to which they unanimously agreed. Wientzen conducted the forensic interview by reading background information, speaking to various individuals, including those who had heard the child make statements suggestive of abuse, and meeting with the child twice.

[¶ 4] When meeting with the child, Wientzen noted that the child could not recite the interview rules, demonstrate resistance to suggestion, or participate in Wientzen's attempts to assess the child's understanding of the difference between the truth and a lie. During the second interview, the child disclosed sexual abuse by her father. The child's disclosure to Wientzen was consistent with what she had told others.

[¶ 5] Following their medical and forensic evaluations, Ricci and Wientzen presented the results to a team made up of other Spurwink interviewers, a psychologist, and a nurse practitioner. The team collaborated to place the case into one of four categories: (1) strong evidence of abuse, (2) moderate evidence of abuse, (3) do not know, or (4) no evidence of abuse.

[¶ 6] The team fit this case into the category of moderate evidence of sexual abuse of the child by Malenko and recommended that the child have no unsupervised contact with him. In reaching its conclusion, the team was swayed by the specificity and consistency of the child's statements recounting the abuse. They did consider aspects that weakened the likelihood of abuse, including that the child did not offer many surrounding details; was very young; made the disclosure in the context of a custody dispute; and had been questioned previously about this abuse by Handrahan and others, which could have increased the possibility of suggestion. However, the team felt that the child's statements “could not be explained merely by suggestive questioning, or ... by some alternate form of touching, such as hygienic touching.”

[¶ 7] In August 2009, Handrahan filed a complaint for protection from abuse on behalf of her daughter. The District Court (Ellsworth, Staples, J.) entered a temporary protection from abuse order and transferred venue to Portland.

[¶ 8] Before the protection from abuse proceedings began, the court ( Moskowitz, J.) granted in limine motions made by both parties, including Malenko's motion, based on State v. Black, 537 A.2d 1154 (Me.1988), to exclude any expert opinion testimony regarding the truthfulness of any disclosure made by the child.

[¶ 9] Neither Handrahan nor two other individuals who claimed to have heard the child's disclosures were present at the hearing. Handrahan relied exclusively on Ricci and Wientzen, who testified about their examination methods and opined that there was “moderate evidence” of sexual abuse by Malenko. At the conclusion of the direct examination of these witnesses, Handrahan sought to admit Ricci's medical and Wientzen's forensic examination reports as business records pursuant to M.R. Evid. 803(6). Malenko objected, arguing that the statements of absent witnesses, which were quoted or referenced in both reports, were double hearsay and should be redacted. The court admitted both reports without redaction.

[¶ 10] At the conclusion of the hearing, the court found that Handrahan had not proved abuse by a preponderance of the evidence. See 19–A M.R.S. § 4006(1) (2009). The court distinguished judicial fact-finding from that of “examiners and medical professionals.” The court noted that, although the child's statements were the crux of the Spurwink team's opinion that there was moderate evidence of abuse, the court was hesitant to assign great weight to the statements of a child who was unable to distinguish between the truth and a lie. In addition, the court noted that it, unlike the examiners, was required to consider “bias, motive to fabricate, and other circumstantial evidence” in order to determine what had or had not been proved. In sum, the court determined that Handrahan had presented “extremely precarious evidence of an extremely serious allegation.”

II. DISCUSSION

[¶ 11] Handrahan appeals from the court's judgment, arguing that the court's determination that she had failed to meet her burden of proof was based on its failure to apply the protection from abuse statutes, 19–A M.R.S. §§ 4001–4014 (2009),² liberally, as required by section 4001, and on erroneous fact-finding.

[¶ 12] We agree with Handrahan that the protection from abuse statutes must be liberally construed and applied to promote their underlying purposes, which include (1) recognizing the serious and detrimental consequences of domestic abuse on children, and (2) providing the victims of domestic abuse with expeditious and effective protection. Id. § 4001(1), (2). Although the statutes must be construed liberally, it is still necessary for the moving party to prove its case by a preponderance of the evidence, see id. § 4006(1), through testimony and exhibits that are admissible under the rules of evidence, see M.R. Evid. 101, 1101. It is not inconsistent with a liberal construction of the statutes for a court to conclude, after carefully evaluating the evidence, that the moving party has not met its burden of proof.

[¶ 13] Additionally, we discern no error in the court's factual findings. For an appellant who had the burden of proof at trial to prevail on a sufficiency of the evidence challenge on appeal, that party must demonstrate that a contrary finding was compelled by the evidence. Efstathiou v. Efstathiou, 2009 ME 107, ¶ 10, 982 A.2d 339, 342. We review factual findings for clear error and will affirm a trial court's findings if they are supported by competent evidence in the record, “even if the evidence might support alternative findings of fact.” Preston v. Tracy, 2008 ME 34, ¶ 10, 942 A.2d 718, 720 (quotation marks omitted).

[¶ 14] In our prior decisions, we have emphasized that determining what weight to give expert testimony is exclusively within the province of the fact-finder. See, e.g., Rinehart v. Schubel, 2002 ME 53, ¶ 9, 794 A.2d 73, 76. A court is not required to “believe the testimony of any particular witness, expert or otherwise,” id. (quotation marks omitted), even when the witness's testimony is uncontradicted, Dionne v. LeClerc, 2006 ME 34, ¶ 15, 896 A.2d 923, 929. Furthermore, “[w]here the facts and assumptions underlying expert opinions are amply exposed during their testimony in the course of trial, the fact-finder is entitled to draw his own ultimate conclusions.” State v. Ellingwood, 409 A.2d 641, 644 (Me.1979).

[¶ 15] Among the evidence admitted and considered by the court was Wientzen's testimony and report repeating the child's allegation of abuse, and the Spurwink team's conclusion, testified to by Ricci, that there was “moderate evidence” of abuse. Initially, we recognize that some of this evidence may not have been properly admitted. However, because Handrahan offered this evidence to support allegations that the court determined she failed to prove, any error in admitting the evidence...