L.S. v. C.T.

• Decision Date: 14 January 2009
• Docket Number: No. 24636.,No. 24840.,24636.,24840.
• Parties: L.S., Petitioner and Appellant, v. C.T., Respondent and Appellee. L.S., Plaintiff and Appellant, v. C.T., Defendant and Appellee.
• Court: South Dakota Supreme Court

760 N.W.2d 145

2009 SD 2

L.S., Petitioner and Appellant, v. C.T., Respondent and Appellee.

L.S., Plaintiff and Appellant, v. C.T., Defendant and Appellee.

No. 24636.

No. 24840.

Supreme Court of South Dakota.

Considered on Briefs November 3, 2008.

Decided January 14, 2009.

Richard A. Johnson, Gregory T. Brewers of Strange, Farrell & Johnson, PC, Sioux Falls, South Dakota, Attorneys for appellant.

Mary H. Burd of Burd Law Office, Sioux Falls, South Dakota, Attorneys for appellee.

ZINTER, Justice.

[¶ 1.] Former wife commenced actions for a protection order and for modification of the visitation provisions of her divorce decree, alleging that her former husband was sexually abusing the parties' child during visitations. The circuit court found that former wife failed to prove her allegations and denied relief. Because the circuit court's findings of fact are not clearly erroneous, we affirm.

[¶ 2.] L.S. (Mother) and C.T. (Father) were married on August 29, 1999. They had one child, daughter C.M., born June 8 2002. The parties were living in Nebraska at that time but separated approximately three months after C.M.'s birth. After the separation, Mother and C.M. moved to Missouri. For the next fourteen months, Father travelled ten hours, round-trip, to visit C.M.

[¶ 3.] The parties divorced on March 1, 2004. They were granted joint legal custody, with Mother having primary physical custody. In June or July of 2004, Mother relocated to Canton, South Dakota and registered the divorce decree as a foreign judgment. Shortly thereafter, according to Mother, C.M. began making allegations of sexual abuse by Father.

[¶ 4.] As a result of the allegations, Father was investigated in August and September 2004, by Detective Phil Lang of the Lancaster County, Nebraska sheriff's department and by Nebraska child protection officials. Detective Lang interviewed Father, who denied the allegations. C.M. was referred to the Child's Voice¹ in Sioux Falls for a physical examination. C.M.'s examination did not show signs of abuse. Lang ultimately closed his investigation, and Jennifer Clark, a child protection official for Nebraska Health and Human Services, determined that C.M.'s allegations were "unfounded."

[¶ 5.] In November 2004, Mother moved to modify or vacate the visitation ordered in the divorce decree. By stipulation of the parties, Dr. Andre B. Clayborne performed an evaluation. Following Dr. Clayborne's testimony in a visitation trial held in November 2005, the parties reached an agreement. Under the agreement, Father had visitation on alternating weekends, one of which was in Lincoln, Nebraska (where Father resided), and the other in the Canton area. The parties also agreed on alternating holidays. Mother did not object to unsupervised visitation at that time.

[¶ 6.] However, days after the parties reached their agreement, Father received a call from Nebraska law enforcement that there were new allegations of abuse. Father cooperated and was again interviewed.² Child's Voice examined C.M. on November 23, 2005. By this time, C.M. was almost three and one-half years old, and Colleen Brazil, a forensic interviewer at Child's Voice, interviewed C.M. for the first time. C.M. told Brazil that "her daddy pokes her in the bottom with a stick that looks like a finger." C.M. informed Brazil that Father gets "the stick from outside."

[¶ 7.] In late February of 2006, the South Dakota Department of Social Services, Child Protection Services (CPS) initiated an investigation, and Child's Voice examined C.M. for a third time. Brazil conducted a second interview of C.M. She again told Brazil that her daddy was poking her with a stick in her bottom and that Father would get the stick from outside. Based on the entire investigation, CPS sent Father a letter in March 2006, informing him that the allegations of abuse were "unsubstantiated."

[¶ 8.] On June 28, 2006, Mother moved to modify visitation for reasons other than the alleged abuse. On November 21, 2006, however, Mother realleged the abuse, moved to modify visitation again, and commenced a protection order action on behalf of C.M. The circuit court promptly entered an ex parte temporary protection order limiting Father's visitation to a family visitation center pending a trial on the allegations.

[¶ 9.] Because of the allegations of sexual abuse alleged in Mother's action for a protection order, Father was again investigated by Detective Lang and Nebraska officials in December 2006/January 2007. Lang interviewed C.M. and later testified that it was apparent during C.M.'s interview that C.M. was "basically saying to me things that she has most likely overheard someone else saying." Lang explained:

[T]here was a — there has been notations and documentations that "the stick" itself has transgressed — or not transgressed — but progressed from something that father got from the yard to looking like a finger or to being his finger. The "white stuff" that came out was at one time purple, and there's indications to me that through these investigations and through the contacts with this — with [C.M.], that there is a high probability that she has been led, either intentionally or unintentionally, into making some of the disclosures that she makes, in my opinion.

On January 16, 2007, Nebraska Health and Human Services determined that the allegations against Father were "unfounded."

[¶ 10.] Trial was held on both actions on January 17, 2007 and May 7-8, 2007. Sixteen witnesses testified. Mother testified that when C.M. was just over two years-old, during diaper changes, C.M. would reach to her vaginal area, pull her labia apart, and make statements such as, "Dada do this." Mother also testified that C.M. would poke at her vagina. According to Mother, C.M. would additionally take her doll, spread its legs apart, and poke her finger between the doll's legs, saying "dad do this to [C.M.], dad do this to me." Mother indicated that these incidents would typically occur and increase in frequency around the time Father exercised visitation. Mother testified that when C.M. came home from visits with Father, C.M. demonstrated how she tried to resist the abuse by holding her legs together. According to Mother, C.M. informed Mother that Dada hold me down and pull my legs apart and he poked me in the bottom.

[¶ 11.] Mother's great aunt testified that on two separate occasions, while C.M. was having her diaper changed, C.M. fondled her genitalia and made the statement, "Dada does this." She further testified that C.M. turned her doll upside down, rubbed it between the legs, kissed it between the legs, and said, "Dada does this." According to L.S.'s great aunt, during the summer of 2005, C.M. returned from visits with Father spontaneously reporting that Father would put his finger in her bottom and it would hurt. The most recent incident known was in the fall of 2006, when C.M. told her that Father "put his finger in my bottom and it hurts."

[¶ 12.] Mother's aunt reported the same type of statements. According to Mother's aunt, in 2004, C.M. poked her vagina in the bathtub and said, "Dada do. Dada do." In November 2006, C.M. allegedly stated, "Daddy puts his finger and stick in me." C.M. further indicated that she is always sore "down there." According to Mother's other witnesses, C.M. made similar comments to Mother's parents and friends of Mother's parents, including Joann Herrington. Herrington testified that C.M. told Herrington that she did not like to go to her dad's house because he hits her and pokes her.

[¶ 13.] Mother retained Dr. Joyanna Silberg as an expert. Dr. Silberg met with C.M. the day prior to trial. Following a forensic interview, Dr. Silberg concluded that C.M. had suffered sexual abuse by Father. Dr. Silberg's testing reflected standardized scores that she characterized as "literally off the charts" in comparison to other children who had been sexually abused and significantly traumatized. According to Dr. Silberg, C.M. was a "severely traumatized child with an inordinate number of symptoms of both trauma and sexual preoccupation[.]" Dr. Silberg opined, with the "highest level possible for confidence," that C.M. was "a sexually abused child with all the symptoms and associated behavioral patterns[.]" Dr. Silberg believed it would be "dangerous even for supervised reunification because the child presumes that [the abuse] must have been okay if nobody is saying anything to them about it." Dr. Silberg conceded, however, that children can be subject to suggestion. She gave the example of telling a child "when you were a little baby, I brought you home — you know — some place that you didn't bring her home from, and if you say that enough times, the child will believe[.]"

[¶ 14.] Dr. Charles Haigh testified that in October 2006, he had examined C.M. for dysuria (painful urination)³ and prescribed treatment for a urinary tract infection. After reading C.M.'s history, Dr. Haigh decided to call Mother and examine C.M. again. Dr. Haigh's re-examination was inconclusive regarding sexual abuse. He acknowledged that his diagnosis was consistent with urinary tract infections and that dysuria was rarely caused by abuse.

[¶ 15.] Mother relied heavily upon the testimony of Dr. Scott Benton. Dr. Benton conducted a forensic evaluation by reviewing C.M.'s records from Child's Voice, the Nebraska investigations, videos of interviews, affidavits filed in support of Mother's motion, C.M.'s medical records, and Dr. Silberg's report. Dr. Benton concluded that C.M.'s disclosures were "incredibly detailed and intimate." He also found "no evidence of coaching of C.M." He recommended that if the court found that C.M. was a victim of abuse, he would strongly urge a protection order. Regarding C.M.'s dysuria, Dr. Benton testified that dysuria would most likely be caused by a urinary tract infection. And, like Dr. Silberg, Dr. Benton agreed that when something is reinforced many times, children...