M.N.D. v. B.M.D.

• Citation: 356 N.W.2d 813
• Decision Date: 30 October 1984
• Docket Number: No. C0-84-136,C0-84-136
• Parties: In re the Marriage of: M.N.D., petitioner, Appellant, v. B.M.D. Respondent.
• Court: Court of Appeals of Minnesota

Page 813

356 N.W.2d 813

In re the Marriage of: M.N.D., petitioner, Appellant, v. B.M.D. Respondent.

No. C0-84-136.

Court of Appeals of Minnesota.

Oct. 30, 1984.

Syllabus by the Court

1. The evidence that a four-year-old child has been sexually abused by her father is sufficient to restrict his visitation with her.

2. The child's hearsay statements about the sexual abuse are admissible because there were sufficient circumstantial guarantees of trustworthiness.

3. The trial court did not err in refusing to admit polygraph test results and other irrelevant evidence.

4. The trial court did not err in refusing to terminate visitation until the father completes a treatment program for sex offenders.

Allan Swen Anderson, Granite Falls, for appellant.

Janice M. Nelson, B.W. Christopherson, Nelson, Oyen, Torvik, Minge, Christopherson & Gilbertson, Montevideo, for respondent.

Gregory L. Holmstrom, Carlson, Reishus & Holmstrom, Granite Falls, guardian ad litem.

Heard, considered and decided by LANSING, P.J., and WOZNIAK and FORSBERG, JJ.

OPINION

LANSING, Judge.

The father appeals from an amended judgment reducing visitation with his four-year-old daughter to four hours per month to be supervised by a neutral party, based on a finding that he sexually abused the child. The mother and the child's guardian ad litem also appeal on the ground that the trial court erred in allowing the father any visitation rights until he completes a treatment program for sex offenders. We affirm.

FACTS

The parties were married in August 1978. At the time of the marriage the father was 22 years old and the mother was 16. They separated in September 1979, and the dissolution decree is dated September 1980. The mother was given custody of their only child, and the father's visitation was eventually arranged to be a one-week stay at his home in Canby, Minnesota, every five weeks.

In early 1982 the mother was living in an apartment above the home of her aunt in St. Paul. At that time the two women began noticing behavior changes in the child, who was then three years old. They observed her inserting items into her rectum and trying to insert objects into the vagina and rectum of another child. She also tried to insert a pencil into a hole in the genital area of a doll. She occasionally had difficulty controlling her bowels. She told the aunt that her father put petroleum jelly and baby powder on her bottom. When questioned further, the child said she could not tell anything more because her dad said it was a secret.

The mother contacted the authorities and had the child evaluated at the Wilder Child Guidance Center. The Wilder report states that during the evaluation the child refused to say anything until her mother and aunt left the room. After they left, the child demonstrated with sexually explicit dolls how "daddy dolls rubbed vaseline on girl dolls," with the doll lying unclothed in a face-down position.

In August 1982 the mother moved to terminate the father's visitation, but the court instead ordered visitation to take place only in the home of the father's parents while they or other family members were present. The court ordered a child custody study and appointed a guardian ad litem for the child.

The mother also had the child evaluated by Dr. Georganne Farseth, a licensed consulting psychologist. The child told Dr. Farseth that the father had inserted his finger into her rectum "lots of times" when she had visited him at his house, but that it had never happened at her grandparent's home. She stated that only her father had ever touched her in that manner and that she would tell her grandmother, but not her mother, if it ever happened again.

After the child was treated at the Wilder Clinic she completely stopped inserting items into her rectum, according to her mother. Immediately after a visit with her father in late February 1983, however, the mother noticed that during a bath the child had inserted a fork into her rectum. The mother arranged another appointment with Dr. Farseth. Demonstrating with sexually explicit dolls, the child told Dr. Farseth that her father had put a finger into her rectum while she was supposed to be napping in a bedroom at her grandparent's home. Some of his sisters were in the house but were unaware of what had happened, according to the child. Her father told her not to tell anyone about it. She stated, "Daddy will get mad if he finds out I told." She also indicated that some time before he had put his fingers into her vagina.

The mother then obtained an order restraining all visitation pending a hearing to terminate the father's visitation. The father moved for a change in custody on the ground of false accusations of child abuse and denial of visitation.

A two-day hearing took place in April 1983. The child was interviewed in chambers but would not talk to the judge. In August the court ordered the father's visitation reduced to four hours per month in St. Paul, to be supervised by a neutral party. The court specifically found that the child was a competent witness and that her statements, as relayed through the reports admitted into evidence and the witnesses who testified, had to be accepted as true.

ISSUES

1. Is the evidence sufficient to support a restriction of visitation?

2. Were the child's statements to others about the sexual abuse inadmissible hearsay?

3. Did the trial court err in refusing to admit the results of two polygraph tests and other miscellaneous documentary evidence?

4. Did the trial court err in refusing to terminate visitation until the father completes a treatment program for sex offenders?

ANALYSIS

I

Appellant contends the evidence is insufficient to support the restriction of his visitation rights. Minn.Stat. Sec. 518.175, subd. 5 (1982) provides that a court may modify visitation rights whenever modification would serve the best interests of the child. The court may not restrict visitation rights, however, unless it finds that visitation is likely to endanger the child's physical or emotional health or emotional development. The trial court's decision in visitation matters will not be reversed absent a clear abuse of discretion. Griffin v. VanGriffin, 267 N.W.2d 733 (Minn.1978); Hennessy v. Stelton, 302 Minn. 550, 224 N.W.2d 926 (1974).

In addition to the evidence detailed above, Dr. Farseth testified that the child's behavior in inserting items into her rectum was consistent with sexual abuse. During three separate visits the child had consistently described her father's actions and had labeled the female doll with her own name and the male doll "Daddy." She specifically denied that anyone other than her father had ever abused her.

The father's evidence is inconclusive. His family testified that they had not left him alone in the house with the child. He testified that he did not abuse her. His family physician testified that there was no physical evidence of abuse; however, he had examined the child at a time when she had not seen her father for about five months. A psychiatrist testified only that appellant's psychological tests were within normal limits.

The father argues that it is impossible for him to prove that he did not abuse his child, and we recognize the difficulties involved in presenting his case. In the context of a change in visitation, however, we are dealing with a right that can be restored. We believe the "best interests of the child" standard is flexible enough to accommodate both the safety of the child and the visitation rights of her father. We therefore hold that the trial court did not err in restricting appellant's visitation rights because the evidence is sufficient to show that the child's physical and emotional health were endangered.

II

The father also contends that the trial court should have excluded all evidence containing the child's statements on competency and hearsay grounds. His attorney made a standing objection at the beginning of the trial to "any conversation regarding any of the statements of the child."

The trial court found that the child was competent within the meaning of Minn.Stat. Sec. 595.02 and Sec. 595.06 (1982), specifically, that she was bright, alert, and had well-developed "receptive and expressive abilities" for her age. A trial court's findings as to the competency of a child or any other witness may be overturned only for a clear abuse of discretion. State v. Amos, 347 N.W.2d 498, 501 (Minn.1984). We find nothing in the record to indicate that the trial court erred.

Despite the father's standing hearsay objection, the record shows that his attorney specifically stated "no objection" when respondents offered the Yellow Medicine and Ramsey County custody studies, which contained all the reports by Ramsey County child abuse investigators, the Wilder Clinic, and the St. Paul police department. Appellant offered many of the same reports himself during the hearing (Petitioner's Exhibits 1, 2, 3, & 6). He also offered two written reports by Dr. Farseth, which were attached to the restraining order (Petitioner's Exhibit 13). All of these exhibits were received and, along with the aunt's and Dr. Farseth's testimony, are the sole source of the hearsay at issue.

This court could hold that the father's objection was either insufficient or waived because he failed to object to the reports and proceeded to introduce the evidence himself. See Jones v. Fleischhacker, 325 N.W.2d 633, 639 (Minn.1982). However, neither party argued the waiver issue, and the hearsay is central to the decision in this case. We will therefore address the hearsay issue on the merits.

Many of the problems present in this case--the lack of witnesses and corroborative physical evidence, and the reluctance or inability of the child to testify--are also present in criminal prosecutions for sexual abuse. See Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum.L.Rev. 1745, 1745-46 (19...