Ortiz v. State, Dept. of Health & Welfare

• Decision Date: 17 December 1987
• Docket Number: No. 16789,16789
• Citation: 113 Idaho 682,747 P.2d 91
• Parties: Rafael ORTIZ, Respondent-Appellant, v. STATE of Idaho, DEPARTMENT OF HEALTH & WELFARE, Petitioner-Respondent, and Carol Reagan, Guardian Ad Litem, Respondent.
• Court: Idaho Court of Appeals

Page 91

747 P.2d 91

113 Idaho 682

Rafael ORTIZ, Respondent-Appellant, v. STATE of Idaho, DEPARTMENT OF HEALTH & WELFARE, Petitioner-Respondent and Carol Reagan, Guardian Ad Litem, Respondent.

No. 16789.

Court of Appeals of Idaho.

Dec. 17, 1987.

L. Kim McDonald, Nampa, for respondent-appellant.

Jim Jones, Atty. Gen. by Laura B. Arment, Deputy Atty. Gen., Boise, for petitioner-respondent State of Idaho.

Kathleen P. Allyn, Boise, for respondent Carol Reagan, guardian ad litem.

BURNETT, Judge.

This is an appeal from a district court decision affirming a magistrate's decree in a Child Protective Act case. The magistrate determined that a three-year-old girl had been sexually molested by her father. The child was placed in the custody of the Idaho Department of Health and Welfare for a period not exceeding one year. The father appealed, contending that the magistrate's decree was not supported by substantial evidence and that the magistrate abused his discretion by declining to grant a retrial on newly discovered evidence. The district court, acting in an appellate capacity, affirmed. Today, we do likewise.

Before we turn to these issues, we briefly consider an argument advanced by the Department, and by the child's guardian ad litem, that this case is moot. The argument rests on the fact that the custody decree under the Child Protective Act has expired. The child now is residing with her mother, who has been divorced from the father. The mootness question initially was raised in the Supreme Court by a motion to dismiss the appeal. The motion was denied. Although the Supreme Court did not give reasons for its ruling, we deem it clear that the Court was concerned about possible collateral consequences of the magistrate's decree with respect to the father's reputation, employment and future child custody or visitation rights. Some doubt may exist as to whether we possess the power to alter the Supreme Court's ruling on a motion; however, we need not decide that question today. We are persuaded that the Court's ruling was correct and we adhere to it. Accordingly, we now turn to the evidence framing the issues raised by the father's appeal.

The child was born on June 19, 1981. Her parents were later married to each other but did not establish a household together. The father maintained a separate residence from his wife and daughter. Under this living arrangement the father had little contact with the child or with a son who was later born during the marriage. The father instituted divorce proceedings during the spring of 1984. He sought and obtained visitation rights with his two children while the divorce was pending.

The sexual molestation allegedly occurred during these visits. According to the Department's evidence, the daughter told her mother and one of the mother's friends that she did not like her father because he had touched her in the vaginal area. She demonstrated by using a doll. The child was examined by a doctor. Investigations were undertaken by the police and by the Department. However, no further action was taken at that time.

A few months later, after visiting her father again, the child received another medical examination. The mother again sought intervention by the police. No action was taken. After several more months had passed, and the child had turned four years of age, another visit occurred and yet another examination followed. This time the doctor recommended that the Department investigate. A psychologist under contract to the Department conducted a videotaped interview of the child. The Department then filed a petition under the Child Protective Act. Temporary custody was granted and the child was placed in a foster home.

An adjudicatory hearing consumed four days in the magistrate division. Numerous lay and expert witnesses testified. The child herself did not testify. Neither side called her as a witness. A videotaped interview with the child was entered into evidence without objection. Upon conflicting evidence, the magistrate found that the child had been abused. He entered a decree under I.C. §§ 16-1603(a) and 16-1610, and he subsequently denied a motion for a new trial. The father appealed. The district court affirmed and the father appealed again, bringing the case before us.

We first consider the sufficiency of the evidence to support the decree. The magistrate found that the father had "placed his fingers into the vaginal area of [the child] on at leas[t] one, and probably three or more occasions." Our role in reviewing such a finding of fact is limited. We do not weigh the evidence, nor do we substitute our view of the facts for the view of the trial judge. E.g., Angleton v. Angleton, 84 Idaho 184, 370 P.2d 788 (1962). We merely determine whether the finding is supported by substantial, albeit conflicting, evidence in the record. If so, the finding cannot be deemed clearly erroneous. Rasmussen v. Martin, 104 Idaho 401, 404, 659 P.2d 155, 158 (Ct.App.1983). We regard evidence as "substantial" if a reasonable trier of fact would accept it and rely upon it in determining whether a disputed point of fact has been proven. IDAHO APPELLATE HANDBOOK §§ 3.3.1 and 3.3.2.2 (Idaho Law Foundation, Inc. 1985).

As corollaries to these general principles, we give due regard to the special opportunity of the trial court to judge the credibility of witnesses appearing personally before it. I.R.C.P. 52(a). We also recognize the trial court as the arbiter of the weight, if any, ascribed to expert opinion testimony. Simpson v. Johnson, 100 Idaho 357, 597 P.2d 600 (1979). Thus, we are not authorized to overturn a trial court's finding of fact, when it is supported by substantial evidence, even though we might have viewed the evidence differently had we sat as the triers of fact. E.g., Cox v. Cox, 84 Idaho 513, 373 P.2d 929 (1962); Challis Irrigation Co. v. State, 107 Idaho 338, 689 P.2d 230 (Ct.App.1984).

In this case, the magistrate received three categories of evidence. First, he received the child's statements during a videotaped interview. However, the judge disavowed reliance upon this evidence because the interrogative techniques were so suggestive that they eroded the reliability of the child's responses.

The second category of evidence consisted of lay testimony by persons other than the child. Among these witnesses were the child's mother, the mother's friend, a foster parent and a teenage daughter of the foster parent. The magistrate discounted the mother's testimony because she was engaged in a bitter divorce and custody dispute with the father. However, the magistrate ascribed great importance to the testimony of the other witnesses. Each of them testified that the child made statements or engaged in conduct indicating that she had been molested.

The final category of evidence was expert opinion...