Petcu v. State

• Decision Date: 30 March 2004
• Docket Number: No. 29415-0-II.,29415-0-II.
• Parties: Michael PETCU, individually and as the guardian of A.E.P. and W.M.P., Appellant, v. STATE of Washington; Child Protective Services; Department of Social and Health Services; Kyle Smith and John Doe Smith, wife and husband and the marital Community Comprised thereof, Respondents.
• Court: Washington Court of Appeals

86 P.3d 1234

121 Wn. App. 36

121 Wash. App. 36

Michael PETCU, individually and as the guardian of A.E.P. and W.M.P., Appellant, v. STATE of Washington; Child Protective Services; Department of Social and Health Services; Kyle Smith and John Doe Smith, wife and husband and the marital Community Comprised thereof, Respondents.

No. 29415-0-II.

Court of Appeals of Washington, Division 2.

March 30, 2004.

Phillip C. Raymond, Jessica B Jensen, Seattle, WA, for Appellant.

Rene David Tomisser, Atty Gen Ofc/Tort Claims, Olympia, WA, for Respondents.

HOUGHTON, J.

Michael Petcu appeals from a summary judgment order dismissing his claims arising from the removal of his children from his care. We affirm.

FACTS

Petcu is the biological father of two girls, A.E.P., born on November 22, 1987, and W.M.P., born on February 6, 1990. Petcu and his wife, Elizabeth, separated in 1991 and Petcu kept custody of the children. The children also spent time with child care providers.

For the first year and one-half following the Petcus' separation, Alice Eccelston and her husband provided day care for the children. The Eccelstons did not observe any sexualized behavior by the girls.

Deanne and Dan Montgomery provided childcare to A.E.P. and W.M.P. for the subsequent six-month period, up to the time the Department of Social and Health Services filed a dependency petition on April 15, 1993. The Montgomerys have four children of their own. The Petcu girls typically spent ten hours each day, five or six days per week, at the Montgomery home.

Deanne observed numerous instances of sexualized behavior involving the girls. The incidents started about a week after the girls began staying with the Montgomerys. Deanne saw A.E.P. touching W.M.P.'s vaginal area while the girls bathed together. She saw A.E.P. attempting to insert a small toy into W.M.P.'s vagina. She saw A.E.P. rubbing herself in the vaginal area. On other occasions, she saw A.E.P. trying to pull W.M.P.'s pants down and placing her hand down the front of W.M.P.'s pants. One day, Deanne found her seven-year-old son, C.M., and A.E.P. together under a blanket. C.M. was tickling A.E.P.'s vaginal area.

Both Dan Montgomery and Shawn Murphy, a friend of the family who often visited the Montgomery home, observed similar instances of sexualized touching between the girls. The Montgomerys reported the sexualized behavior to Petcu in early March 1993.

Based on their observations, Deanne, Dan, and Murphy suspected that the children had been sexually abused. Deanne, herself a victim of sexual abuse as a child, questioned A.E.P. on numerous occasions regarding whether someone had touched her inappropriately. A.E.P. denied that any inappropriate touching occurred.

On April 13, 1993, Deanne heard screaming and found the girls together in a bedroom. She saw A.E.P. pinning W.M.P. to the floor, with her hand over W.M.P.'s vaginal area. W.M.P. was crying and fighting to get away. Deanne and Murphy separated the girls and punished A.E.P. by making her stand in a corner.

Deanne called Petcu at work but could not reach him. Then Deanne and Murphy questioned A.E.P. for 45-90 minutes, trying to discover where she learned the behavior. Initially, A.E.P. was upset, crying, and reluctant to speak. Deanne comforted her and she calmed down. Following a series of leading questions by Deanne and Murphy, A.E.P. said that her mother and father had touched her inappropriately.

After Dan arrived home from work, he questioned A.E.P. for about an hour. A.E.P. again stated that her father touched her inappropriately.

When Petcu arrived to pick up the girls later that night, the Montgomerys confronted him with A.E.P.'s disclosures. Petcu took the children home. Deanne called Child Protective Services (CPS) to report the alleged abuse. A police officer interviewed Deanne and prepared a police report. CPS caseworker Kyle Smith received the report the next day.

On April 14, Smith interviewed Deanne. In addition to describing the events set forth above, Deanne told Smith that W.M.P. had frequent yeast infections and that both girls had "leathery" vaginal areas. 3 Clerk's Papers (CP) at 490.

Smith then spoke with Chief Jerry Patterson of the Mason County Sheriff's Department. Patterson told her that he had reviewed the police report and believed that the girls should be taken into protective custody. Smith arranged a foster care placement for the girls.

The same day, Smith spoke with Elizabeth Petcu, the girls' mother. Elizabeth said she saw the girls every six or eight weeks and had never seen signs of sexual abuse. She said that she was sexually abused by her mother when she was a child. She also said that she left Petcu because he physically abused her and threatened her with a hunting knife and that she had secured a protective order after the incident.

Later that day Smith, accompanied by a deputy sheriff, took the girls into protective custody. First they picked up W.M.P., who was with Deanne. Then they went to the residence of Petcu's friend and neighbor, Lori Blackwell, to pick up A.E.P. A.E.P. was upset and did not want to go with Smith and the deputy. After talking with her for awhile to try to make her feel more comfortable, Smith took A.E.P. out to the patrol car. A.E.P. was crying. Smith placed A.E.P. on her lap and tried to comfort her.

On the way to the foster home, the deputy stopped at the police substation to use the restroom. Petcu drove up while they were there, and Smith took A.E.P. to the back of the station, out of his view. But A.E.P. saw her father and was upset that she could not go to him. While waiting for the deputy to return, Smith began talking with A.E.P., asking her about whether she had been inappropriately touched. A.E.P.'s initial response to Smith's questions indicated that she may not have understood the difference between truth and falsity. Smith stopped questioning A.E.P. because she did not have any of her interviewing tools with her.

About 8:30 P.M. and after Petcu left the police substation, Smith took A.E.P. to Detective Brian Kelly's office. A.E.P. was hungry, so Smith bought her dinner.

While A.E.P. ate, Smith showed her a body map and they discussed "bad touching." 3 CP at 494. A.E.P. disclosed that C.M. (age 7) and K.B. (age 4) had inappropriately touched her. When Smith asked if anyone "bigger" had touched her, A.E.P. became teary-eyed and said, "My dad said if I told I'd get in trouble." 3 CP at 494. Smith assured her that she would not get in trouble and that it was important to talk about it so they could get the touching to stop.

A.E.P. then said that her father touched her "privates" and asked her to touch his "butt," but she had refused. 3 CP at 495. She said that while he was touching her "privates" he was "wiggling his private" with his hand. 3 CP at 495. She pointed to the penis on a diagram of the adult male as she described this behavior. She also said, "my dad sticks his tongue in my mouth and I don't like it." 3 CP at 495.

Smith asked A.E.P. whether her mother had inappropriately touched her. A.E.P. said "no" and Smith did not inquire further. 2 CP at 236. Because A.E.P. was tired, the interview ended around 9:30 P.M. Smith took A.E.P. to Judy Brewer's foster home, where W.M.P had already been taken. The girls stayed with Brewer for the next six weeks.

On April 15, Smith interviewed Petcu in the presence of his attorney. Dan Montgomery and the Blackwells also accompanied Petcu to the interview. Petcu said that after the Montgomerys told him about the sexualized behavior, he explained to A.E.P. that "it wasn't good for [W.M.P.] or her" to do that. 3 CP at 496. After the incident between C.M. and A.E.P., both Dan and Petcu had scolded the children.

Smith denied Petcu's request for visitation. Petcu's attorney asked Smith to schedule a shelter care hearing as soon as possible.¹

After Petcu left the room, Smith continued speaking with Dan. In the meantime, Elizabeth Petcu arrived. An office intern alerted Smith that Petcu was "badgering" Elizabeth in the waiting room. 3 CP at 497. Later, Elizabeth told Smith that Petcu and the Blackwells urged her to help "get their stories straight" so they could get the children back. 3 CP at 497. On April 15, Smith prepared a dependency petition. That day, she also spoke with Dr. Lein-chun Shaw, the children's pediatrician. Dr. Shaw told Smith that she was not qualified to do a sexual abuse examination.

On April 16, Dr. Victor Cillis examined A.E.P. and W.M.P. W.M.P. did not provide helpful information to Dr. Cillis as to whether she had been sexually abused. W.M.P.'s physical examination revealed an abnormally large hymenal opening, but no evidence of penile penetration. The findings were consistent with digital penetration and fondling.

After examining W.M.P., Dr. Cillis spoke with A.E.P. for approximately one-half hour. In response to questioning, A.E.P. said that neither her father nor anyone else had touched her inappropriately. The doctor's physical examination revealed mild, nonspecific redness of A.E.P.'s vaginal area.

A shelter care hearing was held on April 16, 1993, and DSHS also filed an amended dependency petition that day.

On April 22, Detective Kelly interviewed A.E.P., with Smith present. A.E.P. had difficulty understanding the difference between truth and lies but she had a better understanding of the difference between real and unreal.

In response to questioning, A.E.P. initially told the detective that no one ever touched her inappropriately. After the detective showed her a body map and asked her again if anyone had touched her private parts, A.E.P. said that C.M. did and pointed to the buttocks area. When asked whether her father touched her anywhere she didn't like, she nodded affirmatively and pointed again to the buttocks area. But she said that no one had touched her "pee pee." 2 CP at 365. Smith observed that A.E.P. was very uncomfortable with the conversation. A.E.P. was...