State v. Carol M.D., s. 15014-3-II

CourtCourt of Appeals of Washington
Citation948 P.2d 837,89 Wn.App. 77
PartiesSTATE of Washington, Respondent, v. CAROL M.D. and Mark A.D., Appellants.
Docket NumberNos. 15014-3-II,15040-2-III,s. 15014-3-II
Decision Date09 December 1997

Page 77

89 Wn.App. 77
948 P.2d 837
STATE of Washington, Respondent,
CAROL M.D. and Mark A.D., Appellants.
Nos. 15014-3-III, 15040-2-III.
Court of Appeals of Washington,
Division 3,
Panel Five.
Dec. 9, 1997.
Reconsideration Denied Jan. 27, 1998.

[948 P.2d 839]

Page 79

Robert C. Van Siclen, VanSiclen & Stocks, Auburn, Eric J.

Page 80

Nielsen, James R. Dixon, Nielsen, Broman & Assoc. PLLC, Seattle, Robert Rosenthal, of counsel, New York City, for Appellants.

Carol M.D., pro se.

Roy S. Fore, Deputy Prosecuting Attorney, Wenatchee, for Respondent.

SCHULTHEIS, Acting Chief Judge.

ER 803(a)(4) excepts from the hearsay rule "[s]tatements made for purposes of medical diagnosis or treatment...." The admission of such statements at trial does not violate the Confrontation Clause because their reliability is insured by the declarant's self-interest in providing accurate information to obtain effective medical treatment. In this case, we are asked to decide whether the trial court properly admitted under ER 803(a)(4) statements made by a child to her counselor describing sexual abuse by her parents. We conclude the court admitted [948 P.2d 840] those statements without proper foundation. There was no affirmative showing the child understood she needed to give accurate and truthful responses to the counselor's question, to assist the counselor in treating her. We therefore reverse the convictions of Mark D. and Carol D. for first degree rape of a child and complicity to commit first degree child molestation.

At the time these charges arose, Mr. and Mrs. D. lived with their five children in Wenatchee. Their eldest daughter, S.D., was 16 years old. S.D.'s brother, J.D., was 14; her sisters were E.D., age 13; A.D., age 11; and M.D., age 9.

In mid-December 1994, Mr. and Mrs. D. discovered that J.D. and E.D. were engaging in sexual conduct with each

Page 81

other. They sought counseling for them, and were referred to Child Protective Services (CPS). CPS immediately removed the couple's two foster children from their home. The foster children were living with Mr. and Mrs. D. while their own parents served sentences on convictions for child sexual abuse. Soon thereafter, Mr. and Mrs. D. sent their son to live with Mrs. D.'s sister in Moses Lake. They then applied for the return of the foster children to their home. Mrs. D. explained J.D. had been molested in the past by a neighbor boy. She and her husband believed it was necessary to remove him from the presence of their other children while he received counseling.

Detective Robert Perez and CPS caseworker supervisor Timothy Abbey interviewed J.D. in Moses Lake. According to J.D., Detective Perez started the interview by asking him if his parents had abused him. According to Detective Perez, he asked J.D. if he had had sexual contact with anyone other than E.D. J.D. at first denied any sexual contact with his parents, then admitted he had engaged in intercourse with his mother. He told Detective Perez he also had witnessed his parents sexually abusing his sisters. J.D. testified to these same facts at the trial of his parents. But he admitted he had told his foster mother that many of his allegations were not true.

After leaving J.D., Detective Perez and Mr. Abbey drove back to Wenatchee. They arrived there in the evening and went directly to the D. home. They told Mr. and Mrs. D. they wanted to interview A.D. and M.D. at the police station. Mr. and Mrs. D. said they already had told the girls the police wanted to talk to them, and they had advised them to tell the truth. As the children left the house, their parents again told them to tell the truth. Both Detective Perez and Mr. Abbey testified Mrs. D. turned to them and stated, "You're not bringing them back, are you?"

Detective Perez and Mr. Abbey testified that both A.D. and M.D. defined "secret touch" for them, answered affirmatively when asked if they had a problem with secret touching, and named their parents when asked with whom

Page 82

they had this problem. Detective Perez described M.D. as tearful when they discussed these matters. Based upon the allegations of A.D. and M.D., the police arrested Mr. and Mrs. D. At trial, M.D. stated Detective Perez had defined "secret touch," and she had told him she did not remember her parents molesting her.

At the time of the above interviews, the two older daughters, E.D. and S.D., were in California with a family friend. Detective Perez and Mr. Abbey went to California to interview them. At first, E.D. denied any parental abuse, then later accused her parents of molesting her. At trial, she recanted those allegations. S.D. consistently denied abuse.

A.D., E.D., and J.D. testified that they felt "pressured" by Detective Perez. Their description of his questioning of them relates conduct that the courts generally regard as improper in the context of an interview of a child. That conduct included telling them the other children had already disclosed abuse by the parents, and identifying the parents as under suspicion instead of asking open-ended questions about abuse. E.D. stated that during her interview, Detective Perez said to her: "I have all today and all night and almost all of tomorrow to sit here and wait until you tell me the truth."

Detective Perez and Mr. Abbey testified they followed proper interview procedures. While both men took notes during these interviews, they destroyed them after they [948 P.2d 841] prepared their final reports. They testified they included in the reports everything contained in their notes.

Dr. Mark Shipman examined M.D. on March 7, 1995, at the request of the State. He testified Detective Perez told him M.D. had not disclosed any sexual abuse. M.D. also denied being abused when Dr. Shipman questioned her. Dr. Shipman testified M.D.'s hymen was scarred in a manner consistent with digital penetration.

Beginning in February 1995, M.D. attended weekly counseling sessions with Cindy Andrews, a child sexual abuse therapist. At trial, Ms. Andrews testified about statements

Page 83

M.D. made to her during these sessions. In summary, M.D. at first made general allegations to the effect her parents had touched her where they should not. But, she only recalled the details of those touchings later, after CPS separated M.D. and A.D. by moving M.D. to a different foster home. Ms. Andrews stated the girls were separated after A.D. told Ms. Andrews in counseling that she and M.D. had discussed what would be the quickest way for them to be reunited with their family. Kristen Collier was M.D.'s new foster mother. She denied ever telling M.D. she believed M.D.'s parents had abused her. Her testimony directly contradicted M.D. on this point.

The State charged Mr. and Mrs. D. with multiple sex offenses involving M.D., A.D., E.D., and J.D. At trial, all four children testified. M.D. stated both her mother and father had put their fingers in her "crotch." She remembered this happened at least once, while they were upstairs on the floor of her brother's bedroom. A.D. testified no one had ever touched her in a private spot. She said she had felt pressured by Detective Perez that she had to tell him something happened because he did not believe her when she said otherwise. E.D. testified she had sexual contact with her brother, but no one else. She said she initially denied abuse by her parents, but Detective Perez pressured her to accuse them, stating, "I know it happened, so just tell me." He also told her she could say anything she wanted and he would not tell anybody, and that her sisters had already implicated her parents. J.D. did not recant his accusations against his parents, but admitted he initially denied such abuse occurred. He changed his story after Detective Perez said he knew J.D. was lying because other people already had told him different.

The jury convicted Mr. and Mrs. D. of only the charges involving M.D.--one count of first degree rape of a child and one count of complicity to commit first degree child molestation. This appeal followed.

Additional facts are set forth below, with the issue to which they pertain.

Page 84

First, Mr. and Mrs. D. assign error to the admission of Ms. Andrews's testimony about statements M.D. made to her in counseling sessions. The trial court relied upon the medical purpose exception to the hearsay rule. ER 803(a)(4). Mr. and Mrs. D. contend the evidence does not satisfy a prerequisite for admission of statements under ER 803(a)(4). Specifically, there was insufficient evidence to support a finding that M.D. understood it was important for medical treatment purposes to give Ms. Andrews accurate information about what had occurred.

ER 803(a)(4) excepts from the hearsay rule "[s]tatements made for purposes of medical diagnosis or treatment and describing ... the inception or general character of the cause or external source [of symptoms] insofar as reasonably pertinent to diagnosis or treatment." The United States Supreme Court has ruled that admission of child abuse hearsay statements under ER 803(a)(4) does not violate the Confrontation Clause. White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). The court held: "[A] statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility that a trier of fact may not think replicated by courtroom testimony." White, 502 U.S. at 356, 112 S.Ct. at 743.

The advisory committee to the parallel federal rule of evidence notes that "[u]nder the exception the statement need not have been made to a physician." Fed.R.Evid. 803(4) advisory committee's note. Therapy for sexual abuse qualifies as medical [948 P.2d 842] treatment for purposes of ER 803(a)(4). 1 In re Dependency of M.P., 76 Wash.App. 87, 882 P.2d 1180 (1994), review denied, 126 Wash.2d 1012, 892 P.2d 1089 (1995); see also State v. Rushton, 172...

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