Walton v. Ireland
| Decision Date | 25 November 2014 |
| Docket Number | Docket No. Aro–13–245. |
| Citation | 104 A.3d 883,2014 ME 130 |
| Parties | Mary WALTON v. David C. IRELAND Jr. |
| Court | Maine Supreme Court |
Logan Perkins, Esq. (orally), and Jeffrey M. Silverstein, Esq., Bangor, for appellant David C. Ireland Jr.
James M. Dunleavy, Esq. (orally), Currier and Trask, P.A., Presque Isle, for appellee Mary Walton.
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.
Opinion
[¶ 1] David C. Ireland Jr. appeals from an Order of Protection from Abuse entered in the District Court (Presque Isle, O'Mara, J. ) based upon a finding that Ireland sexually abused the parties' five-year-old daughter. Ireland argues that the court committed an abuse of discretion by admitting evidence of statements that the victim made to a social worker during play therapy identifying Ireland as her abuser. Ireland also contends that the court's finding of abuse was clearly erroneous. We affirm.
[¶ 2] David Ireland and Mary Walton had an intimate relationship in 2006. After the relationship ended, Walton learned that she was pregnant. The parties' daughter was born in December 2006. About a year later, the court issued an order allocating parental rights and responsibilities. The order was modified several times. As of October 2012, pursuant to the order, the child lived primarily with Walton and stayed with Ireland every other weekend and for certain extended periods during school vacations. The parties were generally cooperative with one another and had no problems adhering to the visitation schedule. According to Walton, the child began to exhibit reluctance to visit Ireland and would cry hysterically before leaving for visits with him. Nevertheless, Walton encouraged the child to go on the visits.
[¶ 3] One evening in October 2012, after the child had returned from a visit with Ireland, Walton gave her a bath. While Walton was bathing the child, the child said that it “hurt down there” and pointed to the area of her crotch. Walton asked her why, and the child gave an explanation. Walton brought the child to the emergency room at The Aroostook Medical Center, where doctors examined the child and advised Walton to schedule a forensic child-abuse evaluation at the Spurwink Clinic. The following day, Walton filed an action seeking a protection from abuse order against Ireland on the child's behalf and contacted Spurwink to schedule an evaluation.
[¶ 4] Over the next several days, the child became upset and expressed fear that Walton no longer loved her. Walton took the child to meet with Cindy Barker, a clinical therapist, to address this behavior. Barker, a licensed clinical social worker, explained her role to the child in what she considered to be an age-appropriate way, then initiated conversation with the child by asking open-ended questions about her family. The child stated that she did not like going to see her father and that she did not want to see him anymore. During the session, the child repeatedly stated, “he picks at [my] butt and crotch with his fingers and puts his fingers in me,” and said that he would then lick his fingers. The child told Barker that she was surprised and confused when her father did this, that it was “really gross,” and that she didn't understand why he would do that.
[¶ 5] Barker has continued to meet with the child for an hour every other week. Barker described her treatment plan for the child as being to help the child to feel comfortable expressing herself, to work on anxieties and insecurities that have occurred, and to help the child develop coping skills. Barker explained that the content of the child's statements—including the identity of the person she described as abusing her—was important to the treatment plan because it helped Barker to understand the basis for the child's fears and insecurities.
[¶ 6] Walton took the child to Spurwink for the sex-abuse evaluation in December 2012. The child met with Donna Andrews, a licensed clinical social worker employed as a forensic interviewer. Andrews's primary purpose in evaluating the child was to determine whether there was evidence that abuse occurred. Andrews asked the child if she knew why she was there; the child responded that she didn't know. During the interview, Andrews asked the child if anyone had done something to her crotch and told her not to tell about it, to which the child responded, “Yes, Dad, but I told anyway.” The child gave further descriptions of the abuse consistent with what she had told Barker.
[¶ 7] A physical examination revealed no evidence of trauma or abuse. Andrews recommended that the child remain in therapy with Barker, that law enforcement and DHHS investigate, and that the child have no contact with her father while the investigation continued. The child did not meet with Andrews again.
[¶ 8] At the hearing on Walton's complaint for protection from abuse, both Barker and Andrews testified over Ireland's objection as to the statements the child made describing the abuse. The court conditionally admitted the statements but gave the parties the opportunity to brief the issue, indicating that it would strike the testimony from the record if the parties' briefs convinced it that the statements should be excluded.
[¶ 9] By agreement of the parties, the child, who was then six years old, testified without either party being present in the courtroom.1 At first, the child testified that she did not know who her “daddy” was, but when asked if she knew anyone named David she identified him as her “dad.” When asked how Ireland treated her, the child responded, “Bad.” She explained that this was because “he did something wrong,” which means “when someone did something bad,” but that she had forgotten what the bad thing was. She testified that she did not like going to see her father because he spanked her. She also testified that her father asked her not to talk about “what he did,” but that she told her mother anyway. She said that she did not tell anyone else, and that she did not know whether she knew anyone named Cindy Barker. She testified that the only reason she did not want to see Ireland was because he spanked her, and that there was no other reason she did not want to see him.
[¶ 10] Ireland testified that he occasionally spanked his daughter as discipline. He explained that his daughter usually wanted to change her underwear when she changed into her pajamas, and that at these times he noticed “that her vagina was red and that her rear end was red.” Ireland attributed the redness to the child's failure to wipe herself adequately after using the toilet and explained that he applied ointment to treat the redness and irritation. He denied engaging in any conduct with his daughter that could be considered sexual.
[¶ 11] Following the hearing, the court issued the protection from abuse order against Ireland, finding that Ireland had abused his daughter, ordering that he have no contact with her, and temporarily awarding sole parental rights and responsibilities to Walton. The court also issued an attachment to the judgment in which it explained that Barker's testimony was admissible pursuant to M.R. Evid. 803(4) because the child's statements, including those identifying her abuser, were pertinent to the diagnosis and treatment of her anxiety and noted that the appellant did not object to Barker's testimony on medical-treatment grounds. The court explained that it had stricken Andrews's testimony because it concluded that the forensic interview had not been undertaken for the purposes of diagnosis or treatment. The court further explained that it found the child's statements to Barker to be more reliable than the child's in-court testimony due to the child's therapeutic relationship with Barker. The court noted that several months had passed since the child had had contact with Ireland and that her testimony indicated that she was unable to remember important facts. Ireland appealed. Walton cross-appealed, contesting the exclusion of Andrews's testimony.
[¶ 12] An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is inadmissible unless an exception applies. M.R. Evid. 801(c), 802. Pursuant to M.R. Evid. 803(4), hearsay statements are not excluded by the hearsay rule if they are “[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” “A trial court's decision to admit or exclude alleged hearsay evidence is reviewed for an abuse of discretion.” State v. Guyette, 2012 ME 9, ¶ 11, 36 A.3d 916. When the trial court must make preliminary factual findings pursuant to M.R. Evid. 104(a), however, those findings are reviewed only for clear error. State v. Snow, 438 A.2d 485, 487 (Me.1981).
[¶ 13] We have previously recognized that application of M.R. Evid. 803(4) is not limited to statements made for treatment of physical injuries; it applies to statements made for psychological and mental-health treatment as well.2 For instance, in the context of a custody dispute, we affirmed the admission of a child's statements to a licensed clinical social worker about why he was afraid of his father. Ames v. Ames, 2003 ME 60, ¶ 16, 822 A.2d 1201. In that case, the parties' six-and-a-half-year-old son began “displaying problems with concentration, sleep, anger, fear, and stomachaches” and refused to visit his father. Id. ¶¶ 2, 4. The mother sought the advice of a licensed clinical social worker who “hoped to address the child's concerns and help him become comfortable with his father.” Id. ¶ 5. The child told the social worker that he was afraid of his father and that it was...
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...testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R. Evid. 801(c) ;3 see also Walton v. Ireland, 2014 ME 130, ¶ 12, 104 A.3d 883 (stating that “[a]n out-of-court statement offered to prove the truth of the matter asserted is hearsay”). Hea......
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