In re Dependency of A.E.P.

135 Wash. 2d 208
CourtWashington Supreme Court
DecidedMay 21, 1998
DocketNo. 65205-8
StatusPublished
Cited by49 cases

This text of 135 Wash. 2d 208 (In re Dependency of A.E.P.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Dependency of A.E.P., 135 Wash. 2d 208 (Wash. 1998).

Opinions

Dolliver, J.

In the course of a dependency hearing concerning the welfare of five- and three-year-old sisters, Judge Toni A. Sheldon allowed A.E.R, the five year old, to testify concerning allegations of sexual abuse by her father, Michael Petcu. The judge also admitted into evidence numerous hearsay statements made by A.E.P to seven different individuals. Michael Petcu (Petitioner) claims A.E.P was incompetent to testify, and he claims her hearsay statements were inadmissible under RCW 9A.44.120.

Our summary of the facts has been derived from the trial court’s findings of fact and from the testimony of the numerous witnesses. The record contains nearly 1500 pages [212]*212of transcripts of testimony given during the dependency hearing. Since the second issue involves the reliability and admissibility of A.E.E’s hearsay statements, the content of those statements and the circumstances surrounding the making of those statements will be explained in detail.

Petitioner and Elizabeth (Liz) Petcu are the biological parents of A.E.E, born on November 22, 1987, and WM.P, born on February 6, 1990. The parents are divorced, and Petitioner had custody of the girls. Petitioner and the girls resided in Mason County at the time the dependency petition was filed in 1993.

Prior to fall 1992, Petitioner had paid Alice Eccelston and her husband Tom Nelson to provide child care for A.E.P. and W.M.P. Eccelston testified they had provided child care for approximately one and one-half years. She normally bathed the girls every other day, and she never observed any sexualized behavior between the girls in the bathtub.

From October or November 1992 until the filing of the dependency petition in April 1993, Deanne Montgomery and her husband Dan provided child care to A.E.E and WM.P Deanne and Dan have four children of their own. A.E.E and WM.P would usually spend ten hours a day, five days a week, at the Montgomery house; but on occasion the girls would stay six or seven days a week, and on some days they would stay for longer hours as well.

Deanne testified she observed many instances of inappropriate sexualized touching between A.E.E and W.M.E in the course of her providing child care. During bathing, A.E.E would allegedly try to wash W.M.E’s vaginal area. One time in a bath, A.E.E allegedly attempted to insert a little sailor toy into WM.E’s vagina. Deanne,discussed these matters with her husband, and he supposedly would relay the information to Petitioner when Petitioner arrived in the evenings to pick up his daughters. Petitioner testified the Montgomerys never informed him of any problems with A.E.E and W.M.E prior to April 1993.

In late March or early April 1993, Deanne caught her [213]*213seven-year-old son, C.M., under a blanket with A.E.P. A.E.P.’s pants and underpants were down and C.M. was tickling A.E.E in the vaginal area. Fetitioner introduced testimony from two other children who rode the same school bus as C.M., and both of those children testified C.M. would inappropriately touch and fondle other kids on the bus. The trial court’s fact findings make no mention of these allegations about C.M.’s apparent pattern of behavior.

On April 13, 1993, Deanne and her friend, Shawn Murphy, caught A.E.E and W.M.P. lying on the floor in a bedroom. W.M.P. was on her back with her pants pulled down, A.E.E’s hand was on WM.E’s vaginal area, and W.M.E was screaming and fighting to get away. Deanne and Shawn separated the girls and punished A.E.E by making her stand in a corner for a period of time. After Deanne called Fetitioner at his place of work, she and Shawn questioned A.E.E for somewhere between 45-to-90 minutes trying to discover where A.E.E had learned such behavior. At the beginning of the interview, A.E.E was upset, was crying, and did not want to discuss the matter. Deanne and Shawn comforted A.E.E, told her she could trust them, and calmed her down.

In the course of the interview, A.E.E said her father had touched her inappropriately, skin to skin, and the touching was not during baths. A.E.E also said her mother had touched her, and her mother knew about her father touching her. When Deanne’s husband Dan came home after work, he took A.E.E into the kitchen and also questioned her for close to an hour. A.E.E again stated her father had touched her inappropriately.

A.E.E’s disclosures to Deanne, and to Dan, were in response to completely closed, leading questions. Deanne Montgomery, herself a victim of sexual abuse as a child, had questioned A.E.E 12-to-15 times on prior occasions whether anyone had touched her, and on several of those occasions Deanne had asked A.E.E if her father had touched her. Both Montgomerys admitted they had no training in interviewing techniques.

[214]*214On the same day as these interviews, Deanne called Child Protective Services (CPS) and reported the alleged abuse. Kyle Smith, a CPS worker, received the report the next day, on April 14, 1993. Kyle spoke with Deanne on the 14th, and both girls were taken into protective custody by law enforcement. The details surrounding A.E.E’s being taken into custody are relevant to the circumstances of A.E.E’s hearsay statements to Kyle.

According to Kyle’s testimony, she and Sheriff Deputy O’Brien picked up A.E.E from the Blackwell home around 5:30 p.m. Someone at the Blackwell residence was apparently baby-sitting A.E.E When Kyle took A.E.E from the residence, A.E.E was crying. In the car, Kyle held A.E.E in her lap to comfort her. The deputy stopped at a substation to use the restroom, and Kyle took A.E.E inside the substation. Kyle began chatting with A.E.E about where and with whom she lived. Kyle then saw Petitioner drive up to the front of the substation, so Kyle took A.E.E to the back of the station, where they sat on the stairs and continued talking. A.E.E had also seen her dad pull up, and she was distracted because she wanted to see him, but Kyle would not let A.E.E speak with her father. In the back of the substation, Kyle discussed with A.E.E whether A.E.E knew the difference between truth and lies. Kyle then started talking about good touches and bad touches, but she stopped questioning A.E.E because Kyle did not have any interviewing tools with her. Kyle also realized “that that was the place not to do the interview sitting on the stairs.” Narrative Report of Proceedings at 122 (Kyle Smith).

After Petitioner left the substation, Kyle took A.E.E and drove to Kyle’s office. It was approximately 8:30 p.m. when they arrived at the office. Kyle took A.E.E to McDonald’s, which was within walking distance. Kyle bought A.E.E a “Happy Meal,” and they took their food back to the office. While still eating, Kyle showed A.E.E a body map and began to discuss it with A.E.E In the interview, A.E.E stated she had been inappropriately touched by C.M. (age 7) and K.B. (age 4). After A.E.E had disclosed the touching by C.M. and [215]*215K.B., Kyle asked if any bigger person or adult had touched her, and A.E.E got tears in her eyes and said she was not supposed to talk about it. A.E.E explained her dad told her she should not talk about it and would get put in a corner or spanked.

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Bluebook (online)
135 Wash. 2d 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dependency-of-aep-wash-1998.