Opinion
Supreme Court No. S-11836.
July 12, 2006.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Dan A. Hensley, Judge. Superior Court No. 3AN-03-00411 CP.
Guy M. Kerner, Law Office of Guy M. Kerner, Anchorage, for Appellant.
Megan R. Webb, Assistant Attorney General, Anchorage, and David W. Márquez, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
This appeal arises from a superior court decision granting temporary custody of Allie S., daughter of Jared S. and Mindy M., to the Office of Children's Services (OCS) under Alaska's child in need of aid (CINA) statutes. In 2003 OCS received reports that both parents had engaged in harmful behavior toward Allie, including an alleged instance of sexual abuse by Jared during a weekend visit. In August 2004, after a trial, the superior court determined that Allie and her half sister were children in need of aid and granted custody of them to OCS for two years. Jared argues on appeal that the superior court erred in finding that he had sexually abused Allie and was likely to do so in the future. He also claims that the court erred in admitting testimony about Allie's psychological state and about his responses during a sex offender evaluation. Because clear and convincing evidence supports the superior court's determination that Allie was a child in need of aid, and because the admission of testimony from Allie's therapist and from the doctor who performed a sex offender evaluation on Jared did not constitute error, we affirm the judgment of the superior court.
Pseudonyms are used to protect the identities of the parties.
II. FACTS AND PROCEEDINGS
A. Background
Allie was born in the fall of 1998. When the relationship between Jared and Mindy ended in 2000, Mindy was awarded primary custody, but the custody order permitted frequent visitation on Jared's part. By late 2002 it was "a common practice" for Allie and Caitlyn to spend weekends with Jared.
Custody of Allie's older half sister, Caitlyn M., is not at issue in this appeal.
The transcript and the report of the guardian ad litem do not outline the specific schedule, but Mindy described the arrangement as the "maximum visitation without it being shared or joint custody."
Before 2003 OCS received three reports of abuse and neglect in the family, including physical abuse in January 2000, and two instances of neglect in 2003. These reports, however, were unconfirmed.
B. Report of Sexual Abuse and Restraining Order
According to Mindy, Allie had a nightmare shortly after spending a weekend with Jared in January 2003:
[Allie] was screaming stop it, stop it — I mean, screaming. . . . I went into her room and I asked who was hurting her. I shook her. And she said Daddy. . . . I went back to bed, and . . . approximately five minutes later[,] she was in the bathroom crying, and she said that her pee-pee hurt.
Allie's statement led Mindy to suspect that Jared had sexually abused her. After Allie was back in bed, Mindy drank "about a half a [bottle] of tequila" and, later in the morning, called her mother and the police. An emergency room medical examination determined that Allie's genital area "was a bit red but [there was] no sign of penetration." The police then conducted their own examination, which was also inconclusive, and suggested that Mindy refrain from confronting Jared because "it might hurt the case."
That evening, Mindy brought Allie to Jared's apartment and confronted him about the incident. When Mindy asked Allie to repeat what she had told Mindy, Allie "started to say something . . . [but Jared] shushed her. He put his finger over her mouth like to quiet her, like if you tell somebody to be quiet, and then I knew that he did it." When Mindy accused him of having done it, without specifying what "it" was, Jared picked Allie up, verbally abused Mindy, and told Mindy that she had "made all this up." Mindy then called the police.
The police continued to investigate the sexual abuse claim, interviewing Allie. Allie maintained in the interview that her father had touched her genital area. OCS was informed of the allegation on January 16, 2003.
In the spring of 2003, Allie told Mindy that her father had "only slapped her in the tub, [and that the alleged sexual abuse] didn't happen." Mindy testified that she believed the recantation at first, but then determined that "there's no way that [Allie] could have faked" her reaction to the nightmare. Allie appears to have retracted her recantation, as she subsequently told her therapist and the court that she had been sexually abused.
After confronting Jared, Mindy obtained a restraining order to prevent him from having contact with her or Allie. Jared violated this order and other court orders on multiple occasions by posting flyers in downtown Anchorage with pictures of Allie, and posting flyers and letters at Allie's counseling center. One of the flyers claimed that "Children['s] Service[s]" was "[h]olding her hostage," and asked the reader to "tell [Allie] her Daddy say[s] [h]i." He also ran an ad in the Anchorage Daily News, addressed "[t]o [m]y Valentine, [Allie]," telling her that "[y]our mom took your innocence away from `you' [on] Jan[.] 14, 2003 on a lie, just to get your dad out of `her' miserable life." The ad described this state of affairs as "just temporary[,] baby." Jared was held in contempt of court for violating the restraining order, but in May or June 2003 he obtained an order from a different judge requiring Mindy to permit at least one weekend visitation between him and Allie.
C. Report of Neglect and Emergency Removal of Allie from the Home
OCS received a second report of harm in September 2003, alleging that Mindy was "using crack cocaine and [that] she was recently involved in an incident of domestic violence with her boyfriend." Three days after receiving the report, a social worker visited Mindy's home. Mindy admitted to using crack cocaine within the previous week, and the social worker observed that "[t]he . . . condition of the home was . . . well below minimum standards[,] and there were empty alcohol containers throughout the home." Mindy's room, the children's room, and the kitchen were all "extremely filthy," and parts of the house had "rotten and mold[y] food on the floor." Based on these observations, and the allegation of sexual abuse, OCS petitioned for emergency removal of Allie and Caitlyn from the home. This petition was granted, and the children were placed with Mindy's parents, with supervised visits with Mindy.
In October 2003 OCS devised a case plan for Mindy. The plan called for parenting classes and a substance abuse assessment. Mindy participated in Family CARE Court, completed parenting and domestic violence programs, and enrolled in a substance abuse program. She continued to comply with her case plan after the children were returned to her in December 2003, and subsequent drug tests showed no evidence of further substance abuse.
Family CARE Court is used in CINA cases to "prevent the break up of families by combining intensive judicial supervision and monitoring with immediate and culturally appropriate treatment and the coordinated delivery of assessments and services." Alaska Court System, Anchorage Family CARE Court,http://www.state.ak.us/courts/carect.htm.
D. Jared's Case Plan
OCS also devised a case plan for Jared, which called for participation in a parenting program, substance abuse assessment, and sex offender evaluation. Although Jared completed a sex offender evaluation, and received referrals for parenting classes and a substance abuse program, he did not take any further steps to comply with his case plan. According to OCS, he "stated several times[,] both during an administrative review and in phone messages[,] that he [wa]s refusing to work his case plan." When asked at the adjudication hearing if there was "something more [he] could learn about parenting," Jared responded "[n]o."
Jared testified that "a lot of parents . . . don't need to go to . . . parenting skill[s] classes" because they rely on "[c]ommonsense parenting skills," and that he was one such parent.
The sex offender evaluation, which consisted of an interview and several psychological tests conducted by Dr. Bruce Smith, was inconclusive due to the "high level of [Jared's] defensiveness." Dr. Smith made several recommendations, however, including an alcohol assessment, parenting classes, and therapy focusing on "establishing a clear set of boundaries for [Jared] in his interactions with [Allie]." Dr. Smith suggested that if Jared complied with these requirements, he could resume supervised contact with Allie.
E. Allie's Statements to Her Therapist
Starting in the fall of 2003 Allie began weekly counseling sessions with Chantal Cohen, a clinical therapist. Based on Allie's behavior, including "aversion to stimuli related to trauma, increased aggression, [and] inappropriate boundaries," and her nightmares, Cohen diagnosed her with posttraumatic stress disorder. In December 2003 Allie "spontaneously disclosed [to Cohen] that she didn't want to see her father and that he hit her." The following April, she "made another spontaneous disclosure[,] saying that her daddy touched her pee-pee" and that she did not want to see him. Cohen testified that whenever she raised the subject of visitation between Jared and Allie, "her response was always no, no, no, I don't want to see [him]."
When Jared contacted a social worker to request visitation with his daughter in early 2004, Cohen suggested that he write a letter, which would be presented to Allie in therapy. Jared wrote a letter, which Cohen read to Allie in July 2004. When Cohen raised the idea of a supervised visit with Jared, Allie asked if she could stop the visit when she wanted. She also began exhibiting "very aggressive [and] . . . sexualized" behavior. Based on this behavior, Cohen determined that visitation with Jared would be inappropriate.
F. CINA Adjudication
1. Evidentiary objection
The court held a hearing on OCS's petition for custody in August 2004, focusing on whether Jared's conduct had caused Allie to be a child in need of aid, and whether his conduct was likely to cause her to be a child in need of aid in the future. In addition to the testimony discussed above, the court heard from Allie and from Cohen and Dr. Smith.
Mindy did not contest the petition, so the only allegations in dispute were those against Jared. Although OCS sought custody of Allie, it did not seek to remove her from Mindy's home again.
Allie, who testified in chambers, maintained that she had been sexually abused:
Q: Can you tell us what happened?
A: Well, daddy touched my pee-pee.
Q: Which part . . . touched your pee-pee?
A: The first part.
Q: The first part. What part would that be?
A: The part that you go pee.
Q: Okay. And is that the part where your daddy goes pee?
A: Yes.
Jared denied this allegation, claiming that he had touched Allie's genital area only when cleaning her and putting ointment on her rashes. In response to the question whether Allie had seen his genitals, Jared responded, "[h]ell no. My little girl's never seen my private parts."
Before Cohen and Dr. Smith testified, Jared filed two motions in limine. The first sought to prohibit "inadmissible victim-profile evidence" from Cohen, including testimony about whether Allie's statements were credible and whether her symptoms were consistent with those of a typical sexual abuse victim. The second moved to prohibit testimony from Dr. Smith about whether Jared exhibited the characteristics of a sex offender. The court declined to exclude testimony from Cohen, but stated that it would "disregard those portions of the evidence that exceed the scope of allowable testimony." Similarly, it did not prevent Dr. Smith from testifying, but stated that it expected Dr. Smith's testimony to address the likelihood of future sexual abuse, not whether the January 2003 incident occurred. 2. The superior court's ruling
Dr. Smith listed several factors that made future sexual abuse more likely, including prior sexual offenses, mental illness, substance abuse, "negative attitudes toward intervention, [and] attitudes that support or condone offenses," but stated that he was "unable to address the issue of . . . risk fully because of [Jared's] . . . defensiveness."
The superior court found that the State had proven "by clear and convincing evidence" that Allie was a child in need of aid as a result of sexual abuse. Although it determined that the January 2003 incident had occurred and that there was a "substantial likelihood of inappropriate additional sexual conduct," the superior court noted that it had refrained from considering portions of the testimony offered by Cohen and Dr. Smith:
OCS also claimed that Jared's alcohol abuse had caused Allie to be a child in need of aid, but the superior court concluded that this claim had not been proven by clear and convincing evidence. Neither party appeals this ruling.
I did not . . . consider any of Dr. Smith's testimony relevant to the issue of whether [Jared] sexually touched his daughter. I . . . did not consider any of the evidence regarding [Jared's] family history, . . . the fact that he may have been physically abused, the fact that he has been noncooperative and violated court orders, none of that is relevant to whether he sexually abused his daughter, and I did not consider that.
I also did not . . . consider . . . Cohen's diagnosis of posttraumatic stress syndrome as helpful on the question of whether [Jared] had inappropriate contact with his daughter. . . .
. . . To the extent that there was an effort, direct or indirect, to have me consider the evidence I've just discussed, I reject it and do not . . . consider it.
The court also discussed the evidence it did consider:
Allie told us in court that her dad touched her vagina; [Allie] spontaneously told . . . Cohen, her therapist, that her dad touched her vagina; [Allie] told Detective Stanton the same thing, and [Allie] told her mother the same thing. . . .
. . . .
In addition, [Allie] testified in court. I found her testimony credible. Th[is], in turn, substantially corroborate[s] [Mindy's] testimony about [Allie's] initial disclosure. . . .
[Mindy] was freely allowing visitation with [Jared]. She testified that she didn't have any concerns about [Jared] visiting the children and wasn't restricting those visitations. There's no evidence in this record that any custody moves were afoot. [Mindy] had no motive to lie or . . . coach [Allie] to make this report.
And, finally, in a case like this and with a child of this age, I always look for a benign explanation . . . but I found none. There's no evidence that [Allie] had a rash or other hygiene issues that she needed to have addressed the weekend of the incident, and the manner of her report to her mom and the nightmares contradict a benign explanation, so, in sum, I find by clear and convincing evidence that . . . inappropriate sexual contact occurred.
The conclusion that there was a substantial likelihood of future sexual misconduct was based partially on Dr. Smith's testimony about Jared's defensiveness during the sex offender evaluation which he characterized as a "denial of reality . . . far beyond what a person who's fighting the case, who's even resistant to treatment, would demonstrate." The court also noted that Jared's other behavior, including willful violations of the restraining order, showed that "he has an inability to understand the impact of his behavior on others." But according to the court, the most probative evidence was Jared's own testimony, "when [Mindy's attorney] asked [Jared] whether there was any type of parenting help that he might even learn from, and he gave us an emphatic no." Based on its conclusion that Jared had sexually abused Allie, and that he was likely to do so in the future, the superior court determined that Allie was a child in need of aid, and granted temporary custody of her to OCS. This appeal followed.
III. DISCUSSION
A. Standard of Review
We sustain a superior court's findings of fact in a CINA case unless they are clearly erroneous. Such findings are clearly erroneous if a review of the entire record leaves the court "with a definite and firm conviction that a mistake has been made." Clear and convincing evidence, the standard that the superior court applied here, requires a level of proof "greater than a preponderance [of the evidence], but less than proof beyond a reasonable doubt." In sexual assault cases, including those where the claim must be proven beyond a reasonable doubt, corroboration of the alleged victim's testimony is generally not required.
A.B. v. State, Dep't of Health Soc. Servs., 7 P.3d 946, 950 (Alaska 2000).
Id. (quoting R.J.M. v. State, Dep't of Health Soc. Servs., 973 P.2d 79, 84 (Alaska 1999)); see also In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001) (noting that "we give particular deference to [factual] findings when . . . most of the trial evidence consists of oral testimony . . . for we recognize that in such cases, it is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence") (quotation marks omitted).
As both parties note, we have held that the State may ask the court to make findings by clear and convincing evidence, rather than the (less rigorous) preponderance of the evidence standard. See D.M. v. State, Div. of Family Youth Servs., 995 P.2d 205, 209 (Alaska 2000).
Buster v. Gale, 866 P.2d 837, 844 (Alaska 1994).
See Burke v. State, 624 P.2d 1240, 1253 (Alaska 1980) (declining to adopt a corroboration requirement in the context of a statutory rape case).
We "review a trial court's decision to admit or exclude evidence for abuse of discretion, and will reverse such a decision only if the error affected the substantial rights of a party." A decision to admit expert testimony is generally reviewed for abuse of discretion, but we apply our independent judgment if the admissibility of such testimony turns on a question of law. B. The Superior Court's Findings of Fact 1. January 2003 incident
Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005).
Id.
Jared argues on appeal that the superior court erred in finding that the allegation of sexual abuse was supported by clear and convincing evidence, and therefore erred in determining that Allie was a child in need of aid. Under AS 47.10.011, a court may find a child to be a child in need of aid if "the child has suffered sexual abuse, or there is a substantial risk that the child will suffer sexual abuse, as a result of conduct by or conditions created by the child's parent, guardian, or custodian," or "the parent['s] . . . ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant, and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child."
AS 47.10.011(7).
AS 47.10.011(10).
"Cases involving the sexual abuse of children present very difficult evidentiary issues for the courts" and, as Jared correctly notes, they often turn on questions of credibility. This case is no exception, as almost all of the evidence regarding the January 2003 incident is in the form of testimony by the parties, and by others who observed the parties' reactions. Mindy testified that Allie reacted to a January 2003 nightmare in a manner suggesting sexual abuse, and that Jared reacted defensively to being confronted about it, even before she had mentioned what "it" was. Cohen testified that Allie spontaneously disclosed that she had been sexually abused. Similarly, the police officer who interviewed Allie testified that she indicated that Jared had touched her genital area. Most importantly, Allie and Jared both testified, allowing the trial court to compare first-hand the credibility of the accuser and the accused. As we have noted, "it is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence." There is nothing in the record to support "a definite and firm conviction" that the trial court erred in performing this function. We therefore hold that the superior court's factual findings on whether Jared sexually abused Allie were not clearly erroneous.
In re T.P., 838 P.2d 1236, 1240-41 (Alaska 1992).
The superior court considered whether there was a "benign explanation" for the touching. Because Allie did not have any apparent hygiene issues (and the couch, where some of the abuse allegedly occurred, would have been an odd place to address them), the court's finding that there was no "benign explanation" was not clearly erroneous.
In re Adoption of A.F.M., 15 P.3d at 262.
A.B., 7 P.3d at 950.
2. Likelihood of future sexual abuse
Jared also claims that the superior court erred in determining that Jared was likely to abuse Allie in the future. Under AS 47.10.011(7), a child is a child in need of aid if "there is a substantial risk that the child will suffer sexual abuse, as a result of conduct by or conditions created by the child's parent." Evidence regarding the likelihood of future sex offenses can be considered for the limited purpose of determining whether a child needs protection under the CINA statutes.
Cf. J.S. v. State, 50 P.3d 388, 395 (Alaska 2002) (affirming the trial court's finding that placing children with a father who had sexually abused them "would result in serious emotional damage" to the children, where the finding was based largely on expert testimony about the likelihood of future sex offenses). This is not to suggest that such evidence is relevant in criminal cases or in civil actions against the alleged offender. As OCS correctly notes, CINA proceedings are "not concerned with imposing either criminal penalties or civil liability on the alleged abuser," but rather with determining "whether the child's well-being is imperiled." See also In re A.S.W., 834 P.2d 801, 806 (Alaska 1992) ("In CINA proceedings [as opposed to criminal proceedings] the balance between children's rights and parents' rights must be weighted in favor of protecting the child.").
The superior court's conclusion appears to have been based on four factors: (1) the factual finding that Jared had already sexually abused Allie; (2) Dr. Smith's expert testimony that Jared displayed a level of defensiveness to the sex offender evaluation "far beyond what a person who's fighting the case, who's even resistant to treatment, would demonstrate"; (3) Jared's willful and repeated violations of the restraining order, which demonstrated to the court "an inability to understand the impact of his behavior on others"; and (4) Jared's denial that he had anything further to learn about parenting. A sex offender evaluation implies a suspicion that the person being evaluated has committed a serious crime, so it is unclear whether a strongly "defensive" response has significant probative value. But even if the court discounted Dr. Smith's testimony entirely, it would still be left with its previous finding that abuse had occurred, Jared's apparent lack of concern about the impact of his behavior on Allie, and Jared's unambiguous, absolute refusal to change his behavior toward Allie. Taken together, this information was sufficient for the court to conclude that there was a "substantial risk" of future sexual abuse. For this reason, we hold that the superior court's findings on this issue did not constitute clear error.
AS 47.10.011(7).
C. Evidentiary Issues
1. Victim profile testimony from Chantal Cohen
Jared argues that the court erred in permitting the State to introduce testimony from Allie's therapist, Chantal Cohen, that Allie's symptoms were consistent with those of a victim of sexual abuse. Alaska courts generally "prohibit the State from introducing evidence that there is a psychological `profile' characteristic of sexual abuse . . . victims to prove that the victim in a particular case fits this profile, and thus that the victim must be telling the truth when he or she claims to have been abused." But we will only reverse a trial court's decision to admit or exclude evidence if the error "affected the substantial rights of a party."
Russell v. State, 934 P.2d 1335, 1343 (Alaska App. 1997) (citing Cox v. State, 805 P.2d 374, 377-79 (Alaska App. 1991) and Haakanson v. State, 760 P.2d 1030, 1036 (Alaska App. 1988)).
Marron, 123 P.3d at 998.
Here, the superior court specifically stated that it did not consider profile testimony from Cohen, such as her diagnosis of posttraumatic stress disorder, to be relevant as to whether Jared had sexually abused Allie. Indeed, the court denied having considered this evidence at all: "To the extent that there was an effort, direct or indirect, to have me consider the evidence I've just discussed, I reject it, and do not . . . consider it." Because the court did not consider any profile evidence introduced through Cohen's testimony, Jared's substantial rights were not affected. For this reason, we hold that the introduction of this evidence was not error.
Cf. A.S.W., 834 P.2d at 806 ("While, in a jury trial, the admission of improper evidence may pose a threat to the accuracy of the outcome, in a CINA proceeding, the judge is more capable of attributing the proper weight to the evidence presented by the parties.").
2. Offender profile testimony from Dr. Smith
Jared also argues that the court erred in admitting testimony from Dr. Smith regarding whether Jared fit the profile of a sex offender. But, like Cohen's testimony, Dr. Smith's testimony was not considered by the trial court in determining whether Jared had sexually abused Allie. For that reason, the court did not err in admitting the testimony.
Marron, 123 P.3d at 998.
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the judgment of the superior court.