NO. 18053-7-II COURT OF APPEALS, DIVISION II OF THE STATE OF WASHINGTON ________________________________________________ In RE THE DEPENDENCY OF: A.E.P. W.M.P. Minor Children, MICHAEL PETCU, Appellant, STATE OF WASHINGTON, Respondent. ______________________________________________ APPELLANT'S BRIEF ______________________________________________ GARY A. PREBLE WSB# 14758 Attorney for Appellant GARY A. PREBLE 2120 State Avenue N.E. Olympia, WA 98506 (206) 943-6960 TABLE OF CONTENTS A. ASSIGNMENTS OF ERROR . . . . . . . . . . . . . . . . . . . 1 Assignments of Error. . . . . . . . . . . . . . . . . . . 1 1. AS TO FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF DEPENDENCY . . . . . . . . . . . . . . 1 2. AS TO ASSIGNMENTS OF ERROR AS TO FINDINGS AS TO HEARSAY STATEMENTS UNDER RCW 9A.44.120 . . . 3 3. OTHER ASSIGNMENTS OF ERROR, . . . . . . . . . . 8 Issues Pertaining to Assignments of Error. . . . . . 9 B. STATEMENT OF CASE. . . . . . . . . . . . . . . . . . . . . 10 C. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 14 I. THE COURT SHOULD NOT HAVE ADMITTED EVIDENCE INTRODUCED THROUGH E.P.'S TESTIMONY OR THE HEARSAY TESTIMONY OF OTHERS. . . . . . . . . . . . . . . . . 14 A. Five-year-old E.P. was not competent to testify at trial. . . . . . . . . . . . . . . . 15 1. The trial court did not properly consider the requisite factors in allowing E.P. to testify. . . . . . . . . . . . . . . . . . 15 a. E.P. did not demonstrate under- standing of the duty to speak the truth on the witness stand. . . . . . 15 b. The mental capacity at time of the occurrence concerning which she is to testify, to receive an accurate impression of it. . . . . . . . . . . 18 c. E.P. did not have a memory suf- ficient to retain independent re- collection of the occurrence. . . . . 18 d. E.P. did not have the capacity to express in words her memory of the occurrence . . . . . . . . . . 20 e. Capacity to understand simple questions about the occurrence. . . . 20 2. E.P. was incompetent to testify because her memory was tainted by prior inapprop- riate interrogations . . . . . . . . . . . 20 B. Child hearsay statements are presumed inadmissible as unreliable and may only be admitted if there exist particularized guar- antees of trustworthiness . . . . . . . . . . . 23 C. In determining the reliability of child hearsay statements of abuse to be admitted under RCW 9A.44.120, in addition to the nine Ryan factors, specific inquiry should also be made into whether interviews of the child contained procedural safeguards to prevent the tainting of evidence through coercion and suggestion. . . . . . . . . . . . . . . . . . . 25 D. Hearsay statements of E.P. do not overcome the presumption of unreliability. . . . . . . . . . 26 1. E.P. had an apparent motive to lie . . . . 26 a. Deanne Montgomery . . . . . . . . . . 26 b. Kyle Smith. . . . . . . . . . . . . . 28 c. Dr. Cillis. . . . . . . . . . . . . . 30 d. Detective Kelly . . . . . . . . . . . 30 e. Dr. Cillis. . . . . . . . . . . . . . 31 2. General character of E.P.. . . . . . . . . 32 3. Whether more than one person heard E.P.'s statement. . . . . . . . . . . . . . . . . 33 4. Whether E.P.'s statements were made spontaneously. . . . . . . . . . . . . . . 33 5. The timing of the declaration and the relationship between the E.P. and the witness. . . . . . . . . . . . . . . . . . 36 a. Deanne Montgomery/Shawn Murphy. . . . 36 b. Kyle Smith. . . . . . . . . . . . . . 36 c. Detective Kelly . . . . . . . . . . . 37 d. Dr. Cillis. . . . . . . . . . . . . . 37 e. Judy Brewer . . . . . . . . . . . . . 37 f. Dr. Greenberg . . . . . . . . . . . . 37 6. The possibility of E.P.'s faulty recollection is not remote . . . . . . . . 38 7. The circumstances surrounding E.P.'s statements are such that there are reasons to suppose E.P. misrepresented her father's involvements. . . . . . . . . 38 E. E.P.'s statements were made as a result of suggestive and coercive interrogation by Deanne Montgomery, Shawn Murphy, Dan Montgomery and Kyle Smith . . . . . . . . . . . 39 II. THE FINDINGS OF FACT OF THE TRIAL COURT WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE NOR DID THE TRIAL COURT WEIGH THE EVIDENCE . . . . . . . . . . . . . . 42 A. The trial court did not weigh the evidence in making its findings; and the appellate court is free to make its own . . . . . . . . . . . . 43 B. The findings of the trial court are not supported by substantial evidence and a fair- minded person would not be persuaded of the truth of the findings . . . . . . . . . . . . . 44 III. OTHER ISSUES . . . . . . . . . . . . . . . . . . . . 47 A. Mr. Petcu was denied his right to an unbiased factfinder under RCW 13.34.090. . . . . . . . . 47 B. The trial judge should have granted Mr. Petcu's motion to have the investigative interviews of the girls recorded. . . . . . . . 47 C. Dr. Peterson should have been allowed to testify regarding his psychological evaluation of Mr. Petcu. . . . . . . . . . . . . . . . . . 48 D. Dr. Peterson and Detective Kelly should have been allowed to testify regarding their opinions as to an ultimate fact . . . . . . . . 48 E. The court should not have modified the disposition order to require sexual deviancy treatment when there was no finding that Mr. Petcu was sexually deviant and where he met the express requirement of the disposition order . . . . . . . . . . . . . . . . . . . . . 49 E. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 50 F. APPENDIX RCW 9A.44.120 . . . . . . . . . . . . . . . . . . . A List of Legal and Scientific Authorities . . . . . B RCW 26.44.053 . . . . . . . . . . . . . . . . . . C TABLE OF AUTHORITIES Cases Fred Hutchison Cancer Research Center v. Holman, 107 Wn.2d 693, 732 P.2d 974 (1987). . . . . . . . . . . . 43 Hizey v. Carpenter,119 Wn.2d 251, 830 P.2d 646 (1992). . . . . 25 Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L. Ed.2d 829 (1990) . . . . . . . . . . . .22, 24-26, 34 In re Custody of Stell, 56 Wash. App. 356, 783 P.2d 615 (1989) . . . . . . . . . . . . . . . . . . . 44 People v. Michael M., 162 Misc.2d 803, 618 N.Y.S.2nd 171 (1994). . . . . . . . . . . . . .22-25, 40 Ridgeview Properties v. Starbuck, 96 Wn.2d 716, 638 P.2d 1231 (1982). . . . . . . . . . . . . . . . . . . 42 State ex rel. Flieger v. Hendrickson, 46 Wash. App. 184, 730 P.2d 88 (1986) . . . . . . . . . . 43 State v. Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967) . . . . . . 15 State v. Borland, 57 Wash. App. 7, 786 P.2d 810 (1990) . . . . 14 State v. Florczak, 76 Wn.App. 55, 882 P.2d 199 (1994). . . . . 24 State v. Henderson, 48 Wash. App. 543, 740 P.2d 329 (1987) . . . . . . . . . . . . . . . . . . . 33 State v. Jones, 71 Wash. App. 798, 863 P.2d 85 (1993). . . . . 21 State v. Laureano, 101 Wn.2d 745, 682 P.2d 889 (1984). . . . . 22 State v. Michaels, 136 N.J. Super. 299, 642 A.2d 1372 (1994). . . . . . . . . . . 21, 22, 25, 29, 40 State v. Michaels, 264 N.J. Super. 579, 625 A.2d 489 (1993) . . . . . . . . . . .21, 22, 25, 28, 34, 37, 39, 41, 47 State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984) . . . . . . . . . . . . . .24-26, 33, 38 State v. Swanson, 62 Wash. App. 186, 813 P.2d 614 (1991) . . . . . . . . . . . . . . . . . 14, 25 State v. Wright, 116 Idaho 382, 775 P.2d 1224 (1989). . . . . . . . . . . . . 21, 22, 26, 29 Tokarz v. Ford Motor Company, 8 Wn.App. 645, 508 P.2d 1370 (1973). . . . . . . . . . . . . . . . . . . 48 Statutes RCW 5.60.050(2). . . . . . . . . . . . . . . . . . . . . . . . 15 RCW 9A.44.120. . . . . . . . . . . . . . . . . .14, 21, 23-25, 31 RCW 13.34.030(2)(c). . . . . . . . . . . . . . . . . . . . . . 48 RCW 13.34.090. . . . . . . . . . . . . . . . . . . . . . . . . 47 RCW 13.34.130. . . . . . . . . . . . . . . . . . . . . . . . . 49 RCW 26.44.053(2) . . . . . . . . . . . . . . . . . . . . . . . 48 Other Authorities Goodman and Helgeson, Child Sexual Assault: Children's Memory and the Law, 40 U. of Miami L.Rev. 181 (1985). . . . . . . . . . . . . 41 KEY TO REFERENCES CP CLERK'S PAPERS SUP SUPPLEMENTAL CLERK'S PAPERS AE ALICE ECCLESTON BK DET. BRIAN KELLY CI DR. CILLIS CM CONNIE MAGER CT CHARLOTTE TUCKER DeM DEANNE MONTGOMERY DM DAN MONTGOMERY EP E.P. JB JUDY BREWER KS KYLE SMITH LS LAURA SMALLWOOD MP MIKE PETCU RP DR. PETERSON SG DR. GREENBERG A. ASSIGNMENTS OF ERROR Assignments of Error 1. AS TO FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF DEPENDENCY, THE COURT ERRED FINDING THAT: a. E.P. touched W.P. in an inappropriate sexual- ized touching more than once. [6, 7, 8, 9, 16, 17] b. Deanne Montgomery related some of her observa- tions of inappropriate sexualized touching between E.P. and W.P. to Mr. Petcu. [9] c. Dan Montgomery related most of the information about the day's activities to Mr. Petcu when he picked up the children. [9] d. Clint could have touched E.P. in May. [10] e. Any statements of E.P. to Deanne and Shawn on April 13 were disclosures that her father touched her inappropriately. [12, 13, 19] f. Dan Montgomery told Mr. Petcu of inappropriate touching. [20] g. E.P. made disclosures to Kyle Smith on April 14 of inappropriate touching by her father. [23] h. E.P. volunteered with great emotion to Kyle Smith or that she said anything about her father talking about "bad touch". [24] i. E.P. related to Kyle Smith in age-appropriate language that her father touched her privates with his hand in his bedroom, that her father made her touch her bare buttocks, that her father tried to make her touch him in addition to touching his bare buttocks and she pulled her hand away, that while her father was touching her, he was wiggling her penis, or that her father stuck his tongue in his mouth or on her leg. [25] j. E.P. provided specific details to Kyle Smith on April 14 of sexual touching by her father. [26] k. E.P. described sexual conduct on the part of her father or that she described conduct a child of her age would not have been expected to know. [27] l. The nodularity in W.P.'s hymenal region was any greater than "a little bit more significant" than "no concern". [30] m. (By implication) Dr. Cillis used no nonleading or nonsuggestive questions with E.P.. [33] n. Dr. Cillis testified about "strokes/touches" or "rubbing". [33] o. Dr. Cillis "was not certain" that the tissue loss was caused by trauma (when he testified he "didn't know" the cause). [34] p. E.P. indicated that her father touched her, or that he did it under her clothes or while wiggling his privates. [37] q. E.P. did not vary her testimony that her fa- ther had touched her inappropriately and that she had seen her father wiggle his private. [39] r. E.P.'s inconsistent statements and retractions of disclosures do not significantly diminish the weight given E.P.'s other statements. [41] s. E.P. made disclosures of inappropriate touch- ing by Kevin. [40] t. E.P. made disclosures of inappropriate, or in- appropriate sexual, touching by her father. [40,41] u. Audrey is abused as defined in Chapter 26.44 RCW by her father. [42] v. Michael Petcu is not adequately caring for E.P. and W.P. such that they are in circumstances which constitute a danger of substantial damage to their psychological or physical development. [43] w. It is currently contrary to the children's best welfare to return home. [44] x. No services could reasonably have been pro- vided to the Michael Petcu family to prevent the need for removal of the children. [45] y. Reasonable efforts had been made by the De- partment to eliminate the need for removal of the children from Mr. Petcu's home. [46] z. Events after removal of the children - foster care, visitation coordination, or a counseling ap- pointment - constitute reasonable efforts to elimi- nate the need for removal. [46] aa. The Department offered or provided services to the children and to Mr. Petcu. [46] ab. The children should remain in relative place- ment or foster care. [47] ac. A manifest danger exists that the children will suffer serious abuse or neglect if not removed from the father's home. [47] ad. The Findings of Fact to which error has been assigned hereinabove were established by preponder- ance of the evidence. [49, Conclusion of Law] 2. AS TO ASSIGNMENTS OF ERROR AS TO FINDINGS AS TO HEARSAY STATEMENTS UNDER RCW 9A.44.120, THE COURT ERRED FINDING THAT: a. E.P. had no apparent motive to lie to others in disclosing that her father had sexually molested her, or that she so disclosed. [I1a] b. E.P. was not motivated to lie about being in- appropriately touched by her father to avoid conse- quences of her own actions. [I1B] c. The way in which the interview of E.P. by De- anne Montgomery and Shawn Murphy unfolded does not support suggestion that E.P. was motivated to lie to avoid imposition of consequences for inappropri- ate behavior just prior to the interview. [I1Bi] d. E.P. had no motivation to lie because Kyle Smith assured her that she would not get in trou- ble. [I1Bii] e. E.P. had no motivation to lie to Deanne Mont- gomery because she took responsibility for inappro- priately touching W.P. when speaking with Dr. Cil- lis three days later. [I1Biii] f. E.P. provided collateral details of abuse by her father or that any information she provided was of a sexual nature or not normally known to a child of her age. [IBiv] g. E.P. was too young for the court to adequately judge her overall character regarding the propensi- ty to lie. [I2] h. Eight statements were at issue without identi- fying the eight statements. [I3] i. E.P. gave consistent descriptions of sexual abuse to Detective Kelly. [I3] j. E.P. not calling Deanne Montgomery "Mom" meant that her relationship with Deanne did not affect the reliability of E.P.'s statement. [I51a] k. Deanne Montgomery had discussed E.P.'s sexual- ized behavior with Mr. Petcu. [I51b] l. Deanne Montgomery's suspicion had not focused on Mr. Petcu. [I51b] m. The items listed are sufficient to show that Deanne Montgomery was not predisposed to believe Mr. Petcu had abused E.P. (when Deanne had previ- ously asked E.P. if she had been abused by her fa- ther and when the interview on April 13 focused on Mr. Petcu. [I51a-f] n. There was no problem with timing regarding the conversations of Deanne Montgomery, Dan Montgomery and Kyle Smith with E.P.. [I51,2,3] o. The relationship that Kyle Smith established with E.P. was professional and objective, or that the investigation done by Kyle Smith was done in a proper and unbiased manner. [I53] p. E.P. gave "fairly consistent descriptions" of "the inappropriate touching of her body" by her fa- ther, or that any such touching occurred. [I8] q. E.P. made "disclosures" to Dr. Cillis, Deanne Montgomery/Shawn Murphy or Kyle Smith. [I8,9] r. There is a low probability that E.P.'s recol- lection was faulty, or that the points listed are sufficient evidence thereof. [I8] s. The statements to Deanne Montgomery and Shawn Murphy were reliable in the absence of a finding as to possibility that E.P.'s recollection was faulty in speaking to them. [I8] t. The circumstances surrounding the making of the statements were such that there is no reason to suppose that the child misrepresented the defen- dant's involvement. [I9] u. E.P. described sexual conduct by father. [I9] v. Deanne/Shawn did not focus on Mr. Petcu. [II1] w. E.P. understood that Deanne/Shawn were asking her about inappropriate or sexual touching. [II2] x. The interviewers were not repetitious in their questions concerning the alleged molestation. [II3] y. Making "Specific Findings" concerning various interviews regarding statements that do not come within RCW 9A.44.120, as well as omitting some statements of E.P. from consideration. [III,V,VII, IX(at p.19),IX(at p.23)] z. Making no finding that E.P.'s statements to Deanne Montgomery and Shawn Murphy were made spon- taneously. [III1-9] aa. Daniel Montgomery had observed inappropriate sexualized conduct over time. [IV1] ab. Reminding E.P. of her obligation to be truth- ful is significant (when she doesn't understand the meaning of truth and lie). [V12] ac. Making no finding that E.P.'s statements to Dan Montgomery were made spontaneously. [III1-9] ad. The questions posed to E.P. by Kyle Smith were appropriate, not leading and not suggestive. [VI1] ae. E.P.'s statements to Kyle were not influenced or affected by prior interviews, or that the points listed are sufficient evidence thereof. [VI2] af. E.P. expressed great emotion near the outset of the interview with Kyle Smith. [VI2b] ag. E.P.'s comment about getting in trouble re- ferred to disclosure of abuse. [VI2b] ah. E.P. provided specific details of abuse by her father. [VI2c] ai. E.P. described sexual conduct on the part of her father, or that a child of her age would not have known the things she described. [VI2d] aj. E.P. made disclosures of sexual abuse to Kyle, or that statements by her were spontaneous, non- leading or non-suggestive. [VI2e, VII1-28] ak. "Where were you touched?" is an open-ended question when the previous question asked about any one touching her privates. [VII3,2] al. E.P.'s response about getting in trouble re- lates to her father giving her a bad touch and is in response to a non-leading question. [VII10] am. Kyle Smith's comment about talking in order to get the touching to stop was (by implication) not suggestive or coercive (especially since it assumed the existence of sexual abuse). [VII11] an. E.P.'s understood her answer to Kyle Smith's question "Does any adult or big person touch you?" to mean sexual abuse by her father. [VII12] ao. The suggestive nature of the question produced a valid response about touching the butt. [VII18] ap. "Was it over or under his clothes?" was not leading and produced a valid response, and was (by implication) an appropriate question. [VII19] aq. E.P. told Kyle her Dad was wearing "jeans and underwear", rather than "jeans and a shirt", and that "he pulls them down". [VII20] ar. "Wiggles his private" describes something a child of this age should have no knowledge and was not influenced by the form of the question. [VII21] as. Providing a picture of a naked man elicited accurate information as to whether "wiggling" the privates occurred with or without clothes (when E.P. gave several different descriptions of the "wiggling"). [VII22] at. "Does he put his tongue anywhere else?" is a non-leading question. [VII25] au. E.P. disclosed to Detective Kelly that her fa- ther had molested or abused her. [VIII10,11d,11e, VIII23] av. The sequence of questions by Kelly and Smith were not suggestive or coercive. [VIII11] aw. Giving specific details is evidence of reli- ability under the circumstances. [VIII11d] ax. E.P.'s statements to Kelly were consistent with previous statements to Kyle Smith. [VIII11e] ay. "Where were you touched?" is an open-ended question when the previous question asked about any one touching her privates. [IX2,1] az. That "over or under" the clothes gives the only options and is not suggestive. [IX6] ba. "Wiggles his private" is not in response to an leading and suggestive question (when a partially similar answer to the same question was found to be suggestive in VII21). [IX6] bb. Providing a picture of a naked man elicited accurate information as to whether "wiggling" the privates occurred with or without clothes (when E.P. gave several different descriptions of the "wiggling"). [IX9] bc. That E.P.'s response to question about size of father's penis is relevant or informative when there is no indication E.P. understood the impli- cations of the question or the answer. [IX10] bd. "Was daddy's private hard or soft?" is a non- suggestive question. [IX11] be. Request for demonstration of "wiggling" was open-ended question (when same hard blue pen was given to the child as was given when asked to draw her father's penis, and when the other body parts were drawn in green). [IX14] bf. "Did he poke outside or inside?" is non-sug- gestive because it gave the child all of the obvi- ous choices (when E.P. had just said she was poked on the privates). [IX18] bg. Juxtaposing in time touching privates and put- ting tongue in mouth adds to reliability. [IX30] bh. E.P. was speaking of, and therefore had knowl- edge of, "this combined activity" of touching pri- vates and putting tongue in mouth. [IX30] bi. There was nothing leading about the circum- stances of requesting E.P. to draw her father's body parts. [IX32] bj. E.P. used "strokes/touches" or was "rubbing" when she demonstrated how her father "wiggled" his privates. [IX7, Cillis] bk. Dad was taking [all] (by implication) his clothes off. [IX9, Cillis] bl. E.P. said, "When I sit on my dad's lap and leg he hurts my privates real bad and makes it red." X1 bm. Any causal relationship (by implication) be- tween visiting with Dad and "not telling". [X2] bn. Statements on pages 26 through 31 describe sexual contact or attempted sexual contact or are admissible under the Ryan factors under RCW 9A.44.120. [2] 3. OTHER ASSIGNMENTS OF ERROR, THE COURT ERRED: a. In finding E.P. was competent to testify. b. In finding the hearsay statements of E.P. to Deanne Montgomery, Shawn Murphy, Dan Montgomery, Kyle Smith, and Detective Kelly to be reliable. c. By not allowing Dr. Peterson to testify re- garding Mr. Petcu's psychological exam and status. d. By not allowing Detective Kelly and Dr. Peterson to testify as to their opinions as to whether Mr. Petcu had molested his children. e. By unduly restricting counsel's questions to E.P. in chambers. f. By not recognizing the effect of coercive and suggestive interview techniques on E.P. statements. g. In not having substantial evidence to support its findings. h. By not weighing the evidence, but disregarding all evidence presented by Mr. Petcu. i. In finding that hearsay statements by E.P. concerned sexual contact. j. In finding the children dependent without making any specific findings of acts by Mr. Petcu (the Court only found that people had said things). k. In being biased against Mr. Petcu. l. By not allowing Mr. Petcu's request to record the investigative interviews with the children. m. In modifying the disposition order to require sexual deviancy treatment in the absence of evi- dence for or a finding of sexual deviancy. Issues Pertaining to Assignments of Error 1. Whether the Court erred in finding E.P. compe- tent to testify at trial? 2. Whether the hearsay statements admitted under RCW 9A.44.120 were properly admitted as reliable under the Ryan test? 3. Whether the hearsay evidence admitted under RCW 9A.44.120 described acts of sexual contact or attempted sexual contact on E.P. by her father? 4. Whether the Court actually made any findings that Mr. Petcu had done anything? 5. Whether the Court should have considered the coercive and suggestive interviews that served as the basis for the hearsay statements? 6. Whether substantial evidence supports the findings of the Court? 7. Whether the trial court weighed the evidence, when it completely disregarded all Mr. Petcu's wit- nesses, including four experts? 8. Whether Mr. Petcu received an unbiased fact finder as guaranteed him by RCW 13.34.090? 9. Whether Judge Sheldon should have ordered the investigative interviews to be tape-recorded? 10. Whether Dr. Peterson should have been allowed to testify regarding Mr. Petcu's psychological ex- amination and status? 11. Whether Detective Kelly and Dr. Peterson should have been allowed to express their opinions as to whether Mr. Petcu had molested his children? 12. Whether the Court erred in curtailing Mr. Petcu's counsel's questioning of E.P. in chambers? 13. Whether it is appropriate for the Court to modify the disposition order to include require- ments of treatment for sexual deviancy when no ex- pert testimony was presented that Mr. Petcu was sexually deviant nor were there any findings that Mr. Petcu was sexually deviant? B. STATEMENT OF CASE. Mike Petcu was a single custodial parent of two girls, E.P. (5) and W.P. (3). They had no un- usual problems in daycare with Alice Eccelston. AE 9 In November, 1992, the children began daycare at the home of Deanne Montgomery. AE 19, MP 30 Deanne had been sexually abused as a child. DeM 61 Up to April, 1993, Deanne asked E.P. twelve to fifteen times whether anyone had touched her privates. Some questions were about Mr. Petcu. DeM 138 In early April, Deanne caught her seven-year-old son, Clint, touching E.P. "really close" to E.P.'s vag- inal area with her underpants down. DeM 34-5 E.P. said she told Clint no, but that Clint wouldn't stop. Clint admitted E.P. was right. DeM 95 E.P. and Clint both got spankings and were sent to the corner. EP 30 (cf. DeM 96) On April 13, Deanne found E.P. touching W.P.'s vaginal area. DeM 37 "Frazzled", Deanne spoke harshly to E.P. and sent her to the corner. SM 13, 59-61 Deanne and friend Shawn Murphy interrogated E.P. for 45 minutes, DeM 47, to 1« hours. SM 63 It was an emotional time for all three. DeM 47 Shawn told E.P. what she did was nasty and asked where she had gotten it from. DeM 116 E.P. kept asking if she was in trouble. SM 19, 21, 66, 74 She asked to go out to play but Deanne would not allow her. SM 63-4 Deanne held E.P. on her knee the whole interview. DeM 126-7 Deanne and Shawn asked E.P. if anyone had touched her. She said no to several people. She finally said yes when asked if her fa- ther had touched her. DeM 43 E.P. also said yes when asked if her mother had touched her. EP 44 Deanne and Shawn focused their questions on her fa- ther touching E.P., but didn't ask more questions about other people including the mother. DeM 125 The next day Deanne spoke with CPS worker Kyle Smith. DeM 148 Kyle picked up E.P. at 5:45 p.m. but did not ask if she had eaten. They saw Mr. Petcu at the police substation, and E.P. wanted to go to her father. Kyle did not allow her to do so. KS 110 Kyle finally gave E.P. something to eat at 8:30. KS 112 After buying a Happy Meal at McDon- alds, KS 113, Kyle and E.P. ate dinner together alone at the CPS office. KS 151 She answered her father had touched her, but it did not hurt. KS 146 Kyle's questions focused on Mr. Petcu touching E.P.'s privates. KS 135-51 Kyle interviewed E.P. for an hour. She was very tired when the foster mother, Judy Brewer, got her at 9:30 p.m. JB 21-2 E.P. went to Dr. Cillis on April 16. CI 6 E.P. told Dr. Cillis her father had not touched her, CI 54, though she did say Clint touched her vagina. CI 33 On April 22, Kyle brought E.P. to Detective Brian Kelly's office for an interview. E.P. first told Kelly her father had not touched her, but changed her story after Kyle began speaking with her. BK 11 E.P. also told Kelly and Kyle it hurt when her father touched her, but Kyle did not remind E.P she had said it hadn't hurt. BK 12 June 23 E.P. was examined again by Dr. Cillis. CI 13 She again did not say her father touched her, CI 34, but did say again Clint had touched her. CI 41 Dr. Cillis then gave her a pelvic exam. CI 42 During the exam, Judy Brewer was present, but E.P. did not totally relax. JB 53 After the exam, Dr. Cillis told E.P. it was okay to talk to Judy and tell her things. JB 48 Immediately after the exam, Judy took E.P. and W.P. to the car. E.P. began crying and told Judy she had to tell her something. She then said Clint touched her and she had told him to stop. JB 48 She cried for a good half hour, JB 45, during which she answered "no" to Judy's question whether anyone else had touched her. JB 50 She also said she was mad at Kyle for being taken away from her daddy, after which she began to cry harder. JB 50-1 Judy previously asked if anyone touched her, but E.P. said she didn't remember. JB 32 June 12, E.P. and W.P. were evaluated by psy- chologist Stuart Greenberg, being brought by their mother. SG 11 E.P. spontaneously told Dr. Green- berg that Kyle was trying to get her to say some- thing she didn't want to say and she didn't re- member it and didn't say it and her dad never touched her. SG 15 She also said, "My daddy did not touch me, I tried to explain to Kyle but she was working all day." SG 15 July 21, Dr. Greenberg met with Kyle Smith and the children and Mr. Petcu and the children. SG 10 While driving E.P. to Seattle, E.P. asked Kyle if she would tell Dr. Greenberg the truth. KS 88 E.P. later with Dr. Greenberg and Kyle, E.P. denied that anyone except Clint had touched her vagina. SG 25 Mr. Petcu denies ever having inappropriately touched either of his daughters. MP 132-5 Dr. Cillis could not say more probably than not that Mr. Petcu molested E.P. CI 81 C. ARGUMENT I. THE COURT SHOULD NOT HAVE ADMITTED EVIDENCE INTRODUCED THROUGH E.P.'S TESTIMONY OR THE HEARSAY TESTIMONY OF OTHERS. This case primarily concerns the appropriate- ness of admitting hearsay statements under RCW 9A- .44.120, (Appendix A). The child's testimony is an issue of competency. Testimony presented through hearsay is a question of reliability of the state- ments. The two issues require separate analysis. See, State v. Swanson, 62 Wash. App. 186, 192, 813 P.2d 614 (1991). The abuse of discretion standard applies to review the trial court's decision find- ing a child witness competent. State v. Borland, 57 Wash. App. 7, 10, 786 P.2d 810 (1990). A. Five-year-old E.P. was not competent to testify at trial. 1. The trial court did not properly consider the requisite factors in allowing E.P. to testify. RCW 5.60.050(2) states persons shall not be competent to testify "who appear incapable of re- ceiving just impressions of the facts, respecting which they are examined, or of relating them tru- ly." A child witness is deemed competent to testi- fy if he or she demonstrates, as set forth in State v. Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967): (1) an understanding of the duty to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence con- cerning which he or she is to testify to re- ceive an accurate impression of it; (3) suffi- cient memory to retain an independent re- collection of the occurrence; (4) the capacity to express in words his or her memory of the occurrence; and (5) the capacity to understand simple questions about it. a. E.P. did not demonstrate under- standing of the duty to speak the truth on the witness stand. When the judge asked E.P. if she knew what it meant to tell the truth, E.P. answered, "Yeah.", but when the judge asked, "What does that mean?", E.P. replied, "I don't know." EP 3-4 When asked if she knew what it meant to tell a lie, E.P. re- plied, "No.". The judge then tested her visual perception. "If I told you that this robe that I have on is bright yellow, would that be the truth or a lie?" Answer: "A lie." Dr. Greenberg testi- fied the judge's questions are inadequate to deter- mine if the child understands the importance of telling the truth. SG 31-32 E.P. had the same problem understanding truth and lie when she was interviewed by Kyle Smith, KS 8; even after Kyle tried to teach her the differ- ence at the first interview, KS 118, the problem was still there when Detective Kelly interviewed E.P. BK 5-6, 50 Deanne said E.P. had lied to her. DeM 78 Mr. Petcu told of an occasion E.P. had lied to avoid taking responsibility for her own disobe- dience. MP 231-2;307 Both Dr. Greenberg SG 15, 25- 6, and Kyle, KS 153, said E.P. contradicted herself within the space of an hour on whether E.P. told Kyle her father had touched her. Dr. Greenberg testified that in the area of "conscience development, knowing right from wrong, telling the truth, E.P. had more trouble in those areas than the typical five-year-old." SG 28. His opinion was based on personal observation and the parents' reports, which included lying and not showing guilt over wrong behavior. SG 28 Dr. Greenberg also testified "these girls are manipula- tive, they will say things in order to get their way without a sense of the implication or the im- pact of what they say." SG 72 He felt they needed to be taught truth-telling. On "voir dire," E.P. said, "Only my daddy and my sister" had touched her hair. When immediately asked, "Nobody else?", E.P. replied, "Nope." EP 9 (Dr. Greenberg said, "That can't be true"; he had touched her head. SG 25) When asked what a lie was, she replied, "I don't know," even when remind- ed of the judge's question about a yellow robe. EP 12 E.P. said she told a lie once when she was little but never told any other lies. EP 12 Later on, E.P. claimed she didn't tell Dr. Cillis the truth. EP 116-17 When asked what the truth was she said, "I can't remember." Asked if she remembered a boy named Clint, she replied, "No." When asked, "You don't?", she replied, "I hate him, but I don't like him anymore." At trial, E.P. did not understand the obliga- tion to speak the truth on the witness stand, just as she lied without guilt to Dr. Greenberg and Kyle a month earlier. This was consistent with her in- terviews by Kyle Smith and Detective Kelly. Dr. Greenberg believed E.P. would not adequately un- derstand the meaning of an oath in court. SG 54 b. The mental capacity at time of the occurrence concerning which she is to testify, to receive an accurate impression of it. E.P.'s testimony was so vague that we have no idea when the touching occurred. E.P. testified her dad touched her "very long" ago. EP 87 E.P. relied on dreams for knowledge at trial. EP 8 She presumably also did so "very long ago". Conflicts in E.P. and Deanne's testimony show, just prior to removal from the home, E.P. did not accurately perceive events (or Deanne was not truthful). E.P. said after Clint was caught touching her, Deanne spanked her by hand and Clint with a belt, EP 30, 44; Deanne testified she did not spank E.P. and didn't spank Clint with a belt, only patting him on the rear end. DeM 96 c. E.P. did not have a memory suf- ficient to retain independent recollection of the occurrence. E.P. couldn't name the town she lived in five months before with her father, or her birthday par- ty ten months previously. EP 3,7 She said she had not told Dr. Greenberg and Kyle a month previously that only Clint had touched her. EP 90 They testi- fied to the contrary, supra, page 16. She discussed jokes and dreams with telling the truth. EP 63-8 When asked why she didn't tell Dr. Cillis her father touched her, she said, "'Cau- se I didn't know to tell him 'cause IÄÄI didn't know about it a long time ago." EP 117 Asked to explain she said, "IÄÄI couldn't remember." EP 117 Asked what helped her remember, she said, "What helped me remember I was dreaming but a long time ago I didn't dream about it." EP 118 Asked when she was dreaming, she replied, "I can't remember." EP 118 When asked, "When you were talking with Dr. Cillis, you didn't remember then what your daddy had done? Is that what you are saying?" E.P. replied, "Yeah." When asked further about the dream, she said she had dreamed it "last night," but couldn't remember the dream. EP 114-20 There are other examples of E.P.'s inability to remember. Kyle said she held up her index finger to show her and Kelly which finger her father used to touch her. KS 191 At trial, she held up and named her middle finger in answer to the prosecutor's questions. EP 31-2 She said she didn't have a memory of "the event" when she spoke to Dr. Cillis, and that a dream the previous night helped her remember. Even the judge commented near the end of E.P.'s testimony, "I don't think we have had any testimony on what the specifics may have been as to physical touching." EP 110 d. E.P. did not have the capacity to express in words her memory of the occurrence. Asked where in her home her daddy touched her pee-pee, E.P. replied, "I don't know." EP 30 E.P. is very limited in her ability to express in words the memory of "the occurrence," as the judge's com- ment above suggests. It is important that ability to speak not be confused with ability to communi- cate concepts or attach meaning to events. Another example of her not having words to de- scribe events occurred in cross examination. When asked if she had seen her mom's boyfriend wiggle his privates, she stated, "He hasn't done it for a long time;" later stated, "He hasn't done it, he hasn't done it either;" and finally, that he didn't do it at all. EP 60 e. Capacity to understand simple questions about the occurrence. E.P.'s answers at times show confusion in comprehending simple questions. 2. E.P. was incompetent to testify be- cause her memory was tainted by pri- or inappropriate interrogations. E.P. was rendered unavailable for testimony because her memory had been so tainted by inap- propriate and leading interrogations. This issue was raised in the case of State v. Michaels, 264 N.J. Super. 579, 625 A.2d 489, 519 (1993) (Michaels I) (cited with approval on another issue in State v. Jones, 71 Wash. App. 798, 819, 863 P.2d 85 (1993)). The Michaels I court stated: In that respect we offer no opinion as to when a child's in-court testimony is so tainted as to be admissible that it would render the child "unavailable" within the meaning of [New Jersey's equivalent to RCW 9A.44.120(2)]. This question may depend on whether the out- of-court statement preceded the taint or not. The problem of tainted testimony is addressed in a thorough and scholarly manner in Michaels I, 625 A.2d at 510-19, and in its subsequent affirma- tion in the New Jersey Supreme Court State v. Michaels, 136 N.J. Super. 299, 642 A.2d 1372, 1375- 80 (1994) (Michaels II). The Idaho court stated: The risk with young children is that they may be unable to distinguish between a memory of something which actually happened from a mem- ory of something they imagine happening. . . If an interview technique leads a child to imagine an event the child's memory of that imagined event will be indistinguishable from memories of events which the child actually experienced. . . Once this tainting of memory has occurred the problem is irremediable. That memory is, from then on, as real to the child as any other. State v. Wright, 116 Idaho 382, 775 P.2d 1224, 1228 (1989), affirmed, Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L. Ed.2d 829 (1990) (quoted in Michaels I, 625 A.2d at 629). The exclusion of tainted testimony has been clearly resolved as to hypnosis. The Supreme Court, holding that all post-hypnotic testimony should be rejected, stated as follows: A witness cannot identify his true memories after hypnosis. Nor can any expert separate them out. Worse, previously hypnotized wit- nesses often develop a certitude about their memories that ordinary witnesses seldom exhi- bit. . . The plain fact is that such testimony is not and cannot be reliable. The only sens- ible approach is to exclude testimony from previously hypnotized witnesses as a matter of law, on the ground that the witness has been rendered incompetent to testify. State v. Laureano, 101 Wn.2d 745, 752, 682 P.2d 889 (1984). The foregoing language is remarkably simi- lar to that cited from the Idaho Supreme Court in State v. Wright, supra, at page 21. In-court testimony is admissible because oath and cross examination provide sufficient tests of reliability. In People v. Michael M., 162 Misc.2d 803, 618 N.Y.S.2nd 171, 176 (1994) (following Michaels II) the court noted that testimony based on eyewitness identification and that resulting from hypnosis are exceptions; and both are suppres- sed because they are rendered unreliable by sug- gestive procedures. It concluded, id. at 177, that: [i]f a child witness is prone to the same sort of suggestion to which a person under hypno- sis, or a person making an identification, is subject, a defendant should have the same or similar rights as suppressed testimony render- ed unreliable by suggestion. The court granted a hearing on tainted tes- timony based upon one leading question by an emerg- ency room doctor to a ten-year-old girl ("Did Mich- ael touch you down there?" Id. at 175.) Deanne's grueling interrogation of E.P., DeM 109-41, which lasted 45 minutes to 1« hours, followed soon by the hour-long interrogation by Dan Montgomery, are far more egregious than the leading question in Michael M.. In addition, the suggestive and focused quest- ioning by Kyle Smith the next day was more egreg- ious than that in Michael M.. B. Child hearsay statements are presumed inadmissible as unreliable and may only be admitted if there exist particularized guarantees of trustworthiness. The critical issue in admitting child hearsay statements under RCW 9A.44.120 is whether the pre- sumption of reliability is overcome. Quoting the U.S. Supreme Court, the Washington Court states two ways to admit hearsay as reliable: Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantee of trust- worthiness. State v. Ryan, 103 Wn.2d 165, 170, 691 P.2d 197 (1984). "Hearsay statements not admitted pursuant to a firmly rooted hearsay exception are presumed inadmissible." Idaho v. Wright, 497 U.S. at 827; Michael M., 618 N.Y.S.2d at 176. RCW 9A.44.120 is "not within the category of firmly rooted hearsay exceptions," Ryan, id. Any hearsay introduced pur- suant to the statute is thus presumed inadmissible and must be excluded, absent a showing of particu- larized guarantees of trustworthiness. State v. Florczak, 76 Wn.App. 55, 69, 882 P.2d 199 (1994) (citing Idaho v. Wright). To determine if a child's out-of-court state- ments overcome the presumption of unreliability, Idaho v. Wright, 497 U.S. at 821, Washington con- siders the nine factors stated in State v. Ryan, 103 Wn.2d 165, 175-6, 691 P.2d 197 (1984): Those factors are: "(1) whether there is an apparent motive to lie; (2) the general char- acter of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; and (5) the timing of the declaration and the re- lationship between the declarant and the wit- ness." We added that these factors were not exclusive and should be considered with the [following] additional factors. . .:[6] the statement contains no express assertion about past fact, [7] cross examination could not show declarant's lack of knowledge, [8] the possibility the declarant's faulty recollec- tion is remote, and [9] the circumstances sur- rounding the statement . . . are such that there is no reason to suppose the declarant misrepresented defendant's involvement. The standard for review of reliability under RCW 9A.44.120 is the abuse of discretion standard. But "[a]ppellate courts will carefully review the evidence and testimony presented in evaluating the exclusion and admission of child hearsay statements even under the abuse of discretion standard." State v. Swanson, 62 Wash.App. 186, 195, 813 P.2d 614 (1991). A trial court abuses its discretion when the ruling is manifestly unreasonable or based on untenable grounds. Hizey v. Carpenter,119 Wn.2d 251, 268, 830 P.2d 646 (1992). C. In determining the reliability of child hearsay statements of abuse to be admit- ted under RCW 9A.44.120, in addition to the nine Ryan factors, specific inquiry should also be made into whether inter- views of the child contained procedural safeguards to prevent the tainting of evidence through coercion and suggestion. Tainted testimony and suggestibility of child- ren has not been directly addressed in Washington though, in a general sense it fits within the Ryan factors. (Ryan had added four criteria after stat- ing the first five were not exclusive.) Given the growth in scientific and legal literature regarding suggestibility of children, see Michaels I, Michaels II, Michael M., and Idaho v. Wright, and literature cited therein, see Appendix B, there should be an additional factor especially dealing with sex abuse cases. The "totality of the circum- stances," Idaho v. Wright, 497 U.S. at 825, should require the court to make an additional and expli- cit analysis of the absence of suggestibility. Some Ryan factors are inapplicable in a case of suggestibility. The motivation to lie is mean- ingless if the child's memory has been tainted, for as the Idaho court in State v. Wright stated: The risk with young children is that they may be unable to distinguish between a memory of something which actually happened from a memo- ry of something they imagine happening. . . . If an interview technique leads a child to imagine an event, the child's memory of that imagined event will be indistinguishable from memories of events which the child actually experienced. . . . Once this tainting of mem- ory has occurred, the problem is irremediable. That memory is, from then on, as real to the child as any other. 775 P.2d at 1228. Most of the Ryan factors are significantly affected if, due to suggestive quest- ioning, the child has a sincere but false belief that something had occurred. While the analysis herein tracks Ryan, the suggestibility analysis which follows may be the more appropriate. D. Hearsay statements of E.P. do not over- come the presumption of unreliability. 1. E.P. had an apparent motive to lie. a. Deanne Montgomery. When E.P. was sent to the corner after touching W.P., she knew she was caught and in trouble. DeM 111,35,98 Deanne got "mad" and "fraz- zled," SM 13, 59-61, and harshly sent E.P. to the corner, SM 61-2, 67, 79, as she had done before. DeM 97 She knew she had been treated unfairly by Deanne. And she knew her daddy would be mad at her. EP 23,44-6,86, RP 57 E.P. "was upset, she was cry- ing" at the beginning of Deanne and Shawn's inter- view. DeM 43 E.P. was so concerned about getting in trouble she asked after every question, "Am I going to get in trouble?" SM 66 And when she asked near the outset if she could go outside and play, Deanne said, "Just a moment." SM 64 Only after len- gthy interrogation was E.P. allowed outside. SM 72 Mr. Petcu said E.P. lied on one occasion to avoid responsibility for disobedience. MP 231-2;307 E.P. had also lied before to Deanne. DeM 78 E.P. had great motivation to lie. She wanted to get out of being in trouble again. Deanne and her father had both gotten mad at her before. De- anne had already spoken harshly to her and put her in the corner. E.P.'s questions to Deanne about being in trouble probably show she expected to be spanked again by Deanne. She also had the expect- ation that her father would be mad at her again. Dr. Greenberg said whether children lie depends on the inducement they perceive in the sit- uation for telling or not telling the truth. SG 20 She lied to her father to avoid responsibility and she certainly had motivation to lie when Deanne and Shawn interrogated her for 45 minutes to 1« hours. Dan's hour-long interrogation which followed was just an extension of the first as to motivation. b. Kyle Smith. E.P. did in fact lie to Kyle when she said Clint touched her over her clothes, KS 135, (unless Deanne is lying on this point, which is unlikely because it's against her familial interest). E.P. was touched "very close" to the vaginal area with her pants down. DeM 34 E.P. had some motive to lie to Kyle because she did in fact do so. Dr. Greenberg cited [Stephen J.] Ceci, SG 19, as having written an excellent recent article on children and their memories. Ceci is quoted exten- sively in Michaels I, as is Diana Younts, see Ap- pendix B. Michaels I addressed children's lying: Younts believes that Stephen Ceci's 1990 study provides the most impartial results of the nine studies Younts examined. Ceci found that "even small material and psychological re- wards" prompted children to lie about events. Id. 625 A.2d at 514. According to Younts, when a study provides motivational factors for lying, children will often lie. Id. Witnesses in both situations [suggestive pre- trial identification and suggestive or coer- cive interviews] are quite likely to be abso- lutely convinced of the accuracy of their re- collection. Thus their credibility, under- stood as their obvious truth-telling demeanor, is unlikely to betray any accuracies or false- hood in their statements. Younts, supra, 41 Duke L. J. at 727. Michaels II, 642 A.2d at 1382. Dr. Greenberg tes- tified to the same phenomena. SG 20-1 See, also, State v. Wright, supra, at page 26. In Kyle's first interview, E.P. knew she exer- cised great authority over her because Kyle would not let her see her father at the substation. KS 110 When Kyle took E.P. from the baby-sitter at 5:45 p.m., E.P. was crying and did not want to go. KS 106 When E.P. cried in the police car, Kyle had E.P. sit on her lap, and put her arms around her. KS 107 Kyle did not give E.P. any food until 8:30 p.m., when she bought E.P. a Happy Meal, more ex- pensive than the regular hamburger. KS 113 For all the above reasons, given the material reward of the Happy Meal and the psychological re- ward of sitting on the caseworker's lap and being comforted by her, E.P. had a motive to lie. In fact, in her testimony at trial, in answer to the question, "How does that make you feel, 'cause you think that Kyle believes you?", E.P. said, "Because I like her, she's still my friend." EP 113 Later, when asked how she knew Kyle was still her friend, she said, "Because she likes me and she really believes me." And when asked how does she know Kyle liked her, E.P. replied, "Because she ÄÄ she knows that I am her friend." EP 124 Again she was asked why it was important that Kyle believed her, to which she answered, "Well, I like it if she be- lieves me. I'll be her friend forever. And I'll play with her." EP 128 E.P. wanted to please Kyle. This psychological reward was motive to lie. c. Dr. Cillis (April 16, 1993). E.P. did not lie to Dr. Cillis because he approached her in a professional manner. d. Detective Kelly. E.P. had no motive to lie to Detective Kelly, nor did she do so initially. However, when Kyle, who took her to the interview, intervened and prompted her, E.P. changed her story. BK 11, KS 47,48 During the interview, the question of E.P. being tainted by prior interviews entered Kelly's mind; and he needed to consider it. BK 10 Kelly did not learn until cross examination that E.P. told Kyle in a previous interview it had not hurt when her father touched her. BK 10; KS 29 It was an important discrepancy he would have evaluated in his interview had he been told. Kelly agreed that E.P.'s changing her story about whether the touch- ing hurt "is an example of children changing their answers the more often they're asked." BK 14 e. Dr. Cillis (June 23, 1993). E.P. had no motive to lie in her second meet- ing with Dr. Cillis. Actually, nothing in E.P.'s statements of her father indicate sexual contact, and are thus inadmissible under RCW 9A.44.120. 2. General character of E.P. The strongest statement about E.P.'s character comes from Dr. Greenberg, who saw her July 12 and 21, 1993. Dr. Greenberg assessed her general char- acter relevant to questions of abuse, her reporting abilities, her consistency, reliability, truth-tel- ling. SG 48 He said she had aggressive behavior, with bullying, lying, stealing. SG 27 He per- sonally saw E.P. blatantly lying. SG 72, 89 He also said his information about the kids suggests some question about this girl's either age-appropriateness conscience devel- opment, knowing right from wrong, telling the truth. . . . Compared to other five-year- olds, she has more trouble in those areas than the typical five-year-old does. SG 28 Again, he noted a combination of pre-delinquent behavior and aggressive behavior, things like not showing guilt when she does something wrong. Lying, cheating, stealing, arguing, bragging, being mean, demanding attention, destroying proper- ty, breaking things, disturbing others, jeal- ous, fighting, hitting others, disrupting, screaming, showing off, being demanding, being stubborn, having sudden mood changes, teasing, temper tantrums, being unduly loud. E.P. does not appreciate the consequences on others of what she does. SG 51 He said E.P. was manipulative and would say things in order to get her way without a sense of the implications or the impact of what she said. SG 72 She did what she was told not to do. SG 73 She bragged about being wild, teasing, telling stories. SG 73 Dr. Greenberg also said, SG 79, One of the things that bothered me a lot about these kids, is that they didn't seem to care most of the time. They just said things that sometimes were truthful and sometimes were not and it was just all kind of thrown out there. Dr. Greenberg's conclusions apply to Deanne's interview because the behavior problem was of long- er duration than Kyle could have influenced. SG 74 3. Whether more than one person heard E.P.'s statement. For many of the statements, more than one per- son heard them. However, most of the key state- ments were made to Kyle alone during her coercive and leading interview on April 14, 1993. 4. Whether E.P.'s statements were made spontaneously. The statements in Ryan, 103 Wn.2d at 176, were found not spontaneous "but in response to question- ing." Ryan seems to have been modified in State v. Henderson, 48 Wash. App. 543, 550, 740 P.2d 329 (1987), which said an answer to a question that is neither leading nor suggestive is "spontaneous," and the court must consider "the entire context in which the child makes the statement." This is sim- ilar to the "totality of the circumstances" test in Idaho v. Wright, 497 U.S. at 825. The U.S. Supreme Court in that case noted that spontaneity in and of itself is insufficient to justify admission. If there is evidence of prior interrogation, prompting or manipulation by adults, spontan- eity may be an inaccurate indicator of trustworthiness. (497 U.S. at 827, 110 S.Ct. at 3152, 111 L. Ed.2d at 659-60 (quoted in Michaels I, 625 A.2d at 518)). Very few statements attributed to E.P. are truly spontaneous and not from leading questions or coercive circumstances. Dr. Peterson stated the literature on children's memory in recol- lection of past events is quite clear, indicating that the most reliable information comes from spontaneous reports and not from responses from specific questions. RP 54 Of E.P.'s first mention to Kyle of Dad "wig- gling his private," Dr. Peterson stated, "It is not spontaneous, it is in response to a question. Spon- taneous disclosure or a voluntary disclosure is without any prepassing question." RP 82 He noted that Kyle's question which elicited E.P.'s comment "implies that he was doing something." RP 82 The only truly spontaneous statement by E.P. was her statement to Kyle in Finding C15 on April 14, 1993 in which E.P. said, "You know what? My dad sticks his tongue in my mouth and I don't like it." Evidence that this even happened or has sexual connotations is strongly refuted by testi- mony from E.P. herself, EP 33, and Dr. Greenberg. SG 29,113-4 When asked at trial if anyone had put his tongue in her mouth, she said, "No," then spon- taneously added, "I only saw that on TV." EP 32-3 In addition, the court omitted several criti- cal spontaneous statements by E.P. In E.P.'s first meeting with Dr. Greenberg, at which neither Kyle Smith nor Mr. Petcu were present, that E.P. said, "My daddy did not touch me, I tried to explain to Kyle but she was working all day." SG 15, 62 When Kyle was present the next week, E.P. again spontan- eously told Kyle her father had never touched her vagina. E.P. also spontaneously told Judy Brewer in the bath she had touched W.P. once. JB 33 The most significant spontaneous statement by E.P. to Judy Brewer, however, came immediately af- ter her pelvic exam on June 23, 1993. The circum- stances were so dramatic as to be an excited utter- ance hearsay exception. In the exam, during which she never totally relaxed, JB 53, Dr. Cillis told her she was free to tell Judy if anyone touched her. After leaving, E.P. cried for half an hour in Judy Brewer's car. E.P. spontaneously told Judy Clint had touched her. Judy asked if anyone else had, and she said no; then she said she was mad at Kyle for taking her away from her daddy. JB 48-51 5. The timing of the declaration and the relationship between the E.P. and the witness. a. Deanne Montgomery/Shawn Murphy. The relationship between Deanne and the chil- dren was that Deanne considered them like family. DeM 122 On the other hand, she blamed E.P. for her son's touching her. DeM 97 She had incentive to find another source for her family's problems. b. Kyle Smith. Kyle Smith is ostensibly a professional with no personal bias. However, the way she managed the interviews and contacts with E.P. suggest other- wise. Rather than being neutral, Kyle saw herself as protector and comforter of E.P. E.P. in turn saw her as her friend, whom she wished to please. While the law enforcement and legal profes- sionals who work with abused children attempt to guard against improper influence, the de- sire to win, which drives the adversary sys- tem, sometimes tempts conscientious indivi- duals over the line. Michaels I, 625 A.2d at 513. Kyle's zeal to un- cover abuse led her to use biased interview techni- ques, KS 135-51; it led her to provide a nurturing format to the child rather than a neutral truth- finding format; it led her to selectively reinforce the child's statements that supported a finding of abuse and to not reinforce those statements which did not show the father as an abuser. c. Detective Kelly. Brian Kelly is an objective professional, al- though his questioning left something to be de- sired, but the presence of Kyle Smith in his inter- view tainted the results of his interview. d. Dr. Cillis. Dr. Cillis is completely neutral and profes- sional. Except for several leading questions, he was involved in the case near its inception and ap- proached the case in a neutral manner. e. Judy Brewer. Judy Brewer is also neutral, and one of E.P.'s most significant statements was made to her. She was involved with E.P. from the day E.P. was picked up and taken from Mr. Petcu's care. f. Dr. Greenberg. Dr. Greenberg, though completely disregarded by Judge Sheldon, is a highly respected profession- al. His direct contact with E.P. was entirely professional, as is evident from his testimony. 6. The possibility of E.P.'s faulty recollection is not remote. Since hearsay is presumed unreliable and therefore inadmissible, the burden is on the State to show that the possibility is remote that E.P.'s "recollection" was faulty. This burden was never overcome by the State. In light of the inappropri- ate interrogation by Deanne and Shawn, and later by Dan, the possibility of faulty recollection is not remote. The same could be said for Kyle first interview with E.P. after picking her up. 7. The circumstances surrounding E.P.'s statements are such that there are reasons to suppose E.P. misrepre- sented her father's involvements. If one presumes that the child is either lying or telling the truth, then most of this element has been addressed in motive to lie. In addition, the absence of spontaneity in most of the statements has also been addressed. While an inquiry into the suggestibility of the interviews could be forced within the final Ryan factor, the dynamics of suggestibility are better addressed separately. E. E.P.'s statements were made as a result of suggestive and coercive interrogation by Deanne Montgomery, Shawn Murphy, Dan Montgomery and Kyle Smith. Michaels I lists several additional factors which can influence suggestibility: 1) whether the interviewer believes in the presumption of guilt; 2) whether the questions asked were leading or nonleading; and 3) whether the interviewer was a trusted authori- ty figure. 625 A.2d at 513. In addition, several factors can influence children to give misleading information: (1) adults may misinterpret what a child states; (2) the possibility of abuse may lead to hysteria; or (3) an adult may have malici- ous motives. . . . In addition, as there is more media coverage of sexual abuse, parents and the professional community are more likely to suspect sexual abuse as a cause for symptom formation, even when sexual abuse has not oc- curred. Id. at 514. Finally, interviewers must be vigilant "to ensure that a child's information does not become distorted or falsified by confounding influences." Id. at 515. Factors of the interview itself that can fal- sify and confound a child's report include the lack of investigatory independence, pursuit of an agenda, leading, and coercion. Investiga- tory independence requires the interviewer to adopt an "objective stance of not allying him/herself with any particular individual in- volved in the investigation of the allegation. The interviewer should also maintain indepen- dence by not giving the child verbal and be- havioral clues that can contaminate the inter- view. An example of the latter would be stroking the child's head as a reinforcement for an answer that confirms the interviewer's assumptions about the allegation. . . . [O]ne of the worse things an interviewer can do to adversely affect reliability is to follow a preconceived agenda. Id. Michaels II states in addition: A lack of objectivity also was indicated by the interviewer's failure to pursue any alter- native hypothesis that might contradict an assumption of defendant's guilt, and a failure to challenge or probe seemingly outlandish statements made by the children. 642 A.2d at 1379-80. Michaels II also notes other factors such as "the manner and form of interroga- tion; physical and mental condition of the declar- ant, the use of inducements, threats or bribes." Id. at 1381. The court in Michael M. stated: Psychological studies of investigatory inter- views in child abuse cases indicate that sug- gestive interviewing techniques can shape the child's responses [Michaels II] . . . the dan- ger of obtaining inaccurate information in re- sponse to suggestive questioning is particu- larly high when children are asked to inter- pret ambiguous events. When they do not know the meaning of an event, they are likely to ac- cept an adult's interpretation. 618 N.Y.S.2d at 177. Citing protocols from the A- merican Prosecutors Research Institute, Michaels II says an interviewer should never try to force a reluctant child to talk. 642 A.2d at 1378. Fur- ther, multiple interviews with various interviewers should be avoided. Id. Michaels II also cited other cases which noted the potentially coercive affect of having an authoritarian figure or a par- tisan questioner participate in an investigatory interview. Id. Regarding proper interview technique an interviewer should be highly trained and unbiased, because the least accurate reports in sex abuse cases are obtained from child witnesses when the interviewer harbors precon- ceived notions about what happened. Michaels I, 625 A.2d at 511 (citing Goodman and Helgeson, Child Sexual Assault: Children's Memory and the Law, 40 U. of Miami L.Rev. 181, 195, 207-08 (1985)). "Goodman and Helgeson also report that the most accurate information is obtained at the initial interview." Id. Dr. Greenberg said the first interview of a child in matters of sexual abuse is important because "it's at that point the child's memory is most susceptible to influence. . . . So the first interview, particularly if it is substantial, is critical to what the report the child gives later." SG 38 He also testified that repeated questioning by itself has been shown to be effectively leading. The reason is that when you ask a child the same question, the child can intuit that the previous answer was not acceptable and subsequently offer a different answer that might be more pleasing to the adult. . . . And you have to be careful not to have a series of interviewers who inadvertently [repeatedly ask the same question]. SG 40 Dr. Peterson testified that repetitive questioning undermines a child's sense of reality. RP 76,131 Emotionally loaded situations are more vulnerable to suggestions than emotionally neutral ones. SG 42 Telling a child "there is nothing to be afraid of" will frighten a calm child and in- crease the arousal in the situation. Highly arous- ing emotionally loaded situations are more suscep- tible to suggestion and leading than calm neutral ones are. SG 42 Both Dr. Greenberg, SG 18-19, and Dr. Peterson, RP 53, identified the factors for a good interview. Both testified the danger of tainted knowledge or understanding is that a child will take it as what was actually experienced. SG 20-1, RP 52 The interview of Deanne and Shawn and Dan were clearly tainted. DeM 138-9 Dan and Deanne were both biased against E.P. in favor of Clint. DeM 97, DM 26-8 Kyle's testimony shows her interviews vio- late most requirements for objectivity. KS 135-51 II. THE FINDINGS OF FACT OF THE TRIAL COURT WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE NOR DID THE TRIAL COURT WEIGH THE EVIDENCE. Where the trial court has weighed the evi- dence, our review is limited to determining whether substantial evidence supports the findings and, if so, whether the findings in turn support the trial court's conclusions of law and judgment. . . . Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth of the de- clared premise. Ridgeview Properties v. Starbuck, 96 Wn.2d 716, 719, 638 P.2d 1231 (1982) (the court noting that it had carefully reviewed the record of the case). "Findings of fact . . . will be approved unless shown to be against the weight of the evidence." Fred Hutchison Cancer Research Center v. Holman, 107 Wn.2d 693, 710, 732 P.2d 974 (1987). A. The trial court did not weigh the evi- dence in making its findings; and the appellate court is free to make its own. There is virtually no evidence in the findings and conclusions of law that the court weighed the evidence. There is not a single mention of any testimony provided by Mr. Petcu's witnesses. It is inexplicable that the trial court did not even ac- knowledge the testimony of Dr. Peterson and Dr. Greenberg. The trial court may refuse to accept un- contradicted expert testimony only so long as it does not act in an arbitrary or capricious manner. State ex rel. Flieger v. Hendrickson, 46 Wash. App. 184, 190, 730 P.2d 88 (1986). However, "the trial court should rely on expert opinion to help reach an objective, rather than subjective, evaluation of the issue." In re Custody of Stell, 56 Wash. App. 356, 368, 783 P.2d 615 (1989). The Stell court con- cluded that the trial court's refusal to give any credence to the overwhelming and unrebutted expert testimony of the psychologist was error. 56 Wash. App. at 369. The court went on to say that "in this most difficult of all problems, the custody of children, the trial court should seek all the light available." 56 Wash. App. at 370. Because the court did not even acknowledge the testimony of Mr. Petcu's witnesses, it cannot be shown that the trial court weighed the evidence. A fair reading of the record will show it did not. The appellate court is therefore free to review the evidence itself. B. The findings of the trial court are not supported by substantial evidence and a fair-minded person would not be persuaded of the truth of the findings. Even disregarding the extensive testimony of Mr. Petcu's witnesses, the court nevertheless acted in an arbitrary and capricious manner toward the "acceptable" witnesses. It selectively, and with no justifiable reason for the distinction, chose to take only that testimony from the witnesses that favored a finding of abuse. It avoided the test- imony of the most neutral of those witnesses, Dr. Cillis and Judy Brewer, when it was "exculpatory". It avoided the fact that the child made no substan- tial comments to either of them that was clearly inculpatory. It avoided fair mention of the one example of a "firmly rooted hearsay exception" ÄÄ her excited utterances when under the emotional distress of the pelvic exam. The court also avoided a fair evaluation of the contradictory evidence. Specifically, E.P. said so many things that were contradictory about her father's involvement as to impeach her own testimony. She was, however, amazingly consistent and persistent in her accusations of Clint. The court also gave only the most cursory mention of E.P.'s striking loyalty and love for her father. See E.P. 41, 46, 48, 65-7, 68, 108-9, 115, 120, 124; KS 83, 110; JB 50; SG 29; MP 87 And the court completely disregarded that the children exhibited no sexualized behavior anywhere except Deanne Montgomery's house. They did not show it at Alice Eccleston's house. AE 12 They did not show it at Judy Brewer's house, immediately after being removed from the Montgomery environment. JB 33 They didn't show it around their father, SG 29, even though he had weekly supervised contact with the girls. MP 148 (Dr. Greenberg said sexually abused children normally exhibit some sexualized behavioral pattern, which these girls did not show. SG 29) Nor did Kyle Smith, Detective Kelly or Dr. Cillis testify to having seen any sexualized behaviors in E.P. Nor did Mr. Petcu's friends. e.g. CT 2-3 Add to that the fact that E.P. has consistently complained that Clint touched her. She also complained about Clint to Connie Mager shortly after Deanne began babysitting. CM 2-5 In addition, other children testified about Clint's sexual touching. LS 5-7, MT 3-15 In addition, there is the fact of Deanne's history as a virtual- ly untreated sexual abuse victim. DeM 60-6 And there is the strange refusal of the Montgomerys to believe their son may be the problem with E.P., even though he admitted it. DeM 94-6, DM 25-9 Fi- nally, there is the fact of Deanne's biased reports to CPS. Her initial report did not reflect that Clint had touched E.P. KS 134 And her initial information to Kyle was that E.P. was the aggressor with Clint. KS 133 (if the caseworker is believed) The combined evidence listed above points dir- ectly to some problem in the Montgomery household. There is no quantum of evidence sufficient to per- suade a fair-minded person that the court's find- ings are true. III. OTHER ISSUES. A. Mr. Petcu was denied his right to an unbiased factfinder under RCW 13.34.090. Specific points of bias by the trial judge a- gainst Mr. Petcu are set forth in the text, includ- ing the refusal of the judge to consider any of his witnesses, and the generally biased manner in which the judge ruled on objections. B. The trial judge should have granted Mr. Petcu's motion to have the investigative interviews of the girls recorded. Prior to the interview by Detective Kelly and Kyle Smith, Mr. Petcu requested the interview be recorded. See, Michaels I, 625 A.2d at 512. The motion was denied. Had the interview been record- ed, the prompting by Kyle Smith could have been more fully evaluated. As implied in Michaels I, the court should require recording of child inter- views in order to provide procedural safeguards for children and their families. C. Dr. Peterson should have been allowed to testify regarding his psychological evaluation of Mr. Petcu. RCW 26.44.053(2), Appendix C, states that the results of a psychologist's evaluation of a parent are admissible in dependency hearings. Whether or not the evaluation was court-ordered is immaterial. If any evaluation is admissible, then any legiti- mate evaluation should be admissible, for the sta- tute means that such evaluations are not inherently inadmissible in dependency hearings. Moreover, one of the findings the court was required to make was whether the children would be in danger in his home, and the court did so. RCW 13.34.030(2)(c) One of Dr. Peterson's opinions was that the children were safe around Mr. Petcu. RP 46-7 D. Dr. Peterson and Detective Kelly should have been allowed to testify regarding their opinions as to an ultimate fact. Mr. Petcu sought to admit testimony of Dr. Peterson and Detective Kelly, each as an opinion that they could not say on a more probable than not basis that Mr. Petcu had molested his children. RP 43-7, BK 44 "The expert may express an opinion on the ultimate fact to be determined by the jury, so long as the inference drawn is not misleading or a matter of common knowledge." Tokarz v. Ford Motor Company, 8 Wn.App. 645, 654, 508 P.2d 1370 (1973). The court's reasoning is set forth at RP 35-6. E. The court should not have modified the disposition order to require sexual deviancy treatment when there was no finding that Mr. Petcu was sexually deviant and where he met the express requirement of the disposition order. At the disposition hearing held pursuant to RCW 13.34.130, Mr. Petcu presented Dr. Peterson's report CP 13-8, as well as a successful polygraph exam administered by John Ketchum. CP 19-21 The court ordered Mr. Petcu to undergo a psychosexual evaluation and follow the recommendations for treatment, "if any". CP 9 Mr. Petcu obtained the evaluation from Michael Barsanti, who required Mr. Petcu to undergo plethysmograph and polygraph eval- uations. Mr. Petcu successfully completed a poly- graph exam administered by Bud Killian, and was found not deceptive when he denied any sexual conduct with E.P. SUP 29 Mr. Petcu successfully completed the plethysmograph exam administered by Evergreen Psychological Services, who concluded that his "deviance differential of 3.79 is most similar to subjects in the research samples who were in the non-offending group." SUP 29 Mr. Barsanti completed his evaluation, stating, "Much of the data produced by Mr. Petcu does not match up well with the data produced by known sex offenders." He concluded with, "Since Mr. Petcu does not feel that he has done anything wrong, there is no recommendation for treatment." SUP 30 A review hearing was held July 1, 1994, at which time the court modified the disposition order to require that Mr. Petcu "successfully participate in and complete treatment for sexual deviancy with a state certified therapist." The court had made no finding of sexual deviancy, nor did it have clin- ical evidence that Mr. Petcu is sexually deviant. It is Mr Petcu's contention that the court erred in modifying the disposition order, and that it ordered sexual deviancy without a finding of or clinical evidence of sexual deviancy. E. CONCLUSION For the above reasons, Mr. Petcu requests the court to reverse the finding of dependency and dis- miss the petition for dependency; if there is to be any further action in the trial court, order that all matters shall be held before another judge. Respectfully submitted August 16, 1995. PREBLE LAW FIRM __________________________ GARY A. PREBLE, WSB #14758 Attorneys for Appellant APPENDIX