NO. 18053-7-II SUPREME COURT OF THE STATE OF WASHINGTON ________________________________________________ In RE THE DEPENDENCY OF: A.E.P. W.M.P. Minor Children, MICHAEL PETCU, Petitioner STATE OF WASHINGTON, Respondent. ______________________________________________ PETITION FOR DISCRETIONARY REVIEW ______________________________________________ GARY A. PREBLE WSB# 14758 Attorney for Petitioner GARY A. PREBLE 2120 State Avenue N.E. Olympia, WA 98506 (206) 943-6960 ================================================================= TABLE OF CONTENTS A. IDENTITY OF PETITIONER. . . . . . . . . . . . . . . . . . 1 B. COURT OF APPEALS DECISION . . . . . . . . . . . . . . . . 1 C. ISSUES FOR APPEAL . . . . . . . . . . . . . . . . . . . . 1 1. Whether the obligation to tell the truth in court is an important prerequisite to a finding of competency.? . . . . . . . . . . . . . . . . . . . . 1 2. Whether absence of tainted testimony/inter- views should be required for findings of both competency and reliability of child's testimony? . . 1 3. Whether child interviews should be tape-re- corded so as to protect children's testimony from being tainted or misrepresented? . . . . . . . . . . 1 4. Whether modifying the disposition order with- out further findings violated the father's right to a fair dependency process? . . . . . . . . . . . . . 1 D. STATEMENT OF CASE . . . . . . . . . . . . . . . . . . . . . 1 E. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . 6 1. Reasons for the Supreme Court to Accept Review.. . . 6 2. The court erred in finding EP competent to testify at trial because it did not find she understood the obligation to speak the truth on the witness stand and because it used an inappropriate definition of "truth". . . . . . . . . . . . . . . . . . . . . . . 7 3. The Supreme Court should address the issue of tainted testimony, both as to competency and as to hearsay reliability. . . . . . . . . . . . . . . . . 13 a. EP was made incompetent by suggestive interview methods which tainted her tes- timony . . . . . . . . . . . . . . . . . . 13 b. EP hearsay statements were not reliable and should not have been admitted into evidence . . . . . . . . . . . . . . . . . 16 i. EP's statements to Deann Mont- gomery and Kyle Smith were not spontaneous. . . . . . . . . . . 16 ii. The Court of Appeals confused standard with burden of proof. . 17 iii. EP's hearsay testimony is not reliable because the court did not give proper consideration to it's having been tainted. . . 18 4. Other Issues . . . . . . . . . . . . . . . . . . . . 19 a. Judge Sheldon erred by not granting Mr. Petcu's request to tape record investiga- tive interviews with the children. . . . . 20 b. The court erred when it modified the disposition order. . . . . . . . . . . . . 20 F. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 21 G. APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . A-1 ================================================================= TABLE OF AUTHORITIES Cases Dependency of S.S., 61 Wash. App. 488, 814 P.2d 204 (1991) . . . . . . . . . . . . . . . . . . . 17 Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L. Ed.2d 829 (1990) . . . . . . . . . . . . . 13, 17, 18 State v. Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967) . .7, 8, 10-12 State v. Carlson, 61 Wn.App. 865, 812 P.2d 536 (1991). . . 16, 18 State v. Cooley, 48 Wash.App. 286, 738 P.2d 705 (1987) . . 13, 14 State v. Dixon, 37 Wn.App. 867, 684 P.2d 725 (1984). . . . . 8, 9 State v. Michaels, 136 N.J. Super. 299, 642 A.2d 1372 (1994) (Michaels II). . . . . . . . . . . . 20 State v. Michaels, 264 N.J. Super. 579, 625 A.2d 489 (1993) (Michaels I). . . . . . 6, 7, 14, 16, 19 State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984). . . .6, 17, 18 State v. Wright, 116 Idaho 382, 775 P.2d 1224 (1989), aff'd, Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L. Ed.2d 829 (1990) . . . . . . . . . 18 Other Authorities Ceci, S. and Bruck, M., Jeopardy in the Courtroom, A Scientific Analysis of Children's Testimony, (Am. Psychological Assoc. 1995) . . . . . .7, 14, 17, 19, 20 KEY TO REFERENCES CP CLERK'S PAPERS EP E.P. SUP SUPPLEMENTAL CLERK'S JB JUDY BREWER PAPERS KS KYLE SMITH Resp RESPONDENT'S CP LS LAURA SMALLWOOD AE ALICE ECCLESTON MP MIKE PETCU BK DET. BRIAN KELLY RP DR. PETERSON CI DR. CILLIS SG DR. GREENBERG DeM DEANNE MONTGOMERY ================================================================= A. IDENTITY OF PETITIONER: Michael Petcu is the father of the above children. B. COURT OF APPEALS DECISION: Ruling Affirming Judgment entered Nov. 27, 1996. Exhibit A Order Denying Motion to Modify, entered Febru- ary 5, 1997. Exhibit B C. ISSUES FOR APPEAL: 1. Whether the obligation to tell the truth in court is an important prerequisite to a finding of competency.? 2. Whether absence of tainted testimony/int- erviews should be required for findings of both competency and reliability of child's testimony? 3. Whether child interviews should be tape-re- corded so as to protect children's testimony from being tainted or misrepresented? 4. Whether modifying the disposition order without further findings violated the father's right to a fair dependency process? D. STATEMENT OF CASE. Mike Petcu was a single custodial parent of two girls, E.P. (5) and W.P. (3). They had no unusual 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 Ap- ril, 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 Mr. Petcu requested the court to require tape- recording of any further interviews, but the court refused his request. 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 speak- ing 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 The court found the children dependent and that Mr. Petcu had inappropriately touched EP. The court made no finding of sexual deviancy, CP 6-12, but ordered a psychosexual evaluation and that he follow recommended treatment, "if any". CP 9 Mr. Petcu completed the evaluation, passing a polygraph and plethysmograph. SUP 24-30. See also, CP 13-18, 20-21 No treatment was recommended. SUP 30 The court, with no further evidence, required him to attend "sexual deviancy" treatment. SUP 22 Mr. Petcu attended treatment, SUP 13-14 He received further evaluation from Dr. Peterson and Michael Comte. SUP 9-12. Mr. Comte found "no clini- cal evidence of a sexual deviation." SUP 11 Mr. Petcu was thus unable to complete sexual deviancy treatment because he didn't qualify. See, SUP 13, SUP 3, SUP 10-11, SUP 12 This negatively affected custody of his children, Exhibit A-3 n.1, notwith- standing dismissal of the dependency. Resp __ E. ARGUMENT 1. Reasons for the Supreme Court to Accept Review. The Supreme Court should accept review of this case under RAP 13.4(b)(3) and (4) because this case presents issues of substantial public interest which should be determined by the Supreme Court. Specifically, the factors determining reliabil- ity of children's hearsay testimony under State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984) do not adequately address the problem of tainted testimony in light of current psychological research. See, State v. Michaels, 264 N.J. Super. 579, 625 A.2d 489 (1993) (Michaels I); Ceci, S. and Bruck, M., Jeopardy in the Courtroom, A Scientific Analysis of Children's Testimony, (Am. Psycholog'l Assoc.1995). In addition, courts have allowed improper tests of competency to be used for children's testimony regarding perception of the truth and obligation to speak the truth in court. Other dependency issues should also be decided on to give guidance to the legal system. 2. The court erred in finding EP competent to testify at trial because it did not find she understood the obligation to speak the truth on the witness stand and because it used an inap- propriate definition of "truth". The court made no written finding that EP was competent, (though such finding is implicit in the general findings). As can be seen from the at- tached oral ruling, Exhibit H, the trial judge did not explicitly consider all requirements of State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967). In particular, the trial court did not consider the first two Allen requirements as to whether EP had (1) an understanding of the obligation to speak the truth on the witness stand or (2) the mental capac- ity at the time of the occurrence concerning which he or she is to testify, to receive an accurate impression of it. See, Appellant's Brief, 14-18. The first problem is the very nature of the judge's competency "test" she gave to EP. Judge Sheldon's questions are inadequate to determine if the child understood the obligation to tell the truth. Dr. Greenberg, SG 31-37, testified that the judge's questions only evaluated accuracy of obser- vation, they did not establish "the importance to [EP] of telling the truth." SG 32. The first Allen requirement is not whether the child understands what the truth is. Rather, Allen requires the child to understand the obligation to speak the truthÄÄnot only generally, but the obli- gation to tell the truth on the witness stand. Mere discussion of the color of the judge's robe does not satisfy this standard. Nowhere is there any indication that the judge discussed EP's "obligation" or "duty" to tell the truth. Only once does anything come close to suggesting an obligation to tell the truth. EP said she got in trouble the only time she ever told a lie. But we know she was not truthful in that statement because Dr. Greenberg testified she lied several times to him. SG 25-28; 53-4; 72. In addition, she lied in the evaluation process without getting in trouble. "[T]he purpose of an oath or affirmation is to awaken the witness' conscience and impress his mind with the duty to tell the truth." State v. Dixon, 37 Wn.App. 867, 875, 684 P.2d 725 (1984). [T]he requirements of ER 603 are met when a child demonstrates an understanding of the difference between truth and falsity, is ad- equately apprised of the importance of telling the truth and declares that he will do so. The judge failed completely to apprise EP of the importance of telling the truth, or even to discuss testifying in court with her. At no point in EP's testimony was it clarified why she was testifying. Contrast this with Dixon where the eight-year- old child was asked "whether he knew that it was important to tell the truth in court that day and whether he would do so." Id. The child stated "he knew it was important to tell the truth in court and that he would indeed tell the truth." Id. On the other hand, when EP was asked, "Why are you going to court?" EP responded, "I don't know." EP 70. And Dr. Greenberg was clear when he testified he did not believe EP would adequately understand the meaning of an oath in court. SG 54. Obligation to tell the truth in court is an essential element of competency because testimony affects other people. Dr. Greenberg testified EP had only limited concept of how her comments would affect others. When asked his opinion as to whether EP could recognize or appreciate the consequences or impact of her comments on others, Dr. Greenberg testified: "She does not appreciate the conse- quences on others of what she does." SG 50-51. Judge Sheldon did not properly consider the Allen test of competency. Her oral competency ruling shows she confused the first two Allen requirements. When she discussed EP's understand- ing of truth and lie, she failed to take into account the obligation of the child to speak the truth on the witness stand. Her ruling, Exhibit H- 3, appears to have confounded the obligation to speak the truth with mental capacity at the time of the occurrence to receive an accurate impression: Although [EP] could not articulate what a lie was as opposed to what the truth was, she was accurate in identifying those statements which were either truth or lie. Despite what Mr. Preble does say about that particular test, it is, I believe, an accurate test of the ability to perceive and the ability to relate back to a question about the perceived object. Rather than addressing EP's understanding the ob- ligation to speak the truth on the witness stand, Judge Sheldon addressed her ability to "perceive" and to "relate back to a question about the per- ceived object." Perceiving colors is not the same as understanding the obligation to speak truth. The foregoing quotation of Judge Sheldon ad- dresses only receiving an accurate impression. But the Allen requirement of an accurate impression relates not to the time of the testimony, as the judge suggested, but rather to "the time of the occurrence concerning which he or she is to testi- fy, to receive an accurate impression of it." The judge, who wore a black robe, asked EP, "If I told you that this robe that I have on is bright yellow, would that be the truth or lie?" EP 4. The judge asked similar questions regarding elephants flying and regarding a red notebook there in the room. Id. All three questions addressed EP's pres- ent ability to perceive. The judge made no finding whatsoever regarding EP's mental capacity at the time of the occurrence concerning which she was to testify. Thus, by confusing the first two Allen requirements for competency, the judge omitted one or both of them. When asked about the judge's questions on color, Dr. Greenberg testified: Well, the word is lie is a very socially loaded word, particularly for a child. And it implies an intentional uh, misrepresentation of the facts for some ulterior motive. The examples you have given me are simple mistakes, or jokes, or pretend uh, it is hard to know what they mean to a young child when asked that way. SG 32. While a judge's determination of competency is given deference, deference is not warranted when there has been a manifest abuse of discretion. The judge abused her discretion in using an ineffective test to determine if a child understood the meaning of truth and lie, SG 31-32; the judge further abus- ed her discretion when she failed completely to address the child's understanding of the obligation to speak the truth on the witness stand. And not only did the judge fail to properly follow Allen, she disregarded clear evidence from Dr. Greenberg directly relating to EP's competency and truth-telling. Even the judge herself recog- nized EP's competency to testify was "marginal." She therefore abused her discretion and the finding of competency should be reversed. EP should thus have been unavailable for the purposes of admitting hearsay under RCW 9A.44.120; and all hearsay so admitted was done in error. 3. The Supreme Court should address the issue of tainted testimony, both as to competency and as to hearsay reliability. a. EP was made incompetent by suggestive inter- view methods which tainted her testimony. The Court of Appeals, n.1, followed State v. Cooley, 48 Wash.App. 286, 291, 738 P.2d 705 (1987), where the court declined to adopt a rule requiring a "suggestibility hearing." But Cooley, which cites no professional resources or opinions, is a 1987 case, decided prior to several significant cases cited by appellant. Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L. Ed.2d 829 (1990), recognized developments in psychology regarding suggestibility of which Cooley was unaware, as well as the danger of using leading questions when interviewing alleged child abuse victims. Cooley is inapposite because it included no evidence of improper interviewing or investigation. Nor was there any expert testimony on the subject. Moreover, the defendant in Cooley failed to object to child's testimony on any grounds. More significant than Wright, and following Wright, is the case of State v. Michaels, 264 N.J. Super. 579, 625 A.2d 489 (1993) (Michaels I). In Part V of that case, 264 N.J. Super. at 620, 625 A.2d at 510, the court thoroughly explored the issues of inadequate interviews, suggestibility and tainted testimony. Exhibit C. In its scholarly opinion, Michaels I cited many professionals re- garding proper interviewing of children. Exhibit D. Only two of those resources predated Cooley. The recency of resources cited in Michaels I indicates significant growth of knowledge in the area of interviewing children since Cooley. Stephen J. Ceci is a significant sources cited in Michaels I who was also cited by Dr. Greenberg. SG 19. Ceci, with Maggie Bruck, wrote Jeopardy in the Courtroom, A Scientific Analysis of Children's Testimony, published by the American Psychological Association (1995). Exhibits E and F show the dan- gers of multiple and inadequate interviews: A child's report is less likely to be distort- ed, for example, after one interview than after several interviews. (The term 'interviews' includes any conversations between adults and children about the target event.) Id. at 272 (Exhibit F-3). Other chapters are also appropriate to the issues of this case. Michaels I also cited Younts, who felt Ceci's 1990 study provided the most impartial results of the nine studies Younts examined. 264 N.J. Super. 579, 627, 625 A.2d 489, 514 (Exhibit C-7). courts should pay particular attention to whether the abuse investigator had a precon- ceived notion of what happened to the child and then sought the child's confirmation. Id., 264 N.J. Super. at 628, 625 A.2d at 515 (quot- ing Younts) (Exhibit C-7). The actions of Deann Montgomery over a several month period, and the subsequent acts of herself, Shawn Murphy and Mr. Montgomery, were violative of the requirements for neutral interviews. For example, she had asked EP several times if her father had touched her privates. Kyle Smith's interview was also not neutral. KS 135-51. Deann Montgomery's interrogation of EP was in- timidating and coercive. Dr. Peterson testified at length as to the inappropriateness of her inter- view. RP 52-67. In addition, Dr. Greenberg said Mrs. Montgomery's repeated questioning was "lead- ing." SG 38-42. An example of Mrs. Montgomery's leading and contaminating the interview is seen from her testi- mony, DeM 45, that EP said both Mr. and Mrs. Petcu had touched her. She then focused her questions solely on Mr. Petcu, leaving the statement about Mrs. Petcu alone. DeM 125 b. EP hearsay statements were not reliable and should not have been admitted into evidence. i. EP's statements to Deann Montgomery and Kyle Smith were not spontaneous. The test for spontaneity is as follows: For purposes of a child hearsay analysis, spon- taneous statements are statements the child volunteered in response to questions that were not leading and did not in any way suggest an answer. State v. Carlson, 61 Wn.App. 865, 872, 812 P.2d 536 (1991) (emphasis added). Dr. Greenberg also said the repetitive questioning of EP by Deann Montgom- ery was leading. SG 39-40. To say the questioning by Deann Montgomery over several months was not leading, the court had to completely disregard the unrebutted testimony of Drs. Greenberg and Peter- son. The court that has thoroughly considered this subject, Michaels I, supra, is entirely con- sistent with their testimony. See also, Ceci and Bruck, Jeopardy in the Courtroom, supra. ii. The Court of Appeals confused standard with burden of proof. The Court of Appeals, Exhibit A-3, n.2, dis- missed Idaho v. Wright, supra, with inaccurate analysis, claiming a confrontation clause case is inappropriate authority for addressing standards for admitting child hearsay. This purported dis- tinction between civil and criminal regarding hearsay is clearly wrong. Whether or not one has a right to confront a witness is immaterial to wheth- er a child witness has been tainted through sugges- tive and leading interviews. The Court of Appeals confused "burden of proof" with "standard." The standards for reliability under RCW 9A.44.- 120 are the same in criminal and dependency cases. The factors of State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984), a criminal case, are the same factors applied in a dependency case to show indi- cia of reliability. Dependency of S.S., 61 Wash. App. 488, 496-9, 814 P.2d 204 (1991). (Virtually all cases cited as authority in S.S. are criminal cases.) S.S. made no distinction between dependen- cy in criminal cases as to reliability. iii. EP's hearsay testimony is not reliable because the court did not give proper consideration to it's having been tainted. The major problem with the reliability standard set forth in Ryan is that if a child's memory has been tainted by inappropriate interview methods, a child can meet virtually all the Ryan standards even though the statements are based upon false beliefs. It is for that reason that the court must add the absence of "taint" as an additional factor. As the Idaho Supreme 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 memory 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), aff'd, 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). See also, Ceci and Bruck, Exhibits E and F. While child abuse is certainly terrible, the results of false beliefs due to a child's tainted memories are no less terrible. Requiring the ab- sence of taint does nothing to harm the truly abused. The only ones protected by the present test are those investigators who subject unwitting children to the terrible of loss of family (in a dependency case) as a result of tainted memories. 4. Other Issues. a. Judge Sheldon erred by not granting Mr. Petcu's request to tape record investigative interviews with the children. Dr. Peterson stated that it is best to record interviews. RP 53 "As a matter of sound interview- ing methodology, nearly all experts agree that initial interviews should be videotaped." State v. Michaels, 136 N.J. Super. 299, 642 A.2d 1372, 1379 (1994) (Michaels II), n.1 (existence of recording of statement is a factor bearing on reliability of statement). Had the interview with Kyle Smith and Detective Kelly been recorded, as requested by Mr. Petcu, the evidence of the reliability of the statements would have been clearer. See also, Ceci and Bruck, Exhibit G (excerpt discussing need for video recording, pp 241-51). b. The court erred when it modified the dispo- sition order. The Court of Appeals perpetuates Judge Shel- don's unwarranted use of the psychological term "sexually deviant". She did this with no expert evidence on the subject. The evidence in fact indicates that Mr. Petcu is not sexually deviant. See also, SUP 9-12, 15-7, 13-4. In particular, Michael Comte concluded his evaluation by saying: " In conclusion, there appears to be no clinical evidence of sexual deviation." SUP 9-10 F. CONCLUSION Petitioner requests the court to overturn the dependency or remand it for rehearing. Respectfully submitted this 7th day of March, 1997. __________________________ GARY A. PREBLE WSB# 14758 Attorney for Petitioner, Michael Petcu