Opinion Information Sheet

Docket Number:       65205-8
Title of Case:       In RE the Welfare Of: A.E.P. & W.M.P., Minor Children.
                            135 Wn.2d 208, 956 P.2d  297 (1998)

File Date:                    05/21/98
Oral Argument Date:  01/28/98
 

                                SOURCE OF APPEAL

Appeal from Superior Court,
            Mason County;
            93-7-00023-7
            Honorable Toni A. Sheldon, Judge.
 

                                    JUSTICES

Authored by James M. Dolliver
Concurring: Barbara Durham
            Charles Z. Smith
            Charles W. Johnson
            Barbara A. Madsen
            Gerry L. Alexander
            Richard B. Sanders
Dissenting: Philip A. Talmadge
            Richard P. Guy
 

                                COUNSEL OF RECORD

Counsel for Petitioner(s)
          Gary A. Preble
          Preble Law Firm
            2120 State Ave NE
            Olympia, WA  98506

Counsel for Respondent(s)
            Edward J. Dee
            Assistant Attorney General
            Offc of Attny. General
            PO Box 40124
            Olympia, WA  98504-0124

Amicus Curiae on behalf of Washington Association of Criminal
            Gene M. Grantham
            Attorney At Law
            Ste 500 Maynard Bldg
            119 1st Ave S
            Seattle, WA  98104

Amicus Curiae on behalf of Washington Association of Prosecutin
            James M. Whisman
            King Co Prosecutor's Ofc
            516 3rd Ave  Rm W554
            Seattle, WA  98104
 
 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

135 Wn.2d 208, 956 P.2d  297 (1998)

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

     Our summary of the facts has been derived from the trial court's
findings of fact and from the testimony of the numerous witnesses.  The
record contains nearly 1,500 pages of transcripts of testimony given during
the dependency hearing.  Since the second issue involves the reliability
and admissibility of A.E.P.'s hearsay statements, the content of those
statements and the circumstances surrounding the making of those statements
will be explained in detail.

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

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

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

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

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

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

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

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

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

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

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

     In response to Kyle's questioning, A.E.P. stated "her father touched
her privates with his hand in his bedroom; that her father made her touch
his 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 his penis; and that her father
stuck his tongue in her mouth and on her leg."  Clerk's Papers at 38-39.
The specific details given to Kyle included bits of information such as it
did not hurt when her dad touched her privates; it occurred in the
nighttime; and it occurred on the floor of dad's bedroom.  When asked where
W.M.P. was during this alleged touching, A.E.P. said W.M.P. was sleeping in
dad's bed.

     On cross examination, Kyle admitted the CPS intake sheet indicated
"that Mom had touched both {A.E.P.} and {W.M.P.} in their privates."
Narrative Report of Proceedings at 177 (Kyle Smith).  The information on
the intake sheet assumedly came from Deanne Montgomery's call to the CPS.
Despite this information, Kyle never asked A.E.P. about seeing her mother
touch W.M.P.  Kyle asked A.E.P. one time whether her mother had touched
her, and after A.E.P. said no, Kyle stopped pursuing that line of
questioning.

     The day of April 14, 1993, A.E.P. and W.M.P. were placed with Judy
Brewer, a foster mother.  Judy received W.M.P. in the early afternoon, but
she did not get A.E.P. until around 9:30 p.m., after A.E.P. had been
interviewed by Kyle Smith.  A.E.P. was tired when Judy picked her up.  Judy
had the girls for nearly six weeks, but she never observed any sexual
acting out between the girls during baths.  Judy also never observed any
sexualized touching when the girls were left in a room to play together.

   Two days after receiving the girls, Judy took them to Dr. Vic- tor
Cillis for an examination.  One month later, Dr. Cillis con- ducted a
second examination.  After this second visit, A.E.P. was very upset in the
car on the way home.  She was upset about being touched by the doctor
during a pelvic exam.  Judy told A.E.P. it was okay for a doctor to touch
her, and A.E.P. then spontaneously stated she had something to tell Judy.
A.E.P. then disclosed she had been touched by C.M., and he had done it a
few times.  Judy then asked if anyone else had touched her, and A.E.P. said
no.  On a different occasion, A.E.P. again had told Judy in the course of
conversation that A.E.P.'s father had not touched her.

     Judy observed two other occasions of spontaneous statements made by
A.E.P. which were suspicious.  One time when A.E.P. was playing with a
balloon, she looked at the nipple and said it looked like a penis to her.
Another time, A.E.P. had said "sitting on Dad's lap made her privates real
red and hurt."  Narrative Report of Proceedings at 5 (Judy Brewer).
Neither statement was in response to questions, nor did Judy follow those
statements with other questions.

     As previously mentioned, both girls were taken to Dr. Victor Cillis
for two medical exams.  The first exam occurred on April 16, 1993.  Dr.
Cillis spoke with W.M.P., but obtained no information helpful in
determining whether she had been sexually abused.  The exam of W.M.P.
showed an abnormally large hymeneal diameter and notching of her hymen, but
there was no evidence of penile penetration.  The doctor's findings with
regard to W.M.P. were consistent with digital fondling and penetration.
W.M.P.'s second exam, on June 23, 1993, was consistent with the initial
findings.

     On April 16, 1993, Dr. Cillis interviewed A.E.P. for approximately one
half hour.  During the interview, Dr. Cillis asked A.E.P. if anyone had
touched her in the vaginal area, and she did not reveal anything about
anyone touching her.  On cross examination, the doctor stated A.E.P. had
indicated during the first interview that her father had not touched her.
The doctor asked A.E.P. if she had touched anyone else, and after initially
denying it, A.E.P. later responded she had touched her sister in the
vaginal area.  The doctor's first exam of A.E.P. seemed to be within normal
limits, but there was mild nonspecific redness of her vaginal area.

     At A.E.P.'s second visit with Dr. Cillis on June 23, 1993, the doctor
again interviewed A.E.P. for one-half hour.  During this interview, A.E.P.
indicated she had been touched in her vaginal area by a boy named C.M.  She
said C.M. always wants to put his hands in her pants.  When asked if anyone
else had touched her, she failed to respond.  Later in the interview, the
doctor asked if A.E.P. had ever seen male genitals.  She said she had seen
her father's, and the doctor elicited details.  She stated in a matter of
fact way, in response to segmented questioning, that she had seen her
father in his room wiggling his privates by the heater.  He was watching
television, did not say anything, and was not near A.E.P.  He did not touch
A.E.P., nor did he ask her or W.M.P. to touch him.  A.E.P. stated she was
sitting on a yellow stool watching television while her dad was wiggling
his privates.

     Dr. Cillis' second exam of A.E.P. disclosed a slight notch in her
hymen, but he was not sure of its significance, and was only mildly
concerned.  Other signs of trauma were not present, but the doctor admitted
a child can be fondled without being physically traumatized.  On cross
examination, Dr. Cillis answered it was very possible that A.E.P.'s sexual
behavior exhibited towards her sister could have been learned from C.M.'s
sexual behavior towards A.E.P.

     Detective Brian Kelly was assigned to the Petcu case on April 15,
1993.  On April 22, 1993, Detective Kelly interviewed A.E.P.  Kyle Smith
was present during this interview.  At the beginning of the interview,
Detective Kelly asked A.E.P. how she felt about her father.  She responded
she liked him, but sometimes he did bad things.  When asked to elaborate,
she said sometimes he will not let her go outside.  When asked if her dad
was bad in any other way, she said no.  Detective Kelly then started
discussing good touches and bad touches.  At this point, A.E.P. seemed to
withdraw and not want to talk about it.  The detective asked several open
ended questions of whether anyone had touched her, and she consistently
responded no.  When the detective started asking more specific questions,
A.E.P. said a friend named C.M. had touched her privates.  Detective Kelly
then asked if her father had touched her in that way, and she said no.

     According to Kyle, who was present at this interview, when A.E.P. was
first asked if her father had touched her where she did not like, she did
not say anything, but pointed to the buttocks on a drawing.  According to
the detective's testimony, he asked another follow-up question regarding
her father touching her privates, and she gave a negative response.  The
detective then told A.E.P. it was very important for her to tell the truth,
and again asked if she had been touched, and she said no again.  At this
point, Kyle Smith interrupted and reminded A.E.P. of what Kyle and A.E.P.
had discussed in their previous interview.  After this, A.E.P. began
telling Detective Kelly that her father had touched her.

     When the detective asked A.E.P. what she was wearing during the
touching incident, A.E.P. stated she had been wearing purple pants and a
plain red colored shirt.  A.E.P. said her father poked her with his index
finger, and when asked whether he touched her inside or outside, she
responded inside.  When asked if the touching was all the way in or just a
little, she said all the way.  According to Kyle, A.E.P. told the detective
that it hurt when her father poked her in her privates.  The detective
asked A.E.P. about her father wiggling his privates, and she volunteered
that he stood up to do it, and it was big and hard, although she did not
touch it.  According to Kyle, the detective also asked A.E.P. if anything
came out of her dad's privates when he was wiggling it, and she said no.
She said pee comes out of it when he goes to the bathroom.  The transcript
of the detective's testimony fails to reveal any further details about the
alleged touching or wiggling incident.  It is unclear from the detective's
testimony whether the touching and wiggling related by A.E.P. supposedly
happened at the same time, or whether they were separate incidents.

     Several times throughout the interview, the detective asked A.E.P.
whether the events she reported were real or not.  On cross examination,
the detective admitted he never got a "clear handle" on whether A.E.P.
understood the difference between truth and lies, but he said she appeared
to know the difference between what really does versus does not happen.

     Petitioner hired a licensed psychologist, Dr. Stuart A. Greenberg, to
interview the girls and Petitioner.  Dr. Greenberg also interviewed Liz
Petcu.  Dr. Greenberg spent one hour with just W.M.P. and A.E.P. on July
12, 1993, and he then spent one hour with the girls and their mother on the
same day.  On July 21, 1993, Dr. Greenberg spent one hour with Kyle Smith
and the girls, and then spent one-half hour with Petitioner and the girls.

     Dr. Greenberg testified about some of his concerns which arose in his
first interview of the girls:

          Uh, well in terms of their behavior, some things that they said
     to me are worth noting.  For example:  Um, {A.E.P.} made a big deal
     about complaining about Kyle, I want to be clear that I am not
     endorsing this, I'm telling you what she told me.  Uh, that Kyle was
     trying to get her to say something that she didn't want to say and she
     was emphatic about how I don't remember it, I didn't say it and my dad
     never touched me, uh, it was almost too emphatic.
     . . .

Narrative Report of Proceedings at 14-15 (Stuart Greenberg).  A.E.P. also
told Dr. Greenberg, "'My daddy did not touch me, I tried to explain to Kyle
but she was working all day.'"  Narrative Report of Proceedings at 15
(Stuart Greenberg).

     During Dr. Greenberg's second interview with A.E.P., Kyle was also
present.  The doctor testified that his notes relate the following:

     {A.E.P.} kept looking at Kyle while denying that anyone except {C.M.}
     had touched her vagina.  Uh, that was after telling me uh,
     contradictory things, she told me at one time that she had told Kyle
     that her father had touched her vagina but that she was wrong about
     that.  Another time she had told me that her father had never touched
     her vagina, it was only {C.M.}.  Then she told Kyle to her face that
     her father had never touched her vagina.  We are hearing these very
     different stories from this girl from within, you know, a matter of an
     hour.  Uh, when I had asked her, she was very consistent that the only
     person who uh, touched her body in an inappropriate way was {C.M.}.
     Uh, Kyle then tried to remind {A.E.P.} of what {A.E.P.} had told her
     before, and {A.E.P.} got upset and looked Kyle in the eye and asserted
     loudly "I'm telling the truth."  That is not what she told me, that is
     not what she had said five minutes before, but that is what she
     claimed at the moment.

Narrative Report of Proceedings at 25-26 (Stuart Greenberg).

     Petitioner's attorney questioned Dr. Greenberg in depth about proper
versus improper interviewing techniques.  Dr. Greenberg stated over 80
percent of the studies showed children from three-to-five years old are at
the height of suggestibility.  He testified the first interview of a child
concerning sexual abuse is the most important, because

          {i}t's at that point the child's memory is most susceptible to
     influence.  You got a child who is, memory traces at that point are
     pure, if you will; and that first interview is the opportunity to
     either cement that child's memory and fix it at what really happened
     or to influence it or alter it.  So the first interview, particularly
     if it is substantial, is critical to what the report the child gives
     later.

Narrative Report of Proceedings at 38 (Stuart Greenberg).

     Besides all the hearsay statements A.E.P. made to all the individuals
above, A.E.P. also testified at the dependency hearing.  A.E.P. was first
questioned by the judge to determine her competency.  While A.E.P. could
not explain the difference between the truth and lies, she could identify a
lie when the judge asked factual questions such as, "If I told you that
this robe that I have on is bright yellow, would that be the truth or
lie{?}"  Narrative Report of Proceedings at 4 (A.E.P.).  The judge asked
only three simple factual questions about truth or lies, and then allowed
counsel to further question A.E.P. about her memory of past events.  After
further questioning, the judge administered a formal oath to A.E.P.  When
asked if she promised to tell the truth, A.E.P. said "Yeah."  Narrative
Report of Proceedings at 15 (A.E.P.).

     The court then questioned A.E.P. as to the details of the touching.
To briefly sum up A.E.P.'s testimony, she testified she had been touched by
C.M.; she related one incident where she claimed her father had touched her
"pee-pee" after tucking her into bed, Narrative Report of Proceedings at 34
(A.E.P.); and she related a separate incident where she saw her father
wiggling his penis in his bedroom, but there was no interaction between
herself and her father during the wiggling incident.  As reflected by the
transcript of A.E.P.'s testimony, the trial court never attempted to
ascertain when these events had supposedly occurred.

     After taking the testimony of all the witnesses, the trial court
issued a ruling entitled "Findings as to Hearsay Statements under RCW
9A.44.120."  This document analyzes the Ryan (State v. Ryan, 103 Wn.2d 165,
691 P.2d 197 (1984)) factors of reliability.  The court allowed every
hearsay statement made by A.E.P. regarding any alleged sexual contact into
the proceedings.  The court also found A.E.P. was competent to testify, and
it allowed her testimony.  The judge found that, based on a preponderance
of the evidence, A.E.P. "is abused as defined in Chapter 26.44 RCW by her
father . . . ."  Clerk's Papers at 42.  The court found the children were
dependent.

     After finding dependency, the trial judge ordered Petitioner to be
evaluated for sexual deviancy.  Petitioner was evaluated by at least two
different individuals.  He took two polygraph tests, one plethysmograph
test, and completed other evaluations.  His results were allegedly
consistent with nonoffenders.  After these favorable reports were returned
to the court, the court then ordered Petitioner to "successfully
participate in and complete treatment for sexual deviancy with a state
certified therapist."  Dependency Review Hearing Order at 5.

     The dependency proceedings were later dismissed, because Liz Petcu had
subsequently modified the divorce arrangement to regain custody of the
girls.  Judge Sheldon also presided over the motion to modify the custody
arrangement.  Judge Sheldon essentially incorporated her dependency finding
of sexual abuse into the parenting plan, granted custody to Mrs. Petcu
because of the finding of abuse, and allowed Petitioner limited supervised
visitations with the girls.

     Even though the dependency proceedings have been formally dismissed,
Petitioner seeks to have the dependency findings overturned because those
findings have been incorporated into the parenting plan.  He also desires
to have the order for sexual deviancy therapy overturned, even though the
order is no longer in effect because the dependency proceedings were
dismissed.

     The Court of Appeals Commissioner decided the dependency issue was not
moot because the dependency findings are still being relied upon by the
divorce court with regard to the custody disposition and parenting plan.
After finding the controversy ripe for review, the Commissioner granted a
RAP 18.14 motion on the merits to affirm the dependency court's findings.
The Court of Appeals declined to modify the Commissioner's ruling, and we
granted review.  In re Dependency of A.E.P. & W.M.P., 133 Wn.2d 1002
(1997).

     First Issue:  Was A.E.P. competent to testify?

     As an initial matter, we note Petitioner claims A.E.P. was rendered
incompetent to testify because her memory was tainted by improper
interviewing techniques.  At oral argument Petitioner's counsel conceded
his challenge of memory taint more strongly focuses on the admissibility of
A.E.P.'s hearsay statements, rather than on her competency to testify.
Therefore, we address the "taint" question under the second issue,
regarding the admissibility of A.E.P.'s hearsay statements.

     By statute, persons "who appear incapable of receiving just
impressions of the facts, respecting which they are examined, or of
relating them truly{,}" are not competent to testify.  RCW 5.60.050(2).
Five factors must be found before a child can be declared competent:

          The true test of the competency of a young child as a witness
     consists of the following:  (1) an understanding of the obligation to
     speak the truth on the witness stand; (2) the mental capacity at the
     time of the occurrence concerning which he is to testify, to receive
     an accurate impression of it; (3) a memory sufficient to retain an
     independent recollection of the occurrence; (4) the capacity to
     express in words his memory of the occurrence; and (5) the capacity to
     understand simple questions about it.

State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967).  Appellate courts
give great deference to a trial court's determination of a child's
competency or lack thereof--the trial judge's findings "will not be
disturbed on appeal in the absence of proof of a manifest abuse of
discretion."  State v. Swan, 114 Wn.2d 613, 645, 790 P.2d 610 (1990)
(quoting Allen, 70 Wn.2d at 692).

     The trial judge did not issue a written ruling on A.E.P.'s competency
under the Allen factors, nor is such written ruling required.  Short of
imposing such a requirement, we still encourage trial courts in future
cases to enter written findings regarding competency, because written
findings enable appellate courts to better consider and rule on a party's
attack against the competency of a child witness.

     Petitioner claims A.E.P. did not meet the first two Allen factors.
Finding the second Allen factor dispositive of the issue, we do not address
the first factor here.  To be competent to testify, A.E.P. must have had
the mental capacity at the time of the alleged abuse to receive an accurate
impression of it.  Having reviewed the entire record, we find nothing
establishing the date or time period of the alleged sexual abuse.  None of
the hearsay statements made by A.E.P. indicate when the alleged touching by
her father happened.  The record contains no indication of A.E.P. ever
being asked by any of her interviewers to state, even in the most general
of time periods, when the events happened.  In fact, it appears from the
record that A.E.P. was asked just one time when the alleged events happened
-this occurred during the cross-examination of A.E.P.

     Petitioner's counsel asked A.E.P. about the incident where she was
caught with C.M. touching her, and counsel asked why she had not told then
that her father had also touched her.  A.E.P. responded:

     A    Uh, he {presumably her father} hadn't touched me since a long
     time when he {presumably C.M.} was touching me.
     Q    I see.
     A    And - and it hurted so I haven't told him that for a long time.
     Q    I see.  So the time that he touched you was a long time ago?
     A    Yeah, very long.
     Q    Very long?  Was it when your momma lived there at the house?
     A    No, when my momma - when my momma lived in Portland.
     Q    I see, who was your baby sitter then?
     A    Uh, Grandma Alice and Lori and Shelby and DeAnn.

Narrative Report of Proceedings at 87 (A.E.P.).  This is the only
indication in the record of A.E.P. ever discussing when the alleged
touching occurred.  Her ability to pinpoint the event clearly failed,
because she named four different baby-sitters.  Alice baby-sat for
approximately 18 months, Deanne then baby-sat for approximately another 6
months, and it is unknown when Lori or Shelby baby-sat.  A.E.P. was unable
to fix any particular point in time when the alleged touching occurred.
Her confused answer raises questions about her capacity at the time of the
alleged event.  The alleged touching incident could have happened soon
before A.E.P.'s disclosure to Deanne, but it could have occurred two or
more years prior to the disclosure as well--there is simply no information
in the record which helps narrow the time window of when the event
occurred.

     If the trial court has no idea when the alleged event occurred, the
trial court cannot begin to determine whether the child had the mental
ability at the time of the alleged event to receive an accurate impression
of it.  In State v. Pham, 75 Wn. App. 626, 630, 879 P.2d 321 (1994), the
court found a young child could "recollect details about an automobile
accident in Canada which occurred a short time before the incident with Mr.
Pham." State v. Przybylski held a child must be able to demonstrate, at
least, the ability "to receive just impressions of and accurately relate
events which occurred at least contemporaneously with the incidents at
issue . . . ."  State v. Przybylski, 48 Wn. App. 661, 665, 739 P.2d 1203
(1987) (emphasis added).  If the child can relate contemporaneous events,
the court can infer the child is competent to testify about the abuse
incidents as well.  Id.

     The court cannot possibly rule on a child's "mental capacity at the
time of the occurrence . . ., to receive an accurate impression of it{,}"
when the court has never determined when in the past the alleged events
occurred.  Allen, 70 Wn.2d at 692.  At oral argument, counsel for the State
conceded the trial judge, at the time of the competency hearing, had not
been told by anybody when the events were supposed to have occurred.  The
sole fact that A.E.P. supplied particular details about the alleged
touching when questioned by the court does not in itself guarantee A.E.P.'s
ability to accurately recall the events.  Without any concrete reference,
there is no way to guarantee the child's recall of details is based on
fact, as opposed to fantasy.  See Przybylski, 48 Wn. App. at 665 (Witness'
memory and perception are "better tested against objective facts known to
the court, rather than disputed facts and events in the case itself.").

     As in Pham and Przybylski, the court should have determined whether
the child has the capacity at the time of the event to receive an accurate
impression of the event.  This would have required the trial court to fix a
time period of the alleged abuse.  Absent this critical information, and
despite the high level of deference accorded to the trial court's
competency findings, we are compelled to hold the trial court abused its
discretion in finding A.E.P. competent to testify.  The second Allen factor
was not met in this case.  We reverse the trial court's finding A.E.P.
competent to testify.

     Second Issue:  Were A.E.P.'s hearsay statements properly admitted
under RCW 9A.44.120?

     Normally, a child's prior hearsay statements regarding alleged abuse
are inadmissible in court unless they meet one of the established
exceptions such as "excited utterance," State v. Owens, 128 Wn.2d 908, 912,
913 P.2d 366 (1996) (holding the victim's particular statements did not
qualify for this hearsay exception), or a statement made for purposes of
medical diagnosis.  In re Dependency of S.S., 61 Wn. App. 488, 499-504, 814
P.2d 204 (1991).  The Legislature added a new hearsay exception when it
enacted RCW 9A.44.120.  Under this statute, if a child witness testifies at
a criminal trial or a dependency hearing, the child's out-of-court
statements concerning abuse are admissible if the court finds "the time,
content, and circumstances of the statement provide sufficient indicia of
reliability{.}"  RCW 9A.44.120(1).  If the child is unavailable to testify
at trial, additional corroboration of the hearsay statements is also
required before the hearsay will be allowed.  RCW 9A.44.120(2)(b).

     Since the trial court allowed A.E.P.'s testimony at trial, the court
did not address the question of whether A.E.P.'s hearsay statements were
corroborated by other evidence under RCW 9A.44.120(2)(b).  Instead, the
court only determined A.E.P.'s hearsay statements were reliable under RCW
9A.44.120(1) and State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984) (setting
out nine factors to be considered when determining the reliability of a
child's out-of-court declarations).  Since the trial court erred in
allowing A.E.P. to testify, we must reevaluate the application of RCW
9A.44.120 to A.E.P.'s hearsay statements.  Being incompetent to testify,
A.E.P. should have been found unavailable as a witness.  Being unavailable
as a witness, A.E.P.'s hearsay statements not only must be reliable, but
they must be corroborated by other evidence of abuse.  RCW 9A.44.120(2)(b).

     On the issue of the reliability of a child's hearsay statements,
Petitioner claims the existing state of the law inadequately addresses the
possibility of a child's statements having been tainted by improper,
suggestive interview techniques.  Citing State v. Michaels, 264 N.J. Super.
579, 625 A.2d 489 (Ct. App. Div. 1993) (Michaels I), aff'd, 136 N.J. 299,
642 A.2d 1372 (1994) (Michaels II), and Idaho v. Wright, 497 U.S. 805, 110
S. Ct. 3139, 111 L. Ed. 2d 638 (1990), Petitioner claims the trial court
should have held a separate, pretrial "taint" hearing to determine if
A.E.P.'s hearsay statements, and her in-court testimony, were so tainted by
improper interview techniques that her hearsay statements and testimony
were rendered unreliable, thus inadmissible.  Michaels II held when alleged
child sexual abuse victims were improperly interrogated, causing a
substantial likelihood the evidence derived from those children was
unreliable, it was proper to require a trial court to hold a pretrial taint
hearing at which the state must prove by clear and convincing evidence that
statements and testimony retained sufficient indicia of reliability.
Michaels II, 642 A.2d at 1383.

     Petitioner claims A.E.P. was improperly interviewed, resulting in
taint, and rendering her statements unreliable.  His arguments heavily rely
on Michaels I, Michaels II, and Idaho v. Wright, all of which discuss
various improper interview techniques.  Michaels II, citing American
Prosecutors Research Institute, National Center for Prosecution of Child
Abuse, Investigation and Prosecution of Child Abuse (1987), states an
interviewer should remain open, neutral, and objective; should avoid asking
leading questions; should never threaten a child or try to force a
reluctant child to talk; and should refrain from telling a child what
others have reported.  Michaels II, 642 A.2d at 1378.  Michaels II also
cites the New Jersey Governor's Task Force on Child Abuse & Neglect, Child
Abuse and Neglect:  A Professional's Guide to Identification, Reporting,
Investigation and Treatment (1988) for the rule that multiple interviews
with various interviewers should be avoided.  Michaels II, 642 A.2d at
1378.  Idaho v. Wright affirmed the Idaho Supreme Court's holding that a
child's hearsay statements were unreliable because "blatantly leading
questions were used in the interrogation
. . .{, and} this interrogation was performed by someone with a
preconceived idea of what the child should be disclosing." Wright, 497
U.S. at 813 (internal quotation marks omitted).

     Petitioner claims the circumstances of A.E.P.'s interrogation by
Deanne Montgomery seriously undermine the reliability of A.E.P.'s
statements, and he claims the taint infected A.E.P.'s subsequent
disclosures to other people as well.  First, Petitioner points out that
Deanne, admittedly untrained in proper interviewing procedure, was herself
a victim of abuse as a child and was clearly predisposed to suspect abuse
of A.E.P.  She admitted she had previously asked A.E.P. 12 to 15 times
whether anyone, including her father, had ever sexually touched her.  When
Deanne and Shawn interrogated A.E.P. after catching her fondling her
sister, their motivation was "to know where she learned this."  Narrative
Report of Proceedings at 42 (Deanne Montgomery).  They were essentially
looking to find answers of abuse, and it appears Deanne had "a preconceived
idea of what the child should be disclosing . . . ." Michaels II, 642 A.2d
at 1378; Wright, 497 U.S. at 813.  Petitioner also points out Deanne and
Shawn used closed and leading questions.

     Other circumstances surrounding the initial interview were also
improper, according to Petitioner.  A.E.P. had just been caught fondling
her sister and was punished by being made to stand in the corner.  Deanne's
interrogation began immediately after this punishment.  A.E.P. was
emotionally distraught and had an apparent motive to lie in order to
satisfy Deanne.  Deanne herself, at this time, was described by Shawn as
being upset and frazzled.  Deanne's manner of questioning also demonstrated
her bias.  Even though A.E.P. said her mother touched her and her mother
knew about her father touching her, Deanne failed to pursue A.E.P.'s
statement about her mother.  Deanne's focusing on A.E.P.'s father easily
could have led A.E.P. to embellish in the attempt to appease the
questioner.

     Petitioner also challenges aspects of Kyle Smith's interview of A.E.P.
First, A.E.P. was obviously upset by being taken from a baby-sitter's house
by Kyle and a deputy sheriff, both of whom were strangers to A.E.P.  Kyle
then began to interview A.E.P. at the sheriff's substation while sitting on
some steps in the building.  At that time, A.E.P. was distracted by the
presence of her father, whom Kyle would not allow A.E.P. to see.  Finally,
the rest of Kyle's interview did not occur until after 8:30 p.m. when
A.E.P. was obviously tired after the stressful events
of the day.  There is no reason why Kyle could not have placed A.E.P. with
foster parent Judy Brewer on the first evening
and waited until normal daytime hours the next day to interview A.E.P. in a
more neutral and relaxed setting.  Petitioner also claims Kyle was
predisposed to suspect A.E.P.'s father of abuse, as suggested by her
failing to pursue questions about A.E.P.'s mother, when Kyle admitted the
CPS intake sheet disclosed allegations of abuse by the mother as well.  See
Michaels II, 642 A.2d at 1379-80 ("A lack of objectivity also was indicated
by the interviewer's failure to pursue any alternative hypothesis that
might contradict an assumption of defendant's guilt . . . .").

     Petitioner objects to hearsay statements made during Detective Kelly's
interview of A.E.P. because of Kyle Smith's presence and interference with
the interview.  When Detective Kelly first questioned A.E.P., she
repeatedly denied her father had touched her.  Hearing A.E.P. give answers
inconsistent with Kyle's previous interview, Kyle intervened and prompted
A.E.P. to tell the detective what she had previously told Kyle.  Only after
Kyle's prompting did A.E.P. then start saying her father had touched her.
Kyle also repeated this maneuver during A.E.P.'s interview with Dr.
Greenberg, with less success.

     As testified by Petitioner's witness, Dr. Greenberg, and as stated in
Michaels I, the very first interview of the child regarding the abuse is
the most important.  See Michaels I, 625 A.2d at 511-12.  Since, Petitioner
argues, the first interview of A.E.P. contained many of the improper
interview procedures criticized in the Michaels cases and in Idaho v.
Wright, then all her hearsay statements are unreliable; and Petitioner
claims the trial court should have held a pretrial taint hearing to address
the issue.

     We decline to adopt a pretrial taint hearing as a requirement for the
reason that the existing state of the law adequately addresses Petitioner's
concerns.  As to the reliability of a child's testimony, a defendant can
argue memory taint at the time of the child's competency hearing.  If a
defendant can establish a child's memory of events has been corrupted by
improper interviews, it is possible the third Allen factor, "a memory
sufficient to retain an independent recollection of the occurrence{,}" may
not be satisfied.  Allen, 70 Wn.2d at 692.

     As to the reliability of a child's hearsay statements, a defendant can
argue memory taint at the pretrial hearing held pursuant to RCW
9A.44.120(1).  In determining the reliability of hearsay, we have
previously set out nine nonexclusive factors a trial court should consider.
State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984) (adopting the
first five factors from State v. Parris, 98 Wn.2d 140, 146, 654 P.2d 77
(1982), and the next four factors from Dutton v. Evans, 400 U.S. 74, 88-89,
91 S. Ct. 210, 27 L. Ed. 2d 213 (1970)).  Petitioner and amicus Washington
Association of Criminal Defense Lawyers urge us to reject the Ryan factors
as being inadequate.  We recognize some of the Ryan factors have
subsequently been criticized as being unhelpful in determining reliability,
see, e.g., State v. Swan, 114 Wn.2d 613, 650-51, 790 P.2d 610 (1990); State
v. Leavitt, 111 Wn.2d 66, 75, 758 P.2d 982 (1988); In re Dependency of
S.S., 61 Wn. App. 488, 499, 814 P.2d 204 (1991), but we decline to
reevaluate the Ryan factors at this time because the issues presented here
are easily resolved within the Ryan framework.

     The possibility a child's memory or testimony may have been tainted by
improper interviews is easily addressed by the fifth, eighth and ninth Ryan
factors.  "{T}he timing of the declaration and the relationship between the
declarant and the witness{,}" Ryan, 103 Wn.2d at 176 (fifth factor), allow
the court to consider the exact nature of the exchange through which the
witness obtained the child's statements.  Suggestive interviewing can also
affect the eighth Ryan factor, "the possibility of the declarant's faulty
recollection is remote{.}"  Ryan, 103 Wn.2d at 176.  "The circumstances
surrounding the statement . . .," Ryan, 103 Wn.2d at 176 (ninth factor),
also make room for argument concerning the methodology of the interview.
The possibility of suggestive interviews leading to tainted child hearsay
statements should definitely be considered by a trial court; and Petitioner
did present the issue in the dependency hearing.

     Petitioner challenges the trial court's finding that all of A.E.P.'s
hearsay statements were reliable.  We agree the circumstances surrounding
A.E.P.'s disclosures to the Montgomerys would appear to render her initial
disclosures highly unreliable.  Certain aspects of the subsequent
interviews with Kyle Smith and Detective Kelly also cast suspicions on the
credibility of A.E.P.'s statements.  Petitioner has not alleged any
impropriety by Dr. Greenberg or Dr. Cillis, who both interviewed A.E.P. on
two different occasions; but A.E.P. refused to say her father had touched
her in those interviews.  Ultimately, we decline to rule on the reliability
of A.E.P.'s hearsay statements under Ryan, because the statements--even if
reliable--must still satisfy the corroboration requirement.  RCW
9A.44.120(2)(b).

     Direct corroboration of sexual abuse, however desirable from an
evidentiary standpoint, is frequently unavailable. State v. Swan, 114
Wn.2d 613, 623, 790 P.2d 610 (1990).  Indirect evidence of abuse can
suffice to corroborate a child's hearsay statements, but the evidence must
still "support a logical and reasonable inference that the act of abuse
described in the hearsay statement occurred."  Id. at 622 (footnote and
internal quotation marks omitted).

     Having reviewed the record in its entirety, we find no corroboration
supporting A.E.P.'s varied and inconsistent statements concerning her
father touching her.  In Swan, the victims' hearsay statements were
corroborated by parallel disclosures, precocious sexual knowledge,
masturbatory behavior, behavior with an anatomically correct doll,
complaints of pain, and other physical and emotional evidence.  Swan, 114
Wn.2d at 624-40.  The record in this case contains no similar
corroboration.

     A.E.P.'s physical exams were inconclusive.  While an inconclusive exam
does not rule out the possibility of abuse, neither does it corroborate the
hearsay statements.  W.M.P.'s physical exam was consistent with digital
fondling, but that evidence does not corroborate A.E.P.'s statements
alleging Petitioner touched her.

     A.E.P.'s disclosures to the Montgomerys about the touching incident
demonstrated only a minor awareness of sexual knowledge, and that knowledge
more likely derived from C.M.'s established sexual behavior towards A.E.P.
Deanne testified about an incident where she caught C.M. "tickling" A.E.P.
in the vaginal area while A.E.P.'s pants were pulled down.  A.E.P.
consistently told every individual who interviewed her C.M. had touched
her, and some of those statements imply it happened more than once.  As
testified by two other children who rode with C.M. on the school bus, C.M.
appeared to exhibit a pattern of sexual behavior.  A.E.P.'s presence in the
Montgomery household establishes a connection between A.E.P.'s knowledge of
sexual touching and C.M.'s behavior.

     Another possible explanation for A.E.P.'s minor sexual knowledge with
regard to the touching is Deanne's repeatedly questioning A.E.P. over a
period of time whether anyone, including her father, had touched her.
Deanne's obvious obsession with abuse, culminating in the 45 to 90 minute
long interrogation of A.E.P., could have planted false ideas in A.E.P.'s
memory.  The details supplied by A.E.P. regarding the touching incident
fail to demonstrate any knowledge that A.E.P. could not have picked up from
C.M.'s behavior, or from Deanne's questioning.

     Alice Eccelston, who baby-sat for over a year before the Montgomerys,
and Judy Brewer, foster mother for six weeks after the initial disclosure,
both testified they never observed any sexualized behavior between the
girls.  The only such alleged behavior disclosed in the record occurred at
the Montgomery house.  The fact that A.E.P.'s alleged sexual behavior only
occurred in the Montgomery household further suggests a connection between
her behavior and previous events in that household.  Unlike State v. Jones,
112 Wn.2d 488, 497, 772 P.2d 496 (1989), where the record revealed no other
possible source of the child's sexual knowledge, other than from the
defendant, this case presents another strong explanation for A.E.P.'s
sexual knowledge and alleged sexual behavior.

     A.E.P.'s statements to Kyle Smith, Detective Kelly, and Dr. Cillis
about her father wiggling his privates show somewhat more sexual knowledge
than can be explained by other possible sources of information.  A.E.P. did
tell Kyle Smith her father wiggled his privates while he touched her, but
it is unclear from the record whether A.E.P.'s statements to Detective
Kelly linked the touching and wiggling incidents together.  A.E.P.'s
disclosures about the wiggling to Dr. Cillis do not reveal any sexual act
involving the child.  A.E.P. told Dr. Cillis her father was not near her,
nor was there any interaction between him and her, when she saw him
wiggling his privates.  Petitioner suggested during the dependency hearing
that A.E.P. may have accidentally seen Petitioner masturbating, unbeknownst
to him.  A.E.P.'s knowledge of masturbation was minimal.  She described the
erection and wiggling, but she said nothing came from his privates--she had
no knowledge of ejaculation.  Compare Swan, 114 Wn.2d at 627-28 (two three
year-old children described icky milk-like fluid coming from perpetrator's
penis).

     A.E.P.'s knowledge about the wiggling provides weak corroboration that
she saw Petitioner masturbating, but it does not support a logical and
reasonable inference that Petitioner sexually abused her or touched her in
a sexual way.  Absent information showing Petitioner knew or intended
A.E.P. to watch him masturbate, A.E.P.'s hearsay statements lack sufficient
corroboration of sexual abuse to be admitted under RCW 9A.44.120.

     In conclusion, we find A.E.P.'s competence to testify was not properly
established, due to the absence of the critical information regarding when
the alleged abuse occurred.  Because A.E.P. was incompetent to testify, she
was unavailable as a witness.  Her hearsay statements regarding sexual
abuse lack corroboration and cannot be admitted under RCW 9A.44.120.  We
reverse the finding of abuse which was entered in the dependency hearing.

     Petitioner also attacks the legitimacy of the court order requiring
him to complete deviancy therapy.  Even though the dependency petition was
dismissed, Petitioner seems to imply the therapy order continues to affect
the issue of the custody of Petitioner's daughters.  Having reversed the
underlying finding of abuse, we find no need to address subsequent aspects
of the dependency court's orders.

     One other matter raised by Petitioner can be briefly dismissed.
Petitioner urges this court to require child interviews be videotaped so as
to enable the defense to thresh out the possibility of suggestive interviewing
techniques and possible taint.  Petitioner cites no authority for his claim that
A.E.P.'s interviews should have been recorded.  Furthermore, the issue of
requiring audio or videotaped interviews when investigating child sexual abuse
is better addressed by the Legislature; and, in fact, the Legislature
recently considered and rejected such a requirement.  See S.S.B. 5087, 55th
Leg., Reg. Sess. (Wash. 1997).  Petitioner's claims that A.E.P.'s
interviews should have been taped have no merit.

WE CONCUR: Return to beginning