Nature of Action: The State sought the termination of a mother’s and father’s parental relationship with two children.
Superior Court: The Superior Court for Pierce County, Nos. 255615T and 255616T, Waldo F. Stone, J., entered a termination order on September 30, 1992.
Court of Appeals: Holding that the trial court erred in basing its finding of sexual abuse on a finding from a prior dependency proceeding, the court reverses the order and remands the case for further proceedings.
Ronald D. Heslop and Ross E. Taylor, for appellants (appointed counsel for appeal).
Christine O. Gregoire, Attorney General, and Laurie A. Jinkins, Assistant, for respondent.
HOUGHTON, J. – Patsy and Steven Jones, husband and wife, appeal from an order terminating their parental rights. They argue that the trial court erred in making a finding of sexual abuse based upon res judicata, and in admitting polygraph examiners’ testimony. They also argue there was insufficient evidence to support some of the trial court’s findings of fact. We reverse and remand for a new trial.
Patsy and Steven Jones are the parents of RJ, born March 7, 1988. Patsy Jones and Ralph Rogers are the parents of KR, born March 12, 1983. Patsy and Steven Jones appeal from a trial court order terminating their parental rights in their daughter, RJ. Patsy Jones appeals from an order terminating her parental rights in her daughter KR.
In April 1989, KR apparently developed a rash in her groin area and stomach. At the termination hearing, Steven Jones’ mother, Pearl Hopen, testified that she took Patsy Jones and KR to Puget Sound Hospital’s emergency room for an examination of the rash. KR was diagnosed as having strep throat and scarlet fever. Hopen further testified that the doctor prescribed an antibiotic lotion for application to KR’s groin area and other areas where the rash appeared. Patsy Jones was instructed to check KR’s groin area for infections.
Patsy Jones was also instructed to wash KR’s groin carefully and keep it extremely clean because she could develop a vaginal infection from the scarlet fever. KR testified that both she and her mother applied the cream medication to her groin area when she had the rash. Patsy Jones acknowledged that she touched KR’s groin during the illness.
On September 23, 1989, Patsy Jones and her daughters were living with Dawn Emberly, a former neighbor. Emberly testified that she was up late listening to her boyfriend and Patsy Jones, who were downstairs together, because she was suspicious and jealous of Jones. She heard Jones turn off the television and go upstairs to the bedroom where KR and RJ were sleeping. This bedroom was about 20 feet away from Emberly’s room. All the bedroom doorways were open.
Emberly testified she then heard KR say: “No, I don’t want to, I am tired”, and “Mommy, it hurts, don’t hurt me, mommy.” Emberly further testified that KR’s statements continued for about 2 hours, during which time the baby, RJ, was awakened by KR’s statements. Patsy Jones became angry and told KR to be quiet. Emberly also testified that KR later said, “No, I promise I won’t, I won’t mommy.” Emberly’s impression was that Jones was sexually touching KR. Emberly testified that she did not remember KR having a rash from scarlet fever, or receiving treatments.
The following day, Emberly discussed this incident with her brother-in-law. They determined to set up a tape recorder outside the bedroom, with the object of taping a similar incident. Emberly testified that Jones discovered the tape recorder and turned it off, although they never discussed its presence or the incident.
Over 1 month later, October 25, 1989, Emberly contacted Child Protective Services (CPS) concerning this incident, asking that her name not be revealed. After the referral, Linda Scott, a CPS social worker, interviewed KR in the principal’s office at her school. During this interview KR stated, “My mommy checks if I have poison to see if I got hurt down there. It kind of hurts but not too much. She spreads it out a little and not down in, just checked on outside.” KR told Scott that her mother did this at night, about once a week, and that she also used to do it to RJ, but not anymore, because RJ cried. According to Scott, KR denied that anyone else checked her for poison or touched her private parts.
Scott contacted the Tacoma Police Department. KR and RJ were taken into protective custody. Patsy Jones denied the allegations, but agreed to sign a voluntary consent for placement of the children with Emberly. KR and RJ were eventually removed from Emberly’s care and placed in a foster home.
On April 12, 1990, Scott filed dependency petitions regarding KR and RJ. An order of default was entered against KR’s natural father, Ralph Rogers, who failed to appear or defend against the dependency petition. On July 6, 1990, Steven Jones agreed to a finding of dependency regarding RJ.
On July 5 and 6, 1990, a contested dependency hearing was held concerning Patsy Jones. The trial court entered an Order of Dependency, finding that certain allegations in the dependency petitions were true or undisputed. The allegations from the dependency petitions essentially state the above noted circumstances. In addition, they allege that (1) KR said her mommy told her not to tell anyone about mommy checking her for poisons; (2) KR said it hurts sometimes when mommy checks her; (3) a physical examination of KR showed evidence consistent with possible sexual abuse and penetration; (4) Michael Comte, a social worker whose office performed a psychological evaluation of Patsy Jones, concluded that there was substance to the allegations and that Jones posed a risk to her children’s safety and well-being; (5) Patsy Jones continued to deny the allegation of sexual abuse and would not cooperate with recommended sex offender treatment; and (6) reasonable efforts to prevent out-of-home placement were not provided due to the emergent nature of the situation and the risk to the child.
On September 21, 1990, dependency hearing dispositional orders were filed. Patsy Jones was ordered to participate in a drug/alcohol evaluation and followup; attend and complete an anger management program; and participate in counseling focusing on sex offender issues and issues identified in a psychological evaluation, with therapy specifically directed toward sex offending. Steven Jones was ordered to participate in drug/alcohol evaluation and followup, and complete a psychological evaluation and followup. He was granted weekly supervised visitation with the children.
Following the initial finding of dependency, review hearings were held on October 15, 1990, April 8, 1991, July 23, 1991, September 30, 1991, and April 6, 1992. At each review hearing, the court found that KR and RJ remained dependent pursuant to RCW 13.34.030(2)(b) and (c). Most of the dependency review orders noted that the supervising agency was dissatisfied with the Jones’ progress in participating in the services ordered by the court.
CRIMINAL CHARGES AGAINST PATSY JONES
On July 26, 1990, criminal charges were brought against Patsy Jones. After the charges were filed, Patsy Jones’ visitation privileges were terminated. At that time, Ray Marriott, a social worker responsible for permanency planning, made some suggestions to Patsy and Steven Jones about services they needed. He later advised Patsy Jones that she might defer some of the social services ordered at the fact-finding hearing until her criminal case was resolved. The criminal charges were dismissed in March 1991, due to the lack of a speedy trial. Patsy Jones’ visitation privileges, however, were never reinstated.
On September 25, 1991, Bruce Witham, the CPS social worker assigned to the case, filed petitions to terminate the parental rights of Patsy and Steven Jones as to both KR and RJ. «1»
«1» On March 10, 1992, 3 months before the termination hearing, Patsy and Steven Jones removed KR and RJ from their foster home in the middle of the night. They took the children to Disneyland and Seaworld in California, and then into Mexico. The family was located on March 17, 1992, returning from Mexico to the United States. Both Patsy and Steven Jones pleaded guilty to custodial interference. After this incident, Steven Jones’ visitation privileges were also terminated.
A termination hearing was then held from June 15 through June 24, 1992. The court heard testimony from a number of witnesses, including psychologists and other treatment providers, polygraph examiners, social workers, Steven Jones, his mother, and KR.
At the termination hearing, there was testimony that CPS had referred Patsy Jones to Michael Comte, MSW, ACSW, a specialist in sexual offender evaluation and treatment. He ordered a battery of psychological tests on Patsy Jones, which were then interpreted by Comte’s consulting psychologist. Comte’s general practice is to allow the psychologist to interpret the tests without benefit of the background or specifics of the charges against the person tested. Comte then incorporates the psychologist’s recommendations and conclusions into his own documentation.
Comte testified that he initially reviewed a written report of findings and conclusions prepared by the consulting psychologist. He then interviewed Patsy Jones for 2 hours. The following day, he had a telephone communication with Linda Scott and Pearl Hopen. Comte also reviewed the referral letter from Scott, and the report from KR’s medical examination in the Sexual Assault Clinic at Mary Bridge Children’s Health Center. Thereafter, Comte referred Patsy Jones to polygraph examiner Richard Peregrin, who administered a polygraph test in conjunction with Comte’s evaluation.
Based upon these evaluations, Comte testified at the termination hearing that he believed Patsy Jones sexually molested KR and that she was in desperate need of psychological therapy to address problems identified in his evaluation. Comte also testified that Patsy Jones posed a danger to the safety and well-being of her children. He concluded that her prognosis was dismal because she could not be treated for sexual deviation as long as she stayed in denial.
Patsy Jones presented the testimony of Thomas Clifford, Ph.D., who extensively examined Jones. In a September 1991 letter, Washington State Department of Social and Health Services (DSHS) expressed its support for these examinations and authorized payment for 8 hours of sexual deviancy treatment and assessment. Dr. Clifford first saw Patsy Jones on August 6, 1991; he spent a total of 25 hours over several sessions with her.
In addition to these sessions, in forming his opinion Dr. Clifford reviewed the following documents:
1. KR’s April 4, 1989, emergency department record from Puget Sound Hospital;
2. Fourteen pages of reports from about October 25, 1989, involving allegations of child abuse and neglect by Patsy Jones;
3. Patsy Jones’ mother’s November 25, 1989, 8-page statement;
4. 1989 and 1990 reports of child victim interviews with KR, and with Emberly’s two children;
5. Drs. Duralde’s and Scherz’s colposcopy reports of KR, RJ, and Emberly’s two children;
6. Patsy Jones’ June 1990 affidavit of probable cause and informational entry, alleging two counts of first degree child molestation and one count of first degree child rape;
7. Patsy Jones’ February 1991 certificate from Lakeside Recovery Centers;
8. Patsy Jones’ March 7, 1991, discharge report from Pierce County Alliance;
9. CPS’s April 12, 1990, dependency petition and motion for custody order for KR;
10. DSHS’s May 21 and July 26, 1990, and March 29, 1991, periodic review reports;
11. DSHS’s May 29, 1991, reports from an apparent staff review;
12. Birohnie Dowdell’s July 5, 1991, letter to Bruce Witham;
13. Guardian ad litem’s July 23, 1991, report to the court;
14. Comte’s February 7, 1990, evaluation, along with psychological test data administered by Richard Washburn, Ph.D.;
15. Vince Young’s (counselor, Comprehensive Mental Health) September 1990 to January 1991 screening reports;
16. KR’s 113 pages of documents from Campbell County School District of Gillette, Wyoming;
17. Birohnie Dowdell’s telephone discussions with Ruth Currah; and
18. Patsy Jones’ October 29 and November 5, 1991, polygraph examination results.
Based upon his evaluations and these documents, Dr. Clifford testified that Patsy Jones denied abusing her children and that, considering all the information available to him, he found no evidence indicating that she had abused her children. Dr. Clifford also recommended that Patsy Jones be allowed supervised visitation with her children.
Richard Peregrin, who administered Patsy Jones’ initial polygraph test in conjunction with Comte’s psychological evaluation, testified that the polygraph showed Patsy Jones was being deceptive in response to questions regarding sexual touching of KR. Dr. Clifford referred Patsy Jones to John Ketchum for a second opinion.
Ketchum administered three polygraph examinations. He testified that the results of his first examination showed a passing response (i.e., no deception) to a question regarding whether Jones spread open KR’s vagina for pleasure. He also noted an inconclusive response to whether she spread open KR’s vagina for hygienic purposes. In the third polygraph examination, in response to questions regarding whether she ever spread open or penetrated KR’s vagina for pleasure, Jones’ denials showed no deception.
Patsy Jones successfully completed the court-ordered drug/alcohol evaluation and followup in February 1991. In March 1991, CPS referred her to Birohnie Dowdell, an alcoholism, drug addiction, and anger management counselor. Dowdell testified that Patsy Jones completed the 12-week course in anger management. She further testified that it would be very appropriate for Patsy Jones to visit with her children.
From November 1990 through January 1991, Witham attempted to find a treatment provider who dealt with female alleged sex offenders. In January 1991, Patsy Jones was referred to Dr. Ruth Currah, a mental health therapist and sex offender treatment provider. Patsy Jones began sex offender treatment with Dr. Currah in May 1991.
Dr. Currah testified that, after 9 months of therapy, she had concluded Patsy Jones did not abuse KR. In Dr. Currah’s opinion, Patsy Jones was not a risk to KR, and the children should be returned to her. Although Witham testified that he was not pleased Dr. Currah had been chosen for the sex offender treatment, he could not recall discussing his displeasure with either Patsy Jones or Dr. Currah. Witham never requested any reports from Dr. Currah.
Steven Jones participated in a drug/alcohol evaluation and followup, but was eventually terminated from the program after two positive findings of marijuana on urinalysis, followed by a failure to meet appointments. In May 1991, Steven Jones was again referred to substance abuse counselor Venita Able, and evaluated for reinstatement into the program. Able testified that she recommended he complete a 21-day inpatient program and followup with a 1- to 2-year active care program, which Steven Jones did not enter.
Steven Jones was evaluated by Dr. Clifford. Jones acknowledged that he neither knew of nor followed up on the recommendations Dr. Clifford made in his report, because he failed to pay for the psychological evaluation. He testified that he sought financial assistance from the State to pay for Dr. Clifford’s evaluation; however, Witham testified that Steven Jones volunteered to pay for the evaluation. Witham also testified that he recommended a reduction of Jones’ visitation to once per month because of inadequate attendance at weekly visitations, sporadic employment, and constant moves.
KR testified that Emberly’s daughter, ME, touched her private parts on two separate occasions 3 years prior – once by sticking a doll’s leg into her, and once by doing the same thing with a crayon.
Steven Jones testified that he did not believe Patsy Jones had sexually molested KR and RJ.
TERMINATION COURT’S RULING
On June 24, 1992, the trial court in the termination proceeding (termination court) made an oral ruling terminating the parental rights of Patsy and Steven Jones. Later, the termination court entered the following findings of fact regarding sexual molestation:
KR was sexually molested by Patsy Jones on or about 10/25/89. This finding is based on res judicata. Findings and dispositional order 9/21/90 are included and attached.
Finding of fact 5.
The Court declined to make findings on the events of 10/25/89 other than res judicata.
Finding of fact 5A. Orders of termination of parental rights as to both children were entered on September 30, 1992.
Patsy and Steven Jones contend that (1) the termination court erred in determining that the sexual abuse found by the trial court in the dependency proceeding (dependency court) was res judicata in the termination proceeding; (2) the evidence was insufficient to support some of the termination court’s findings of fact and conclusions of law; and (3) the termination court erred in admitting the polygraph testimony. We address these issues seriatim.
Res Judicata and the Need for Present Findings
at the Termination Proceeding