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Walton v. Ireland

Supreme Judicial Court of Maine

November 25, 2014

MARY WALTON
v.
DAVID C. IRELAND JR

Argued June 11, 2014.

On the briefs:

Logan Perkins, Esq., and Jeffrey M. Silverstein, Esq., Bangor, for appellant David C. Ireland Jr.

James M. Dunleavy, Esq., Currier and Trask, P.A., Presque Isle, for appellee Mary Walton.

At oral argument:

Logan Perkins, Esq., for appellant David C. Ireland Jr.

James M. Dunleavy, Esq., for appellee Mary Walton.

Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ. Majority: SAUFLEY, C.J., and ALEXANDER, SILVER, and JABAR, JJ. Dissent: MEAD and GORMAN, JJ.

OPINION

Page 884

SILVER, J.

[¶1] David C. Ireland Jr. appeals from an Order of Protection from Abuse entered in the District Court (Presque Isle, O'Mara, J.) based upon a finding that Ireland sexually abused the parties' five-year-old daughter. Ireland argues that the court committed an abuse of discretion by admitting evidence of statements that the victim made to a social worker during play therapy identifying Ireland as her abuser. Ireland also contends that the court's finding of abuse was clearly erroneous. We affirm.

I. BACKGROUND

[¶2] David Ireland and Mary Walton had an intimate relationship in 2006. After the relationship ended, Walton learned that she was pregnant. The parties' daughter was born in December 2006. About a year later, the court issued an order allocating parental rights and responsibilities. The order was modified several times. As of October 2012, pursuant to the order, the child lived primarily with Walton and stayed with Ireland every other weekend and for certain extended periods during school vacations. The parties were generally cooperative with one another and had no problems adhering to the visitation schedule. According to Walton, the child began to exhibit reluctance to visit Ireland and would cry hysterically before leaving for visits with him. Nevertheless, Walton encouraged the child to go on the visits.

[¶3] One evening in October 2012, after the child had returned from a visit with Ireland, Walton gave her a bath. While Walton was bathing the child, the child said that it " hurt down there" and pointed to the area of her crotch. Walton asked her why, and the child gave an explanation. Walton brought the child to the emergency room at The Aroostook Medical

Page 885

Center, where doctors examined the child and advised Walton to schedule a forensic child-abuse evaluation at the Spurwink Clinic. The following day, Walton filed an action seeking a protection from abuse order against Ireland on the child's behalf and contacted Spurwink to schedule an evaluation.

[¶4] Over the next several days, the child became upset and expressed fear that Walton no longer loved her. Walton took the child to meet with Cindy Barker, a clinical therapist, to address this behavior. Barker, a licensed clinical social worker, explained her role to the child in what she considered to be an age-appropriate way, then initiated conversation with the child by asking open-ended questions about her family. The child stated that she did not like going to see her father and that she did not want to see him anymore. During the session, the child repeatedly stated, " he picks at [my] butt and crotch with his fingers and puts his fingers in me," and said that he would then lick his fingers. The child told Barker that she was surprised and confused when her father did this, that it was " really gross," and that she didn't understand why he would do that.

[¶5] Barker has continued to meet with the child for an hour every other week. Barker described her treatment plan for the child as being to help the child to feel comfortable expressing herself, to work on anxieties and insecurities that have occurred, and to help the child develop coping skills. Barker explained that the content of the child's statements--including the identity of the person she described as abusing her--was important to the treatment plan because it helped Barker to understand the basis for the child's fears and insecurities.

[¶6] Walton took the child to Spurwink for the sex-abuse evaluation in December 2012. The child met with Donna Andrews, a licensed clinical social worker employed as a forensic interviewer. Andrews's primary purpose in evaluating the child was to determine whether there was evidence that abuse occurred. Andrews asked the child if she knew why she was there; the child responded that she didn't know. During the interview, Andrews asked the child if anyone had done something to her crotch and told her not to tell about it, to which the child responded, " Yes, Dad, but I told anyway." The child gave further descriptions of the abuse consistent with what she had told Barker.

[¶7] A physical examination revealed no evidence of trauma or abuse. Andrews recommended that the child remain in therapy with Barker, that law enforcement and DHHS investigate, and that the child have no contact with her father while the investigation continued. The child did not meet with Andrews again.

[¶8] At the hearing on Walton's complaint for protection from abuse, both Barker and Andrews testified over Ireland's objection as to the statements the child made describing the abuse. The court conditionally admitted the statements but gave the parties the opportunity to brief the issue, indicating that it would strike the testimony from the record if the parties' briefs convinced it that the statements should be excluded.

[¶9] By agreement of the parties, the child, who was then six years old, testified without either party being present in the courtroom.[1] At first, the child testified that she did not know who her " daddy" was, but when asked if she knew ...


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