Mmoe v. Mje , 1992 Wyo. LEXIS 162 ( 1992 )

URBIGKIT, Justice,

dissenting.

I do not agree with either the legal decision or the factual resolution provided in this court’s decision. In this contended child abuse saga, I find the risk of misconduct against the small child to totally outweigh parental claims based on the kind of evidence provided here.

I would conclude that the Billings, Montana forensic expert was clearly unqualified to provide the character of evidence sufficient to resolve contested custody for retention by the father. Although this court should not embark on a weighing process of trial evidence, the validity and value for significant decision making in what the forensic expert provided in testimony is surely in question. No realistic view of the evidence can be obtained that the expert either had a relevant knowledgeable basis to use asserted normality to prove that sexual abuse of the child had not occurred or, unfortunately, that it will not conceivably occur or reoccur in the future. We are faced with the compelling concern of modern litigation, questioning that when a claimed expert says something, his statement does not necessarily make it factually valid. This is particularly true if a relevant factual basis and some determined reliable scientific theory is absent. Cf. Scadden v. State, 732 P.2d 1036 (Wyo.1987).

The cottage or corporate affiliate industry is developing as an appendage to the American trial system in both criminal and civil cases. This is the forensic expert who provides testimony directed to reduce the burden of fact finder decision making. If the expert is truly qualified, the subject is proper, the conclusions adequately confined, and the testimony factually valid and properly based on requisite standards of analysis, there is nothing wrong with the system. If any criteria fails, justice may be overlooked or lost.

In Stephens v. State, 774 P.2d 60 (Wyo.1989), this court corrected the mistake we made in admission of a child abuse expert’s opinion in Brown v. State, 736 P.2d 1110 (Wyo.1987), Urbigkit, J., dissenting. Unfortunately, this present case now anticipates a return to the Brown expert witness of guilt or, here, non-guilt of one and guilt of the other. See Smith v. State, 564 P.2d 1194 (Wyo.1977). Unfortunately here, we have a converse which is even more troubling. This expert asserts absence of abuse by normality under a circumstance where the child has not seen normality for at least two years prior to the date of the clinical consideration. The decision is made without application of any objective standard used to define what, in conduct, demonstrates that abuse has occurred or, conversely, why something must be shown or otherwise abuse is disproved. This testimony essentially establishes, as his view, that the mother was guilty and the father was innocent because, as a neuro-psycho-logical specialist, he found no behavior or pattern consistent with abuse. The real question, in conflict, is whether asserted normality necessarily denies occurrence in converse analysis where observed abnormality may demonstrate objective facts. The testimony given was as subjective as is possible for testimony to be. Price v. State, 807 P.2d 909 (Wyo.1991). Cf. Zabel v. State, 765 P.2d 357 (Wyo.1988).

In this case, with other comprehensive evidence available, I do not find the Billings forensic expert qualified to give the valid opinion evidence justifying custodial retention of the child by his father. Likewise, I find the expert’s conclusions supported by nothing but rank supposition, Stephens, 774 P.2d 60, totally different from the more qualified consideration which had been given by others certainly more balanced and qualified by experience and demonstrated by objective standard testimony. What is provided here approaches the unsatisfactory level of testimony we considered in Schmunk v. State, 714 P.2d 724 (Wyo.1986).

Furthermore, there is nothing about the rejection of the deposition taken by the California experts which justifies exclusion except, unfortunately, a result that, when a child’s well-being is at stake, the evidence is limited to a one-sided view. Admission of valid, persuasive and definitive evidence by a party is intrinsic to the constitutional right to justice and not confined by happenstance discretion. Stauffer Chemical Co. v. Curry, 778 P.2d 1083 (Wyo.1989); Kobos By and Through Kobos v. Everts, 768 P.2d 534 (Wyo.1989).

A party should be allowed an appropriate opportunity to present and develop that evidence relevant to that party’s theory of the case. Such evidence certainly can include the offering, direct examination, and cross-examination of expert witnesses, under appropriate circumstances, assuming that the testimony of the experts will properly assist the trier of fact.

Stauffer Chemical Co., 778 P.2d at 1098. See also Hall v. Hall, 708 P.2d 416 (Wyo.1985).

Under no circumstance was the evidence cumulative where directly relating to the contradictory “expert” conclusion rendered by the Billings forensic expert witness. Technical concepts to exclude relevant evidence like discretion and harmless error hardly suffice in an expert witness-driven decision like this. Coronado Oil Co. v. Grieves, 642 P.2d 423 (Wyo.1982). This should be particularly true where the safety and well-being of a small child is involved.

This case has provided no evidence that the mother is unqualified to have general custody. The only basis now used for denial is her consuming belief and consequent litigative assertions that the father is a sexual abuser. When we expend technical rules to permit the alleged expert to say what he did and confine evidence in contradiction tendered by the mother, a terribly fundamental question remains: What if the mother is right?

I respectfully dissent.