Fairfax County Department of Family Serv. v. Neidig

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and
Bumgardner
Argued at Alexandria, Virginia
FAIRFAX COUNTY DEPARTMENT
OF FAMILY SERVICES
MEMORANDUM OPINION * BY
v. Record No. 1304-97-4 JUDGE ROSEMARIE ANNUNZIATA
MARCH 31, 1998
LARRY NEIDIG
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Gerald Bruce Lee, Judge
Louise M. DiMatteo, Assistant County Attorney
(David P. Bobzien, County Attorney; Robert
Lyndon Howell, Deputy County Attorney;
Dennis R. Bates, Senior Assistant County
Attorney; Office of the County Attorney, on
briefs), for appellant.
Harvey J. Volzer (William J. Schewe;
Kilcarr & Volzer; Graham & Schewe, on brief),
for appellee.
Fairfax County Department of Family Services (the
Department) appeals from the decision of the circuit court
denying its petition alleging abuse and neglect by Larry Neidig
(father) of his two female children. The Department contends on
appeal that the trial court erred in finding the evidence
insufficient to support a finding of child abuse and neglect. We
find no error and affirm.
On May 12, 1995, the Department filed a petition in the
Juvenile and Domestic Relations District Court of Fairfax County,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
alleging that the children had been abused and/or neglected by
father. With the agreement of the parties, on July 16, 1996, the
juvenile court entered a consent order finding that the children
were abused and/or neglected. The matter was appealed to the
circuit court where, in a trial de novo, the Department presented
evidence of sexual abuse of both children entailing, in large
part, repeated penile penetration of the children. Father
testified briefly to the events of May 9 and 10, 1995, when the
children were removed from his custody, but did not address the
substance of the charges against him. Father also presented the
testimony of several expert and lay witnesses and certain medical
evidence relating to the alleged abuse. In reaching its
decision, the trial court summarized the medical and lay
evidence, noted that the medical evidence was in conflict, and
concluded that the anatomical findings were not consistent with
multiple penile penetration. The court ruled that the Department
had not carried its burden of proof to prove sexual abuse by a
preponderance of the evidence.
On appeal, this Court is required to view the evidence in
the light most favorable to father, the prevailing party below,
granting him all reasonable inferences fairly deducible
therefrom. Logan v. Fairfax County Dept. of Human Development,
13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991) (citing Farley
v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)).
Thus, any conflicts in the evidence must be resolved in favor of
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father. Farley, 9 Va. App. at 328, 387 S.E.2d at 795. The
evidence, so viewed, is as follows.
Dr. Robert Fay, a pediatrician, opined, to a reasonable
degree of medical certainty, that his findings with respect to
both children were not consistent with repeated penile
penetration. He supported his opinion with detailed explanations
of the anatomical findings, including a finding that the
colposcopy of the older child revealed no acute injuries and no
scarring of the hymen. He testified that she showed a nearly
imperforate hymen, but that she had a whitish area in the fossa
navicularis, which could easily be mistaken for scarring. Dr.
Fay also stated that the younger child showed no sign of recent
or old injury, although her labia had adhered together which
could mislead an examiner to suspect abuse. He explained that
some natural features of the children's genital anatomy were
easily mistaken for signs of abuse. Finally, Dr. Fay presented
slides to the trial court so that the court could evaluate the
medical evidence for itself.
Howard Fishman, a professor of psychiatry, testified that
the children's report of sexual abuse was likely the result of a
problem adjusting to the loss of their mother and separation from
their loved ones. Fishman also testified that the examiners had
not taken an adequate history from the children, had not
conducted any testing of the children, and had contaminated the
children's memories with suggestive questioning. Dr. Fishman
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testified at length to specific deficiencies in the interviewing
of the children, and explained how the deficiencies impacted the
credibility of the children's statements. 1 Numerous witnesses
testified that, during the period of the alleged abuse, the
children underwent none of the changes expected in victims of
sexual abuse. The children's nanny, who slept in the room next
to the older child and washed the children's clothes and sheets,
testified that she saw no signs of abuse. A number of witnesses
who were familiar with the Neidig family testified that they had
observed in the children no personality changes or other
indications of sexual abuse. Another witness, acquainted with
the Neidig family, testified that the older child's reputation in
the community for truthfulness was bad.
A court's conclusion that a party has failed to carry its
burden of proof is conclusive upon this Court as a finding of
fact. Arlington Towers Land Corp. v. McFarland, 203 Va. 387,
393, 124 S.E.2d 212, 216 (1962) (citing Smith v. Board of
Supervisors, 201 Va. 87, 91, 109 S.E.2d 501, 505 (1959)). The
trial court's judgment, "when based on evidence heard ore tenus,
will not be disturbed on appeal unless plainly wrong or without
1
The Department contends that Fishman did not have
sufficient information on the interviewing techniques to render
an opinion. Fishman testified that he had reviewed extensive
transcripts of testimony from prior proceedings, as well as
reports, articles, the older child's diary, audiotapes, and
videotapes. In addition, the trial court heard evidence of the
interviewing techniques from the Department's witnesses, and
could evaluate those techniques in the light of Fishman's
testimony.
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evidence to support it." Logan, 13 Va. App. at 128, 409 S.E.2d
at 463 (citing Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d
232, 237 (1988)). We find that the evidence is sufficient to
support the trial court's decision in this case.
The Department contends that, because the children's
statements were admitted under Code § 63.1-248.13:2 without
objection, 2 the court erred in not finding the statements
credible. Interpretation of Code § 63.1-248.13:2 is an issue of
first impression. We find the Department's argument to be
without merit.
Code § 63.1-248.13:2 does not establish a presumption,
rebuttable or otherwise, that statements made by children
regarding sexual acts are true. Instead, Code § 63.1-248.13:2
provides that out-of-court statements by children are admissible
2
Code § 63.1-248.13:2 provides in relevant part:
A. In any civil proceeding involving
alleged abuse or neglect of a child . . ., an
out-of-court statement made by a child the
age of twelve or under at the time the
statement is offered into evidence,
describing any act of a sexual nature
performed with or on the child by another,
not otherwise admissible by statute or rule,
may be admissible in evidence if the
requirements of subsection B are met.
B. An out-of-court statement may be
admitted into evidence as provided in
subsection A if:
* * * * * * *
2. The child's out-of-court statement
is shown to possess particularized guarantees
of trustworthiness and reliability.
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under certain circumstances, one of which is that the statements
"possess particularized guarantees of trustworthiness and
reliability." Code § 63.1-248.13:2 establishes a rule of
evidence, not a substantive presumption. As such, a court's
ruling that statements are admissible under Code § 63.1-248.13:2
is a ruling only on the threshold question of admissibility and
does not establish the weight to be given to the evidence. See,
e.g., Price v. Commonwealth, 18 Va. App. 760, 765, 446 S.E.2d
642, 646 (1994) (addressing the distinction between the question
of admissibility and the issue of weight); 1 Charles E. Friend,
The Law of Evidence in Virginia 22 (4th ed. 1993).
The trial court, as trier of fact, was entitled to consider
the children's statements and the failure of father to personally
deny the allegations of sexual abuse in the context of all of the
admissible evidence. Although father did not contradict the
children's statements, uncontradicted statements need not be
accepted as true when they are "'inconsistent with circumstances
in evidence.'" Servis v. Commonwealth, 6 Va. App. 507, 525, 371
S.E.2d 156, 165 (1988) (quoting Stegall v. Commonwealth, 208 Va.
719, 722, 160 S.E.2d 566, 568 (1968)).
Contrary to the Department's contention that the court found
that the medical evidence was in equipoise, the court found that
the medical evidence was "susceptible to multiple interpretations
and it does not preponderate in the favor of a finding of abuse."
The trial court concluded that the anatomical findings were not
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"consistent with multiple penile penetration."
Furthermore, although Dr. Fay's testimony that the children
showed no medical signs of abuse conflicted with expert testimony
presented by the Department to the contrary, the trial court had
the discretion to credit Dr. Fay's opinion over that of the
expert presented by the Department. The trial court, as finder
of fact, may determine the weight to be given to an expert's
opinion. Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665,
668-69 (1997) (en banc). Where experts offer conflicting
testimony, it is within the discretion of the trial court to
select either opinion. Rowe v. Rowe, 24 Va. App. 123, 140, 480
S.E.2d 760, 768 (1997) (citing Reid v. Reid, 7 Va. App. 553, 563,
375 S.E.2d 533, 539 (1989)).
Finally, the Department argues that the trial court
erroneously concluded that both children had been present for
some interviews. In explaining its decision, the trial court
stated, "there's evidence that during some of [Dr. Lindahl's]
interviews both children were present when either child was
giving substantive information about the alleged allegations of
sexual contact." Dr. Lindahl described at least one interview at
which both children were present, and a second interview in which
one child entered the interview room after hearing the other
child yelling, as well as related statements made in her presence
by one child to another regarding sexual abuse by father. In
light of this testimony, the trial court did not err in finding
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that both children were present at some interviews.
Fundamentally, the Department asks us to substitute our
judgment for that of the trial court; this Court is specifically
not permitted to do so. Waldrop v. Commonwealth, 23 Va. App.
614, 626, 478 S.E.2d 723, 728 (1996) (citing Cable v.
Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992)).
Applying the principles of review which are applicable here, we
find that the trial court acted within its discretion in finding
that the children's statements, taken in the context of the
medical evidence, the lay witness testimony, and the criticism of
the techniques used in questioning the children, did not compel a
finding by a preponderance of the evidence that father had
sexually abused the children. The Department has not shown that
the decision of the trial court was plainly wrong or an abuse of
discretion, and we will not substitute our judgment for that of
the trial court. Id. For these reasons, we affirm.
Affirmed.
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