Broderick v. King's Way Assembly Of God Church

808 P.2d 1211 (1991)

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Nature of the Case

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Facts

P and Gene Jansen left their three-year-old daughter, J.S.J., in D's 'tiny tots' program, under the care of Sue McNiece while they attended D's services. In mid-1983 Shirley Gilman (D) replaced McNiece. Gilman (D) generally had at least one assistant when she supervised the program. Almost immediately, P observed behavioral changes in J.S.J. She noted that J.S.J. no longer wanted to attend 'tiny tots' and would scream, kick and cry as they approached the church and the classroom. She noted red rashes on J.S.J.'s elbows and behind her knees. P also observed that J.S.J. was reluctant to take her panties off in front of P and that J.S.J. complained that her genitals hurt when she bathed and used the toilet. P and Jansen divorced. The following month, Hans Dieter Polak moved in with P and her two children. They did not regularly attend King's Way Church. Jansen, exercising his visitation rights, took J.S.J. to the church. Each time Jansen dropped J.S.J. off at 'tiny tots,' she protested and stated that '[she did not] want to go in there.' After the March 25 church visit, P noticed that J.S.J.'s panties were spotted with blood. After the April 8 visit, P noticed blood on J.S.J.'s panties and in the toilet after J.S.J. had difficulty with her bowel movement. J.S.J. was not taken to the hospital or to a doctor as a result of either of these incidents. After watching a news program that highlighted child abuse, P questioned J.S.J. J.S.J. indicated that “A mean lady” had touched her. P reported this information to the police, who then interviewed J.S.J. J.S.J. did not specifically identify Gilman at the interview. P took J.S.J. to Humana Hospital where she was examined. The emergency room records and the examining physician's notes state that there were no external signs of sexual abuse. The following Sunday, Polak, and P took J.S.J. to D in an effort to ascertain who had abused J.S.J. Walking downstairs to the 'tiny tots' room, Polak observed that J.S.J. became frightened and began to cling to him. As they reached the classroom, J.S.J. yelled 'No!' and began to cry and struggle. At the classroom, J.S.J. saw Gilman (D) but refused to go to her. After leaving the classroom, Polak asked J.S.J. the identity of the woman in the 'tiny tots' program. J.S.J. responded, 'That's the mean lady. That's the lady that hurt me.' Phillip Kaufman, M.S. J.S.J.'s counselor, prepared a letter for the police. Kaufman diagnosed J.S.J. as having post-traumatic stress as a result of being sexually abused. Kaufman concluded that 'given the emotional make-up, behavioral indicators, and sporadic verbalization, it is felt that the child has, in fact, been molested.' P sued Ds and Gilman (D) moved for summary judgment. In opposition to Gilman's (D) motion for summary judgment, P filed an affidavit by Lee Maxwell, Ph.D., who, after reviewing the Kaufman report and interviewing J.S.J., determined that J.S.J. had been sexually molested. Also included was another affidavit by P, in which she recounted her observations of the pinkish stains on J.S.J.'s panties on March 25, 1984, and of the blood in the toilet and on J.S.J.'s panties on April 8, 1984, following J.S.J.'s visits to the church with her father. P also stated how J.S.J. identified Gilman (D) at the subsequent church visit. The court ruled that the Maxwell affidavit was inadmissible. It held that the Maxwell affidavit, and the Kaufman report on which Dr. Maxwell relied, presented 'serious credibility problems.' P's deposition and affidavit testimony of J.S.J.'s declarations of abuse were ruled inadmissible as hearsay statements. The court found no exception to the hearsay rules to allow their admission. The court granted Ds' motions. P appealed.