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In re Emilee K.

Supreme Court of Rhode Island

February 6, 2017

In re Emilee K. In re Jennifer K.

         Newport County Family Court Associate Justice Karen Lynch Bernard

          For Petitioner: Karen A. Clark Department of Children Youth & Families Laurel Cynthia Ferrelli Court Appointed Special Advocate.

          For Respondent: Lauren E. Jones, Esq. Robert S. Thurston, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          MAUREEN MCKENNA GOLDBERG, ASSOCIATE JUSTICE

         These consolidated cases came before the Supreme Court on November 29, 2016, [1] on appeal by the respondent, Joseph K.[2] (respondent), from a Family Court decree finding that the respondent abused and neglected his daughters, Emilee, who was born on June 25, 2005, and Jennifer, born on March 7, 2007.[3] The Family Court justice committed the children to the care, custody, and control of the Department of Children, Youth, and Families (DCYF). For the reasons set forth herein, we affirm the decree of the Family Court.

         Facts and Travel

         The facts of this case are as troubling as any this Court has encountered-a child who has been robbed of her innocence at age four-and-a-half, and apparently subjected to the undue influence of adults. In September of 2011, the Rhode Island Child Abuse Hotline received reports that Jennifer had been sexually abused by her father. The allegations were made by Dawn Grinnell (Grinnell), the director of preschool and prekindergarten programs at All Saints Academy, and Dr. Thomas Finnegan (Dr. Finnegan), the principal of All Saints Academy, where the girls attended school.

         Jennifer's statements of abuse began on September 12, 2011. Grinnell was supervising Jennifer's class when the child seized two undressed Barbie dolls and simulated sexual acts between them. Jennifer explained that, while staying at her mother's house, she had watched a movie involving two naked women. Although DCYF was not contacted at this time, Dr. Finnegan met with respondent to inform him of Jennifer's disclosures and to recommend that Jennifer and Emilee attend counseling sessions, a recommendation that had previously been made-in April of 2011-in the midst of respondent's divorce from the children's mother, Rachel K. (Rachel). In the weeks following this revelation, Jennifer's behavior became more erratic. During class one day, Jennifer emulated masturbation while repeatedly screaming "[g]ive it to me, baby." On more than one occasion, Jennifer pulled her underpants to the side and exposed herself to fellow classmates. Her behavioral problems also included increased incontinence issues and violent outbursts. On September 19, 2011, Jennifer made a second allegation of abuse, telling Grinnell that respondent walks around the house naked and that she "hold[s] his unit" when he goes to the bathroom in the middle of the night. Grinnell conveyed this disclosure to Dr. Finnegan, who contacted DCYF.

         The DCYF began its investigation of respondent on September 19, 2011, based on the reported abuse. Megan Dunn (Dunn), a child protective investigator for DCYF, was assigned to examine the reported abuse. Dunn went to respondent's house around 6 p.m. to speak with respondent and the girls. Emilee answered the door in her school uniform, but Jennifer came to the door in her underwear. The respondent came down the stairs, not wearing a shirt and buttoning his shorts. Dunn informed respondent that she was investigating allegations of child molestation and needed to speak with Jennifer and Emilee.

         Dunn spoke with Jennifer for approximately thirty minutes, during which Jennifer asked if Dunn was there to "trap her father." Jennifer disclosed that she can see respondent's "unit" when he walks around, when she is in the bathroom with him, and when she gets into bed with him after having a nightmare. Jennifer identified her private parts as her "vajayjay" and "booty, " but she denied being touched by respondent in either area. She also denied having to touch respondent in any way. Dunn asked Jennifer about the movie that she viewed while at her mother's house. Jennifer seized two female Barbie dolls and placed them on top of each other, stating that "they bend over and smell each other's vajayjay." After this statement, Jennifer became distracted and the interview ended.

         Dunn then spoke with Emilee, who disclosed that her father walks around the house naked and sleeps naked, and that she can see respondent's "unit" and "booty" when he is naked. She denied ever being abused or touched inappropriately by her father or anyone else. Lastly, Dunn interviewed respondent, who denied having inappropriate contact with his children. Dunn spoke to respondent about Jennifer and Emilee's most recent disclosure-that he walks around the house naked. The respondent admitted that he sleeps naked but denied being naked in the house when the girls are present. Dunn informed respondent that nudity around Emilee and Jennifer is inappropriate and that he should consider seeking counseling services for the girls. In addition to speaking with respondent and the girls, Dunn contacted the girls' mother on September 27, 2011. Rachel denied showing Jennifer a pornographic movie while at her home. She admitted to showering with Emilee and Jennifer, but she was adamant that neither girl had seen or experienced anything inappropriate while staying with her.

         The most concerning incident occurred on September 30, 2011, when Jennifer brought a stuffed animal dog to school. Jennifer put the dog on her classmates' faces and pretended to make the dog "pee." Grinnell removed Jennifer from class and asked her why she was making the dog "pee" on her classmates' faces. Jennifer responded, "Well, my Daddy pees on my face." To demonstrate, Jennifer lay down, pulled her underpants aside, and said, "This is what happens to me." She pointed to her vagina and stated, "My Daddy puts his unit right here." She then told Grinnell that her father "takes it out and pees [white] on my face." Immediately after these disclosures, Jennifer curled up into a fetal position and began to cry. Again, respondent was notified and Grinnell contacted DCYF.

         Because Dunn was unavailable, a colleague, Robert McMahon (McMahon), assisted in the investigation and responded to the report of abuse on September 30, 2011. He recommended to respondent that Emilee and Jennifer seek medical attention. The children were taken to Newport Hospital for a medical examination; the results of which revealed no injuries or physical signs of sexual abuse. The examination report issued by Newport Hospital authorized detention and removal of the children for seventy-two hours because of Jennifer's disclosure of sexual abuse by respondent. That same evening, the girls were placed in foster care with respondent's cousin, Amy Mullen (Mullen). This placement proved to be problematic; several incidents occurred that warrant our attention. Namely, DCYF informed Mullen that the children could not have any contact with their father. Mullen failed to comply with this directive and gave the girls cards and Christmas presents from respondent. Additionally, Mullen engaged in several inappropriate conversations with Jennifer about the circumstances leading up to the placement and went so far as to record the child's comments. During these conversations, Mullen attempted to coax Jennifer into identifying the child's stepbrother, Ryan, as the source of the abuse, asking, "[Did] he hit you with his penis[?] * * * In your vagina[?] * * * [I]n your mouth?" Although Mullen testified that she considered the child's statements to be important, she failed to notify DCYF about them.[4] Instead, Mullen gave the tapes to respondent because "he had a right to know." The girls were removed from Mullen's care and placed elsewhere in December of 2011.

         In October 2011, Dunn filed petitions in the Family Court alleging abuse and neglect of the children, and DCYF contacted Ann Boutin-Gammon (Boutin-Gammon), an evaluator and counselor at Counseling Services of Rhode Island. Boutin-Gammon was asked to conduct sexual abuse assessments of Jennifer and Emilee. Boutin-Gammon met with Jennifer for the first time on October 14, 2011, and approximately three times thereafter. During these meetings, Jennifer made numerous statements, some of which indicated abuse and others that recanted her statements of abuse. Although at trial Boutin-Gammon testified that her notes from the sessions, memorializing Jennifer's disclosures and recantations, are not specific as to dates and times, Boutin-Gammon recounted specific statements Jennifer made, including: "Daddy peed white on [me]"; "he laid on top of [me]"; and that "his unit was big." Jennifer also disclosed to Boutin-Gammon that Emilee had seen respondent do these things and that Emilee told him to stop because Jennifer was too small and that "it hurt her private area." According to Jennifer, Emilee told respondent to "get off, " and he refused, stating, "when [I'm] done [I'll] get off." Additionally, Boutin-Gammon recalled Jennifer stating that respondent would "put his penis up and down as well as side to side on her head[.]" Jennifer added that this hurt because he was lying on top of her.

         During one session in January 2012, Boutin-Gammon asked Jennifer about the movie that she said she had viewed at her mother's house. Jennifer refused to talk about the movie, instead telling Boutin-Gammon "how Daddy had peed white on [me]" and how "[he] lay[s] on top of [me] and spread[s] [my] legs." In February 2012, Jennifer disclosed that her sister, Emilee, called her a "liar" and said that she made up the stories of abuse. And in March 2012, Jennifer told Boutin-Gammon that she felt "[s]cared, worry, disgust, sorry, sad, confused[, ] and guilty." These feelings were related to respondent.

         During a session in April 2012, Jennifer initially recanted her statements of abuse and said that she reported the abuse in fear of being made fun of at school. When Boutin-Gammon asked whether Jennifer was referring to any one specific student, Jennifer declared, "Daddy did it." Boutin-Gammon asked Jennifer to draw a picture of what she was referring to, and Jennifer drew a picture of respondent and his "unit" and herself with breasts. Jennifer told Boutin-Gammon: "[respondent] put his unit on [my] breast but he didn't do it, " and that, "[I] squeezed his unit." At the next session, Jennifer told Boutin-Gammon: "Daddy will not do it again."

         In May 2012, Jennifer disclosed that respondent "put his unit in my throat * * * [i]t hurts so bad [I] can't even breathe when he put his unit in my throat." Boutin-Gammon asked Jennifer what she would say to respondent if she could speak to him. Jennifer said, "Don't do that again" and, "If you trust me, are you going to do it again[, ] Dad?"

         Despite Jennifer's statements indicating abuse, the child also told Boutin-Gammon that she had lied on occasion. The recantations occurred at Jennifer's first meeting with Boutin-Gammon, on October 14, 2011, when the child spontaneously declared "Daddy didn't do this, " and again in April 2012, when she first told Boutin-Gammon that she had made up the reports of abuse but then stated that "Daddy did it." Emilee also indicated that Jennifer had not been telling the truth and that their father had not abused either of them. Still, Boutin-Gammon determined that it was "[one-hundred] percent unclear" where Jennifer had learned of such mature behavior and the graphic descriptions of sexual conduct. According to respondent, Jennifer had learned of the adult information from the pornographic movie she watched at Rachel's house. The respondent explained that, at the time, his ex-wife's visitation rights had recently been reinstated, and he insisted that she showed Jennifer the movie in an attempt to gain full custody of the girls. Mullen reported a similar opinion. Mullen informed Dunn that Jennifer reported that the sexual behavior "was just on TV. It was not my Daddy, " and that Rachel showed her ...


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