# Petition for Writ of Certiorari — Cassilly v. Maryland Department of Human Resources

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1082%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 1067

## Text

IN THE
Supreme Court of the Gnited States

OCTOBER TERM, 1989

DEBORAH CASSILLY, in her capacity as
owner and operator of Bo Peep Day Nursery,
Petitioner,
v.

MARYLAND DEPARTMENT OF HUMAN RESOURCES,
MARYLAND DEPARTMENT OF HEALTH AND MENTAL
HYGIENE, HARTFORD COUNTY HEALTH DEPARTMENT,

_~ Respondents.

PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF MARYLAND

MICHAEL D. BARNES*
JAMES P. MERCURIO
JAMES H. HULME
JONATHAN M. MILLER

ARENT, Fox, KINTNER, PLOTKIN
& KAHN

1050 Connecticut Ave., N.W.

Washington, D.C. 20036-5339

(202) 857-6170

Counsel for Petitioner

*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

yo

QUESTION PRESENTED

In a proceeding to revoke a day care license on the
grounds that young children were sexually abused, is
it a violation of the Due Process Clause for the tri-
bunal to deny the licensee’s motion to have her own
accredited expert interview the children and there-
after base revocation of the license upon the chil-
dren’s out-of-hearing statements and the testimony of
experts for the State who were permitted to interview
the children and interpret their accounts?

ii

TABLE OF CONTENTS

TABLE OF AUTHORS ERS wvcccsnscsssscososcncasssssseossscons
OPINIONS BEAT sccessssoscerssocssccsocessdsampessnctssenssanesss
STATEMENT OF JURISDICTION ..............cccccceseeeees

CONSTITUTIONAL AND STA.UTORY PROVISIONS
INVOLVED ccccccssssscennesvinnnennstninaindsiannnicinmenmbinanibhanten

STATEMENT OF THE GARE cccscscnsscsescocsvoncnssscssosses

REASONS FOR GRANTING THE WRIT ...................

I. THIS PETITION PRESENTS ISSUES SIMILAR
TO THE ISSUES THIS COURT WILL REVIEW
IN IDAHO v. WRIGHT BUT INTRODUCES AD-
DITIONAL ALTERNATIVES. ............ccccecceeeeeees

THE BO PEEP DECISION MISAPPLIES MAT-
THEWS ©. BEaPRAAGED covssiciccsssncsnscnssecssnssesses

II.

A.

B.

The Maryland Court of Appeals Under-
stated the Private Interests At Stake ..

The Maryland Court of Appeals Severely
Misconceived the Risk of Erroneous Re-
sult and the Probable Value of the Pro-
cedures Suggested .........ccscccescsscscsesersesess

. The Maryland Court of Appeals Confused

the Government’s Interest in Efficient Pro-
cedures With the Government’s Interest in
Only Licensing Day Care Centers Where
Children Are Not Sexually Abused ..........

CONCLUSION cccccesccssxssotsessentboninenpniionmmanmennaiianns

iil

13

13

18

18

20

23
25

ili

TABLE OF AUTHORITIES

Page

Ake v. Oklahoma, 470 U.S. 68 (1985) .................02. 18,23
Anderson v. State, 749 P.2d 369 (Alaska App. |
SIE sei hicehindehinhaceudlibassdvedcesbbisenekssbicsiabiésinsnhaxccesese 23
Arnett v. Kennedy, 416 U.S. 134 (1974) .......... 19
Board of Regents v. Roth, 408 U.S. 564 (1972) ..... 19
Coy v. Iowa, 108 S.Ct. 2798 (1988) ...................000. 17

Haggins v. Warden, Fort Pillow State Farm, 715
F.2d 1050 (6th Cir. 1983), cert. denied, 464
Beis cE SIE linnaapernnnstnnasannnnciinistebensessennennes 15

Idaho v. Wright, 775 P.2d 1224, 116 Idaho 382
(1989), cert. granted, 58 U.S.L.W. 3443 (U.S.

Jan. 16, 1990KNo. 89-260) ...........cccccccsscssseevees 13,14
In Re Ruffalo, 390 U.S. 544 (1968) ......... 19 .
Little v. Streater, 452 U.S. 1 (1981)... 18

Maryland v. Craig, 316 Md. 551, 560 A.2d 1120,
1125 (1989) cert. granted, 58 U.S.L.W. 3443-
(U.S. Jan. 16, 1990) (No. 89-478) «0.0.0.0... 17

Mathews v. Eldridge, 424 U.S. 319 (1976) .... 10,18,23,24
Maul v. State Bd. of Dental Examiners, 668 P.2d

i a aeialicahannna 19
Michael H. v. Gerald D., 109 S.Ct. 2333 (1989) ... 24
Morgan v. Foretich, 846 F.2d 941 (4th Cir.

RCS ARETE STS CIES oe ce Oa 15,25
Nelson v. Farrey, 874 F.2d 1222 (7th Cir. 1989),

cert. denied, 110 S.Ct. 835 (1990) ................ 16,17,21
Ohio v. Roberts, 448 U.S. 56 (1980) ...........0.... 14
Pennsylvania v. Ritchie, 480 U.S. 39 (1987) ......... 23
People v. District Court of El Paso County, 776

RE PMI, ROIID seninctscansconsstnncicessnesesssses 15

Perez v. State, 536 So.2d 206 (Fla. 1988), cert. de-
nied, 108 S.Ct. SSBB (19BB) ..........ccccccccsessceeees 15

iv
Table of Authorities Continued

Shively v. Stewart, 65 Cal.2d 475, 55 Cal. Rptr. 217
EE Fe CE teccntninctitetnneenscetatinieinanncinn

Snell v. Commonwealth State Examining Board, 490
Pa. 277, 416 A.2d 468 (1980) ...........cccsccscsssees

State v. Boston, 46 Ohio St. 108, 545 N.E.2d 1220
REUNITE “sdisalacsaiacnapsiedecihics piikkiieenpiaanate teal cai

COUT
thai the date of the incident is wrong.’’ Proposed Decision,
page 11. Testimony at the hearing negated the allegation
that number 7 was abused on July 15 at Bo Peep. While
we may feel that Judge Whitfill’s finding at the hearing
could have served as a red flag regarding the credibility
of number 7’s story, the Hearing Examiner is entitled to
make his own findings of fact. Dr. Shubin examined child
number 7 on July 17th and testified that he could not fix
the exact date of her injury. He stated that the injury
could have happened between 4- 6 days before his ex-
amination. Therefore, we cannot say as a matter of law
that a finding that the day affixed for the alleged abuse
was wrong is clearly erroneous.

The Court does agree with Appellant, however, that
there was error in the fact-finding process regarding state-
ments of abuse made by child number 7. In her out-of-
hearing statements, this child indicated that a pink or or-
ange ball was put in her vagina. While pointing out that
statements made by young children cannot be taken lit-
erally, the Hearing Examiner, in his revocation decision,
postulates that the “‘ball’’ referred to by number 7, “‘could
have, in fact, been the glans of a penis”. Proposed De-
cision, page 36 - 37. A review of the record does not pres-
ent evidence by which the Examiner could have reached
this conclusion. Thus, the factual conclusion that the ‘“‘ball”’
was actually the glans of a penis, was error. On remand,
the Hearing Examiner is instructed to disregard the find-
ing of fact in this respect, unless further proceedings would
substantiate such a finding.

While recognizing Appellant’s argument that the testi-
mony of Dr. Denner was disregarded by the Examirer,
we are reluctant to qualify the Examiner’s findings as
erroneous. Dr. Donner points out discrepancies between
statements made by the children and their physical find-

74a

ings. He testified that the therapist treating the children
did not get histories and that their methods of treatment
did not comport with what he felt to be the standard of
care. Dr. Donner was also of the opinion that most of the
children were manifesting symptoms consistent with sep-
aration anxieties. Yet the Hearing Examiner found the
testimony of treating therapists and parents to be more
credible than that of Dr. Donner. The fact that Mr. Clark
chose not to accept Dr. Donner’s testimony over the tes-
timony of others is not error. He can accept or reject
testimony and it is not the job of the reviewing court to
act as fact-finder. See Standard of Review, supra. The fact
that Dr. Donner’s testimony was essentially disregarded
because he had no contact with the children may be re-
medied by Part III of this Opinion.

CONCLUSION

Under Section 10-215 of the Administrative Procedure
Act, the administrative decision must be reversed for the
reasons previously discussed. The aforereferenced section
also bestows upon the Court the authority to remand the
matter for further proceedings. This seems most appro-
priate since the deficiencies previously discussed are mat-
ters that can and should be addressed by further hearing.
Accordingly, the decision of the agency is REVERSED
and REMANDED for further proceedings consistent with
the Court’s Memorandum Opinion.

Since the matter is being remanded, the question arises
as to whether the facility should remain open during that
process. Given the present level of private and public scru-
tiny now in place, the Court has no concern for the pro-
tection of the enrollees. At present there are Orders that
require police inspection, limitation of males upon the
premises, et cetera. When those requirements are com-
bined with the fact that there have been no reports of
abuse since the initial complaint and the high degree of
public attention, the Court finds little likelihood of present

75a

danger. Accordingly, the Court will order that Bo Peep
may remain open pending further proceedings and adju-
dication.

ORDER

The Court having issued its Memorandum Opinion, it is
this 9th day of March, 1989, by the Circuit Court for
Harford County, ORDERED, that this matter be and is
hereby REVERSED; and,

It is FURTHER ORDERED, that this matter is hereby
REMANDED to the administrative agency for further pro-
ceedings consistent with the Court’s Memorandum Opin-
ion; and,

It is FURTHER ORDERED, that the Bo Peep facility
may remain open, pending further proceedings and adju-
dication by the agency; and,

It is FURTHER ORDERED, that all presently in force

Orders concerning police inspection, et cetera, shal] remain
in effect pending further proceedings and adjudication.

/s/ Maurice Baldwin
MAURICE W. BALDWIN, JR., Judge

ya -

i oe 2 ee i LE a

76a

APPENDIX C

IN THE MATTER OF
BO PEEP DAY NURSERY
REVOCATION AND DENIAL OF LICENSE RENEWAL

BEFORE THE
DEPARTMENTS OF HEALTH AND MENTAL HYGIENE
AND HUMAN RESOURCES

DHMH HEARING OFFICE DOCKET NO.: 88-M-028

FINAL DECISION

Pursuant to State Government Article, §10-214 of the
Annotated Code of Maryland, and based upon the attached
Proposed Decision in this matter issued by Chief Hearing
Examiner William F. Clark, Esq., dated August 23, 1988,
it is this 3lst day of August, 1988, ORDERED that the
Proposed Findings of Fact and the Proposed Conclusions
of Law as stated therein are adopted as Final Findings
of Fact and Final Conclusions of Law, and the decision
of the Harford County Health Officer to permanently re-
voke and deny the application for re-licensure of the Bo
Peep Day Nursery hereby is AFFIRMED.

/s/ Adele Wilzack /s/ Ruth Massinga

Adele Wilzack, R.N., M.S. Ruth Massinga, Secretary
Secretary, Department of Department of Human Re
Health and Mental Hygiene sources

77a

APPENDIX D

BEFORE A HEARING EXAMINER
OF THE DEPARTMENT OF HEALTH
AND MENTAL HYGIENE

HEARING OFFICE DOCKET NO.: 88-M-028

IN THE MATTER OF BO PEEP DAY CARE NURSERY RE-
VOCATION AND DENIAL OF LICENSE RENEWAL

PROPOSED DECISION

SYNOPSIS OF CASE
FINDINGS OF FACT
CONCLUSIONS OF LAW AND RECOMMENDATION

SYNOPSIS OF CASE

The day care license issued by the Harford County
Health Department to the Bo Peep Day Nursery was to
expire on March 31, 1988, by operation of law, since such
licenses are valid for one-year periods only. Prior to the
expiration date, the licensee, Deborah Cassilly, requested
renewal of her annual license. By letter dated March 26,
1988, the Health Officer for Harford County, Thomas M.
Thomas, denied that request, stating as his reasons that
continued operation of the day care nursery is not con-
sistent with the statutory objectives contained in Health-
General Article, Sections 14-102 and 14-104; the continued
violation of COMAR 10.05.01, Regulations .12, .18, .49,
550A, .59, .60, .65 and .76; the belief that existing staff
would not assure appropriate supervision of children; and
the earlier findings of injurious treatment which reflected
deficiencies in the management, staffing and operation of
the center.

78a

The licensee, by letter dated March 30, 1988 from her
legal counsel, Thomas J. Peddicord, Jr., Esq., filed an
appeal with the Office of Administrative Hearings and
Appeals of the Department of Health and Mental Hygiene.
The facility has remained in operation pending resolution
of its appeal, pursuant to State Government Article, Sec-
tion 10-404, Annotated Code of Maryland.

This matter was heard on May 11, 17, 18, 19, 27, 31,
and June 1, 7 and 8&8, at various locations in and near
Baltimore.

At the hearings, the State was represented by Assistant
Attorneys General Lawrence H. Norton, Daniel J. O’Brien
and, until the hearing of May 27, Roberta M. Ward. The
licensee was represented throughout by Thomas G. Young,
III, Esq., and Thomas J. Peddicord, Jr., Esq., both of the
law firm Marlow, Peddicord and Young.

Motions for postponement, for broad discovery to in-
clude interviewing children involved with allegations of
child abuse at Bo Peep, and for recusal of this Hearing
Examiner, al] filed by the Appellant, were denied on the
record, however, certain limited discovery was permitted,
in that the parties were to exchange documents, names
of witnesses, their occupations, and a brief statement as
to topics to be testified upon, 24 hours prior to being called
to the stand. A request for a pre-hearing conference, re-
ceived at the Office of Administrative Hearings and
Appeals on May 10, 1988, was denied via telephone in
view of the lateness of the request, being received in the
morning prior to the scheduled first day of hearing.

A Motion to Intervene, filed by counsel for certain par-
ents and family members of children who were formerly
enrolled at Bo Peep, was denied on the record, after hear-
ing argument.

79a

FINDINGS OF FACT

The mother of Child #15 testified. Child #15 is approx-
imately five years old, and was enrolled at Bo Peep from
June, 1985 to July 15, 1987. Ms. Rita Blevins was the
aide in her class during the first year, and was the teacher
of her class in the second year. During the summer of
1987, Child #15 exhibited an extreme fearfulness, cried in
despair, and had thrown temper tantrums. She would not
sleep alone after leaving Bo Peep, and would not sleep in
her own bed. In September, 1987, the child said to her
mother, “‘Mom, will you lick my butt” and “Stick your
finger in my mouth and I'll suck on it” and ‘I know how
to suck on it and not bite it and I’ll suck on it until the
stuff comes out.’”” When questioned by the mother where
the child learned this, the child said that she did not want
to talk about it. Child #15 expressed concern for other
children at Bo Peep, and exhibited a fear of policemen.
On seeing a police car parked outside of the Bo Peep
facility, the child asked her mother if there had been an-
other child hurt at Bo Peep.

In November, 1987, Child #15 showed to her mother
how Ms. Rita had struck her at Bo Peep, by placing her
flat hand on her chest, and then striking it with her other
hand. Child #15 exhibited a propensity to lick people, and
when queried about it by her mother, the child replied
that Ms. Rita taught the children to lick each other every-
where. Child #15 also licked other people besides her
mother, and when she kissed someone, she would try to
stick her tongue in their mouth. On one occasion, Child
#15 told the mother that she saw Ms. Rita without her
underpants on with her private parts hanging out, and
that Mr. Pat was ‘“‘punching her in the stomach’ at that
time. As the child said this, she was hopping up and down
on a punching bag. Child #15 also reported to her mother
that Ms. Rita had struck her in the stomach, causing her
to vomit. The mother recollected this occasion, which was

;
‘
:
A
4

, |

80a

her own birthday, to be the day that she was called by
the staff at Bo Peep to come pick up her daughter early,
as staff there reported that the girl had a fever and was
sick. The mother, who is a registered nurse, was unable
to detect a temperature after she picked up the child. The
mother recalled that the girl was very quiet and subdued,
and that for the remainder of the day she was not sick
again, and was able to go to the mother’s birthday party
later than day.

Child #15 exhibits a fear of all attics and has expressed
a fear that policemen will take her away from her mother.
Child #15 related to her mother that Ms. Rita had said
that she (her mother) would be killed if Child #15 talked
about Bo Peep. This occurred in the fall, 1987. On another
occasion, while the mother and daughter were in a Chinese
restaurant, the child, apparently seeing a customer who
reminded her ot Ms. Rita Blevins, expressed fearfulness
if she were to see Ms. Rita in the restaurant, to such a
degree that the mother took her from the restaurant. When
Child #15 happened to see the licensee on a T.V. newscast,
where the licensee was indicating that Bo Peep was a good
place, and everybody was good there, Child #15 looked up
and said ‘‘why is Ms. Debbie lying? She knows it is not
a good place.”

Child #15 entered psychotherapy on March, 1988. Child
#15 had been examined by Dr. Charles Schubin on July
26, 1987, who found no obvious signs of abuse, and has
been seen by Mary Derbyshire, L.C.S.W., twice, the last
time being August, 1987. Child #15 has been as well to
the Johns Hopkins University Hospitai, and while there,
exhibited a fearfulness of the hallways and of men.

As brought out on cross-examination, the mother of Child
#15 separated from her husband in May, 1986, and they
were divorced in December, 1987. From April, 1987, to
approximately June, 1987, the mother had a concern re-
garding the custody of Child #15, in view of the impending

8la

divorce, inasmuch as her husband was a foreign national,
and was in fact out of the country from July until Labor
Day of 1987. The child’s behavior improved after Labor
Day when her father returned to this country, and the
child commented to her mother that she had been told at
Bo Peep that her father was dead. Child #15 exhibited a
fear of separation from her mother in early August, 1987.
The mother reported that according to the analysis done
at Johns Hopkins, her child’s regression was caused by
two fac‘*ors, i.e., her being abused at Bo Peep, and the
divorce which her parents were going through at the time.

In February, 1988, Child #15 began to express having
dreams of robbers taking her away. Between the time that
Child #15 left Bo Peep and started attending a new day
care center in September, 1987, she stayed at residences
of relatives, which residences housed males, i.e., a grand-
father and an uncle. The child reported to her mother that
when she was hit at Bo Peep by Ms. Rita, the other
teachers were outside. Child #15 also reported to her
mother that Ms. Debbie has hit other children at the fa-
cility, and mentioned Child #26 by name. The mother noted
that her daughter had bruises up and down the front of
her legs, and noted that they no longer appeared after
the enrollment at Bo Peep ended. When the mother asked
the child about how the bruises were caused, the child
replied that she would not talk about it.

The mother reported that Child #15 said Bo Peep is a
bad place with bad people, but that she would not elaborate
on her remarks, which were made during the summer of
1987. The child reported to her mother that teachers at
Bo Peep said that she was bad and ugly, and that God
would not love her. Child #15 reported to her mother that
she did not want to return to Bo Peep. On cross-exami-
nation, the mother of Child #15 stated that she did not
tell the therapist at Johns Hopkins Hospital about the
abuse at Bo Peep, and that staff at Hopkins determined
that the girl’s behaviors are consistent with being the vic-

82a

tim of child abuse. Also on cross-examination, the mother
indicated that Child #15 spoke to the Hopkins’ therapists
about a Mr. Pat who lived up in the top of Bo Peep. The
licensee lived with her children and her husband, Patrick,
on the third floor of Bo Peep until July 28, 1987.

Child #6 attended Bo Peep from June, 1986 until July,
1987. Her mother testified that Ms. Rita was in charge
of the class for her daughter. The child reported that Ms.
Rita is mean and that she said kids were bad, stupid, and
dumb, and that she would yell at the children. The child
related that if children were not good they would be hurt,
and that Ms. Rita would pinch her or slap her on the arms
and legs and would do so to other children as well, and
mentioned specifically Children #25 and #26. The child re-
lated to her mother that Mr. Pat would hurt her, would
pinch her and pinch her “‘twinkie,’’ which is the term she
gave to her vagina. The mother testified that the child
told her Ms. Rita saw Mr. Pat both hurt other children
and her, but did nothing about it. Child #6 related to her
mother that she had been disrobed by Mr. Pat, that his
clothes were off, and that Ms. Rita’s top was off, and that
she has “‘big boobies,’’ and drew pictures reflecting her
perceptions. Child #6 told her mother that Mr. Pat put a
black stick in her and that sometimes it hurt, and that
sometimes it did not hurt. The child related that it always
happened during nap time. Child #6 exhibited a fear of
going to bed at night at home. At her new day care
facility, she would not take a nap with the other children
during the daytime, and exhibited excessive masturbation.
The mother noted that the masturbation started at Bo
Peep in the fall of 1986 and progressed to the point that
the child began to insert objects i.e., crayons or small toys,
into her vagina. The child told her mother in the fall of
1987 and occasionally up until a few weeks prior to this
hearing, that Mr. Pat had hurt her. Most of the hurting
by Mr. Pat related by the child was to her vaginal area.
Child #6 also related to her mother that she had to wear

83a

dresses at Bo Peep, and could not wear pants. She was
told by Mr. Pat that pants made her ugly and that a dress
made her pretty, as related in a conversation between the
mother and Child #6 in October, 1987. From the period
of approximately the middle of August, 1986, the child
was noticed by the mother to have a redness in her vaginal
area. The pediatrician who examined the child advised the
mother to stop bathing the girl with “Mr. Bubble,” to
dilute her fruit drinks, and to change the detergent for
the laundry, however, the redness still was a problem until
late March, 1987. The child refused to sit in the bath tub
and complained that her “‘twinkie’”’ hurt. The child cried
from the pain, and declined to urinate, stating that it was
painful. Tests run by the pediatrician were unable to de-
termine a cause for the chiid’s problems. In April, 1987,
the redness went away and her behavior changed, in that
she was not as insistent on wearing dresses to Bo Peep.
Child #6 told her mother that she had been told that Mr.
Pat knows where she lives and that if she ever told he
would chop her up and put her down a drain. As observed
by the mother, the child drew Ms. Rita with no shirt on
at nap time, and drew her as being in jail. While drawing
Ms. Rita, the child tried to stick herself in the vagina with
crayons or magic markers. The child exhibited signs of
regression and baby talk and was “‘hyper.’”’ At a session
with her therapist, the child fell down to the floor in a
fetal position, was slapping her leg stating ‘‘no more, Mr.
Pat’’ and ‘‘Mr. Pat’s a bad man. I hate Mr. Pat. I hate
my mommy.” The child’s mother was called into the ses-
sion by the therapist to assist in comforting the child and
to help bring her out of this regressed state. Also on direct
examination, the mother related that the child expressed
a disinclination to attend Bo Peep saying, ‘‘Do I have to
go to schoo] tomorrow?” This child was seen by Dr. Schu-
bin, who found her to have a 30% fusion of her labia
minora. His clinical impression, as reported at the 1987

84a

proceeding, was that this child had suffered repeated sex-
ual injury.

On cross-examination, the mother of Child #6, who is
divorced, admitted that she has dated men, but denied
that they have had the opportunity to be alone with her
daughter. The mother’s ex-husband lives west of the Mis-
sissippi. The mother and Child #6 live with the mother’s
parents. During the fall of 1986 through the first part of
1987, the child exhibited aggressiveness toward her grand-
father, and would refuse to leave Bo Peep with him on
some occasions when he arrived to pick her up at the end
of the school day.

The child stopped masturbating near the end of March,
1987, about when the redness of her vagina cleared up.
At that time, the mother noted that Child #6 had little
pink dots on her body, which the mother took to be pinch
marks or “‘hickeys.’’ The child reported to the mother that
other children would pinch her at Bo Peep. At a meeting
of Bo Peep parents called in June, 1987 by the Department
of Social Services, and at which a list of symptoms char-
acteristic of children who had been sexually abused was
handed out, Child #6 was determined by the mother to
exhibit almost all of those symptoms. Child #6, as reported
in the previous administrative hearing, and as repeated
here, told her mother that Mr. Pat “‘pinches my cheek
and scratches my hiney,”’ and in a therapy session on July
16, 1987, showed aggression toward a baby doll in its
sexual] areas. The child related to her mother that none
of her ‘“‘teachers’’ ever touched her in her private areas.
However, the child did not consider Mr. Pat to be a
“teacher.”

Mary Derbyshire, a licensed certified social worker, was
admitted as an expert in the field of social work, with a
specialization in the treatment and evaluation of children
who had been subjected to physical and sexual abuse. Ms.
Derbyshire indicated that the only change that she had in

85a

her testimony from when she testified at the 1987 admin-
istrative hearing on Bo Peep, is that she has now con-
cluded, in her professional opinion, Child #8, a former Bo
Peep student, does not manifest behaviors and verbaliza-
tions consistent with child sexual abuse.

Ms. Derbyshire has continued to see Child #6 since the
last hearing. During a session with Child #6, the child drew
a picture at Ms. Derbyshire’s request, to explain what was
making her feel so sad. The drawing, according to the
child, was of Mr. Pat’s leg and her “‘twinkie.”’ The ‘‘leg”’
drawn by the child clearly represents an erect penis. When
Ms. Derbyshire asked the girl what is her ‘‘twinkie,’’ the
girl pointed to her vagina. She referred Child #6 to an
art therapist, because she determined it was easier for this
child to express on paper rather than verbally, those things
which she did not understand. During the sessions with
Ms. Derbyshire, the child engaged in repetitive play, hiding
‘the bad men”’ in the trash can, and then telling the toy
animals ‘“‘they can’t get to you now, it’s O.K., they can’t
hurt you now.”’ When queried by Ms. Derbyshire if anyone
anywhere else hurt her, the child replied ‘‘no,’’ only at Bo
Peep. The child questioned Ms. Derbyshire if her grand-
mother and grandfather knew that she was being hurt at
Bo Peep when they were taking her to and from that day
care facility. It was Ms. Derbyshire’s opinion that Child
#6 evidences signs and symptoms consistent with physical
and sexual abuse, and that based on the verbalizations
from the child, the child’s behavior that she personally
witnessed in her office as well as information provided by
the family and reports of the child’s behavior and ver-
balizations witnessed by the family, that the trauma oc-
curred at Bo Peep.

Mr. Derbyshire also has been providing therapy to Child
#7 and has had weekly treatment sessions with her from
September, 1987 up through the dates of this hearing. The
child related to Ms. Derbyshire that Bo Peep was a bad
place, and that Ms. Rita had hurt her scar from a hernia

86a

operation by digging into it with her finger and making
it bleed. The child also related to the therapist that Ms.
Rita had beaten her in her vaginal area when she was
going to the bathroom at Bo Peep. During another session,
Child #7 said “‘they hurt me when I was in Bo Peep”’ and
then she said “I was just kidding.”’ The child similarly said
she was ‘“‘just kidding’ after relating that Ms. Rita had
beaten her on her pubic area. Ms. Derbyshire characterized
this retraction as a defense mechanism which a child might
use to protect herself from repercussions of disclosures of
abuse. The child related that at nap time, Mr. Pat came
in and woke her up and that Ms. Rita was there. She said
that ‘‘Mr. Pat didn’t know he hurt me because he didn’t
want to be a bad person.”’ The child’s emotional state as
she made these disclosures was that she appeared terrified
and was in an agitated state, shaking, pulling on her
clothes, and was blanched.

During therapy sessions with Ms. Derbyshire, Child #7
acted out a game in which monkeys were dunked in water,
they struggled, they were laid neatly on a tissue, and they
were methodically dried off with another tissue. The child
had Ms. Derbyshire play the role of Ms. Rita and say
things such as “‘you are trapped, you are not getting out,
I told you that you are not getting out of there, stay
there,’ as the girl pushed the monkeys under the water.
The child would play Mr. Pat, and she would get one of
the monkey figures and say, ‘‘you can come out now; you
can come out of the water,’’ and as Mr. Pat, she would
lay the monkey down on the tissue and very softly dry
the monkey figures off one at a time with another tissue,
and line them up in a very methodical kind of way. Child
#7 indicated during the session that the children involved
in this water game would be laid on a kitchen table at
Bo Peep by Mr. Pat. This game theme was repeated at
most of the therapy sessions that Ms. Derbyshire had with
Child #7. The child also during the sessions expressed a
fear of a creature she called ‘‘Big Foot’’ and also expressed

87a

a fear of firemen and policemen, and a fear of a “water
machine,” which activity involved Ms. Rita and Bo Peep’s
attic. Ms. Derbyshire characterized the child as sobbing, shak-
ing, wringing her hands, and occasionally masturbating dur-
ing the time she was talking about things related to Bo
Peep. The child related occasions where Mr. Pat put his
hands around her neck and tried to choke her while she was
sleeping at Bo Peep. The child also related to Ms. Derbyshire
that Mr. Pat had gone to the basement to get a rope, and
that at that time Ms. Rita had a “scary look.” In March,
1988, Child #7 described to Ms. Derbyshire how Mr. Pat
would put the rope around her neck and choke her. The
child also related to Ms. Derbyshire that Ms. Rita and Mr.
Pat had hurt Child #29, and also indicated that Ms. Rita
had hurt that child by scratching on her arm. Child #7 related
during the session that Ms Rita had beaten her on her belly
by laying her palm on the child’s stomach area and then
hitting the back of her hand repeatedly, very hard. Ms.
Derbyshire characterized this as a technique of beating a
child without leaving a bruise. The child related to the ther-
apist that Mr. Pat likes her to wear dresses, and that Ms.
Rita had said to her that if she ever told secrets, she would
be taken away on a bus. The child related that Ms. Rita
would pick scabs on her until they bled. Child #7 also in-
dicated that Ms. Rita hurt Child #30 by beating her in the
stomach, and that Child #80 tried to get away but Ms. Rita
said “‘stay up here because I want to hurt you,” and that
Ms. Rita made the kids stay up on the table.

Ms. Derbyshire gave her professional opinion that Child
#7 has symptoms consistent with sexual child abuse, and
based on her clinical training and experience, her profes-
sional opinion within a reasonable degree of certainty, is
that this physical and sexual abuse occurred at Bo Peep.

Ms. Derbyshire also saw Child #38, beginning treatment
on May 6, 1988. As of the date of the hearing, Ms. Der-
byshire had not yet obtained a detailed family history for
this child. Child #3 related to Ms. Derbyshire that Mr. Pat

88a

and another person touched Child #2 in her “‘butt,”’ and
that Mr. Pat put his hands on the “butt” of child #4. Due
to these and other comments and observations which Ms.
Derbyshire made, her professional opinion as that Child
#3 did have the signs and symptomology of sexual abuse,
which in her opinion occurred at Bo Peep. Despite not
having a detailed history of Child #3, Ms. Derbyshire felt
that she was able to opine on the cause for the girl’s
manifestations, based on the contact she had with Child
#3, and on the reports given to her by the mother of Child
#3.

Esther Dienstag, Ph.D., is a licensed psychologist who
was admitted in this proceeding as an expert in devel-
opmental and clinical psychology, and in the investigation
and evaluation of child sexual abuse. Dr. Dienstag treated
Children 1, 2, and 4, all of whom were former enrollees
at the Bo Peep Day Nursery. Her treatment of Children
1 and 2 encompassed the period of May 17, 1987 through
November of 1987 and her treatment of Child #4 began
in October of 1987 and continued through the date of these
proceedings. “hild #4 was referred to her for treatment
by Mary Derbyshire. Dr. Dienstag had seen Child #4
twenty-two times as of the date that she testified at this
hearing. Dr. Dienstag related that Child #4 has named a
“Patrick”, an adult, as hurting the children and pinching
them at Bo Peep. Child #4 has related to Dr. Dienstag
that Child #3 was touched by Patrick in her crotch area.
Child #4 indicated that Patrick pinched Child #3 on her
‘“‘butt’’ and on her privates. Child #4 related to Dr. Dien-
stag that she had to go upstairs with Mr. Pat and ‘Aunt
Martha” because she was climbing on trees. Child #4 also
related that both Mr. Pat and Ms. Debbie touched her and
hurt her with “something that you can cut with like a
knife,’ and a spoon, in the downstairs bathroom. The area
in which she was touched was in her crotch area. The
child related to Dr. Dienstag that Ms. Debbie told her that
she, Ms. Debbie, would kill the child’s mother. The child

89a

related that Mr. Pat and Ms. Debbie touched her with a
“sharp, sharp stick,”’ in her crotch area. This occurred in
the bathroom, and they took turns. The child said she
hollered for help, but nobody came. The child indicated
that she had been playing outside and she was called inside
to go to the bathroom, and the two of them came in. In
reference to the time that the child was punished for climb-
ing on a tree, the child told Dr. Dienstag she had to go
upstairs to Ms. Debbie’s room where she lived and get
punished, then she was made to go outside and sit on a
bench. During these sessions, the girl had a theme of play
which she repeated, involving a wolf figure hurting a girl
figure by coming up from behind and biting her. Dr. Dien-
stag indicated that the child exhibited behaviors of refusing
to sleep in her own bed; being frightened to go to the
bathroom; she was opositional and couldn't be disciplined;
she was engaging in excessive masturbation; she was ex-
hibiting cruelty to animals; she was exhibiting low self-
esteem; and she was wetting her pants. The child never
wet her pants anywhere else except Bo Peep, where it
occurred two to three times daily, but did occasionally wet
her bed at night while sleeping. The child also had a sore
and red-looking vaginal area, and the child complained of
her “butt” hurting. Child #4 also worried excessively about
people dying and wondered who would take care of her
if her parents died. The child also showed an excessive
fear of thunderstorms and fire whistles,, and she was in-
appropriately reaching for her mother’s breasts and her
grandmother’s breasts. Dr. Dienstag also testified that
there were times when Child #1 also reached for Dr. Dien-
stag’s chest area. She gave her professional] opinion that
Child #4 has been the victim of sexual abuse and her
opinion is that the abuse took place at the Bo Peep Day
Nursery. She also opined that Child #4 has been the victim
of physical abuse which occurred at Bo Peep.

On cross-examination, in being questioned about the ex-
tent of the history she had taken of the family of Child

90a

#4, Dr. Dienstag admitted that she was not aware that
the father had recently been cited for driving while in-
toxicated, although she did know that alcohol abuse was
a factor in the child’s home.

Child #33 is a boy who went to Bo Peep from the
Autumn of 1985 until May or June of 1986, during which
period he was between 4'/, to 5'/, years old. The mother
of Child #33 testified at these proceedings that one morn-
ing, #33 had resisted going to Bo Peep, and claimed that
Mr. Pat had beaten him. At the time, the mother ex-
pressed her thought that this was ludicrous, and the boy
thereupon recanted his statement. In the summer of 1987,
the mother asked the boy if he liked it when he went to
Bo Peep, and he replied “‘no, they were mean,” that he
didn’t like it there and didn’t want to go back. He declined
to continue that line of conversation. Approximately 3
weeks prior to this hearing, the mother of Child #33, in
playing with him to get him up for school one morning,
grabbed him through the bedcovers on his posterior. To
her surprise, the boy became very upset and said ‘‘Don’t
ever touch me there again. That’s where Mr. Patrick
touched me and I don’t like it.”” When she questioned the
boy as to why he said this, and after an initial steadfast
refusal of the child to explain, he told her that one time
he was in Ms. Martha’s class and that he was bad. He
stated that Ms. Martha had gone and gotten Mr. Patrick,
and that Mr. Patrick took him upstairs to the bathroom
where Mr. Patrick pulled down the boy’s pants and un-
derwear, and that Mr. Pat spanked him a couple of times.
Mr. Patrick then rubbed the boy’s bare bottom and took
him back down stairs to class. When the mother challenged
that as not being the truth, saying that Ms. Debbie would
never let Mr. Patrick do that, the boy replied that Ms.
Debbie did know it, she was in the bedroom at the time.
The boy told his mother that the spanking by Mr. Pat
occurred upstairs where the Cassillys lived. The mother
reported this incident to the Department of Social Services

Gla

and the boy was interviewed by an investigating police
officer, to whom he repeated his story. The boy indicated
to the investigators that when he had been taken upstairs,
and taken to the bathroom, he could see the bedroom from
the bathroom and that Ms. Debbie was there. The boy told
the investigators that other children had been spanked,
although he said he did not see it, he had only been so
told by other boys that they had been spanked. The boy
made an indication with his fist to the investigators with
the thumb of his hand up, moving his hand up and down
in the air, indicating that Mr. Pat had done this to the
boys. On physical examination of the boy by a physician,
no physical evidence of abuse was found.

On cross-examination, the mother of Child #33 indicated
that there were some deaths in the family in 1987, 1.e.,
a grandmother and a sister-in-law both died in June of
1987. The mother divorced from the boy’s father in 1982.

Catherine Brown, a child development specialist with the
Harford County Health Department, also testified. Ac-
cording to the staffing pattern which was received by the
Health Department on February 9, 1988, Deborah Cassilly,
the licensee, was scheduled to be at the facility approxi-
mately 3.5 hours of the 11.5 hours daily that the facility
was open to care for children. She was scheduled to be
at the facility for an hour in the morning, from 7:45 to
8:45, and then to return to the facility from 3:30 p.m.,
until closing at 6:00 p.m. Ms. Brown testified that two
visits were made to Bo Peep in 1988, one on Tuesday,
April 26, 1988, and the other on Friday, May 6, 1988.
Nothing untoward was found, although these were not
“inspection” visits, but were made to check on the child
attendees and the nursery’s staffing. According to Ms.
Brown, Rita Blevins appears to be in charge of the facility
in Ms. Cassilly’s absence, and she is the only senior staff
there sometimes. On cross-examination, Ms. Brown testi-
fied that she was told by her superiors in the Harford

92a

County Health Department not to perform an inspection
of the Bo Peep facility.

The staffing pattern submitted in conjunction with the
renewal application indicates that Rita Blevins is on duty
from 7:30 a.m. to 4:30 p.m., and after Deborah Cassilly
leaves at 8:45, Rita is the only group leader and senior
staff member until Maureen Baxter arrives at 11:30 a.m.

Deborah Cassilly testified that neither she, nor her hus-
band, nor Ms. Rita, nor any other staff ever struck or
abused a child at Bo Peep. She stated her opinion that
staff do not have the opportunity to feel that they are
ever alone with a child.

Ms. Cassilly testified that Child #15 did not exhibit any
desire to leave quickly from Bo Peep at the end of the
school day. She did not recall] Child #15 having to leave
Bo Peep in March of 1987 as a result of being ill with a
fever and vomiting.

She testified that her observation of Child #6 was that
this young girl refused to go home from Bo Peep with
her grandfather, although she did not appear to have a
problem leaving Bo Peep with either her grandmother or
her mother. She recalls that #6 is a cute child who had
a personal preference of wearing dresses.

Regarding Child #3, Ms. Cassilly testified that this young
girl was aggressive, and would be observed pushing and
pinching other children at Bo Peep. She denied ever no-
ticing bruises on the child, but testified that she heard the
mother say to the child “I’m going to spank you when
we get home’’, on occasions where the child would get in
trouble at Bo Peep. She testified that #3 never expressed
a fear of any person, and that Child #3 did require dis-
cipline at Bo Peep, which was handled only by having her
sit in the kitchen with a staff member for a short period
of time.

93a

Regarding #7, Ms. Cassilly indicated that this child ex-
hibited no fear of nap time and was a good sleeper at Bo
Peep, sleeping the entire two hours of scheduled nap time.
Ms. Cassilly recalled a July, 1987 conversation with the
mother of Child #7, to the effect that the mother felt
certain that there was no problem regarding her daughter
and Bo Peep, although at the present time the mother
does fee] that sexual abuse did occur to her daughter at
Bo Peep. Ms. Cassilly denied that anyone at Bo Peep ever
harmed Child #7. Ms. Cassilly did not recall ever having
to discipline Child #7.

Ms. Cassilly denied that Child #33 ever go hurt, or
harmed, or struck at Bo Peep, either by herelf or by
Patrick Cassilly, or by any of the Bo Peep staff. Ms. Cas-
silly testified that since the apartment on the third floor
of Bo Peep has been vacated by her family, the area has
been kept locked, with the key being kept on the first
floor. Since September of 1987, the Bo Peep facility has
had its front door locked during daytime hours, and a sign
posted there directs visitors to a side entrance. Also an
alarm for the door has been installed, which sounds when
the door is opened.

Ms. Cassilly feels that the events as alleged could not
have occurred at Bo Peep, since the facility allows parents
to come at anytime during the day, although there is no
written policy existing to that effect. In response to ques-
tioning on cross-examination, Ms. Cassilly stated that re-
peated injuries to children at a day care facility is an
important element, but should not necessarily result in a
license being denied. She also indicated that she does not
feel that a director of a day care facility has any more
important role than staff of the facility. Ms. Cassilly fur-
ther testified that Rita Blevins is in charge of the Bo Peep
facility from 8:30 a.m. to 11:30 a.m. if she herself is not
in attendance.

94a

The mother of Child #26 testified on behalf of the Ap-
pellant. Child #26 attended Bo Peep from June of 1986
to July of 1987, and during that time, her teacher was
Rita and the Aide was Terri. She testified that the only
symptoms of child sexual] abuse that she recalls being men-
tioned at the Department of Social Services meeting in
June of 1987 were bed wetting and sleeplessness. This
mother testified that she felt the Department of Social
Services meeting did not go into detail about the allega-
tions of child abuse at Bo Peep, and she thought that the
meeting was basically a waste of time. Her recollections
on visiting Bo Peep were that the children were always
supervised, even in the bathroom. She testified that her
child was always positive and upbeat on being questioned
regarding Bo Peep, and due to the child’s outgoing per-
sonality, the mother did not believe that any abusive sit-
uations occurred to her child, as alleged by Children #15
and #6, or to other children of Bo Peep. She indicated
that Child #26 loves Rita, and on recent occasions they
both visited Deborah Cassilly and Bo Peep. She indicated
that her child expresses no fear of Bo Peep or of any
staff members, and she believes the facility offers an ex-
cellent quality of service. She stated that her child has not
indicated that she was harmed by Patrick Cassilly, nor
that any other children had been harmed at Bo Peep. She
indicated that she had free access to the facility, and that
when she did arrive at an unusual] hour, i.e., other than
the normal pick-up or delivery times of her child, she no-
ticed no unusual circumstances at the facility. On cross-
examination, she admitted that if she did to go Bo Peep
at other than the usual] pick-up and delivery times, she
would usually notify the Bo Peep staff in advance of her
impending arrival. She has not taken her child for a phys-
ical examination to determine if she had been sexually
abused. Likewise, this parent has never taken her daughter

95a

to a psychologist or psychiatrist or a child abuse specialist
for evaluation as to her possibly having been sexually
abused.

The mother of Child #25 also testified on behalf of the
Appellant. Her daughter has attended Bo Peep since the
Spring of 1986, has Rita as a teacher, and her daughter
is still attending Bo Peep. This mother has gone to Bo
Peep approximately two times a month, mostly unan-
nounced, and had not observed any suspicious activities.
Although her child was identified by other children as hav-
ing been victimized at Bo Peep, she has declined to have
her child examined either by medical or psychological
professionals. She had initially scheduled a physical ex-
amination with Dr. Schubin, who had examined a number
of other children in this case, but cancelled that appoint-
ment because she felt that she was pressured by him to
make the appointment, and she feels that he is prejudiced
against day care facilities. This mother indicated she was
confident that her child would reveal it to her if any harm
had occurred to her at Bo Peep, and that she would be
able to tell if her child was unhappy. As of the date of
the hearing, this parent as well had not had either a doctor
or a therapist evaluate her daughter for sexual abuse.

The father of Child #29, a five-year-old as of January
1988, and who attended Bo Peep from September of 1986
through June, 1987, testified on behalf of the Appellant
that he had been disappointed and frustrated with the lack
of details which were revealed at the meeting conducted
by the Department of Social Services in June of 1987. He
testified that he questioned his daughter about the hap-
penings at Bo Peep, and never received any indication that
anything was wrong. Child #29 was taken to her pedia-
trician by her parent, and there was no physical evidence
of abuse found by this doctor. The father testified that he
had free access to the facility, although he generally tried
to notify Bo Peep staff in advance of his early retrieval
of his daughter. His daughter exhibited no fear of Rita,

96a

nor did his daughter indicate that any harm had befallen
her from Deborah Cassilly, Patrick Cassilly or at the hands
of anyone else at Bo Peep. To his knowledge, the only
punishment that was meted out to the children at Bo Peep
was for them to be isolated in a chair at the facility. His
daughter did not indicate an awareness as to any other
children being harmed at. Bo Peep, and feels that the qual-
ity of service at Bo Peep is excellent, and stated that he
would send his infant son to Bo Peep when he was old
enough. On cross-examination, he testified that his pedia-
trician, on examining Child #29, did not mention that some
abuse as may have occurred might not show up physically.
Child #29 was not taken to a therapist for evaluation.

Lawrence Donner, Ph.D., testified for the Appellant. Dr.
Donner has been in the private general practice of clinical
psychology since January of 1984 and specializes in human
sexuality. He is a licensed psychologist. He was formerly
an Associate Professor at the University of Maryland
School of Medicine. Dr. Donner evaluates, but does not
treat, children for sexual abuse. He estimated that he has
seen about four preschool] children since January of 1984
for either neglect, physical abuse, or sexual abuse. He has
not evaluated any children who were abused in a day care
center. He has not treated any children for sex abuse, and
does not generally treat children. Dr. Donner was accepted
in these proceedings as an expert witness in the field of
clinical psychology. Prior to testifying at this proceeding,
Dr. Donner reviewed the 1988 testimony given at these
proceedings of the parents of Children #6, #15, #25, #26,
#29, and #33, and reviewed as well the 1988 testimony of
Mary Derbyshire and Dr. Dienstag. In addition, he re-
viewed the transcript of the testimony from 1987 from
the parents of Children #1 and #2, as well as the testimony
of Dr. Schubin, Ms. Derbyshire, Barbara Mitchell, and Dr.
Spodak. He also researched articles on the subject of child
sexual abuse.

97a

Dr. Donner took issue with the performance of the
professionals who testified for the State in this proceeding,
indicating that they took little or no history of several of
the children. In respect to several reports made by the
children which the State’s witnesses interpreted to reflect
sexual victimization, Dr. Donner testified that the state-
ments were misinterpreted. Dr. Donner concluded, for ex-
ample, that language of Child #1, reported at the 1987
proceedings, to the effect “‘Don’t be afraid, close your
eyes, I’m touching your private parts’’ reflects merely the
normal sexual curiosity of three- to four-year-olds who
share a bathroom and are curious about each other’s gen-
itals. Based on his review of the transcripts, Dr. Donner
believed that Child #1 displayed the symptoms of sepa-
ration anxiety. He testified the parent of Child #1 was
leading Children #1 and #2 in questioning them. He felt
that the child’s story was not credible, when the child
claimed to have been bitten in the “‘tushy,”’ because no
bite or physica] marks were observed. He pointed out that
his review of the transcript failed to find any reference
to blood being found in the underpants of Child #1, and
he felt that the anal penetration injury exhibited by Child
#1 was consistent with the child possibly being hurt by a
gymnastics bar, since the child took gymnastics lessons.
He attributed the child’s fear of bathrooms to her reported
constipation and vaginal infections. He found the child’s
physical injuries to be inconsistent with her statement that
she bled from her knee, and he questioned how, if the
child was ‘“‘bitten’’ from behind, the child could say she
saw that her assailant had his pants down and saw his
belly button. His review of Dr. Dienstag’s testimony and
of the parents’ testimony found the children’s sympto-
mology to be not inconsistent with the separation anxiety
disorder. Dr. Donner believes that the parents led their
children into making these allegations, and that the chil-
dren who made the allegations came from stressed families
with economic, or physical, or emotional afflictions. The

98a

fear of some children that their heads will be chopped off,
he said, is also consistent with his diagnosis of separation
anxiety.

Dr. Donner testified that discussions with Child #3 were
such that the child was interrogated constantly and was
told about things repeatedly, leading the child not to give
_spontaneous replies, and calling into question the veracity
of the child’s statements. Dr. Donner gave the opinion
that Child #3 is suffering from a separation anxiety dis-
order too, and that there was nothing inconsistent in Ms..
Derbyshire’s testimony, Dr. Reichel’s testimony or the file
cards assembled by Ms. Derbyshire which would be incon-
sistent with his stated opinion.

Regarding Child #7, Dr. Donner testified that in his
opinion this child was experiencing considerable stress and
anxiety, not due to being sexually abused, but due to the
stressors existing at home with her parents and in the
therapy encounters that she was undergoing as a result
of these allegations. His opinion is that Child #7 displays
psychological symptoms consistent with a diagnosis of sep-
aration anxiety.

Regarding Child #6, Dr. Donner indicated in testimony
that the fusion of her labia could have come from self
masturbation, and since the testimony of the mother of
Child #6 indicated that the child did masturbate, he be-
lieved that this physical condition did not necessarily in-
dicate sexual abuse. Dr. Donner also indicated in testimony
that the mother of Child #6 continually questioned the child
regarding Bo Peep, and in doing so, led her by those
questions, and elicited responses which were not neces-
sarily valid. In Dr. Donner’s opinion, Child #6 is suffering
from separation anxiety as a result of being exposed to
repeated questioning about Bo Peep and due to stressors
in her home life.

Regarding Child #4, Dr. Donner challenged the opinion
of Dr. Dienstag that this child suffered from child sexual

99a

abuse. He indicated that finding symptoms consistent with
sexual abuse does not mean that, in fact, sexual abuse has
occurred. He suggested that the 12 mm opening of this
child’s hymen versus a normal 4 or 5 mm opening could
be explained by the fact that this child had a history of
masturbating. He also found a conflict between the state-
ment of the mother that the child wet herself only while
at Bo Peep, vet on the other hand she indicated that the
child wet her bed at night while sleeping. He also faulted
Dr. Dienstag for not having an extensive history about
the family life of Child #4, and stated that Dr. Dienstag’s
opinion was not credible, since she did not have a fuller
knowledge of the child’s home situation, which environ-
ment could give alternative explanations for the child’s
symptoms.

Regarding Child #15, Dr. Donner expressed the opinion
that this child also suffers from separation anxiety syn-
drome. He attributed her vomiting at Bo Peep to the fact
that the child was anxious about her mother’s birthday
party. He found that this child was suffering from stress,
since her parents had undergone a divorce and there was
some fear of the father, a foreign national, possibly taking
her to his native country. He noted that a number of the
fears expressed by this child occurred after she quit at-
tending Bo Peep, and that the child’s statement to her
mother about wanting to suck on her finger until the juice
came out, in fact reflects a recent sexual activity, but he
places it as occurring after Labor Day of 1987, a period
of time when the child was not enrolled at Bo Peep.

Dr. Donner gave the opinion at this hearing that the
descriptions of Children #1, #3, #4, #6 and #7 of abuse
allegedly suffered at Bo Peep, are not credible to him as
a clinician. He opined that the evaluation and treatment
by Ms. Derbyshire and Dr. Dienstag do not meet the rea-
sonable and customary care standards normally adminis-
tered by psychologists and clinicians, and his opinion was
that Children #1, #8, #4, #6 and #7 display symptoms con-

100a

sistent with separation anxiety, the cause of which he at-
tributed to their being under extreme stress as a result
of this investigation and the way it was handled. He gave
his opinion that Children #1, #3, #4, #6, #7 and #15 had
not suffered psychological abuse at Bo Peep nor have they
suffered physical or sexual abuse there.

On cross-examination, Dr. Donner admitted that he was
unaware of Dr. Schubin’s standing and his experience in
the field of child sexual abuse, and indicated his una-
wareness of Dr. Schubin’s being the Chairman of the Gov-
ernor’s Commission on Child Abuse. Dr. Donner did not
review the medical records made by Dr. Schubin nor by
Dr. Reichel] of these children, nor had he spoken to either
Dr. Schubin or Dr. Reichel in regard to their examinations
of the children in question. Dr. Donner did not take de-
tailed histories or talk to the children or parents or do
any testing of the children who were involved in these
proceedings, nor did he speak to Ms. Derbyshire or Dr.
Dienstag or to any other therapist to interview them re-
garding their findings and conclusions in regard to these
children. Similarly, Dr. Donner did not interview Deborah
Cassilly or Patrick Cassilly or take a family history from
them, nor did he talk to Rita Blevins nor take a family
history of her, and indicated that he was unaware that
she had an adolescent child who was alleged to be possibly
involved in sexual misconduct at Bo Peep. He has not
visited Bo Peep, and has not spoken to any personnel from
the Departments of Health or Social Services in Harford
County. He was not aware of the requirement of the law
that a therapist report their suspicions of child abuse within
48 hours to appropriate law enforcement authorities.

In response to a question posed by this Hearing Ex-
aminer, Dr. Donner expressed his opinion that some ob-
jective indicia of child sexual abuse would be gonorrhea,
observations made by an adult, confessions of a perpetra-
tor, or samples of semen taken from a child._None of these,

10la

he testified, are present in any of the cases of children
from Bo Peep.

In addition to the factual dispute between the parties
about whether injurious treatment occurred to children en-
rolled in Bo Peep, the Appellant also raised three issues
in support of its motion to dismiss these proceedings. The
Appellant first argues that the Department did not conduct
an inspection required pursuant to COMAR 10.05.01.07
before denying the renewal application. Secondly, the Ap-
pellant argues that the decision not to renew the day care
license for Bo Peep was improperly delegated by the Har-
ford County Health Officer to a Hearing Examiner of the
Department of Health and Mental Hygiene, in that the
Health Officer based his decision not to renew the license
on the decision of the Hearing Examiner from last year’s
administrative proceedings, #87-M-105. The Appellant notes
that the Department’s decision emanating from that hear-
ing has been stayed by the Harford County Circuit Court,
and consequently, she argues it is improper to use that
decision as a basis upon which to deny the renewal ap-
plication. Finally, the Appellant contends that the De-
partment needs current information upon which to make
its decision not to renew the license. The Appellant argues
that the State at this administrative hearing is using evi-
dence and material and information all of which pertains
to incidents which were alleged to have happened during
the previous licensure year, i.e., prior to the March 3],
1988 expiration of the most recent license.

In response, the State argues that while it is true that
the previous administrative decision regarding this licensee
has been stayed upon order of the Harford County Circuit
Court, for all intents and purposes that decision is a final
administrative decision, in respect to any other disciplinary
action taken by this Department, and that the licensee’s
suspension record, coupled with the testimony and evi-
dence and findings of the previous administrative hearing,
is enough to justify the decision of the Health Department

j

102a

not to renew the licensee’s request for continued operation
of her day care facility. The State also argues that, in
fact, new evidence has been presented at the current pro-
ceedings, and that information, as conveyed by the wit-
nesses, has been appearing as recently as two or three
weeks prior to the hearing date. The State argues that it
needs only to show mistreatment by staff or any facility
individual, such as a person living in the household where
the center is licensed, to prove a violation of COMAR
10.05.01.46. The State argues that the failure to reinspect
the facility is irrelevant, as the courts have recognized the
authority of state agencies to deviate from its procedural
regulations when it can be shown that the party regulated
is differently situated than those to whom the regulation
is intended to be applied. The State contends that rein-
spection of the Bo Peep facility would not alter in any
way the findings and conclusions reached in the admin-
istrative hearing of last year, and consequently, the failure
to reinspect was, and is, irrelevant. The State added that
nothing could have been revealed on a reinspection of the
facility’s physica] plant to negate the findings and conclu-
sions regarding physical and sexual abuse having occurred
at Bo Peep, and those findings and conclusions should not
be ignored at the risk of children’s safety.

CONCLUSIONS OF LAW

Regarding the issue of physical and sexual abuse of
children having occurred at the Bo Peep facility, it is con-
cluded that the preponderance of the testimony and evi-
dence presented at this administrative hearing confirms
the likelihood of those events, and supports the position
of the Harford County Health Officer. The testimony of
the therapists and the parents is compelling, and substan-
tiates the bases used by the Health Officer in denying
relicensure. In weighing the testimony of the State’s wit-
nesses and the Appellant’s witnesses, it is concluded that
the evidence clearly shows that the license should not be

103a

renewed, based upon the mistreatment of children at the
Bo Peep facility. A careful reading of the entire record
in this case quite clearly shows that it is improbable for
the events not to have occurred substantially as related
by the children to their parents and to their therapists.
The verbalizations, drawings, and the emotions of the chil-
dren, as observed by their parents and by trained and
licensed professionals, and the physical evidence as found
by Dr. Reichel and Dr. Schubin, have not been refuted or
shown to be erroneous or misinterpreted.

While the charge of injurious treatment of children is
certainly a horrendous one, the facts adduced in this case
clearly comport to information and data reported in the
national study on child abuse in day care centers conducted
by the Family Research Laboratory of the University of
New Hampshire, State’s Exhibits 36A and B. An overview
of this report is contained in the attached Appendix. The
New Hampshire Report does not, of course, prove that
the events alleged at Bo Peep in fact occurred; however,
that report does provide a reference point to which these
allegations can be compared, and the similarities are in-
deed striking. This is particularly so, considering the fact
that the New Hampshire Report was not issued until March
of 1988, well after the initial reports of the abuse at Bo
Peep surfaced. The New Hampshire Report reflects that
abuse of children at day care centers can and does occur
in similar circumstances as exist at Bo Peep.

There are similar themes, fears, and complaints which
recur among the various children in describing their ex-
periences at Bo Peep. There has not been any evidence
whatsoever to indicate that these children have been in a
position to collaborate with each other in making their
allegations. It is unlikely that these similarities are hap-
penstance. The contention that the significantly enlarged
hymenal openings of the children could have been caused
by their self masturbation is specifically rejected, as there
is no support for such a conclusion in the record, and the

104a

medical testimony from the previous hearing indicates oth-
erwise.

While the Appellant’s contention that a more detailed
history could have been taken of the complaining children
and of their families is true, nevertheless the information
gathered and the observations made by these licensed ther-
apists who testified about their sessions with the children
is more credible than the expert opinion offered by the
Appellant’s witness, who merely read a cold record.

The expert testimony offered on behalf of the licensee
by Dr. Donner cannot be considered persuasive or even
helpful. Dr. Donner has extremely limited, almost non-
existent, experience in dealing with child sexua] abuse, and
given the additional] facts that he did not speak with any
of the examining professionals, did not review any of the
medical reports compiled by the physicians, and only re-
viewed the record in this administrative proceeding, all
quite clearly tend to negate the credence of his hypotheses
regarding these children and their symptoms. The testi-
mony and the exhibits entered into this case clearly reflect
that separation anxiety can be a manifestation of child
sexual abuse. It would therefore be expected that sexually
abused children would exhibit symptoms of separation anx-
iety, and therefore it is specifically rejected that these
children manifested their symptoms solely as a result of
being away from their parents and as a result of being
subjected to the stressors described by Dr. Donner.

A close reading of the testimony and opinions offered
by the Appellant’s expert reflects that he, in addition to
himself not having a history of the children at issue, mis-
construed many of the statements in the transcripts which
were relied upon in giving his opinion that the children
were led and harassed by their questioners. Much of the
opinion offered was that a fact finder, as opposed to that
of a clinician in psychology. His expert opinion must also
be discounted because he has not given sufficient consid-

105a

eration to the fact that the statements of the children cannot
uniformly be taken literally, but must be interpreted in light
of the children’s perceptions and developmental levels, given
the fact that these children, on account of their young age,
do not possess the experience, mental capacity or vocabulary
to efficiently and accurately convey their observations like
adults do. An example is where he felt that the statement
of Child #1, that she saw blood come from her knee, was
inconsistent with the injury to her vaginal area. This state-
ment by the girl could quite possibly result from the child
having blood drip on her knee from her vaginal area. If the
child only saw where the blood landed and not the area from
which it came, a child of that age would quite naturally
believe that she was bleeding from her knee. Similarly, he
found inconsistent, and thus flawed, the statement of Child
#7, who first said a pink ball, then said an orange ball, was
put in her vagina. I conclude that it’s likely that the child
was trying to describe a flesh color, given the context of
her statement. This expert witness also characterized the
size of the ball as three inches in diameter, but the record
reflects only that the child indicated with her fingers, its
size. Obviously, an adult has a larger hand, and one must
recognize, the resulting difference. The pink/orange “‘bal]’’
described by the girl, given her age and developmental level,
could have, in fact, been the glans of a penis. The literature
in the area of child abuse quite clearly specifies that children
have to rely on terms with which they’re familiar.

The claim that Ms. Derbyshire was withholding infor-
mation and would not provide it, that she has withheld
information that would give a fuller picture of the chil-
dren’s diagnoses and which information does not appear
in her notes at all, is not reflected by the record. The
reality is, Ms. Derbyshire stated in her testimony on Au-
gust 25, 1987 that she would in fact provide her file cards,
and indeed she did so at this proceeding, insofar as they
pertain to the children who were evaluated. She was on
the witness stand for two days, and was extensively cross-

106a

examined. The statement of Appellant’s expert that Ms.
Derbyshire’s history of these children excluded significant
information that she had thrown out, and the inference
that there was material information withheld, and that this
information would have vindicated the licensee and dis-
credited the children, is likewise, not supported by the
record.

After a careful review of the specific instances which
this expert witness sees to be discrepancies, leading ques-
tions, and undue influence being brought to bear upon
these children, it is concluded that these contentions are
largely unsubstantiated. To the contrary, after a careful
review of his testimony, and the references made to earlier
testimony of others, it is concluded that the witness has
made invalid assumptions in his analysis of the testimony
and exhibits and this, coupled with his lack of specialized
expertise in this field, requires his opinions to be dis-
counted.

The likelihood of such evidence of child sexual abuse as
gonorrhea or semen being attained is not likely, according
to research in this area. Therefore, it behooves the State
not to wait for such evidence before moving for delicensure
to protect the children, when it has plausible, probable and
credible evidence to believe that abuse has occurred at a
licensed day care facility.

The fact that some parents believe their children suf-
fered no harm, contrary to the reports of other children,
is not necessarily probative. Some children might not show
signs of having been abused, except to experienced health
professionals, and even so, sometimes physical injury is
not caused by abuse, especially in respect to the anal open-
ing. Some children will deny that they have been mis-
treated, and sometimes they remain friendly with persons
who have taken advantage of them.

Regarding the Appellant’s contention that no new evi-
dence of any alleged sexual abuse has been shown to have

107a

occurred at Bo Peep during this license year, it is con-
cluded that the evidence given at this latest administrative
proceeding amply reveals that persons still at the Bo Peep
Day Nursery have engaged in wilful misconduct which re-
sulted in harm to the children. The licensee is responsible
for ensuring the safety and well being of the children.
Given the finding that mistreatment of children did occur
at the facility, it is concluded that the facility should have
its license revoked and its renewal application denied.

While this writer quite naturally would have preferred
that the State inspect thoroughly the facility as suggested
in my previous decision, I nevertheless agree with the
reasoning advanced by the State, and its citation of cases,
which support the notion that a procedural requirement,
such as a facility inspection is not required when the af-
fected entity is in a situation dissimilar from the norm,
and when some greater interest is served by that digres-
sion. The Bo Peep facility was found to have been in
violation of the regulations after the 1987 hearing. The
testimony on regulatory requirements and about the mal-
treatment of the children at this latest proceeding rein-
forces and substantiates the earlier findings of gross and
serious violations of the regulations.

It is further concluded that the Health Officer’s reliance
on an earlier administrative decision is not an improper
delegation of authority to a Hearing Examiner. This writer,
as the Hearing Examiner in Case #87-M-105, merely af-
firmed the propriety of the action which had been initiated
by the Health Officer. In the instant case, the Health
Officer has cited his being upheld in the previous action
by the Hearing Examiner, by the Department of Health
and Mental Hygiene, and by its Board of Review. The
Health Officer has in fact decided to revoke and to deny
the relicensure application. This is his lawful decision to
make, and it is subject to being challenged by the Ap-
pellant through the administrative appeal process, of which
process she has availed herself. The fact that the Health

108a

Officer quotes from the Hearing Examiner’s decision, does
not mean that the Health Officer has abdicated his legal
responsibility in acting to permanently revoke and to deny
the reapplication.

Finally, it is concluded that the evidence the Department
has presented is sufficient to constitute adequate and legal
reasons for denying relicensure to the Appellant. The con-
tention that it is necessary to prove deficiencies which
have occurred during the current licensure year in order
to act adversely on that license, is rejected. Clearly, the
fact that injurious treatment, found to have occurred at
the hands of current staff and operators of the Bo Peep
facility, is sufficient to cause the facility to be delicensed.
It is entirely proper and, in fact, mandated upon these
findings, that the license be revoked. It is confirmed that
Section 14-102 and Section 14-104 of the Health-General
Article of the Maryland Annotated Code require that day
care centers be operated in a manner which provides chil-
dren with safe conditions and proper care, protection and
supervision. It is concluded that the Health Officer’s re-
liance on these sections is justified.

In his letter dated March 26, 1988, the Health Officer
cited COMAR 10.05.01.12, as well as Regulations .18, .49,
.59, .60, .76, and .65, as continuing to be violated at pres-
ent. Inasmuch as there was insufficient evidence proffered
at this administrative hearing to support these contentions,
this rational for denying the reapplication for licensure is
found to be unwarranted. However, his contention that
COMAR 10.05.01.50A was violated, i.e. that adequate ser-
vice and supervision at all times has been lacking, is up-
held, as is the contention that children were subjected to
injurious treatment in violation of COMAR 10.05.01.46.

RECOMMENDATION

In light of the Findings of Fact and Conclusions of Law
contained above, it is recommended that the action of the

109a

Health Officer for Harford County to permanently revoke

and deny the application for re-licensure of the Bo Peep
Day Nursery, be AFFIRMED.

Date: August 23, 1988 /s' Wm. F. Clark
William F. Clark, Esquire
Chief Hearing Examiner
Office of Administrative
Hearings and Appeals

110a

APPENDIX

The matter of the licensure of Bo Peep Day Nursery
has consumed a great deal] of time and expense on the
part of both parties to this appeal, and community interest
is high.

In assessing this case, it would be appropriate to relate
excerpts of published research material dealing with child
abuse occurring at day care centers. It is expected that
this would be helpful in understanding the incidence and
modus operandi of this activity. Most of what follows is
a partial] extraction taken verbatim from the Exhibits ref-
erenced and therefore, quotation marks are not supplied.

The Family Research Laboratory of the University of
New Hampshire issued its final report in March, 1988,
entitled ‘‘Sexual Abuse in Day Care; A Nationa] Study.”
The study describes the problem of sexual abuse in day
care: its incidence, dynamics, and impact on children. It
also documents the experience that investigators and pros-
ecutors have had in responding to the problem. This study
was prepared under a grant from the National Center on
Child Abuse and Neglect, with additional support from the
National Institute of Mental Health. The study attempted
to identify all cases of sexua] abuse in day care reported
nationwide during the period January, 1983 through De-
cember, 1985. The study identified 270 cases of sexual
abuse in day care, meaning 270 facilities where substan-
tiated abuse had occurred, involving a total of 1,639 vic-
timized children. The study concludes that although a
disturbing number of children are sexually abused in day
care, the large numbers coming to light are not an indi-
cation of some special high risk to children in day care.
They are simply a reflection of the large number of chil-
dren in day care and the relatively high risk of sexual
abuse to children in al] settings. The study estimates that
the risk to children is 5.5 children sexually abused per
10,000 enrolled. This is lower than the risk that children

llla

run of being sexually abused in their own households, which
the study calculated from national reporting figures to be
8.9 per 10,000 children under six years of age. Exhibit
36A, at 4.

This study found that in the 270 cases where a child
was abused in a day care setting, 25 percent of the abuse
occurred by a family member alone, i.e. a husband or son,
and 17 percent of the abuse occurred through multiple
perpetrators. The study found that the multiple perpetra-
tor cases are clearly the most serious ones, involving the
most children, the youngest children, the most serious sex-
ual activities, and the highest likelihood of pornography
and ritualistic abuse. Women constituted 40 percent of the
abusers in day care, a proportion much higher than in
other locations of sexual abuse. Men were still responsible
for the majority of abuse in day care, even though they
accounted for-only an estimated 5 percent of day care
staff. The study found that abusers did not have charac-
teristics that one would associate with pedophilic child mo-
lesters and only a few (8 percent) had a prior arrest for
a sexual offense. Neither were the abusers who were staff
members poorly trained (50 percent had some college ed-
ucation) nor inexperienced (two-thirds had been employed
2 years or more). Abusers in day care do not fit prevalent
stereotypes about sexual abusers. Exhibit 36A, at 5.

Girls are abused more frequently than boys (62 percent
vs. 38 percent), but boys are abused more frequently in
day care than in other locations of sexual abuse. The most
common ages for victims are 3 and 4, reflecting the most
common ages for children in day care. Exhibit 36A, at 6.

The study found that one of the most important findings
concerns the large amount of abuse that occurs around
toileting. In two-thirds of all cases, abuse occurred in the
bathroom of the facility. This is a locale where abusers
can be alone and unobserved with children, who can be
tricked into undressing and allowing their genitals to be

——

112a

touched. The most common form of abuse is the touching
and fondling of children’s genitals. Penetration (including
oral, digital and object), however, is remarkably frequent
considering the young age of the victims; it occurred to
at least one child in 93 percent of all cases. Allegations
of ritualistic abuse (‘‘the invocation of religious, magical
or supernatural symbols or activities’) occurred in 13 per-
cent of the cases. Exhibit 36A, at 6.

The study’s overall impression was that children in day
care cases were more threatened, coerced and terrorized
than in many other kinds of sexual abuse. The authors
opined that this may be because young children are un-
predictable, and perpetrators believed they needed to use
‘‘overkill’’ to avoid disclosures. Abusers were relatively
successful in preventing disclosure. In one-third of the
cases, abuse went on for more than six months before a
child told. In over one-half, it took at least a month. Im-
mediate disclosure occurred in about one-fifth of all cases.
Disclosures came about primarily in two ways. Most of
the time, parents noted something suspicious about their
child, i.e. physical symptoms, pain, fears or sexual behav-
ior, and this prompted them to question their child in a
way that eventually led to disclosure. Exhibit 36A, at 7.

The study found that most important and disturbing,
there were extremely few cases in which staff members
at the facilities were the source of disclosures. The authors
of the study doubted that this was because staff members
never had suspicions or never received disclosures from
children. Rather they believed this indicates that there are
many disincentives, a great deal of reticence and reluct-
ance to report, massive ignorance and inattention, as well
as a few cases of actual covering up of abuse, on the part
of staff. The authors of this study also noted some dis-
turbing patterns of behavior on the part of some parents.
In some cases, parents failed to believe their own chil-
dren’s allegations. In other cases, parents who believed
their children’s disclosures tried to arrange informal so-

1l3a

lutions with operators that would avoid the need for a
formal report or an investigation. Exhibit 36A, at 7.

The children who had been abused manifested a variety
of symptoms and problems, the most common of which
were fears and sleep disturbances. Regressive behavior and
inappropriate sexual behavior were also frequent. In 62
percent of a!] cases, at least one child sustained a physical
injury. Children had more symptoms when they were
abused by care givers (i.e. teachers as opposed to out-
siders), when the abuse involved force or ritualistic activ-
ities, and when their own mothers had some kind of
impairment that limited the kind of support they could
give. Exhibit 386A, at 7, 8.

The study found that facilities with excellent reputa-
tions, well-qualified directors and years of operation were

just as likely to harbor individuals who sexually abused
children. Exhibit 36A, at 8

This New Hampshire study showed that 16 percent of
the perpetrators were owners or directors of day care,
and because they often had co-perpetrators, 25 percent of
the cases (as opposed to perpetrators) involved an owner/
director-abuser. Exhibit 36B, at 21.

Another 32 percent of the perpetrators were teachers
or other child care professionals in the day care facilities.
Another group of perpetrators (15 percent) occupied what
could be called ‘non-professional’ roles. This category in-
cludes primarily teachers’ aides and non-degree assistants
as well as “volunteers” such as parents and teenagers who
help out irregularly, but who often, given the economic
realities of day care, comprise an important proportion of
dav care staff. These aides and volunteers were rarely
well-screened and often of questionable status and relia-
bility. Exhibit 36B, at 23.

25 percent (90) of the abusers were family of day care
directors or other staff; moreover, 36 percent of all cases

ll4a

involved such a perpetrator. The largest number of these
family members (40) were husbands of teachers/directors,
followed by the adolescent sons of teachers/directors (29).
Exhibit 36B, at 24.

The study found 17 percent of the sample involved mul-
tiple perpetrators. Multiple perpetrator cases were those
with the largest number of victims (average of 13.8 com-
pared to around 3.7 for the rest of the sample). These
were also the cases most likely to involve allegations of
pornography and ritualistic practices, extended and bizarre
abuse. In these cases, the abuse was most systematic and
went on for the longest time. These cases included centers
like McMartin and Country Walk, which generated a great
deal of publicity, some community hysteria, as well as long
and complicated investigations. These were the cases whose
allegations seemed to strain public and professional cre-
dulity. They were also the cases in which the children
appeared to have suffered the most serious and lasting
kind of damage. Exhibit 36B, at 32.

Women in general commit much less sexual abuse than
men, according to available research. Studies indicate that
only 5 percent of sexually abused girls and 20 percent of
sexually abused boys were abused by women. However, in
the day care cases studied, the number of women was
much higher than in other sexual abuse: In 270 cases,
there were 147 women perpetrators, 22 of whom were
studied in the in-depth sample. Although, as in other stud-
ies of child sexual abuse, the majority (60 percent) of the
perpetrators in day care settings were men, 44 percent of
the abusers were women, and 36 percent of the cases
involved female perpetrators. Women were significantly
involved in sexual abuse of both boys and girls in day care
settings. Exhibit 36B, at 34.

Women were perpetrators in 96 (36 percent) of the 270
cases included in this research. In these 96 cases, a total
of 147 female perpetrators were identified. 22 women and

llda

36 men were studied in the sample of in-depth cases. The
women ranged in age from 16 to 77, the median age was
35. Most were married (63 percent), and only 4 (21 per-
cent) had never married. Many had children of their own
(68 percent). The-majority of the women were white (68
percent}. While the women, as well as the men, were from
all social strata, they were more homogeneous in regard
to occupation than were the men. In 90 percent of the
cases in the full sample, the women were employees of
the day care facility, primarily in child care roles. About
one-half of the women were the director or owner/oper-
ator, and half were child care staff or teachers. Exhibit
36B, at 35.

The women in general were ‘‘more respectable’ than
the men. They were more likely than the men to have a
high school diploma and college degree, reflecting their
higher occupational status (primarily as day care employ-
ees). Many had been highly regarded in their communities
as church and civic leaders, intelligent businesswomen and
generally law-abiding citizens. While 53 percent of the men
were identified as socially isolated, this was not charac-
teristic of the women (16 percent) who were, in addition,
less likely to be single. Women were also less likely than
the men to have a known history of any deviant behavior.
That is, the women were less likely to have been reported
to have alcohol abuse problems, prior psychiatric treatment
history, no known police records, arrests or prior school
problems. These differences were not large enough to be
statistically significant, but do suggest that women who
sexually abuse children are unlikely to be detected by a
criminal records check or knowledge of past history of
recorded deviance. Exhibit 36B, at 35.

The study finds that although they abuse much less than
males in general, in day care, women make up a third of
the total abusers and half of the abusers among care giv-
ers. Parents and investigators seem much more apt to

1l6a

dismiss suspicion about females because they believe abuse
by females is so improbable. Exhibit 36B, at 61.

Not surprisingly, cases with large numbers of victims
were usually cases with multiple perpetrators. It was noted
that in 83 percent of multiple perpetrator cases, there
were three or more victims. The authors suspect that this
was not simply because more perpetrators required more
children. It was also because when two or more perpe-
trators were cooperating, there was protection and cover,
which allowed for more extensive abuse. In the extreme
cases, in which al] staff of a facility were involved, the
perpetrators had virtually unlimited access to all children.
By contrast, single perpetrators most often were acting
furtively with private access to smaller numbers of chil-
dren, and thus could abuse only a more limited number
of victims. Interestingly, the presence of female perpetra-
tors was also associated with higher numbers of victims,
but this was related to the fact that the cases with female
perpetrators were more likely to be multiple perpetrator
cases. Exhibit 36B, at 64.

When the perpetrators were family members of teachers
and directors in home settings and were acting alone, there
was a marked preference for female victims. Why gender
differentiation assumed unusual importance in these cases
is somewhat unclear. Exhibit 36B, at 67.

Families of victims in other cases were describ
various negative ways: “isolated”, “extremely disor © :-
ized’’, “‘bizarre’’, “‘downtrodden’’, “emotionally ne ¥
mom”, and “‘not available’. In several cases, there were
allegations that the child had been sexually abused by the
father or other family members. However, the study found
that such stereotypes clearly did not fit the families of
most of the victimized children. For only 22 percent of
victims, the quality of parenting they received was de-
scribed as worse than average. For only 17 percent of
mothers and 13 percent of fathers did an investigator note

1l7a

some impairment, such as a problem with alcohol, mental
illness, or previous allegations of child abuse. On the whole,
the families of victims appeared normal, and in many cases
quite superior. Exhibit 36B, at 73.

The studies found that when allegations of abuse arose,
usually they were rebutted by the accused or allies of the
accused who tried to impugn the credibility of the victim
and suggest ulterior motives for the allegation. In evalu-
ating the validity of allegations, investigators were urged
to look for such ulterior motives. If there were any family
problems, however small, they were thus generally found,
highlighted and entertained as a possible alternative ex-
planation of the allegation. Thus, in several cases, it was
discovered that the mother had been sexually abused, and
those seeking alternative motives proposed that her own
hysteria about abuse may have been behind the child’s
readiness to make a false allegation. In other cases, it was
discovered that the child him or herself, or the child’s
siblings had been previously abused, and those seeking
alternative motives suggested that the child was mistaken
about the identity of the offender. Any family problem is
likely to be latched onto in the course of the investigation.
Investigators looking for problems in the families of chil-
dren in day care are likely to find them. But this does
not necessarily mean that victims are from more disturbed
families than nonvictims. Thus, some caution needs to be
observed in presuming that family problems are risk fac-
tors for children involved in day care. It very likely is a
factor in some cases, but probably not so often as inves-
tigators think. Exhibit 36B, at 74.

In addition to bathrooms, other areas of the facility were
also utilized for abuse because of the privacy they created:
bedrooms, offices and closets. One of the obvious risks of
having a day care facility in or adjacent to someone’s living
quarters is the opportunity it provides for privacy. Al-
though a location that is private and isolated may facilitate
abuse, it would be mistaken to presume that abuse cannot

118a

occur in public and common areas of the center. In at
least a quarter of the cases, abuse did occur in these
common areas. In some of these cases, it could occur in
a common area because everyone was involved. If the per-
petrators had no need to hide the abuse from other staff
or other children, then private space is not a requirement.
In other cases, the abuse occurred in a common area and
simply was furtive enough to be hidden. Exhibit 36B, at
78, 79.

Like the location, the timing of the abuse is often de-
termined by the need for secrecy and privacy. The timing
of activities in day care often created situations in which
a perpetrator can be alone with one or a few children. In
close to a fifth of all cases, for example, the abuse occurred
near the beginning or the ending of the day, when fewer
children or staff were around. Exhibit 36B, at 79.

Other times when perpetrators could be alone with chil-
dren were during toileting, overnight, or outdoor play time.
In this latter case, the perpetrator would usually have
victims stay inside while the other children and staff are
playing outside. However, the most common time for abuse
to occur was during nap time. Almost a third of all abuse
occurred during nap time. Nap time is not generally a
time in a center when a few children are isolated. Children
are more often al] together in a room, but nap time was
an .opportune time for abuse to occur for a number of
other reasons. First, nap time tends to be a time of low
staffing. One adult may be allowed to supervise al] of the
children at that time. Thus, with al] the other staff gone,
the perpetrator may be free to do what he wants. Second,
nap time is also a time when non-staff may be called in
to help out. In a family day care, for example, an operator
may put her son or husband in charge while the children
are supposed-te be sleeping, and take that moment to go
out. Third, nap time is a time when children may be more
compliant. Fourth, many of the children who could be po-
tential witnesses are asleep. Finally, and not to be under-

119a

estimated, nap time may be time when the perpetrators
themselves are most unoccupied. At other times, they have
the needs of many children to attend to, fights to break
up, crying children to comfort. When children are sleeping,
activity is low, and the perpetrators may themselves be
bored, or at least free to contemplate abuse. Exhibit 36B,
at 80, 81.

The victims of sexual abuse in day care suffered from
a wide range of sexual mishandling. They had their gen-
itals fondled and touched—the most common occurence,
involving 86 percent of all cases and 71 percent of all
victims; they were penetrated with objects and fingers;
the were subjected to vaginal and anal intercourse, and
they were forced to perform fellatio. Digital penetration
of the vagina and anus appeared to be remarkably com-
mon. Object penetration of the vagina in over half of all
cases is also alarming. This included some cases where
children had pencils, sticks, screw drivers and ritual ob-
jects inserted in them. 93 percent of all cases in the in-
depth sample involved some type of penetration on at least
one child. However, the authors urged caution in the inter-
pretation of some of these frequencies. They think that
the information on the exact nature of many of the sexual
acts is very crude. They caution that it must be remem-
bered that most of these details come simply from chil-
dren’s reports, which may have been somewhat inexact
about what the perpetrator actually did. It might not al-
ways be easy to distinguish from a child’s acco. at whether
touching between the buttocks actually included penetra-
tion of the anus, or whether a penis between the thighs
or fondling of the genitals included penetration of the va-
gina. At the same time, there are aspects that the authors
think the children were very clear about. For example, if
they had to lick or put a perpetrator’s penis in their mouth,
they undoubtedly knew there had been some mouth-genita!
contact. Thus, the authors’ finding of fellatio in almost

120a

two-fifths of all cases seems accurate to them. Exhibit 36B,
at 81.

The authors of the study calculated that approximately
58 percent of the cases involved acts such as genital to
genital contact, object penetration, anal and vaginal in-
tercourse, which were very overt, while the remaining 42
percent involved acts like fondling and digital penetration
which were easier to conceal. Not surprisingly, the activ-
ities that involved perpetrator exposure were more likely
to have occurred in the multiple perpetrator cases, in which
perpetrators had less need to conceal their activities from
other staff. Exhibit 36B, at 82.

Another important class of sexual activity is when chil-
dren are forced or encouraged to abuse one another. This
occurred in 21 percent of the cases, particularly in the
multiple perpetrator situations and the situations that con-
tinued over a long period of time. From clinical reports,
both within and outside the day care cases, the authors
know that it is unusually traumatic when children are
forced into the roles of abuser. The shame and the guilt
on the part of the child-abuser is particularly intense, and
this group would appear to be at extremely high risk of
going on to abuse other children in other situations, es-
pecially if the trauma had not been addressed by profes-
sionals and parents. Exhibit 36B, at 82, 83.

The report found that, in general, cases that went on
for longer periods of time involved many more abuse in-
cidents. Moreover, cases involving multiple perpetrators
continued for longer periods of time and also involved
more incidents. Exhibit 36B, at 85.

In a great many instances, perpetrators used some kind
of force or coercion to accomplish their ends. Some kind
of physical foree—ranging from holding a child down to
tying her up, to hanging a child by his heals—was present
in 31 percent of all cases, and the threat of force in 42
percent. A variety of other forms of coercion were also

12la

found, such as threatening harm to the children, and
threatening harm to the child’s family or pets. Exhibit
36B, at 85.

The authors of the report found that much of the threat-
ening that went on in day care abuse was not to accom-
plish the molestation, but to prevent the child from telling.
Children were threatened that if they told, they or their
parents or their pets would die, go to jail, or that the
abusers would do other terrible things to them. Some of
the coercive practices described by the children seem to
go far beyond what would presumably be required to get
children to submit to abuse, or even to intimidate them
from telling. These included locking children in closets,
hanging them up by their heals, practicing ‘‘magical sur-
gery,’’ and many other horrendous deeds. Exhibit 36B, at
88.

It was the authors’ impression that children in day care
cases were more threatened, coerced and terrorized than
in many other kinds of sexual abuse. On the one hand,
because they were so small and helpless, less actual coer-
cion should have been needed to abuse them. But, on the
other hand, because they could not be reasoned with and
because their behavior was so unpredictable, it seemed to
the authors that perpetrators tended to use overkill, par-
ticularly when it came to threats about disclosing. More-
over, the day care abuse situation seems to attract more
perpetrators whose motives involved sadism and terror-
izing in an end in itself. The fear and terror that many
of the children suffered as a result of being threatened
and coerced seemed to be a special part of the situation
of day care abuse. Exhibit 36B, at 89.

This study found that a fifth of all cases were disclosed
on the same day that the disclosing child was abused.
Almost half of all first disclosures happened within a month
after the onset of that child’s abuse. However, 32 percent

122a

of the cases were not disclosed for at least six months.
Exhibit 36B, at 91.

The authors of this New Hampshire study expected that
day care staff would play a key role in the discovery of
at least some cases, because they would be in the position
to observe suspicious activities with children, or might even
be the ones to whom the children would first turn. They
had anticipated that in a number of cases, staff would
have either interrupted abuse in progress or had suspicions
that they then followed up to eventually reveal the abuse.
However, the authors were surprised to find how rare this
was. The day care staff were seldom the source of a report
to the authorities (7 percent), and only rarely the person
to whom the ‘‘disclosure’’ was made. Exhibit 36B, at 93,
94.

The authors found several possible explanations for this
finding that children rarely disclose abuse to day care staff,
and that staff rarely detected or reported abuse. First,
children may not feel comfortable telling someone else as-
sociated with the facility where they were being abused,
because they may fear that all staff are in alliance. Also,
acts perpetrated with great furtiveness by a lone offender
may not be easy to detect. However, the idea that staff
almost never had any suspicions or knowledge seems be-
yond the realm of plausibility. Staff were in close contact
with the children and each other. Unusual behavior by
children and other staff must have been apparent. It is
possible that staff were poorly trained about child abuse
and thus didn’t tend to entertain this as a possibility when
they observed peculiar actions. But even this cannot be
the full story. The biggest problem was probably in the
disincentives to staff reporting. Given the pressures that
day care operators face, they may lack the confidence to
report suspicious behavior on the part of their employees.
Staff undoubtedly felt a sense of loyalty toward their cen-
ters and their colleagues. They also may have feared losing

123a

their jobs, and thus been disinclined to act aggressively
about reports or suspicions. Exhibit 36B, at 94.

Children made direct disclosures to parents and parents
elicited disclosures based on their own suspicions. Using
the 43 cases of the in-depth sample, the authors found
that 37 percent of the initial disclosures were made di-
rectly by the children, that is, a child simply told someone,
usually the mother, what happened at the day care. Some
disclosures did happen spontaneously, but, in many cases,
other events were “‘triggers’’. These triggers included: a
fear of returning to the day care center after an absence;
a child feeling safe enough to tell after he/she is withdrawn
from a program; or the child being exposed to sexual abuse
prevention programs. In several situations, disclosure oc-
curred after the child had been home for a period of time
because of vacation, sickness, or simply refusing to go to
school. When the child realized that a return to day care
was imminent, the fear of returning prompted a report
that abuse had been going on. Exhibit 36B, at 95.

Spontaneous disclosure occurred not just when a child
was frightened, but also during times when a child felt
safe. Some children did not tell until they were no longer
enrolled at the day care, or when they were on vacation,
or when the perpetrator was away. Given that approxi-
mately 50 percent of the victims reported they had been
threatened with harm to themselves or their families if
they told, it is to be expected that many children were
quite afraid and waited until they felt secure that the
perpetrator could not retaliate. Exhibit 36B, at 96.

In addition to children disclosing spontaneously, children
also disclosed after a discussion prompted by adults, usu-
ally their parents. In most cases, the adult had noted some
suspicious behavior or symptoms and questioned or ex-
amined the child. These accounted for 63 percent of al]
first disclosures in the in-depth sample. Included here are
parents who, concerned with a change ir the child’s be-

124a

havior or attitude, took the child to a professional (e.g. a
doctor or a therapist) who diagnosed the abuse. Parent’s
suspicion of abuse were most commonly based on behav-
ioral changes in their children, but were also sparked by
physical symptoms and suspicious behavior at the day care
center. Exhibit 36B, at 96.

In 51 percent of the adult prompted disclosures, there
were behavioral changes, such as sleep disorders, sexual
acting out, mood swings or fears, that caused parents to
be suspicious. Often these behaviors were accompanied by
unusual sexual knowledge or awareness that a parent
would not otherwise expect the child to have. In 33 percent
of the cases in the in-depth sample, children came home
with symptoms such as genital bleeding, persistent rashes,
sores or infections. Even in these cases, however, the evi-
dence, unless severe and obvious, was sometimes ignored
or attributed to other more benign causes. The most com-
mon symptoms, however, were fears and nightmares,
sometimes difficult to differentiate from normal develop-
mental problems. As a result, they often when undetected
as warning signs by parents. Exhibit 36B, at 97.

The authors of the study looked for factors associated
with disclosures and, discouragingly, found no correlation
between characteristics of the victim and his/her family,
and whether a child was tthe first to disclose. Although
they had initially hypothesized that gender, age, and in-
telligence might be associated with disclosures along with
family characteristics such as income level, or quality of
parenting, on all the variables they tested, there were no
significant differences between first disclosing children and
a matched sample of nondisclosures. There were similar
negative findings regarding the characteristics of abuse.
The severity or type of abuse did not significantly affect
disclosure, nor did the use of threats, weapons, drugs,
pornography, or ritual abuse. However, the percentages
do reveal a trend in the direction of fewer disclosures by
children who were subjected to serious coercion, threats,

125a

pornography production and ritualistic abuse. Exhibit 36JB,
at 98.

The authors found that responses by parents and in-
vestigators varied a great deal. They found that most par-
ties involved tended to proceed with caution, if at all. Some
chose not to believe or not to act, others sought second
opinions, and some looked for informal ways to handle the
allegations and stop the abuse. The authors found that
cases of parental denial, even in the face of investigator’s
convictions, tended to be multiple victim cases. Sometimes
this denial dissipated with time and evidence, but for oth-
ers, the denial never ended. Exhibit 36B, at 100.

The authors of the New Hampshire report conducted
interviews with 15 nationally recognized therapists and
clinica] investigators who have been working with victims
of child sexual abuse in day care. These therapists and
investigators were primarily involved with children from
multiple victim/multiple perpetrator cases, in other words,
some of the most severely and repeatedly abused children.
Victims of day care abuse evidenced a broad range of
symptoms in the wake of their maltreatment. These symp-
toms have been divided into two categories: psychoiogica!
symptoms and physical symptoms. Each symptom is dis-
cussed by the authors in order of the frequency of its
occurrence.

PSYCHOLOGICAL SYMPTOMS
Fears

Fear was the most commonly mentioned reaction. More
than two-thirds of the victims exhibited symptoms such as
fear of going to day care or being left alone, or fear of
real or imagined objects or persons. Fears ranged from
the ordinary to the bizarre. Although fear of monsters,
masks, uniforms and animals are commonly reported by
the average three year old, for children abused in day
care, many of these fears persisted beyond a normal time

126a

period and immobilized them sometimes, causing extreme
patterns of flight and fright. Several of the therapists
interviewed also mentioned perpetrators dressed in police
uniforms. Perhaps intending to play on children’s fears,
this caused problems when uniformed police investigated
allegations and interviewed victims. Exhibit 36B, at 107,
108.

Nightmares/sleep disturbances

Nightmares are uncommon for children under three
years old. Yet, 87 percent of the victims under three years
old experienced problems with nightmares and night-ter-
rors. With such a young sample overall, the finding that
68 percent of the victims experienced nightmares and other
sleep disorders is traumatic, according to the authors. Ex-
hibit 386B, at 108.

Clinging behavior

This was widespread (53 percent) in both boys and girls.
Exhibit 36B, at 108.

Sexuai acting out

This included a range of inappropriate behaviors and
attitudes: excessive masturbation; simulated sexual acts
with siblings or friends; precocious or flirtatious behavior:
unusual sexual knowledge for the child’s age, develop-
mental level, and exposure to sex at home; confusion about
sexual norms; sexualized kissing in relationships between
parents and friends; sexual preoccupation; and compulsive
sexual behavior like grabbing breasts or genitals or com-
pulsively removing clothes. These types of behavior were
exhibited by almost half of all victims. Exhibit 36B, at
108. -

Bed wetting

This was the most frequently mentioned type of re-
gressive behavior, and it seems to be a common reaction
for sexually abused preschool children. The authors said

127a

that in the study by McFarlane and Waterman, 1986, over
one-third of the children responded this way, and a large
percentage of these children were those under 4 years old.
Exhibit 36B, at 109.

Crying

As with bed wetting, there was increased crying among
one-third of the victims. However, for preschool children,
crying is a common behavior, and it is difficult to assess
whether crying among victims was always related to the
abuse. For some parents, the change was so dramatic and
persistent that it seemed undeniable that abuse was the
source of the problem. Exhibit 36B, at 109.

Aggressive behavior

This factor was a problem for almost one-third of the
victims. Victims hit or bit other children, destroyed play-
things, and got into fights or screaming matches. The
therapists interviewed considered the aggressiveness pri-
marily an externalized attempt to gain some control after
an abusive situation that left victim feeling powerless. This
was particularly a problem for victims who had been forced
to abuse other children. Exhibit 36B, at 109, 110.

Distrust of adults

Distrust seems a logical response for a child who has
been betrayed by a trusted adult. For most children, day
care is their first contact with an institution outside of
the family, so the impact of this betrayal may get easily
generalized. The betrayal is aggravated when they see their
parents have been unable to protect them. They also some-
times assume that their parents were aware the abuses
were occurring. With 29 percent of the victims in this
study, the abuse instilled either a global distrust of adults,
or specific distrust of adults of the same sex or resembling
the perpetrator. Exhibit 36B, at 110.

128a

School adjustment and play behavior problems

Such problems seem a natural outgrowth of day care
abuse. First of all, if a child associates abuse with a school
setting, then adjustment problems will most likely occur
in any new school setting. Secondly, if a child is acting
out as a result of the abuse, then his/her behavior will
cause difficulties with other children and affect school ad-
justment and play. Finally, when abused children are placed
in a new setting with non-victimized children, as often
happens when a center is closed, the victims often feel
stigmatized. Exhibit 36B, at 110.

Tantrums

Approximately 25 percent of all victims in this study
had a problem with tantrums after the abuse. Exhibit 36B,
at 110.

Other symptoms that the authors found were toilet
training problems, blaming of parents, and learning disa-
bilities. Exhibit 36B, at 110, 111.

PHYSICAL IMPACT

In the majority of the cases in the in-depth sample, at
least one child suffered some physical injury from the
abuse. In 62 percent of the cases, at least one child had
injuries related to the sex acts, and 45 percent of all the
victims suffered such injury. These injuries ranged from
irritation and swelling of the genitals to rectal and vaginal
tears and venereal disease. In 54 percent of the cases, a
medica! exam indicated that there was some genital irri-
tation, in 42 percent of the cases, there was actual] sexual
trauma, and in 12 percent of the cases there was venereal
disease. The authors considered “‘irritation’” to mean red-
ness, inflammation, rashes, vaginitis, swelling, or infec-
tions, and ‘‘sexual trauma’ to mean rectal and vaginal
sores, abrasions, lesions, abnormalities, and large vaginal
openings, tears or scars. ‘Disease’ was meant to be

129a

herpes, gonorrhea, or venereal warts. Exhibit 36B, at 11,
112.

In some cases, the injuries to the child were severe. In
other cases, the injuries were not immediately noticeable.
In many cases vaginal and rectal scars were observed only
after reports of other children resulted in medical exams
for all those attending the day care. Exhibit 36B, at 112.

Many parents originally noted the symptoms without
understanding their meaning. It was unfortunately com-
mon fcr parental concerns to be minimized by family,
friends, or physicians, who assured the parents that they
had nothing to worry about. “The rashes are caused by
bubble baths,’’ “infections are often reoccurring and just
resistent to treatment,”’ are two examples of counsel given
by pediatricians to anxious parents. Most parents and doc-
tors do not suspect sexual abuse as a possibility for pre-
schoo] children and, thus, it often went undetected or
misdiagnosed. Exhibit 36B, at 113.

The authors found that if any of the perpetrators of
abuse was a child care worker or director (as opposed to
janitor, family member or outsider, for example), then the
child was likely to experience a greater number of symp-
toms regardless of the sex of the perpetrators, or whether
the case involved force, ritualistic abuse, or acts of sexual
penetration, and regardless of the quality of parenting.
Abuse by a care giver must be more violative of a child’s
sense of trust, security and safety, leaving the child with
a more profound sense of betrayal. Abuse by someone close
to the child probably also creates more fears that other
trusted adults will also be abusive. Exhibit 36B, at 118.

The authors found that victims forced to victimize others
were more likely to manifest increased aggressiveness, sex-
ual acting out, or inappropriate play behavior. Children
who experienced ritualistic abuse were more likely to man-
ifest ‘‘subconscious’”” symptoms (nightmares) and “regres-

130a

sive’ behavior (bed wetting, toilet training problems, and
clinging). Exhibit 36B, at 121.

The authors of the report found an unexpected set of
risk factors related to geography. Abuse in programs in
large cities or urban areas or in areas of high crime was
less serious, i.e. less likely to occur more than once, less
likely to last more than a month, and less likely to involve
more than one victim. Abuse which occurred in rural areas
or smal] cities and towns was significantly more serious:
94 percent of the cases involved abuse of long duration
(more than one month) compared to urban area cases where
only 44 percent of the cases were more than a one month
duration. 76 percent of the small cities/rural area cases
involved more than one victim, compared to only 32 per-
cent of the urban area cases. Parents in smaller towns
and more rural areas in which there is generally a lower
level of crime may be more trusting, less suspicious, less
adept at spotting environmental cues, and slower to con-
front and investigate. Exhibit 36B, at 133.

The authors of the study found a strong reputation to
be no indicator of reduced risk of sexual child abuse. In
fact, in a number of cases, the reputation of the program
only made it more difficult for the parents and the com-
munity to believe abuse could have occurred. Exhibit 36B,
at 137.

The authors found that only 9 percent of the facilities
in their full sample were unlicensed. Exhibit 36B, at 137.

Most of the abuse at facilities in the New Hampshire
study were licensed. Only 3 percent had ever been placed
on probation, and none had ever been closed. Of licensed
programs, 82 percent had received a site visit in the year
that the abuse occurred. These inspections failed to pre-
vent abuse, either because there were no obvious clues,
or because such clues were ignored. Licensing authorities
traditionally have not had a high index of suspicion about
abuse and have concentrated more on inspecting the physical

13la

facility and records. Even where licensing authorities focus
on the quality of care that children are receiving and added
additional site visits to their schedule, abuse may occur.
Exhibit 36B, at 138.

The study found that in approximately one-third of the
full sample of 270 day care centers where sexual abuse
occurred, the perpetrator was related to another staff
member. In the majority of multiple perpetrator cases, a
family member was involved. Since family day care is gen-
erally in homes and thus accessible to non-employee family
members, this is where the majority of abuse by family
members occurred. Most family perpetrators in family day
care were either without responsibility for children or
served in an unofficial capacity, such as when the operator
left the house on errands. Exhibit 36B, at 140.

The authors of the report stated that non-perpetrators
may be reluctant to report suspicions about the activities
of their relatives because they fear the embarrassment that
an investigation will bring, or because they are afraid to
confront that individual, or because they simply cannot
believe that such a thing could be true. The family ties
encourage collusion and cover-up in the abuse. Exhibit 36B,
at 140, 141.

There was controversy over the issue of fantasy in young
children's reports, and not a great deal of scientific evi-
dence to guide professionals. Some investigators are con-
cerned that children in some circumstances concoct stories
that include suggestions of sexual abuse. They believe that
other irrational elements in the account need to be taken
as clues to the fantasized character of the whole story.
Other investigators believe that fantastic elaborations may
be something that children concoct when under stress.
Thus, the stress of a real abuse situation may lead a child
to include elements that did not actually occur in addition
to elements that did. Stil] other investigators point out
that the fantastic accounts may be the child’s construction

ified into law in Some jurisdictions, that children under a
certain age (usually 6) are not competent to tell the truth.
The law may encourage investigators’ skepticism regarding

Other literature in the area of child abuse. aside from
the New Hampshire report, reflects that the sworn tes.
tumony of a mother or therapist May give a better Picture

rental sexual attitudes which are usually obvious when
looked for. Exhibit 42 at 622.

It is generally recognized that the lack of Medica] ey.
dence does not disprove sexyal abuse, however. where
there has been a disclosure. medica] findings may be cor-

i

133a

roborative, especially where young children have been vic-
timized. Exhibit 40, at 219, 221.

Other literature reflects that present research trends
indicate that children’s memories are considerably more
reliable than previously thought. To assume that children’s
memory is worse than adults’ memory is not true. Exhibit
41, at 612.

The majority of children of three years of age and older
(and most children over five years of age) can reliably
register, retrieve, and describe an abuse event. This is
true, if the abuse allegation is understood from the child's
developmental level. First, recognition, not recall, memory
must be relied on for these children to successfully retrieve
the experience. Meaningful cuing of the young child’s
memory is important. Second, disclosures that occur nat-
urally and are not in response to direct or leading ques-
tions are more reliable. Third, novel events are
remembered with more detail than routine events. A child,
whose abuse was relatively innocuous and routine com-
pared with the rest of their life, will remember less detail
for individual events than a child whose abuse was trau-
matic. Also, given the child’s susceptibility to suggestion
the clinician should look diligently, both during the as-
sessment of the child and family and in evaluating other
sources of information, for evidence the child is being in-
fluenced. Finally, a child under three is prone to confuse
memories making their recollections less reliable. With
these children their behavior in the context of their real
life is a more reliable indicator of whether abuse occurred
or not. Exhibit 41, at 613.

Other literature in the field indicates that a child be-
tween the age of 2 and 7 is in the pre-operational period
of development, characterized by a cognitive style that
would work significantly against clarity in an allegation of
sexual abuse. A child’s tendency for “centering” in think-
ing. for

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1082%3A1. Public record. Not legal advice.