Petition for Writ of Certiorari — Litoff v. Pinter

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dubious. Dr. Simun spoke only with Dorothy. She believed

Dorothy's allegations of misconduct by Petitioner to be true,

speaking as a purported expert on Dorothy's credibility. See

Appendix p.91la. Dr. Simun never examined Petitioner. Nor

was there any evidence showing that Dr. Simun had ever

accurately diagnosed anyone or accurately predicted a

patient's future behavior. Moreover, telltale evidence of

Dorothy's asserted depression, like medication, poor social

skills, reclusiveness or otherwise, were absent. As Dr. Simun

conceded, Dorothy's dejection might have been occasioned

by her recent move to North Dakota from San Antonio, a

sheltered family life with Respondent Helen Pinter and her

step-father, Gregory Pinter, or other causes unconnected

with Petitioner. See Appendix p.99a. Indeed, Dr. Simun

conceded the possibility, in light of the strife-filled relations

between Petitioner and Respondent, that Dorothy's

allegations were orchestrated by Respondent. See Appendix

p.119a. The foundation of the District Court's decision was a

belief in Dorothy's allegations and a disbelief in Petitioner's

unequivocal denials.

The District Court terminated all visitation between

Petitioner and Dorothy on February 21, 2003. See Appendix

p.l6a. Petitioner was directed to undergo psychological

therapy and counseling as conditions to reinstitution of

visitation. The District Court also endowed Dorothy with an

absolute veto power over visitation. See Appendix p.19a.

The North Dakota Supreme Court affirmed the

District Court's decision terminating visitation on

November 13, 2003. It upheld the finding of misconduct by

Petitioner. See Appendix p.8a. It accepted as truthful

Dorothy's allegations. See Appendix p.8a. It bypassed as

premature any review of Dorothy's visitation veto. See

Appendix p.8a. The District Court ruling was then finalized

in a Second Amended Judgment signed May 21, 2004.

Following Respondent's decampment to Germany

with her third husband and Dorothy in violation of the

District Court's custody order, Petitioner filed a Motion to

Reinstitute Unsupervised Visitation and _ Evidentiary

Hearing in the District Court of Grand Forks County, North

Dakota on August 30, 2004. See Appendix p.33a. The Motion

requested the District Court to reinstitute unsupervised

visitation with Dorothy Litoff, and to hold an evidentiary

hearing if the issue were in doubt. Respondent, as Dorothy's

legal guardian and legal custodian, decided not to oppose

Petitioner's Motion by declining to file any opposition.

Petitioner filed a Motion for Default Judgment on

October 12, 2004. See Appendix p.23a. Again, Respondent

decided not to oppose the Motion by declining to file any

opposition. The District Court dismissed Petitioner's

uncontested motions without a hearing in a succinct order

filed on October 28, 2004. See Appendix p.3a. The District

Court faulted Petitioner for failing to complete all of the

assessments and evaluations recommended in its antecedent

ruling on February 21, 2003: a psychiatric examination, a

mental health assessment and assessment for inclusion in a

sexual offenders program, and medication. The District

Court further reasoned that Dorothy had not consented to a

reinstitution of visitation as required in its earlier order,

although her current sentiments were unknowable without

calling her as a witness. Accordingly, the District Court

concluded "there is no merit in rearguing matters that have

been previously decided by the court and affirmed on

appeal." See Appendix p.3a. The District Court declined to

address Petitioner’s request for an evidentiary hearing to

demonstrate changed circumstances or the motion for

default judgment. The District Court also failed to address

Petitioner's challenge to the use of frightfully unreliable

psychological and psychiatric expert testimony in his case.

REET

On appeal, Petitioner argued, inter alia, that the

District Court had trampled threefold due process rights:

namely, to an evidentiary hearing to determine whether

there were changed circumstances warranting reinstitution

of unsupervised visitation; to a reasonably reliable

determination of whether visitation would threaten

Dorothy's mental or physical health; and, to participate in

the rearing of his daughter on terms not opposed by her

mother. The Supreme Court of North Dakota summarily

affirmed, stating only that the District Court had not abused

its discretion under North Dakota law in denying a default

judgment. It tacitly rejected Petitioner's due process claims

without articulating reasons. See Appendix p.1a.

Reasons for Granting the Writ

I. The North Dakota Supreme Court Flagrantly

Violated this Court's Due Process Precedents in Refusing

Petitioner's Request for an Evidentiary Hearing to Show

Changed Circumstances that would Justify

Unsupervised Visitation

In Mathews v. Eldridge, 424 U.S. 319, 334-335 (1976),

this Court established a three part test for determining

whether due process had been satisfied when the

government curtails a constitutionally protected liberty

interest. Writing for the majority, Justice Lewis Powell

instructed:

"First, the private interest that will be affected

by the official action; second the risk of an

erroneous deprivation of such _ interest

through the procedures used, and the

probable value, if any, of additional or

substitute procedural safeguards; and finally,

the Government's interest, including the

function involved and the fiscal and

administrative burdens that the additional or

substitute procedural requirement would

entail." [citation omitted]!

The District Court egregiously flouted Mathews in

dismissing Petitioner's Motion for an Evidentiary Hearing to

determine whether changed circumstances justified

reinstituting unsupervised visitation with Dorothy.

Petitioner's Private Interest

Petitioner brought his motion to re-evaluate his

visitation status under NDCC § 14-09-6.6(3)(a), which allows

for review of a custody order inside the customary two-year

window where there is "persistent and willful denial or

interference with visitation." Respondent had flagrantly

breached the District Court's custody order by denying

Petitioner Dorothy's new address and school information in

Germany. In filing his Motion, Petitioner invoked his

fundamental constitutional liberty interest in the rearing of

his daughter. See Stanley v. Illinois, 405 U.S. 645, 651 (1972)

("The private interest here, that of a man in the children he

has sired and raised, undeniably warrants deference and,

absent a powerful countervailing interest, protection.");

Troxel v. Granville, 530 U.S. 57 (2000). Petitioner's interest in

participating in the raising of Dorothy is of the highest

order.

United States Courts of Appeals have repeatedly

held that a parent's interest in rearing his child commands

scrupulous procedural and substantive safeguards. See

1 See also City of Los Angeles v. David, 538 U.S. 715 (2003); U.S. v. James

Daniel Good Real Property, 510 U.S. 43 (1993); Medina v. California, 505

US. 437 (1992).

2 Respondent was held in contempt by the Grand Forks District Court on

September 7, 2004 for failing to provide Petitioner with Dorothy's current

address and phone number as required by the custody order. See

Appendix p.5a.

Suboh v. Suffolk, 298 F.3d 81 (1st Cir.2002)(custody dispute

between natural mother and grandparents); Ramos v. Town

of Vernon, 353 F.3d 171 (2"4 Cir.2003)(mother's challenge to

town curfew); Gruenke v. Seip, 225 F.3d 290 (34

Cir.2000)(parents' challenge of public school coach's

mandated pregnancy test); Doe v. Heck, 327 F.3d 492 (7%

Cir.2003)(parents' challenge to state interrogation of

students); Franz v. U.S., 707 F.2d 582 (D.C.Cir. 1983)(father's

challenge to government placing his children into federal

witness protection); Littlefield v. Forney Independent

School District, 268 F.3d 275 (5 Cir.2001)(parents' challenge

of public school uniforms); Schleifer _v. City of

Charlottesville, 159 F.3d 843 (4% Cir. 1998)(parents'

challenge to town curfew). As these cases illustrate, a

parent's liberty interest in the care and rearing of his child

frequently trumps countervailing non-trivial state interests.

Indeed North Dakota acknowledged Petitioner's compelling

interest in visitation by granting Petitioner the opportunity

to seek re-examination of the issue in the wake of

Respondent's contumacious flight. Petitioner's parental

interest is especially urgent because Dorothy is approaching

17 years of age, one year short of emancipation. Thus, a

denial of visitation to Petitioner at this late date is

tantamount to a permanent termination of his ability to

participate in his daughter's upbringing.

Risk of Erroneous Deprivation and the

Probable Value of Additional Safeguards

NDCC § 14-09-6.6(3)(a) does not explicitly require an

evidentiary hearing. But without a hearing, the risk of an

erroneous deprivation of Petitioner's liberty interest in

visitation with his daughter was alarming:

Approximately two years had elapsed since the

District Court's hearing which culminated in fact- |

finding and a termination of Petitioner's visitation

rights. During the interim, Dorothy's opinions and

needs may have changed (typical for a 16-year old),

though neither Petitioner nor the District Court has

had any way to ascertain her thoughts since his

visitation was terminated and _ Respondent

decamped to Germany in violation of the District

Court's custody order. Further, Dorothy's statements

were the lynchpin of the District Court's entire

earlier opinion denying Petitioner visitation

including crowning Dorothy with an absolute veto

power.

Similarly, earlier speculations about Dorothy's

development or personality may have been

discredited by time. Petitioner requested an

evidentiary hearing with the clear intent to ascertain

Dorothy's sentiments. Petitioner tried in vain to

contact Dorothy via letters and cards. Each overture

elicited no response, probably because of

Respondent's antagonism.

Respondent's flight to Germany with Dorothy

without prompt notice to Petitioner of her new

address and school violated the terms of the custody

order and created another new circumstance.

Petitioner's testimony at an evidentiary hearing

would decisively establish that _ reinstituting

unsupervised visitation with his daughter Dorothy

would not endanger either her physical or emotional

health, the North Dakota standard for denying

visitation. 3

5. Respondent offered no evidence that Dorothy's

sentiments had not changed had not changed as

suggested by Petitioner.

The District Court confronted Petitioner with a

classic Catch-22 situation: he needed to establish Dorothy's

sentiments regarding his visitation to establish changed

circumstances, yet the only way he could ascertain her

opinions would be through her compelled testimony at an

evidentiary hearing. The District Court's ruling made no

attempt to ascertain Dorothy's wishes, despite their

criticality to its decision to clip all visitation. The ruling

ridiculously faulted Petitioner, who has had no contact with

his daughter for more than two years, for failing to present

any evidence "that Dorothy has consented to any contacts at

this point," or "that she consents to unsupervised visitation."

See Appendix p.3a. Petitioner had no means of presenting

the evidence the ruling demanded because the District

Court had terminated all visitation and phone contact and

Respondent had probably intercepted and destroyed his

3 Petitioner provides an intellectually and culturally enriching presence

for his daughter. In Texas, his tutelage placed Dorothy in accelerated

educational programs. During the 2001 summer vacation, Petitioner and

Dorothy visited ten state capitals in the Upper Midwest, as well as large

cultural centers like Chicago, Milwaukee, Minneapolis, Cleveland, St.

Louis, and Kansas City. See Appendix p.36a. Father and daughter visited

several zoos, botanical gardens, and various other museums and

historical locations, such as Greenfield Village in Michigan, U.S. Grant's

home in St. Louis, Missouri, Custer's home and a recreation of a Mandan

Indian village in Ft. Lincoln, North Dakota, as well as Abraham Lincoln's

home, law office and tomb in Springfield, Illinois. See Appendix p.36a.

Petitioner broadens Dorothy’s cultural and intellectual horizons in

parallel ways, by encouraging books, magazines, newspapers, drama, a

familiarity with current events, and knowledge of her Russian, Polish,

Jewish and Filipino ancestry, including culture, history and religion. It

speaks volumes that Dorothy's academic performance has deteriorated

since Petitioner's visitation rights ended. See Appendix p.153a.

written communications with Dorothy. Without an

evidentiary hearing, the risk of misjudging Dorothy's

attitude towards visitation by Petitioner was overwhelming.

And her attitude was the centerpiece of the District Court's

prior termination of visitation.

An evidentiary hearing would have eliminated the

risk entirely without burdening the State. The hearing

would have been unelongated. Dorothy could have given

testimony via an affidavit, video or audio conferencing,

instant messaging, or other technological marvel. Moreover,

the District Court's denial of the hearing because Dorothy's

current sentiments were unknowable to Petitioner rewarded

~ Respondent for violating her legal obligations.

The Government Interest

The District Court failed to advance a single fiscal or

administrative burden that Petitioner's evidentiary hearing

would have entailed to ascertain the wishes of Dorothy.

Further, the government interest was in a correct application

of North Dakota's law as applied to Petitioner's visitation

motion, which pivoted on knowing Dorothy's feelings. That

interest was subverted, not bolstered, by the District Court's

denial of an evidentiary hearing.

Certiorari should be granted correct the North

Dakota Supreme Court's clear disregard of Mathews, supra.

To this very day, the District Court and the North Dakota

Supreme Court are supremely ignorant of Dorothy's wishes

regarding her visitation. Without that knowledge, the North

Dakota courts failed to answer Justice Byron White's central

question in Stanley: "What is the state interest in separating

children from their fathers without a hearing designed to

determine whether the father is unfit in a particular

disputed case?" Stanley at 652-653.

Il. The District Court's Reliance on Alarmingly

Unreliable Expert Psychological and Psychiatric

Testimony to Deny Petitioner Unsupervised Visitation

Violated Constitutional Due Process

The due process clause creates a heightened

standard of reliability for evidentiary rules when the

fundamental interest of a parent in visitation or other

participation in the upbringing of his child is at stake. See

Stanley, supra, at 650-651.

In Chambers v. Mississippi, 410 U.S. 284 (1973), this

Court overturned a murder conviction on the ground that

the trial court's application of a Mississippi hearsay rule

denied the defendant his constitutional right to due process.

Justice Lewis Powell, writing for the majority, elaborated

that both the accused and the State, "must comply with the

established rules of procedure and evidence designed to

assure both fairness and reliability in the ascertainment of

guilt and innocence." [emphasis added] Id. at 302. Similarly,

if wildly unreliable testimony is employed by the State to

deny a parent visitation rights, then due process is ~

offended.‘

_ In Santosky v, Kramer, 455 U.S. 745 (1982), this Court

held that due process compelled a "clear and convincing"

evidence standard in lieu of the customary preponderance

of evidence threshold when a state seeks completely and

irrevocably: to sever rights of parents over their natural

children. Justice John Paul Stevens, writing for the majority,

explained:

* This Court has routinely held in criminal cases that defendants must be

afforded due process protection against unreliable identifications arising

from lineups, photographic arrays and other police identification

procedures. See United States v. Wade, 388 U.S. 218 (1967); Neil v.

Biggers, 409 U.S. 188 (1972); United States v. Ash, 413 U.S. 300 (1973).

"The fundamental liberty interest of natural

parents in the care custody, and management

of their child does not evaporate simply

because they have not been model parents or

have lost temporary custody of their child to

the State. Even when blood relationships are

strained, parents retain a vital interest in

preventing the irretrievable destruction of

their family life. If anything, persons faced

with forced dissolution of their parental

rights have a more critical need for

procedural protections than do_ those

resisting state intervention into ongoing

family affairs. When the State moves to

destroy weakened familial bonds, it must

provide the parents with fundamentally fair

procedures." Id. at 753-753.

In Petitioner's case, the use of unreliable psychiatric

and psychological evidence to sever visitation permanently

failed the Santosky test of procedural fairness demanded by

the Fourteenth Amendment.

To prove changed circumstances, Petitioner

requested an evidentiary hearing in his Motion to

Reinstitute Unsupervised Visitation. Petitioner asserted that

due process condemned the use of the bogus unreliable

expert opinion of Dr. Ann Simun that underwrote the

District Court's predecessor ruling of February 21, 2003. The

identical suspect expert testimony was the keystone of the

District Court's second visitation rejection, a ruling that was

affirmed by the North Dakota Supreme Court.

The expert testimony of Dr. Simun vouched for

Dorothy's credibility and unfairly prejudiced the District

Court to believe Dorothy's allegations to the detriment of

Petitioner. Further, Dr. Simun erroneously testified as an

3 -

expert that Petitioner's visitation without Dorothy's consent

would threaten her with emotional or psychological harm,

despite the absence of scientific validation for that gross

speculation. The erroneous admission of Dr. Simun's

testimony on both counts created an unconstitutionally high

risk that the District Court might err in exercising discretion

over the visitation issue.

Dr. Simun's Testimony before the District Court

Impermissibly Vouched for Dorothy's Credibility

Dorothy's statements to Dr. Simun were the

exclusive foundation for the latter's opinion that Petitioner's

conduct was the principal cause of Dorothy's depression.

Dr. Simun testified that she believed Dorothy's allegations

to be true without offering any credentials that would

qualify her as an expert to make that judgment. See

Appendix 91a.

United States Courts of Appeals have ruled that

expert testimony, especially that of psychologists and

psychiatrists, is impermissible where, as here, the testimony

only vouches for the truthfulness of another. In US. v.

Velarde, 214 F.3d 1204 (10% Cir. 2000), the defendant

challenged the district court's admission of the expert

testimony of a psychologist and a pediatrician regarding the

veracity of a child alleging sexual abuse. The Tenth Circuit

reversed and remanded, finding that the expert testimony

offered by both doctors impermissibly vouched for the

credibility of the accusing child in violation of Rule 702 of

the Federal Rules of Evidence. The Velarde decision rested

on the Tenth Circuit's previous ruling in U.S. v. Charley, 189

F.3d 1251, 1267-1268 (10% Cir. 1999), where the Court

explained:

"In general, expert testimony which does

nothing but vouch for the credibility of

another witness encroaches upon the jury's

vital and exclusive function to make

credibility determinations, and therefore does

not ‘assist the trier of fact’ as required by Rule

702. [citations omitted] Indeed, the

government concedes that, in this case,

testimony to the effect that D.J. and J.J. were

‘telling the truth ... would be impermissible.

Appellee's Br. at 26. Most courts that have

considered the issue have concluded that

expert testimony, based on the statements of

the alleged victim, that sexual abuse in fact

occurred is inadmissible under Fed.R.Evid.

702 (or similar military or state evidentiary

rules) because, in such cases, the expert

offering the opinion is merely vouching for

the credibility of the alleged victim. Thus, if

Dr. Ornelas largely based her opinion on the

statements of the girls, then under the

foundation (or lack thereof) presented in this

case, we consider it inadmissible. Therefore,

regardless of whether Dr. Ornelas's

conclusion was based on the girls' medical

history or on their allegations of abuse, its

admission was erroneous."

The Eighth Circuit echoed the Tenth Circuit in U.S.

v. Azure, 801 F.2d 336 (8% Cir. 1986), and U.S. v. Whitted, 11

F.3d 782 (8 Cir. 1993). In both cases, the Court overturned

the District Courts’ child sexual abuse convictions, ruling

that the lower court had impermissibly allowed testimony

that vouched for the credibility of the accusers. The Court

preached caution in such cases:

"We agree that in these special circumstances

some expert testimony may be helpful, but

putting an impressively qualified expert's

stamp of truthfulness on a witness’ story goes

too far... putting his stamp of believability on

Wendy's entire story, Dr. ten Bensel

essentially told the jury that Wendy was

truthful in saying that Azure was the person

who sexually abused her." Azure at 340-341.

The precedents of the Tenth and Eighth Circuits are

instructive in Petitioner's case.5 When questioned about

Dorothy's allegations of abuse before the Grand Forks

District Court, Dr. Simun stated unequivocally "My opinion

is that she was being honest with me." See Appendix p.91a.

Her enumerated reasons, ranging from divining body

language to interpreting Dorothy's willingness to attend

sessions, for believing Dorothy's chronicle was unanchored

to specialized scientific knowledge. See Appendix p.89a. Just

as the Eighth Circuit instructed in Azure, Dr. Simun's

voucher for Dorothy's truthfulness put her stamp of

believability on Dorothy's entire story, from misconduct

allegations to their supposed ill-effects, essentially telling

the District Court that the entire alleged account was

5 Prior to the termination of Petitioner's visitation by the Texas court, an

Administrative Law Judge investigated Dorothy's allegations. The Court

recognized the danger of relying upon an "expert" opinion vouching for a

witnesses credibility: "In the end the question is not whether the child's

statements are credible, but whether the conclusions of the child

protection social worker who interviewed the child and obtained other

information which was submitted to the [Grand Forks County Child

Protection] Team for its consideration are credible. The evaluation is

difficult at best considering that for both the accused and the

administrative law judge the child protection social worker is the source

of all information, and, having made the conclusions which are reviewed

upon the hearing of the appeal, understandably presents the information

to support those conclusions." See Appendix p.46a.

truthful.© While the trial judge subsequently interviewed

Dorothy in chambers with counsel present, Dr. Simun's

"expert" opinion prejudicially inclined the District Court to

believe Dorothy's narrative.

The Dubious Scientific Basis of

Psychological and Psychiatric Testimony

When asked whether she would recommend

continuation of Petitioner's unsupervised visitation, Dr.

Simun opined:

"I believe that the best interest situation for

Dorothy emotionally would be to allow her

to have control over her contact with her

father... My recommendation to her and to

her parents has been to not require her to

have a visit if she feels that it's unwanted and

I continue to feel that it is the best thing." See

Appendix p.103a.

Dr. Simun's basis for this recommendation was her

own opinion that Dorothy had been abused because of her

belief in the teenager's veracity: "As far as I am concerned,

she was a victim of sexual maltreatment. And that's an

opinion. And it's my opinion." See Appendix p.104a. She

offered no test results or clinical experiences to base her

visitation recommendation in science, nor did she offer any

evidence that her diagnoses of children or recommendations

regarding custody or visitation in similar cases had been

6 The District Court also heard the testimony of Tammy Knutson, the

state-licensed social worker who also testified before the Administrative

Law Judge. Ms. Knutson also impermissibly testified that she believed

Dorothy to be telling the truth. (1.16-17.03 Trans. p. 246)

reliable.” Dr. Simun had not interviewed Petitioner, yet the

District Court overruled Petitioner's objections that Dr.

Simun was not qualified to make a recommendation "as to

what the visitation should be with someone she ... has never

met."8 See Appendix p.103a. Dr. Simun's non-expert "expert"

testimony regards visitation created a high risk of error by

the District Court inclined to rely decisively on her opinion.

The scientific value and reliability of the testimony of

mental health professionals, like psychologists and

psychiatrists, has been universally questioned, especially

when used in custody and visitation disputes. In a 1990

article for the Golden Gate University Law Review, Susan

Romer argued that when testifying on child sexual abuse

"{p]sychologists must develop national guidelines and

protocols that are consistent and measurable to test whether

or not abuse has occurred... However, these clinical

methods may never be so "measurable" and "scientific" as to

satisfy the Kelly-Frye test [the prevailing California

standard in 1990]; they cannot produce the certainty of

fingerprint analysis." See Romer, Child Sexual Abuse _ in

Custody and Visitation Disputes: Problems, Progress, and

Prospects, 20 Golden Gate U.L.Rev. 647, 678-679 (1990).

SMU professor Daniel Shuman, in a 1997 article for

Family Law Quarterly, voiced consternation over the

—

? Dr. Simun alluded that Dorothy suffered from "major depression", but

declined to identify a formal psychological disorder. Neither did she

advocate psychiatric or medicinal therapy. Dr. Simun pointed to no cases

similar to Dorothy's. She admitted that other possible explanations for

Dorothy's alleged “major depression" were her racial background, her

transition to high school, her strict family life with Kespondent and

Gregory Pinter, and her family's move from San Antonio to Grand Forks.

8 The District Court also allowed Ms. Knutson to testify that she agreed

with Dr. Simun's recommendation for the termination of Petitioner's

unsupervised visitation, despite the repeated objections by Petitioner that

Ms. Knutson was completely unqualified "to make any recommendation

as to visitation". (1.16-17.03 Trans. p. 260)

prevailing use of expert psychiatric and psychological

testimony: "Disappointing as it is to acknowledge, in an age

and nation where expertise are so venerated, child custody

and other behavioral science experts generally cannot

reasonably demonstrate that their ability to make accurate

pre-or postdictions is any greater than that of an ordinary

mind, or that their expertise is more effective than that of

another expert or non-expert." See Shuman, What Should

We Permit Mental Health Professionals to Say About "The

Best Interests of the Child"?: An Essay on Common Sense,

Daubert, and the Rules of Evidence, 31 Fam.L.Q.551, 567

(1997). Shuman relies primarily on two sources in reaching

his conclusion: the American Psychiatric Association's

amicus brief in Barefoot v. Estelle, 463 U.S. 880 (1983), and,

the best interests standard in deciding custody cases.

In Barefoot, a psychiatrist in the initial trial answered

hypothetical questions related to the habeas corpus petitioner,

opining that there was a “one hundred percent and

absolute’ chance" that he would commit future criminal acts

of violence. An amicus brief filed by the American

Psychiatric Association (A.P.A.) adduced voluminous

research showing that "long term predictions of future

dangerousness were inaccurate and more often than not

wrong, and that ‘even under the best of conditions,

predictions of long-term future dangerousness are wrong in

at least two out of every three cases.'""[quoting Brief for the

American Psychiatric Association as Amicus Curiae in

Support of Petitioner, at 9, Barefoot, supra.} 31 Fam.L.Q. at

559. The statements of the A.P.A. are damning. Shuman is

right to draw a straight line from that admission by the

premier psychiatric organization in the United States to the

use of mental health testimony as expert testimony in child

custody matters. If such psychological and psychiatric

testimony is wrong two-thirds of the time in predicting

future dangerousness, Shuman is certain the percentage is

equally bleak when deciding the best interests of a child:

"To assess the ability of mental health

professionals to make accurate predictions

requires that the outcome (ie., the best

interests of the child) to be ‘operationalized,

or described in a fashion capable of

measurement to test the validity and

reliability of these predictions. Since the best

interests standard is by definition

indeterminate, it is incapable of measuring a

mental health professional's ability to predict

outcomes. Apart from the problem of

defining best interests so that predicted

outcomes can be operationalized and tested,

research on the predictive abilities of mental

health professionals does not support claims

of [orniniscience] about the best interests of

the child." 31 Fam.L.Q. at 567.

Shuman's analysis demonstrates the impossibility of

such expert testimony meeting a reliability standard erected

by due process when parental child rearing rights are at

stake. Shuman persuasively points to a survey of family law

attorneys disclosing that a majority "do not regard mental

health professional input as helpful in reaching appropriate

custody determinations, but they present such testimony

largely to counter their opponent's experts." 31 Fam.L.Q. at

566, citing Felner, Child Custody Resolution: A Study of

Social _ Science __ Involvement ___and__ Impact, = 18

Prof.Psychol.:Res.& Prac. 468 (1987).

In a 2001 article for the Illinois Bar Journal, H. Joseph

Gitlin addressed these same concerns as they apply to

Illinois. Gitlin urges that a mental health professional should

not be considered an expert witness since tliat testimony is

"merely testimony of what a witness observed, heard, etc.,

and as such is not entitled to any greater weight than lay

testimony of the same kind. Moreover, the ‘experts’ who

make recommendations in child-custody cases... are

typically no more competent to make good custody

decisions than a seasoned family court judge." See Gitlin,

Mental Health Professionals in Child Custody Cases: Giving

"Expert" Testimony Its Due, 89 [1.B.J. 350 (2001). The

testimonies of psychologists and psychiatrists were

routinely given expert weight when they would testify to

the best interests or other issues without any scientific basis,

frequently serving more as credentialed relationship

witnesses than experts. Gitlin expounds the central

contradiction: "It is not surprising, then, that the appellate

court in Dilley instructed that the mental-health

professional's testimony was entitled to great weight. In

Dilley, however, the psychologist did not testify as to what

he learned scientifically from well-established psychological

tests; rather he testified to what he observed and

heard.{citations omitted]" 89 IIL. B.J. at 354.

Gitlin is fortified by a second article by Shuman

published in 2002: "The lesson that Frye v. United States, 293

F.1013 (1923), and Daubert v. Merrell Dow Pharmaceuticals,

509 U.S. 579 (1993), teach is that an expert's opinions ‘are not

admissible just because somebody with a diploma says it is

so.'" See Shuman, The Role of Mental Health Experts in

Custody Decisions: Science, Psychological Tests, and

Clinical Judgment, 36 Fam.L.Q.135, 139 (2002), citing United

States v. Ingraham, 42 M.J.218, 226 (1995). Shuman explores

the fallibilities of the tests psychologists and psychiatrists

use to evaluate their patients, especially children, in advance

of court testimony. Shuman again advocates rigorous

vetting of the scientific process associated with a mental

health professional's expert testimony in advance of its

admission into the record. He lectures: "By virtue of their

qualifications alone, experts do not provide any assurance

that their opinions rest on reliable methods and procedures.

Instead relying on experts without testing the reliability of

their methods and procedures cloak experts' value

judgments under the veil of science and risks that their

personal and professional characteristics bias the evaluation

and the importance of information learned. The scientific

method is intended to avoid such problems." 36 Fam.L.Q. at

160.

A respected psychiatrist, Dr. Margaret Hagen,

echoes these views in her book, Whores of the Court, 1997,

Harper Collins; New York. She details the use of expert

testimony by psychiatrists and psychologists in the

American legal system, including child custody cases.

Whores, (passim) "Chapter 8--In the Best Interests of the

Child". Like Shuman and Gitlin, she is adamant: "What if

the foundation of the clinician's belief is strictly personal,

manifestly unobjective, and clearly nonscientific? Then,

whatever the level of general acceptance, that belief does not

belong in courtrooms masquerading as expert scientific

testimony." Whores, pg. 298. 9

In sum, the consensus of scientific opinion discredits

the idea of expert testimony regarding child custody or

visitation disputes. Due process should follow science and

thus prohibit such bogus experts because they foster

erroneous fact-finding and predictions. Certiorari should be

granted to correct the North Dakota Supreme Court's

disregard of this Court's precedents regarding due process

and the imperative of reliable expert testimony when

fundamental parental rights are at stake.

9 These authors are but the tip of an iceberg of legal scholars and mental

health professionals who have openly challenged the use of psychiatric

and psychological expert testimony that addresses a child's best interests.

See e.g., Wah, The Changing Nature of Psychological Expert Testimony in

Child Custody Cases, 86 Judicature 152 (2002); Melton, The Clashing of

Symbols: Prelude to Child and Family Policy, 42 Am. Fsych. 345 (1987);

Mnookin, Child Custody Adjudication: Judicial Functions in the Face of

Indeterminacy, 39 Law & Contemp. Probs. 226 (1975); Mischel,

Personality and Assesment, (1968); Goldstein, Freud, and Solnit, Beyond

the Best Interests of the Child, (1979).

III. |The North Dakota Supreme Court Flagrantly

Disregarded this Court's Precedents Regarding Parental

Participation in the Rearing of their Children

This Court has long recognized "the liberty of

parents and guardians to direct the upbinging and

education of children under their control"!°, short of the

state removing a child for proven neglect or abuse. In

Stanley, this Court amplified:

"The private interest here, that of a man in the

children he has sired and raised, undeniably

warrants deference and, absent a powerful

countervailing interest, protection. It is plain

that the interest of a parent in the

companionship, care, custody, and

management of his or her children 'come(s) to

this Court with a montentum for respect

lacking when appeal is made to liberties

which derive merely from shifting economic

arrangements.’ [citation omitted]" Id. at 651.

In Troxel, supra., this Court affirmed the judgment of

the Washington Supreme Court that a Washington statute

applied to allow non-parental third-party visitation at a

court's discretion was a violation of the parents' due process

right to make decisions concerning the care, custody, and

control of their children. This Court reasoned that "so long

as a parent adequately cares for his or her children (i.e., is

fit), there will normally be no reason for the State to inject

itself into the private realm of the family to further question

the ability of that parent to make the best decisions

concerning the rearing of that parent's children."[citation

omitted] Id. at 68-69. Justice Sandra Day O'Connor, writing

10 Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary,

268 U.S. 510, 534-535 (1925). See also Meyer v. Nebraska, 262 U.S. 390, 399-

400 (1923).

for the majority, more forcefully declared that "the Due

Process Clause does not permit a State to infringe on the

fundamental right of parents to make child rearing decisions

simply because a state judge believes a ‘better' decision

could be made." Id. at 72-73. See also Prince _v.

Massachusetts, 321 U.S. 158 (1944); Wisconsin v. Yoder, 406

U.S. 205 (1972); Stanley, supra. at 652-653; Quilloin_v.

Walcott, 434 U.S. 246 (1978); Parham v. J.R., 442 U.S. 584

(1979); Santosky, supra; Washington v. Glucksberg, 521 U.S.

702 (1997).

The Troxel rationale fits this case like a glove.

Petitioner filed two motions with the District Court seeking

to reinstate his visitation rights. Neither motion was

opposed by Respondent. In the eyes of the law and for the

purposes of child custody or visitation, Respondent has

consented to the request for unsupervised visitation with

Dorothy by non-opposition to the assertions, arguments and

modifications to the custody order advanced by Petitioner.

In other words, the law of North Dakota, like other states,

treats Respondent's failure to respond as consent to

Petitioner's unsupervised visitation with Dorothy.!! Absent

a showing by the state that Petitioner and Respondent are

unfit parents, the District Court was obligated by Troxel to

give deference to that joint parental decision.

The District Court dismissed the unopposed motions

of Petitioner without a hearing on the apparent theory that

the continued complete curtailment of Petitioner's visitation

rights would be advantageous to Dorothy. The North

Dakota Supreme Court affirmed. Its decision impaired the

protected liberty interest of Petitioner as decreed in Troxel

"| See Matter of Gober, 100 F.3d 1195 (5th Cir. 1995); Meehan v. Snow, 494

F.Supp. 690 (S.D.N.Y.1980); The Firestone Tire & Rubber Co. v. Marlboro

Cotton Mills, 278 F. 816 (E.D.S.C.1920); In re Edie, 314 B.R. 6 (B.D.Utah

2004); In re Stewart, 280 B.R. 268 (B.M.D.Fla. 2001); In re Naemi, 128 B.R.

273 (B.S.D.Cal. 1991); Schostak v. Wright, 2003 WL 1960581 (S.D.NY).

to participate in Dorothy's upbringing on terms acceptable

to both parents. The District Court lacked constitutional

power, absent a showing of unfitness, to disturb that joint

parental visitation choice on the theory that a "better"

arrangement for Dorothy would be severance of contact

with Petitioner.

In addition, Petitioner's influence on Dorothy would

be beneficial and pivotal to her maturation as a successful

and productive member of society and to her own

happiness. An article in the Ohio State Law Journal found

that "[a] substantial body of research supports the

conclusion that continued contact with both parents is

beneficial to children... The tendency of divorced fathers to

withdraw may have serious effects on children... As

Clingempeel and Reppucci observed, the child whose father

remains involved may have ‘a larger array of positive

characteristics to model and a greater variety of cognitive

and social stimulation." Scott & Derdeyn, Rethinking Joint

Custody, 45 Ohio St. L.J. 455 at 488-490 (1984). Dr. Richard

A. Warshak fortified that conclusion: "Children generally do

better after divorce when both parents continue to

participate in child-rearing." See Divorce Poison, Warshak,

(2001), p.2. North Dakota courts have endorsed this belief by

using joint custody as the starting point to determine how

custody should be divided. Even if sole custody is

ultimately ordained, the non-custodial parent enjoys a

presumptive right to visitation absent proof of threatened

harm to the child. See K.L.G. v. $.L.N., 622 N.W.2d 232 (ND

2001).

Petitioner's contribution to Dorothy’s psychological

maturation and segue from adolescence to adulthood

counted overwhelmingly in favor of visitation. As

elaborated in the studies of Clingempeel and Reppucci, and

Emery, Hetherington, and Fisher, the role of the father is

critical to the full maturation of a child's social and academic

faculities. See Clingempeel & Reppucci, Joint Custody after

Divorce: Major Issues and Goals for Research, 91

Psychological Bulletin 102 (1982); Emery, Hetherington &

Fisher, Divorce, Children and Social Policy (1983). Dorothy

is fast approaching eighteen, and thus, her legal

emancipation from parental guidance and influence.

Petitioner's window of opportunity to positively affect his

daughter's life is closing.

Petitioner acknowledges that the liberty interest

recognized by this Court in Troxel could be terminated

consistent with due process if North Dakota asserted

guardianship of Dorothy\ after a finding of parental

unfitness based on a hearing that satisfied due process. But

that has not been done. North Dakota may not presume

"unfitness solely because it is more convenient to presume

than to prove." Stanley. at 658. Certiorari is thus warranted

to correct the North Dakota Supreme Court's disregard of

Troxel.

Conclusion

For these various reasons, this petition should be

granted.

Respectfully Submitted,

Bruce Fein

Counsel of Record

Bruce Fein & Associates

910 17‘ Street NW, Suite 800

Washington, DC 20006

(202) 775-1776

Thomas V. Omdahl

Omdahl Law Office

424 DeMers Avenue

Grand Forks, ND 58201

(701) 772-8526

Counsel for Petitioner

APPENDIX

TABLE OF CONTENTS

Appendix Page

Opinion of

The Supreme Court of the State of North Dakota

In Case No. 2005 ND 73

Camel Papel 6; DI oseisescniinenesesnsntnicensninntinsitsesisaciiia la

Order Denying Motion for Reinstating

Unsupervised Visitation of

The Honorable Bruce E. Bohiman

entered October 28, 2004...........scscsscsccsssssssesesseesesesseees 3a

Memorandum Decision and Order of

The Honorable Bruce E. Bohlman

Re: Finding Defendant in Contempt of Court

entered September 10, 2004 ..............ccccesscssesceseseeseeees Sa

Opinion of

The Supreme Court of the State of North Dakota

In Case No. 2003 ND 172

entered December 11, 2003G.................ccssssssesssrssesssnsseees 8a

Memorandum Decision and Order of

The Honorable Bruce E. Bohiman

Re: Denying Plaintiff's Motion to

Establish Visitation Schedule

GAGES FOOTY 21, TIED vnscccncsencsnnnnegsnoscemsesantnctnsins 16a

Notice of Appeal

embered November 18, 2006 .u......-..ncc.s.-cesscsesssnsecseses 21a

Plaintiff's Motion for Default Judgment

Same Cob T2, TN anccicrrnresticissinentnninstenlacnincieintt 23a

iia

Exhibits to Plaintiff's Memorandum in Support of

Plaintiff's Motion to Reinstitute Unsupervised

Visitation Rights and Evidentiary Hearing

entered August 30, 2004:

Exhibits:

4. Letters to

Helen Litoff from

Teri Sosa

Re: Child Protective

Services Proceedings

dated June 1 and 8, 1990...........0000... 27a

8 Robert Litoff’s Request for

Appeal of the CA/N

Assessment Decision

dated November 16, 2001................ 31a

Plaintiff's Motion to Reinstitute Unsupervised

Visitation Rights and Evidentiary Hearing,

entered August 30, 2004 ..............csusicsvesssesssssesereneesese 33a

Defendant's Exhibit #13:

Adminstrative Law Judge’s Recommended

Findings and Recommended Order of

The State of North Dakota Department of

Human Services

UNE FORNEY 20, I ascsccsicsscensscncessonseniicccashsaisuiions 40a

Excerpts of Transcript of Proceedings before

The Honorable Bruce E. Bohlman

On January 16 and 17, 2003 .......ccerseceseecereneereeeescnes 63a

Testimony of Dr. Dina Trevino:

Direct Examination by Mr. Omdahll............csssceseees 64a

Cross Examination by Ms. Jensen.............sssseeceeees 68a

Testimony of Ann E. Simun:

Direct Examination by Ms. Jensen..........:::ssseeseceeees 8la

Cross Examination by Mr. Omdall...........:cccseesee 106a

Redirect Examination by Ms. Jensen... 122a

Excerpt of Record from the District Court,

285th Judicial District, Bexar County, Texas

entered October 23, 2002:

Order for Enforcement of

The District Court, 285t* Judicial District,

Bexar County, Texas

entered September 30, 1999 .............sseseee 125a

Docket Entries

(District Court of Grand Forks County,

Northeast Central Judicial District,

AO PU. TE af IE) sis canccnrseedniscaviciarnssndecnéansincis 135a

iva

(Folded Sheets) .

Exhibits to

Plaintiff's Motion to Reinstitute Unsupervised

Visitation Rights and Evidentiary Hearing,

entered August 30, 2004:

Exhibits:

8-12. Academic Transcripts

VON GID oasis cineca 153a

This opinion is subject to petition for rehearing

Filed 4/6/05 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2005 ND 73

Robert S. Litoff, Plaintiff and Appellant

Helen Pinter, Defendant and Appellee

No. 20040330

[Entered: April 6, 2005]

Appeal from the District Court of Grand Forks

County, Northeast Central Judicial District, the Honorable

Bruce E. Bohlman, Judge.

AFFIRMED.

Pe: Curiam.

Bruce Fein (argued), Bruce Fein & Associates, 910 17th

Street N.W., Suite 800, Washington, D.C. 20006, and Thomas

V. Omdahl (on brief), 424 DeMers Avenue, Grand Forks,

N.D. 58201-4508, for plaintiff and-appellant.

Helen Pinter. No appearance.

Litoff v. Pinter

No. 20040330

Per Curiam.

[¥1] Robert Litoff has appealed from a district court order

denying his motion to reinstate unsupervised visitation with

his daughter. See Litoff v. Pinter, 2003 ND 172, 670 N.W.2d

860. The order is affirmed under N.D.R.App.P. 35.1(a)(4).

[{2] Gerald W. VandeWalle, CJ.

Carol Ronning Kapsner

Dale V. Sandstrom

Mary Muehlen Maring

IN DISTRICT COURT, GRAND FORKS COUNTY,

NORTH DAKOTA

Robert S. Litoff, )

)

Plaintiff, ) Civil No, 02-C-1352

) ORDER DENYING MOTION

vs. ) FOR REINSTATING

) UNSUPERVISED

Helen Pinter, ) VISITATION

)

Defendant )

[ENTERED: October 28, 2004]

The plaintiff makes a motion to reinstate

~ unsupervised visitation with his daughter, Dorothy, now 16

years of age. However, the plaintiff submits no evidence of

any kind that he has had a psychiatric examination, as

recommended by Dr. Trevino in Texas, nor has he had a

mental health assessment in North Dakota, nor an

assessment for inclusion in a sexual offenders treatment

program, nor that he has complied with any

recommendations from such evaluations and assessments,

including medication. The evaluation done by the Texas

psychologist, Dr. Trevino, recommended a_ psychiatric

evaluation to determine if psychotropic medications would

be therapeutic in treating him. Dr. Trevino found that the

plaintiff was suffering from paranoia and mixed personality

disorder. Finally, the judgment entered by this court and

affirmed by the North Dakota Supreme Court, found that

Dorothy should have the right to refuse visitation in view of

the plaintiffs conduct. There is no showing that Dorothy has

consented to any contacts at this point, and certainly no

indication that she consents to unsupervised visitation. The

plaintiff has wholly failed to show that he has complied

with the court's directions, and there is no merit in

rearguing matters that have been previously decided by the

court and affirmed on appeal. It is therefore

ORDERED that the motion to reinstate

unsupervised visitation is DENIED.

Dated this 21st day of October, 2004.

BY THE COURT:

Ls/

Bruce E. Bohlman, District Judge

x: Thomas Omdahl

Bruce Fein

Helen Pinter

IN DISTRICT COURT,

GRAND-FORKS COUNTY, NORTH DAKOTA

Robert S. Litoff,

~~ ee Se ee”

_ Plaintiff,

VS. Civil No. 02-C-1352

: MEMORANDUM

Helen Pinter, DECISION & ORDER

eee ee eee ee”

Defendant.

[ENTERED: September 10, 2004]

The plaintiff brought an Order to Show Cause

proceeding to have contempt of court for refusal to provide

him with a current address and telephone number of the

minor child. The current version of the judgment, in

paragraph 3A(e) requires the defendant to notify the

plaintiff of any change in the address and telephone number

of the minor child. Plaintiff's counsel attempted to obtain

the information through defendant's counsel, Ms. Patti

Jensen. The information was not forthcoming and plaintiff

brought this proceeding to obtain the information.

The second amended judgment was entered on May

21, 2004. On May 28, 2004, Mr. Omdahl, representing Mr.

Litoff, wrote a letter to Ms. Patti Jensen, representing Ms.

Pinter, demanding that the information be furnished. Ms.

Jensen did not indicate that she had withdrawn as counsel

for Ms. Pinter, and indicated that she would get back to Mr

Omdahl after her client had a chance to read the letter.

Mr. Omdahl then filed the contempt proceeding

because no answer was forthcoming. It was served on Ms.

Jensen, as counsel for the defendant, by mail on June 16,

2004. On June 22, 2004, Ms. Jensen wrote to Mr. Omdahl,

stating that she had not been retained by Ms. Pinter to

represent her in this matter.

Mr. Omdahl is relying on service by mail on counsel

for the defendant. Ms. Jensen has been the counsel for Ms.

Pinter for all of the proceedings in North Dakota and there

was only recently a second amended judgment entered in

May 2004 and further correspondence between counsel on

other matters. There was no indication that Ms. Jensen was

suddenly not acting as Ms. Pinter's counsel and there has

been no motion or other withdrawal of counsel proceeuing

before the Court. It appears that Ms. Jensen also has been

forwarding copies of the letters and documents to Ms. Pinter

and Ms. Pinter has chosen not to respond.

The Court finds that service of the documents upon

Ms. Jensen is sufficient under. Rule 5 of the North Dakota

Rules of Civil Procedure. See also Thomas v. Thomas, 382

NW2d 639 (ND 1986). The time for appeal from the second

amended judgment had not run and Ms. Jensen was

representing Ms. Pinter on other matters concerning the

minor child under the second amended judgment.

The Court finds that the defendant has not shown

good cause why the information has not been furnished, as

required by the second amended judgment and she is in

contempt of court for her disobedience of a court order. The

information concerning address and __ telephone

number for the child must be furnished in fifteen (18) days

from the date of service of this Order and the plaintiff is

awarded $500 in attorney's fees and costs because of the

contempt, said amount to be payable in thirty (30) days

from date of service of this Order upon the defendant. Any

further noncompliance will result in further sanctions,

including $10 per day for each day beyond the fifteen (18)

days allowed herein to cure the contemptuous behavior.

IT IS SO ORDERED.

Dated this 7% day of September, 2004.

BY THE COURT:

/s/ Bruce E. Bohlman

Bruce E. Bohlman,

DistrictJudge —

cc: Thomas Omdahl

Patti Jensen

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2003 ND 172

Robert Stanley Litoff, Plaintiff and Appellant

Helen Pinter, Defendant and Appellee

No. 20030074

[ENTERED: December 11, 2003]

Appeal from the District Court of Grand Forks

County, Northeast Central Judicial District, the Honorable

Bruce E. Bohlman, Judge.

AFFIRMED IN PART AND REMANDED.

Opinion of the Court by Kapsner, Justice.

Thomas V. Omdahl, Omdah! Law Office, 424 DeMers

Avenue, Grand Forks, N.D. 58201-4508, for plaintiff and

appellant.

Patti J. Jensen, Galstad, Jensen & McCann, P.A., P.O.

Box 386, East Grand Forks, MN 56721-0386, for defendant

and appellee.

Litoff v. Pinter

No. 20030074

Kapsner, Justice.

[71] Robert Litoff appealed. from an order denying his

motion to reinstate visitation with his daughter and

ordering him to pay attorney fees. We affirm the order

denying reinstatement of visitation, but remand for

reconsideration of the award of attorney fees and for

consideration of Helen Pinter’s request for attorney fees for

this appeal,

[2] Robert Litoff and Helen Pinter were married and have

one daughter, who was born in 1988. Litoff and Pinter

separated in 1989 and their marriage was annulled by a

Texas court on August 21, 1990. Litoff and Pinter were

named joint managing conservators of the child, with Pinter

having primary custody and Litoff having extensive

visitation.

[73] In May 2001, Pinter received permission from the Texas

court to move with the child to North Dakota, where

Pinter's new husband had been transferred by the military.

During the summer of 2001, the child spent several weeks

with Litoff traveling throughout the Midwest, staying in

hotels.

[14] When the child began school in August 2001, she

reported to school authorities that her father had on

numerous occasions during their summer vacation

masturbated in her presence in their hotel room and had

made inappropriate comments to her about her body.

School officials reported the incidents to Grand Forks

County Social Services, which investigated the allegations

10a

and found that there were risk factors for sexual abuse and

that services for protection were required. Litoff appealed

and a hearing was held before an administrative law judge

("ALJ"). The ALJ found that incidents had occurred but that

they constituted neglect, not sexual abuse, and concluded

that services were required. The ALJ found Litoff believed

his daughter was asleep and unaware of his masturbation.

Litoff did not appeal the decision of the ALJ in the

administrative process. Evidence of the ALJ's decision was

submitted at the hearing on Litoff s motion to reinstate

visitation,

[95] In July 2002, the Texas court granted Pinter's petition to

modify visitation, and suspended all visitation between

Litoff and the child. Litoff was ordered to submit to a

psychological exam by a psychologist or psychiatrist

approved by the court before any visitation would be

allowed. On October 1,2002, the Texas court entered another

order suspending Litoff’s visitation until he submitted to a

psychological exam with a psychiatrist approved by the

court. On October 3, 2002, the Texas court transferred

jurisdiction to North Dakota.

[76] In November 2002, Litoff filed a motion in North

Dakota district court to establish a visitation schedule. In his

affidavit in support of the motion Litoff referenced a Texas

order from April 2002 which allowed visitation, but did not

mention the subsequent Texas orders which had suspended

all visitation between Litoff and his daughter. At the hearing

on Litoff’s motion, the court heard evidence that Litoff had

on numerous occasions masturbated while his thirteen-year-

old daughter was in the same room, and had commented to

her that her hips were getting wider and her breasts were

getting bigger. There was also evidence that Litoff in writing

and in telephone calls pressured his daughter to recant her

allegations and threatened to disinherit her if she did not

change her story. The psychologist who had been

lla

counseling the child testified that the child had suffered

emotional harm from her father's conduct and

recommended that no further visitation occur until the child

agreed to it.

{{7] Litoff presented the result of a psychological exam he

had undergone, which indicated Litoff did not pose an

immediate danger but was unstable and might become

unpredictable. The psychologist further stated Litoff

suffered from paranoia, mixed personality disorder, and

other psychological deficits. The report recommended that

Litoff submit to an exam by a psychiatrist.

[98] The trial court found that visitation at this time would

be harmful to the child's mental, emotional,“and physical

health. The court ordered that visitation would remain

suspended until Litoff completed the services required by

Social Services, including a psychiatric report and an

assessment for a sexual offender treatment program. Litoff

was also ordered to pay $2,000 in attorney fees to Pinter.

[¥9] Litoff argues the trial court's determination suspending

his visitation rights is clearly erroneous. He specifically

challenges the trial court's finding that visitation would be

likely to endanger the child's physical or emotional health.

[{10] Visitation is governed by N.D.C.C. § 14-05-22(2):

After making an award of custody, the court

shall, upon request of the noncustodial

parent, grant such rights of visitation as will

enable the child and the noncustodial parent

to maintain a parent-child relationship that

will be beneficial to the child, unless the court

finds, after a hearing, that visitation is likely

12a

to endanger the child's physical or emotional

health.

[{11] A trial court's decision on visitation is a finding of fact

and will not be reversed on appeal unless it is clearly

erroneous. Krank v. Krank, 2003 ND 146, 9 16, 669 N.W.2d

105; Lawrence v. Delkamp, 2003 ND 53, § 12, 658 N.W.2d

758. A finding of fact is clearly erroneous only if it is

induced by an erroneous view of the law, if there is no

evidence to support it, or if, after review of the entire

evidence, we are left with a definite and firm conviction a

mistake has been made. Hogan v. Hogan, 2003 ND 105, § 6,

665 N.W.2d 672.

[{12] Litoff argues that visitation between a child and the

noncustodial parent is presumed to be in the best interest of

the child. See, e.g.. Montgomery v. Montgomery, 2003 ND

135, § 22, 667 N.W.2d 611. Our statutes and caselaw,

however, clearly recognize that visitation with a

noncustodial parent may be curtailed or eliminated entirely

if it is likely to endanger the child's physical or emotional

health. See N.D.C.C. § 14-05-22(2); Negaard v. Negaard,

2002 ND 70, 9 13, 642 N.W.2d 916; McDowell v. McDowell,

2001 ND 176, § 28, 635 N.W.2d 139.

[§13] The trial court specifically found that visitation with

Litoff would be harmful to the child's physical and

emotional health. The record contains ample evidence to

support that finding. There was evidence that Litoff had on

numerous occasions masturbated in bed while his thirteen-

year-old daughter was in the same room. Litoff made

sexually inappropriate comments to his daughter about her

body. There was evidence that Lito‘f pressured his daughter

to recant her allegations, and threatened to refuse to pay for

her college education and disinherit her if she did not

change her story. The child's psychologist testified in detail

about the emotional harm suffered by the child resulting

13a

from Litoff’s conduct, and recommended no further

visitation until the child agreed to it.

[{14] Litoff alleges the trial court improperly placed the

question of visitation into the hands of the child. See

Montgomery _v. Montgomery, 2003 ND 135, {| 22, 667

N.W.2d 611; Sevland v. Sevland, 2002 ND 110, { 10,-646

N.W.2d 689. The trial court held that visitation would be

“considered as a viable alternative" only after Litoff

completed all of the services required by Social Services to

the satisfaction of the court. The court further indicated it

would then consider only supervised visitation, "and only to

the extent that [the child] wants to have contact with her

father." The language of the court's order clearly

contemplates a further hearing before a resumption of

visitation will be considered. Under these circumstances, we

find it unnecessary to address this issue on this appeal.

[15] We conclude that the trial court's findings of fact on

visitation are not clearly erroneous.

[16] Litoff argues the trial court abused its discretion in

awarding attorney fees to Pinter.

[17] The court in its order stated Pinter had "suffered

considerable expense in this proceeding, and the court will

award $2,000 in attorneys fees" to Pinter. The court gave no

further explanation of the basis for the award. On appeal,

Litoff argues the award of attorney fees was inappropriate

because his motion was not frivolous under N.D.C.C. § 28-

26-01(2). Pinter contends the award of attorney fees may be

upheld under that statute because Litoff’s motion was

frivolous, or under N.D.C.C. § 14-05-23, which authorizes

the trial court to award attorney fees at any time a divorce

action is pending.

14a

[918] We are unable to discern from this record the basis for

the trial court's award of attorney fees. If the court was

acting under N.D.C.C. § 28-26-01(2), it appears the award

was inappropriate. That statute allows the court to award

attorney fees if a claim for relief is frivolous, but only if "the

prevailing party has in responsive pleading alleged the

frivolous nature of the claim." Pinter has not drawn our

attention to, and we have not found, any responsive

pleading in which Pinter alleged Litoff’s motion was

frivolous.

[§19] If the court was acting under N.D.C.C. § 14-05-23, it is

not apparent from this record that the court considered the

appropriate factors in awarding attorney fees. In deciding

whether to award attorney fees in a divorce action under

N.D.C.C. § 14-05-23, "the court must balance the parties'

needs and ability to pay, and should consider the property

owned by each, their relative incomes, whether property is

liquid or fixed assets, and whether the action of either party

unreasonably increased the time spent on the case."

McDowell v. McDowell, 2001 ND 176, 4 36, 635 N.W.2d 139.

The trial court did not address any of these factors when it

ordered payment of attorney fees.

[20] Because we are unable to discern the basis for the trial

court's award of attorney fees, we remand for

reconsideration of the award of attorney fees in light of this

opinion.

[§21] Pinter has requested an award of attorney fees for this

appeal under N.D.C.C. § 14-05-23, and requests that we

remand for the trial court to make an initial determination

of attorney fees. We have often expressed our preference to

have the trial court initially address the issue of attorney

fees for an appeal because the trial court is generally in a

15a

better position to weigh the relevant factors. See, e.g., Berg

v. Berg, 2002 ND 69, 4 20, 642 N.W.2d 899. Accordingly, we

direct the trial court to consider on remand Pinter's request

for attorney fees for this appeal.

[722] We affirm the order denying Litoff’s motion to

reinstate visitation, but remand for reconsideration of the

award of attorney fees and for consideration of Pinter's

request for attorney fees for this appeal.

16a

? IN THE DISTRICT COURT,

GRAND FORKS COUNTY, NORTH DAKOTA

Robert Stanley Litoff,

Plaintiff,

MEMORANDUM

DECISION & ORDER

)

vs. ) Civil No. 02-C-1352

)

Helen Pinter, )

)

Defendant.

[ENTERED: February 21, 2003]

This action arises out of a transfer of jurisdiction

under the Uniform Child Custody Jurisdiction and

Enforcement Act, NDCC Ch. 14-14.1. The parties marriage

was annulled in the State of Texas and a decree entered

there on August 21, 1990. The parties had one child,

Dorothy, born of the marriage. She is presently 14 years of

age, having been‘born on July 30, 1988. The defendant was

awarded physical custody of Dorothy, subject to certain

visitation rights of the plaintiff.

The parties have engaged in a long series of court

actions arising out of the custodial and visitation provisions

of the Texas decree. The defendant has remarried and now

lives with her husband and family, including Dorothy, at

Grand Forks AFB, ND. The plaintiff continues to reside in

Texas. ‘SIRT:

On October 1, 2002, the Texas court issued its order

prohibiting any further visitation between Dorothy and the

plaintiff until the plaintiff submitted to a psychological

evaluation with a psychiatrist approved by the court. The

order was entered as a result of proceedings in the Texas

court arising out of the summer visitation that the plaintiff

17a

had with Dorothy in the summer of 2001. The visitation

occurred in various states and involved charges by Dorothy

that the plaintiff masturbated in the same room where she

was and that she was frightened by this experience, fearing

that she might be raped. The plaintiff also made comments

concerning her breast and hip size, further traumatizing

Dorothy. Upon her return that summer, Dorothy told the

school counselor of her experiences, and a report was filed

on August 31, 2001 with Grand Forks County Social Services

concerning the incident.

As a result of the investigation by Grand Forks Social

Services, Dorothy was found to be at risk for sexual abuse

and services were required, including: counseling for

Dorothy, a psychological exam for Robert, an assessment for

Robert to determine if he should participate in a sexual

offender's treatment program, family focused services for

the family, and no unsupervised visits between Robert and

Dorothy until the required services had been completed.

Robert appealed the findings and recommendation

but the services required were affirmed on appeal by the

administrative law judge, and only the finding of sexual

abuse was changed to "neglect". The administrative law

judge found Dorothy's statements to be truthful. Robert did

not appeal the decision.

Robert did have a psychological examination done in

Texas by Dr. Trevino, a licensed psychologist. The

examination was not done by a psychiatrist, as required by

the October 2, 2002 Texas order. Nevertheless, Dr. Trevino

did recommend that Robert have an examination done by a

psychiatrist to determine if psychotropic drugs would help

him. Dr. Trevino did find that while there was no

immediate danger posed by Robert, he was not stable and if

Dorothy became assertive or resistant, his behavior would

be unpredictable. Dr. Trevino found that Robert suffered

18a

from paranoia, mixed personality disorder and other

psychological deficits.

. Essentially, Robert refuses to avail himself of the

services that were required and he was not complimentary

of the science of psychiatry as a means of obtaining help. He

did not see himself as needing help and it was apparent that

he suffered from a lack of insight. He is poorly organized, as

indicated by the photos of his home in Texas (he concurred

that it still looks that way), and he saw nothing wrong with

having pornography spread around the house where it was

easily accessible by anyone.

Robert also threatened Dorothy with disinheritance

if she did not change her story of the events that occurred in

the summer of 2001. This reprehensible conduct only further

fortifies this court's opinion that Robert does need to avail

himself of psychiatric assistance, as well as the other

services required by Grand Forks County Social Services.

The court also interviewed Dorothy in chambers,

with counsel present. It was apparent that Dorothy wanted

no contact with her father at this time and the court finds

that such contact would be harmful to her mental and

emotional health, as well as her physical well being. Her

feelings are real and not imagined. She was an articulate

young lady who had suffered a series of traumatic episodes

at the hand of her father and she should not have to endure

such contacts in the future until it is clear that Robert has

recovered sufficiently from his illnesses to pose no threat to

Dorothy, and Dorothy has sufficiently recovered from the

traumatic experiences and wishes to have contact again with

her father.

Dr. Simun, Dorothy's counselor, further supported a

suspension of visitation by Robert at this time and

recommended that Dorothy be allowed to have a choice in

19a

the matter. Dr. Simun noted that even the Wednesday night

telephone calls from Robert to Dorothy were too much for

Dorothy to handle and Dorothy dreaded Wednesday

evenings because of the scheduled calls. Dorothy refuses to

talk with Robert.

Dr. Simun testified that Dorothy suffered from

depression and that she suffered a setback at Christmas time

in 2002. Her father was putting pressure on her to visit and

she had received a Christmas card (Exhibit 2) that made her

feel rejected. Dr. Simun has been working intensively with

Dorothy and there is a therapeutic relationship between

them which does help Dorothy in her recovery process. Dr.

Simun recommended that Dorothy should have the ability

to choose whether she wants contact with her father at this

time.

From all of the testimony, it is clear to the court that

visitation between Dorothy and her father should not be

forced and it would be harmful to Dorothy's mental,

emotional and physical health if she is forced to have

contact with her father. See NDCC § 14-05-22(2)(4). Robert

must complete all of the required services to the satisfaction

of this court before visitation is considered as a viable

alternative, and then only supervised, and only to the extent

that Dorothy wants to have contact with her father. The

court considers the conduct of the plaintiff toward Dorothy

as contrary to her health and safety and as sexually abusive.

The defendant has suffered considerable expense in

this proceeding, and the court will award $2,000 in attorneys

fees to the defendant and judgment may be rendered

against the plaintiff accordingly. The Texas judgment shall

also be amended to include the provisions of this paragraph

and the paragraph preceding. The plaintiff's motion to

establish a visitation schedule is denied.

20a

IT IS SO ORDERED. Counsel for defendant shall

draft the amended judgment form for the court to review

before entry by the clerk of court.

Dated this 20% day of February, 2003.

BY THE COURT:

/s/ Bruce E. Bohlman

Bruce E. Bohlman,

District Judge

Copies to: Tom Omdahl

Patti Jensen

21a

State of North Dakota

Grand Forks County District Court

Robert S. Litoff,

Plaintiff,

Vv. LAW NO. 02-C-01352

Helen Pinter,

Defendant.

me ee ee ee ee ee ee”

Notice of Appeal

COMES NOW Plaintiff Robert Litoff, through his

undersigned attorneys, and notices this Court of his intent

to appeal to the North Dakota Supreme Court Judge Bruce

Bohlman's Order of October 21, 2004 denying Plaintiffs

Motion to Reinstitute Unsupervised Visitation and Motion

for Default Judgment.

Dated this _10_ day of November, 2004.

Respectfully submitted,

ROBERT S. LITOFF

By Counsel

Bruce Fein

Bruce Fein & Associates

910 17% Street, N.W.,

Suite 800

Washington, D.C. 20006

(202) 775-1787

Counsel for Plaintiff

me. sar

Bruce Fein

Counsel for Plaintiff

22a

Thomas V. Omdahl

Omdahl Law Office

424 DeMers Avenue

Grand Forks, ND 58201

(701) 772-8526

Counsel for Plaintiff

paler es

Thomas Omdahl

ND License #04971

Local Counsel for Plaintiff

23a

State of North Dakota

Grand Forks County District Court

Robert S. Litoff,

Plaintiff,

Vv.

Helen Pinter,

Defendant.

LAW NO. 02-C-01352

MOTION FOR DEFAULT JUDGMENT

COMES NOW Plaintiff Robert Litoff, through his

undersigned attorneys, and moves this Court for default

judgment against Defendant Helen Pinter.

In support of the Motion, Plaintiff states as follows:

Plaintiff filed his Motion to Reinstitute

Unsupervised Visitation on August 23, 2004.

By Rule 3.2(a) of the North Dakota Rules of Civil

Procedure, Defendant had 10 days to file a

response to Plaintiffs motion. Plaintiff waited 30

days for a response from Defendant.

Defendant's counsel, Patti Jensen, informed

Plaintiff on September 7, 2004 following her

receipt of Plaintiff's motion that she was no

longer retained by Defendant in this case.

Plaintiff had served attorney Jensen -with his

Motion since she had never informed him of

24a

either her withdrawal from the case or of

Defendant's new address in Germany.

5. Defendant's counsel waited until September 16,

2004 to file a motion removing herself as the

counsel of record in this case. In her motion,

attorney Jensen includes a letter from Defendant

ending Jensen's representation of Defendant

dated July 12, 2004. The Court has not acted on

the motion to withdraw filed by attorney Jensen.

She remains counsel of record for Defendant.

6. When Plaintiff learned of Defendant's address in

Germany on September 20, 2004, Plaintiff

promptly sent his Motion to Reinstitute

Unsupervised Visitation by registered mail.

Delivery was made and signed for by

Defendant's husband, Gregory Pinter, on

September 29, 2004.

WHEREFORE Plaintiff's Motion for Default

Judgment shall be granted for the reasons above.

Respectfully submitted,

ROBERT S. LITOFF

By Counsel

Bruce Fein

Bruce Fein & Associates

910 17% Street, N.W.,

Suite 800

Washington, D.C. 20006

(202) 775-1787

Counse! for Plaintiff

By:___/s/

Bruce Fein

Counsel for Plaintiff

Thomas V. Omdahl

Omdahl Law Office

424 DeMers Avenue

Grand Forks, ND 58201

(701)772-8526

Counsel for Piaintiff

By:__/s/

Thomas Omdahl

ND License #04971

Local Counsel for Plaintiff

~ 26a

State of North Dakota

Grand Forks County District Court

Robert S. Litoff,

Plaintiff,

Vv. LAW NO. 02-C-01352

Helen Pinter,

Defendant.

Nee eee ee ee ee ee ee ee”

ORDER

HAVING CONSIDERED all motions and arguments,

IT IS ORDERED that Plaintiffs Motion for Default

Judgment is granted.

IT IS FURTHER ORDERED that the relief requested

by Plaintiff in his Motion to Reinstitute Unsupervised

Visitation be granted. SO ORDERED.

Judge, Grand Forks County District Court

27a

Texas Department of Human Services

Child Protective Services

P.O. BOX 23990

San Antonio, Texas 78223-0990

; 512/337-3323

June 1, 1990

Ms. Helen Litoff

7771 Joe Newton #2001

San Antonio, Texas 78251

Dear Ms. Litoff:

On 05/03/09, Child Protective Services became involved

with your family regarding Dorothy Litoff. After the second

injury that occurred to Dorothy on 05/23/90, the agency has

decided to make a written agreement between Texas

Department of Human Services/Child Protective Services

and yourself. We have discussed the seriousness of the

injuries which have occurred and the need to the protection

and safety of Dorothy. The agreement includes the

following:

1) Under no circumstances will you be allowed to be

alone with Dorothy Litoff

2) Azucion Delgado will reside with Mrs. Litoff until

our agency has reached a finalized decision

regarding the case.

3) Should there be any changes Mrs. Litoff is to contact

our office immediately.

The main purpose of this agreement is for the safety and

protection of Dorothy. If any questions arise, please feel free

to contact me at 337-3479.

28a

/s/

Teri Sosa

Child Protective Services Specialist

/s/

Helen Litoff

Client

[sf

Azucion Delgado

Witness

29a

Texas Department of Human Services

Child Protective Services

P.O. BOX 23990

San Antonio, Texas 78223-0990

512/337-3323

June 8, 1990

Ms. Helen Litoff & Family

7771 Joe Newton #2001

San Antonio, Texas 78251

Dear Ms. Litoff & Family:

During my recent assessment of your family situation, |

found that there is reason to believe that you are responsible

for the child maltreatment of Dorothy Litoff.

As a result of the information which I gathered, we plan to

offer services to your family to remedy the problems that

resulted in harm or risk te your child(ren). An in-home

caseworkez will be contacting you within the next two

weeks to begin planning for these services.

You have a right to request an administrative review within

15 calendar days after you receive this letter. Before

requesting a review, you need to discuss your concerns with

me and with my supervisor.

I appreciate your attention to this matter. Please contact me

at my office if you want to discuss this letter.

Sincerely,

Teri Sosa

Child Protective Services Specialist I

30a

TS/Ilm

< Leonard Centobie, Child Protective Services

Supervisor, 091-38

file copy

3la

REQUEST FOR APPEAL OF THE

CA/N ASSESSMENT DECISION

This process is available to appeal the child abuse and

neglect assessment decision.

Name of Person Requesting Appeal:

Address/ Telephone:

Robert Litoff

7026 Forest Crest North

San Antonio, Texas 78240-3314

Telephone Number: (210) 647-7012

Name and Address of Child(ren) Named in Report:

Dorothy Elaine Litoff

6108 Unit E Sun Flake Circle

Grand Forks Air Force Base, North Dakota 58204

In Which County Did Assessment Take Place?

Grand Forks

Previde concise statement of why you disagree with

the assessment decision. A statement of the relief

sought must be included.

I have never engaged in any inappropriate sexual

conduct in front of my daughter nor have I used

sexual slang in conversations with my daughter. I

am a good father who would never do anything

which would hurt my daughter. My daughter's

mother has been under the supervision of Texas

Child Protective Services for child abuse. My

daughter’s mother has made at least 3 complaints

against me to the Texas Child Protective Services,

but they have never made a finding against me.

32a

Judge Carol Haberman, not knowing North Dakota

procedure, instructed me to end a large packet of

information to Tammy Knudson for her to read and

reconsider her decision. I request that you instruct

Ms. Knudson to send you the packet of information

for your consideration. Enclosed is a copy of the

cover letter which | sent with the information packet.

I have not yet received the North Dakota file on the

case. I want to be able to supplement my case once I

receive that file. I want to be able to continue my

visitation without any restriction. I will not travel to

North Dakota just to spend a couple of hours of

supervised visitation. Fathers are important to

children. Please do not take me out of my

daughter's life.

Signature: Date

/s/___ Robert Litoff November 16, 2001

Appeal form must be filed with Appeals supervisor,

Department of Human Services, 600 E Boulevard, Bismarck,

ND 58505.

Request for appeal may be filed no sooner than the date of a

case decision and no later than thirty days from the date of

notification of the case decision.

33a

State of North Dakota

Grand Forks County District Court

Robert S. Litoff,

Vv.

Helen Pinter,

Plaintiff,

LAW NO. 02-C-01352

Defendant.

el i i eh i i i

MOTION TO REINSTITUTE UNSUPERVISED VISITATION

RIGHTS AND EVIDENTIARY HEARING

COMES NOW Plaintiff Robert Litoff, through his

undersigned attorneys, and moves this Court to reinstitute

unsupervised visitation rights to his daughter Dorothy

Litoff, a minor child, aged 16, to provide love and parental

guidance. Plaintiff also requests an evidentiary hearing in

conjunction with his motion

In support of the Motion, Plaintiff states as follows:

Jurisdiction

Plaintiffs Motion is proper under NDCC § 14-09-28

and NDCC § 14-09-6.6. This Court entered its Second

Amended Judgment, abolishing Plaintiffs visitation

rights, on May 21. 2004. Ordinarily, NDCC § 14-09-

6.6 would prevent Plaintiff from seeking

modification of the custody order within two years.

However, if there is a "persistent and willful denial

Or interference with visitation", a motion for

modification shall be heard earlier than the two year

34a

limit. See NDCC § 14-09-6.6(3)(a). Even before the

entry of the Second Amended Judgment, Defendant

Pinter had moved by stealth on or about February

2004 to Weisbaden, Germany with her third husband

and Dorothy. Defendant Pinter flouted her

obligations to apprise Plaintiff of the move under

NDCC § 14-09-28.1 (e), and (f); she persists in

flouting these obligations to this very day. (See

Exhibits 1-6) At present, Dorothy's new address and

telephone number in Germany have been concealed

from Plaintiff in violation of NDCC § 14-09-28 (e),

and this Court's order dated May 21, 2004.

Accordingly, Defendant has willfully disregarded

the custody order and interfered with Plaintiffs

visitation rights as provided under NDCC § 14-09-

28. This Motion is thus proper under NDCC § 14-09-

6.6.3 (a).

Legal Standards

Visitation by a non-custodial parent with his child is

informed by NDCC § 14-05-22, and NDCC § 14-09-

28. The court shall grant such rights of visitation as

will enable the child and the non-custodial parent to

maintain a parent-child relationship that will benefit

to the child, unless the court finds, after a hearing,

that visitation is likely to endanger the child's

physical or emotional health. NDCC § 14-05-22 (2)

Visitation between a child and the non-custodial

parent is presumed to be in the best interests of the

child. See Montgomery v. Montgomery, 667 N.W.2d

611 (ND 2003), K.L.G. v. S.L.N., 622 N.W.2d 232 (ND

2001), Reinecke v. Griffeth, 533 N.W.2d 695 (ND

1995).

35a

Non-custodial visitation can only be terminated by a

preponderance of the evidence, not probable cause,

that visitation would threaten the physical or mental

health of the child. See Healy v. Healy, 397 N.W 2d

71 (ND 1986).

Importance of Non-Custodial Visitation to the Child

Plaintiffs influence on Dorothy is beneficial and

pivotal to her maturation as a successful and

productive member of society and to her own

happiness. An article in the Ohio State Law Journal

found that "[a] substantial body ofsresearch supports

the conclusion that continued contact with both

parents is beneficial to children... The tendency of

divorced fathers to withdraw may have serious

effects on children... As Clingempeel and Reppucci

observed, the child whose father remains involved

may have 'a larger array of positive characteristics to

model and a greater variety of cognitive and social

stimulation." 45 Ohio St. L.J. 455 at 488-490 (1984).

Dr. Richard A. Warshak echoed that conclusion:

"Children generally do better after divorce when

both parents continue to participate in child-rearing."

See Divorce Poison, Warshak, (2001), p.2. North

Dakota courts have endorsed this belief by using

joint custody as the starting point to determine how

custody should be divided. But in the event of sole

custody, the non-custodial parent has a right to

visitation that is presumed to be in the child's best

interest. K.L.G. v.S.L.N., supra. Plaintiff has shown a

persistent desire to involve himself in Dorothy's life

and upbringing, especially her educational progress.

It speaks volumes that Dorothy's academic

performance has plunged since Plaintiffs visitation

rights ended. (See Exhibits 7-12)

36a

Plaintiff provides an intellectually and culturally

enriching presence for his daughter. In Texas, his

tutelage placed Dorothy in accelerated educational

programs. During the 2001 summer vacation,

Plaintiff and Dorothy visited ten state capitals in the

Upper Midwest, as well as large cultural centers like

Chicago, Milwaukee, Minneapolis, Cleveland, St.

Louis, and Kansas City. Father and daughter visited

several zoos, botanical gardens, and various other

museums and historical locations, such as Greenfield

Village in Michigan, U.S. Grant's home in St. Louis,

Missouri, Custer’s home and a recreation of a

Mandan Indian village in Ft. Lincoln, North Dakota,

as well as Abraham Lincoln's home, law office and

tomb in Springfield, Illinois. Plaintiff broadens

Dorothy's cultural and intellectual horizons in

parallel ways, by encouraging books, magazines,

newspapers, drama, a familiarity with current

events, and knowledge of her Russian, Polish, Jewish

and Filipino ancestry, including culture, history and

religion.

Plaintiffs contribution to Dorothy's psychological

maturation and segue from adolescence to

adulthood counts overwhelmingly in favor of

visitation. As elaborated in the studies of

Clingempeel and Reppucci, and Emery,

Hetherington, and Fisher, the role of the father is

critical to the Ml maturation of a child's social and

academic faculities. See Clingempeel & Reppucci,

Joint Custody after Divorce: Major Issues and Goals

for Research, 91 Psychological Bulletin 102 (1982);

Emery, Hetherington & Fisher, Divorce. Children

and Social Policy. Depriving Dorothy of Plaintiff s

fatherly influence is adverse to the best interests of

the child.

10.

Ki.

37a

Plaintiffs testimony at an evidentiary hearing would

decisively establish that re instituting unsupervised

visitation with his daughter Dorothy would not

endanger either her physical or emotional health.

Indeed, unsupervised visitation would promote

Dorothy's graduation into adulthood.

Material Changes in Circumstances

Material changes in circumstances have occurred

since this Court's order ending Plaintiffs visitation

was entered on May 21, 2004: (I)It has been

discovered that Defendant has moved to Germany

with Dorothy without informing Plaintiff of his

daughter's mailing address or phone number. Even

Plaintiffs last birthday card to Dorothy was returned

undeliverable; (2) Dorothy is now age 16, and her

attitude towards Plaintiff may have changed; and (3)

Defendant's move to Germany has substantially

compounded the difficulty of any permitted written

letter communication with Dorothy to her detriment.

Relief Requested

Plaintiff requests that unsupervised visitation be

reinstituted consistent with the April 3, 2002 Order

on Motion for Clarification and Visitation by Judge

John Gabriel of 285 Judicial District, Bexar County,

Texas.

Plaintiff shall have not more than one weekend per

month beginning at 5:30 pm on the day school

recesses for the weekend and ending at 7:30 pm on

the day before school resumes after the weekend.

Plaintiff will have his choice as to which weekend of

the month will be the weekend for his visitation. He

12.

13.

14.

15.

38a

will give Defendant 14 days written notice preceding

the designated weekend.

The Thanksgiving visit shall begin at 5:30 pm on the

day school recesses for Thanksgiving and end at

7:30 pm on the Sunday before school resumes.

Plaintiff shall have visitation with Dorothy for 42

days between June 1 and August 31, to be exercised

in no more than two separate periods of at least

seven consecutive days each. Plaintiff will give

Defendant 14 days written notice before the dates he

specifies his visitation is to begin. If Plaintiff does not

give Defendant written notice specifying the

beginning of the visitation, the visitation shall be for

42 consecutive days beginning at 5:30 pm on June 15

and ending at 5:30 on July 27.

Plaintiff shall have visitation with Dorothy every

year beginning at 7:00 am on December 26 and

ending in January at 7:00 pm on the day before

school resumes.

Reasonable courtesy is expected. If Plaintiff does not

begin bis visitation with Dorothy until after the exact

specified time on the day the visit is to begin or if he

begins visitation with Dorothy on the day after the

day which the visitation was supposed to begin, it is

not grounds for Defendant to refuse to allow the

visitation. Plaintiff may give the exact time a visit is

to begin by telephonic notice on the day before the

beginning of the visit. This is necessary because of

the great distances which must be traveled for

visitation to occur. So, it may not be possible nor

reasonable to expect that exact times specified weeks

in advance as the beginning time for a visit can be

kept when the visit is to begin.

39a

16. The telephone communication between Plaintiff and-—

Dorothy shall not be intercepted nor eavesdropped

nor recorded by Defendant or Gregory Pinter.

WHEREFORE Plaintiff respectfully requests an evidentiary

hearing before this Honorable Court, to entertain the

testimonies of Plaintiff, his 16 year old daughter Dorothy,

and other witnesses desired by the Defendant or this Court,

and the reinstitution Plaintiffs unsupervised visitation with

his daughter. A memorandum in support of this Motion has

been filed.

Respectfully submitted,

ROBERT S. LITOFF

By Counsel

Bruce Fein Thomas V. Omdahl

Bruce Fein & Associates Omdahl Law Office

910 17% Street, N.W., 424 DeMers Avenue

Suite 800 Grand Forks, ND 58201

Washington, D.C. 20006 (701) 772-8526

(202) 775-1787 Counsel for Plaintiff

Counsel for Plaintiff

By:/s/ Bruce Fein By:/s/Thomas Omdahl

Bruce Fein ND License #04971

Counsel for Plaintiff Local Counsel for Plaintiff

40a

STATE OF NORTH DAKOTA

DEPARTMENT OF HUMAN SERVICES

APPEAL OF: )

) ADMINISTRATIVE LAW -

Robert Litoff ) JUDGE'S RECOMMENDED

) FINDINGS AND

) RECOMMENDED ORDER

)

SEER ROR EEO EERE EEE EE EEE EERE EET EEE EEE EERE EEE EE EE ESET EEEE EET EOE ESE TEESE ESTER EE ESHER ER EE EEESE

STATEMENT OF THE CASE AND PROCEEDINGS

This matter is before the North Dakota Department _

of Human Services upon the appeal of Robert Litoff from _

the determination of the Grand Forks County Child

Protection Team that services were required for the

protection of his daughter, Dorothy Litoff, upon a risk of

sexual abuse by him, which was adopted by the Regional

Supervisor of Child Welfare Programs upon review. (For

convenience, the North Dakota Department of Human

Services is referred to as "the Department;" Robert Lifoff is __ eis

sometimes referred to as "Litoff;" the Grand Forks County

Child Protection Team is sometimes referred to as "the

Team;" and the Regional Supervisor of Child Welfare

Programs is referred to as "the regional supervisor.")

The notice of the Team's decision given Litoff by the

Grand Forks County Social Service Center informed him

that "the Team determined a finding of Services Required

and identified Risk Factors of Sexual Abuse of your

daughter by you," R., Ex. 6, and advised him as follows:

Risk factors for sexual abuse were made on

the information that you engaged in sexual

activity on numerous occasions with your

daughter in the same room. Dorothy

appeared to be impacted by this*emotionally,

4la

stating that she was scared. There was also

concern that you made inappropriate

comments to her about her development;

specifically stating that her hips were wide

for her age and that her boobs have gotten

bigger.

Id. The services required by the Team included no

unsupervised contact between Lifoff and his daughter,

individual counseling for his daughter, and a psychological

evaluation of Litoff and an assessment for his treatment as a

sexual abuse offender.

Litoff responded to the Team's findings and

determination by categorically and unequivocally denying

that he engaged in any sexual activity in the presence of his

daughter, and that any comments he made concerning her

physical development were intended and _ reasonably

understood to remark upon the fact that his daughter was

"developing as an adult" without any improper innuendo.

Specifically, Litoff denied using the word "boobs" —saying

that he has never used that word, even in conversation

among men.

Pursuant to the request of the Department, I was

designated by the Office of Administrative Hearings the

administrative law judge to schedule and conduct the

hearing in accordance withthe rules of the Department, and

to recommend findings and an order to the executive

director of the Department. A hearing was scheduled to be

held March 6, 2002, and notice of hearing and specification

of issue was duly served as provided by the rules of the

Department and the North Dakota Administrative Agencies

Practice Act. The hearing was continued upon Litoff's

request with the consent of the Department. The hearing

was rescheduled pursuant to the agreement of the parties

and held May 22, 2002.

42a

The Department appeared by Andrew Moraghan,

Assistant Attorney General, Bismarck. Robert Litoff

appeared by Thomas V. Omdahl, Omdahl Law Office,

Grand Forks.

As a preliminary matter, Litoff moved to dismiss the

administrative proceedings upon the ground and for the

reason that the proceedings were preempted by the District

Court for the 285t* Judicial District in and for the County of

Bexar, Texas. By an order upon a motion for "clarification

and visitation" issued April 30, 2002, R., Ex. 1, the Texas

district court provided for Litoff's unsupervised visitation of

his daughter. While the order does not reference these

administrative proceedings, the court was informed

generally of these proceedings and specifically informed of

the determination that there be no unsupervised contact

between Litoff and his daughter, 1.e., no unsupervised

visitation (see R., Ex. 2, pp. 12, et seq.). Litoff argues that the

court's finding that it "has jurisdiction of this case and of all

parties and that no other court has continuing, exclusive

jurisdiction of this case" and its provision for Litoff's

unsupervised visitation of his daughter effectively preempts

these administrative proceedings, but offers no authority in

support of his argument. My general understanding of

executive branch board and agency administrative pro-

ceedings is that they are an exercise of the government's

police power separate and distinct from judicial branch

court orders. Cf Williams v. North Dakota State Highway

Commissioner, 417 N.W.2d 359 (N.D. 1987). The services

required by the Department upon the assessment of the

alleged abuse and neglect of a child are obtained from and

enforced by the juvenile court. The questions of jurisdiction,

preemption or comity, as the case may be, may arise then,

but not, I think, now for these administrative proceedings. It

is my understanding that the Department may, if it thinks

necessary, proceed with its administrative proceedings for

43a

the protection of a child or children under N.D.C.C. ch. 50-

25.1 regardless of the provisions of the orders of a court for

the custody and visitation of the child or children.

Accordingly, Litoff s motion to dismiss these administrative

proceedings is denied.

Having considered the evidence of the testimony of

the witnesses and the documents offered on behalf of the

Department and received, together with the argument of

counsel for the parties, I conclude that the determination of

the Team and the regional supervisor is correct in

accordance with law; but that it must be modified in

accordance with an assessment of risk factors for neglect

and to provide services appropriate for that assessment.

Upon the discussion following, I recommend the following

findings of fact, conclusions of law and order to the

executive director of the Department.

DISCUSSION OF THE EVIDENCE AND LAW

Hearings of appeals oof administrative

determinations concerning child abuse and neglect in

general, and this case in particular, merit a discussion of the

evidence and the law preliminary to the statements of the

findings based on the evidence and law.

Typically, an allegation of abuse and neglect of a

child invoiving sexual activity is founded upon the

statements and conduct of the child. In this case the

allegations are based almost entirely upon the statements of

the child. Sometimes the child's statements are corroborated

in one way or another by another child or other children,

and sometimes the sexual activity is evidenced by some

physical trauma. But often, as in this case, there is no

evidence of the alleged abuse or neglect other than the

statements of the child. Generally, for obvious reasons, the

child is not a witness for the administrative hearing of an

44a

appeal from a determination that services are required for

the protection of an abused and neglected child, and in this

case the child did not testify. As it was in this case, evidence

of the child's statements is typically offered by the testimony

of the child protection social worker who has interviewed

the child for the assessment of the report of suspected abuse

and neglect. Although the evidence is obviously hearsay, it

is admissible in accordance with the Department's rule, N.D.

Admin. Code § 75-03-18-11.

When, as in this case, the child's statements

evidencing the alleged abuse and neglect are categorically

denied by the person suspected of abusing and neglecting

the child, the question of whether the conduct alleged to

have occurred did in fact occur becomes a matter of

evaluating the credibility of the child who has made the

statements which are the bases of the alleged abusive

conduct vis a vis the credibility of the person who denies

acting as alleged. The circumstance commonly occurs in the

legal process, except that for an administrative hearing to

review a determination of child abuse and neglect when the

child does not testify the child's credibility must be

evaluated by proxy upon the evidence of the testimony of

the child protection social worker (or other person, such as a

law enforcement officer) who interviewed the child.

This case appears to be an extreme example of the

circumstance. There is no evidence of the alleged conduct

except the statements of the child. The conduct alleged by

the child is categorically denied by the person alleged to

have comunitted the acts, her father. (Although it is noted

that in addition to alleged conduct, there are also certain

statements alleged to have been made by the child's father

which were also determined to be bases for a finding of risk

of sexual abuse of the child. Those statements were not

categorically denied by the father, but were denied to have

been made as alleged. Regardless, the Department's witness

45a

acknowledges that a determination that services were

required for the protection of the child would not have been

made upon just the basis of the statements, and the essential

question for the review of the Team's determination remains

whether it is more likely than not that the conduct alleged

by the child occurred.)

In this case the child's credibility can be evaluated

only by evaluating the education, experience, and judgment

of the child protection social worker who interviewed the

child, and, insofar as the evidence allows, by inferences

based upon the conduct of the child and circumstances

attending the child's statements. (But, of course, even the

evidence of the conduct of the child and the circumstances

attending the child's statements is typically, and in this case

was, hearsay evidence offered by the child protection social

worker.) There is in this case, as is typical, no video

recording of the child's interview, not even an audio

recording. The investigation of allegations of sexual abuse,

~ even when based only upon the statements of the child,

does not typicaliy include a psychological consultation for

the consideration of either the truth of the stateme:::s made

or the trauma resulting to the child, and none was done in

this case. Doubtless because of the need to expedite the

assessment, there is little background investigation of the

family and social history of the child and the person alleged

to have abused or neglected the child.

Although the findings and conclusions of the child

protection social worker are also considered by the Team

and subject to a review by the regional supervisor, there is

little in the process which suggests a critical analysis and

review of the facts reported or the conclusions based upon

those facts. Both the Team and the regional supervisor (who

frequently is, and in this case was, chair of the Team), have

only the information which the child protection social

worker provides with her or his analysis of the risks of

46a

abuse and neglect. The child protection social worker comes

to the meeting of the Team with her or his conclusions and

opinion for any services required. That is not to imply that

the Team and the regional supervisor only rubber-stamp the

conclusions .f the social worker. But, obviously, in the

circumstances the child protection social worker is an

advocate for her or his findings and conclusions, and must

be expected to make her or his presentation accordingly.

In the end the question is not whether the child's

statements are credible, but whether the conclusions of the

child protection social worker who interviewed the child

and obtained the other information which was submitted to

the Team for its consideration are credible. The evaluation is

difficult at best considering that for both the accused and the

administrative law judge the child protection social worker

is the source of all information, and, having made the

conclusions which are reviewed upon the hearing of the

appeal, understandably presents the information to support

those conclusions. Although the regional supervisor

typically is, and in this case was, also a witness at the

hearing, she or he has no more information than the child

protection social worker has obtained and presented. Unless

something in the process of the assessment by the Team and

review by the regional supervisor or in the hearing of an

appeal prompts the child protection social worker to

reconsider her or his conclusions, it is unlikely that any

bases to question those conclusions will be found. When all

is said and done, the assessment of the risks of abuse and

neglect of a child and the determination of whether services

are required for the protection of the child are based upon

the conclusions of the child protection social worker

supported by the information that she or he has obtained

and presented. When there is no more than the statements

of the child against the denial of the accused, it is

disquieting that the process of fact-finding must be by

proxy. That is not to say that it is wrong or even inadequate

47a

for the administrative process for which it is employed. It is

to recognize the limitations of the process when, as here, the

assessment of risk of child abuse and neglect and a

determination of services required must be made

principally, if not entirely, upon the statements of the child

which are denied by the person who is accused of child

abuse and neglect, and the damning evidence of the

statements, demeanor and conduct of the child can only be

viewed through the eyes of the child protection social

worker who has investigated the allegations, and evaluated

in terms of the evaluation made by that same person. The

following findings of fact are made, and must be

considered, with these limitations in mind.

FINDINGS OF FACT

: Dorothy Litoff is the daughter of Robert

Litoff. On August 30, 2001, she was-13 years old. Dorothy's

mother and Litoff separated in 1989 and their marriage was

annulled in 1990. Since their separation they have been

unable to cooperate for Litoff s visitation of Dorothy except

pursuant to the orders of the court having jurisdiction of the

custody and visitation of the child.

7 a On August 31, 2001, Grand Forks County

Social Services (referred to as the County) received by

telephone a report of suspected child abuse and neglect

concerning Dorothy. A written report, received by the

County on September 4, 2001, was as follows:

Dorothy came to See around 1:00 pm

Friday. She was crying. She stated she did not

want to see her "real" father and that he was

coming this week-end. When I asked her to

tell me why she stated “He was bad this

summer and I don't want to see him." When I

pressed for more information, she said it was

48a

too hard to tell, but she could write it. (See

attached note.) This is in her own

handwriting.

R., Ex. 3. (N.D.C.C. § 50-25.1-11(4) provides that the identity

of persons reporting suspected child abuse and neglect is

protected, and exhibits are redacted to conceal information

which may identify a reporter.) The attached note follows:

almost every night when he thought I was

sleeping he masterbaited while looking at me

he kept on telling me how wide my hips have

gotten and how big my boobs are

Dorothy Litoff [her signature] August 31,

2001

R., Ex. 4.

3. Dorothy was interviewed for approximately

one hour on September 7, 2001, by Tammy Knudson, a child

protection social worker (a specially trained and certified

social worker qualified to work with cases of suspected

child abuse and neglect) and Renee Waters, representing the

Family Advocacy Office of the Grand Forks Air Force Base.

(Dorothy's stepfather was then serving in the United States

Air Force and stationed at that base. Grand Forks County

Social Service Center and the Air Force cooperate for the

investigation of reports of suspected child abuse and neglect

involving Air Force personnel or their dependents.) The

report of that interview provided by Ms. Knudson as part of

the Assessment Report is substantially the same as her

testimony at the hearing, and, in relevant part, summarizes

Dorothy's responses to questions about her father's conduct

when they traveled together during his visitation in June

and July 2001:

49a

She stated that when they stayed in motels

that they did have separate beds. She stated

that during the night he would play with

himself. In talking with her about

masturbating, and how she knew what he

was doing, she stated that she and her friend

talked about it; what it sounds like and how

people may touch them. She stated that he

would have his hands on his penis and his

"hands were shaking." She stated that he

thought he was sleeping and, one time

during this, he looked at her. She stated that

she would wake up and see this going on.

She stated that when he was done he would

get up and to the bathroom. She stated that

she never did see his penis, except one time

she saw its' outline through the sheet. She

stated that this started the last night in

Minneapolis, which was about 4-5 days into

the trip. She stated that it happened 20-25

times. She was scared, and in the morning

would be upset. She stated that she was

afraid that he would try to rape her. She

stated that he made inappropriate comments

to her about her hips being wide for her age

and her boobs getting bigger. She stated that

a dad is not supposed to make those

comments to his daughter.

R., Ex. 5, p. 5.

4. There is no evidence of the specific

statements or comments made by Litoff to this daughter

which are categorized as "inappropriate comments to her

_ about her hips being wide for her age and her boobs getting

bigger," nor is there any evidence of the circumstances in

50a

which the statements were made or the context of the

statements in the course of conversation between Litoff and

his daughter. While it was reported that Dorothy "stated

that a dad is not supposed to make those comments to his

daughter," there is no evidence showing, or from which it

may be reasonably inferred, that Litoff intended or that

Dorothy reasonably understood that the statements had an

improper and threatening sexual innuendo so as to cause

her to be scared and upset. Dorothy's comment that "a dad

is not supposed to make those comments to his daughter"

may as well reflect criticism and perhaps anger as fear and

emotional distress. And although it was further reported

that Dorothy "described that, on occasion, she was

uncomfortable when he would reach across her," id., there is

no evidence which would relate her being scared and upset

or uncomfortable to the alleged inappropriate comments

made by Litoff as separate from his conduct.

5: Ms. Knudson testified to describe Dorothy's

demeanor during the interview as quiet, sad, and

embarrassed. But she also recalls noting that Dorothy made

eye contact with her and focused on her questions during

the interview, and was not afraid to report what happened.

Ms. Knudson's training as a child protection social worker

includes techniques for interviewing children, including the

use of open-ended questions and otherwise avoiding the

suggestion of answers, and she testified that she employed

that training to interview Dorothy. Ms. Knudson's training

also includes indications that a child has been coached to

provide information (for example, using words not

appropriate for their age), and Dorothy's responses to the

questions she was asked showed no indication that she had

been coached to provide any information. Ms. Knudson

concluded that Dorothy's statements and her responses to

the questions she was asked were truthful.

5la

6. As further evidence that Dorothy was neither

coached nor otherwise acting in the interest of her mother to

frustrate her father's visitation or for any other purpose her

mother may have, Ms. Knutson testified that Dorothy's

mother professed to have no knowledge of Dorothy's

allegations of her father's conduct during his visitation, and

was reluctant to take any action which would restrict LitofFs

visitation contrary to the court order providing for his

visitation. i

7. Kate Kenna, the Regional Supervisor of Child

Welfare Programs, testified concerning the assessment made

by the Team. She served as chair of the Team for the

assessment of the risks of abuse and neglect of Dorothy,

whether services were required to protect Dorothy from any

risks of abuse and neglect found, and to determine what

services were required. Ms. Kenna testified first to explain

that, considering the Department's policies, the Team had

found risk factors for sexual abuse of Dorothy by Litoff, and

had determined, among other things, that Litoff should be

required to have a psychological evaluation and an

assessment for treatment as a sexual abuse offender, but

Dorothy was not an "abused child" who was suffering from

or had been subjected to any sex offense within the meaning

of N.D.C.C. § 50-25.1-02. Rather, she testified, Dorothy was a

"neglected child" within the meaning of N.D.C.C. § 50-25.1-

02(8), as a “deprived child" defined by N.D.C.C. ch. 27-20

who was

not getting what she needed in order to have

good moral, solid character development;

that she was getting the parental needs—or

from her parent, the needs that she had to do

well

52a

R., Tape 1, Side 2, Index 452. Further explaining, Ms. Kenna

testified that Dorothy was neglected within the meaning of

the statute

because of her need for a solid moral

development, her need for solid parenting,

consistency. She was telling the worker that

she was afraid, that she was uncomfortable,

that it didn't feel safe to her, that she was

worried about being raped. So, that's not a

good thing for a child, for her moral

development, to have those kinds of

concerns.

Id. at Index 470. Specifically, Ms. Kenna _ testified,

"masturbating in front of a child is not proper parental care

and control." Id.

8. Robert Litoff testified to categorically and

unequivocally denies that he masturbated in the presence of

his daughter during his visitation in June and July 2001.

“Absolutely not," he said. R., Tape 2, Side 1, Index 210. Litoff

testified further to explain that he did comment to his

daughter that she was "developing as an adult" and may

have said something about her hips becoming wider. R.,

Tape 2, Side 2, Index 115. But he expressly denied using the

word "boobs;" testifying that he has never used the word,

even in conversation among men. He testified further to

explain that he certainly did not intend to make any sexual

innuendo by his comments, but rather intended only to

communicate his notice that his daughter was growing up

and thought that she would be pleased that he noticed.

g. In considering the truth of Dorothy's

statements, there is little purpose to be served by

considering whether her statements are literally true.

Whether the conduct occurred almost every night or 20 to 25

53a

times, the essential allegation is that the conduct was both

repeated and frequent. The response is that the conduct

never occurred. The literal allegation is not so extreme that it

is obviously fabricated, and otherwise the literal accuracy is

not significant. Similarly, whether Litoff actually used the

word "boobs" in any statement made to Dorothy or whether

the word was Dorothy's slang term to describe her

recollection of her impression of some comment which her

father made concerning her developing as an adult is not

the question. The essential question is whether Litoff made

comments to Dorothy which she reasonably understood to

have some improper sexual innuendo and which troubled

and frightened her.

10. There is a long, complicated history of

hostility between Litoff and Dorothy's mother. Litoff

suspects, not unreasonably upon the evidence of record, and

speculates that Dorothy is motivated by her mother's

interests to frustrate his visitation and his efforts otherwise

to maintain his role as Dorothy's father. He also speculates

that Dorothy is both educated and influenced by what she

sees on television and by her peers, and that she has become

street-smart by her experience with her and mother's

previous involvement with the Texas Department of Human

Services concerning allegations of her mother's

maltreatment of her and allegations of his maltreatment or

abuse of her. |

There is some circumstantial evidence to support

Litoff s suspicion and speculations. The hostility between

Litoff and Dorothy's mother and her mother's repeated

failure to abide the orders of the court for Litoff s visitation

of Dorothy is evident from the various papers of the Texas

district court which have been received as exhibits. It is at

least curious that Dorothy's complaints about her father's

conduct come more than a year after the time of the alleged

conduct and on the eve of his visitation. There is an

54a

extensive history of investigations of alleged abuse and

neglect of Dorothy on separate occasions by both her mother

and father, albeit with little evidence of Dorothy's

involvement. But there is no evidence how, specitically,

Dorothy might have been influenced by anything she has

seen on television or by peers to make the allegations she

did about her father's conduct.

11. Considering Litoff’s suspicions and

speculation, there is insufficient evidence to support any

inference which would provide a reason for Dorothy's

allegations of her father's conduct other than her genuine

complaint and concern.

While there is circumstantial evidence that Dorothy's

mother can reasonably be expected to act to frustrate Litoff s

visitation of his daughter and, perhaps more significantly,

damage his standing as Dorothy's father, the inference is

precluded by the evidence that Dorothy's mother professed

to have no knowledge of Dorothy's complaint and was

reluctant to take any action to limit Litoff's_visitation

contrary to the provisions of the order of the Texas court. (I

recognize for my consideration the possibility that Dorothy's

mother may be so clever as to anticipate that a show of

ignorance and reluctance to act upon the information would

be considered as evidence of the truth of Dorothy's

allegations, but such duplicity is not evidenced in any of the

various legal proceedings had concerning Dorothy's custody

and LitofFs visitation, and was not argued by Litoff or his

counsel. A conclusion that there was such a clever and

complicated conspiracy of Dorothy and her mother to

frustrate Litoff's visitation and otherwise limit his rights and

privileges as Dorothy's father requires more than a theory

based upon a possibility.)

55a

While it is at least curious that Dorothy does not

complain about her father's conduct for more than a year,

and not until days before his next visitation, Ms. Knudson

testified that a child's reluctance to talk about a parent's

offensive and seemingly wrongful conduct is not unusual,

and it is not unexpected that she would not voice her

complaint and concern until faced with the likelihood of

another occurrence. While Ms. Knudson was not offered as

an expert witness, she has both special training and

significant experience concerning the behavior of abused

and neglected children which warrants the careful

consideration of her opinions. Her opinions in this regard

are not rebutted by any opinion of another equally or more

qualified witness or other evidence. In the circumstances,

my curiosity is no more than reason for inquiry.

Although there is a history of multiple investigations

by the Texas Department of Human Services of alleged

abuse and neglect of Dorothy on separate occasions by both

her mother and father, and reason therefore to suspect that

she may be sufficiently informed of the process to

manipulate the system (as Litoff says, to have become

"street-smart"), the evidence of record does not support that

conclusion for at least two important reasons. First, there is

no evidence of Dorothy's intent or purpose to manipulate

the system to avoid her father's visitation or otherwise

impugn his role as a father. Litoff testified that his daughter

did not previously protest his visitation. There is no

evidence that she has acted in other ways to avoid his

visitation. (I have in mind Litoffs testimony that Dorothy's

mother and stepfather are "driving forces" for her action,

but, as previously discussed, there is, at best, only

circumstantial evidence insufficient to support an inference

of that fact. The question presented by the argument that

Dorothy has manipulated the system for her purposes is

whether she herself has any reason and the capability to do

that.) Second, reviewing the records of the Texas

56a

Department of Human _ Services concerning its

investigations of allegations of abuse and neglect of

Dorothy, there is little evidence of Dorothy's involvement

which would support an inference that she is capable of

conceiving and executing a plan to make a false report of

her father's improper conduct for an ulterior purpose. There

is no suggestion in any of the records of the investigations of

the Texas Department of Human Services that Dorothy

offered any false or doubtful information concerning either

her mother or her father. There is no evidence of record that

Dorothy has a reputation for attempting to have her way by

means of deceiving and manipulating others.

12. _ It is not insignificant that Litoff has a good

reputation. He categorically denies any history of conduct to

suggest that he would act in violation of law or contrary to

generally accepted moral standards. His denials stand

unimpeached. Although there have been previous

allegations that he abused his daughter which were

investigated by the Texas Department of Human Services,

the investigations were closed because the information

"doesn't appear to involve abuse, neglect or risk," R., Ex. 11,

p. 5, and because the allegations were "too vague or

general," R., Ex. 12, p.6. Having in mind that Dorothy's

allegations are that her father "masturbated ... when he

thought I was sleeping ...," the allegations do not involve

conduct in violation of any law or even contrary to generally

accepted moral standards. (While Ms. Kenna's testimony

may be taken to imply that Litoff s alleged conduct was an

example of immoral conduct which Dorothy might either

accept or emulate in derogation of her morals, that cannot

reasonably be understood to be her opinion.) Rather, if

Dorothy's allegations are considered to be true, Litoff

believed that his daughter was asleep and unaware of his

mas‘urbation, and he therefore neither willfully conducted

himself to involve his daughter for his sexual pleasure nor

willfully acted to corrupt his daughter's morals. Rather, by

57a .

carelessness and neglect of his daughter's interests he has

allegedly engaged in conduct which both troubles and

frightens her. There is no evidence to even suggest that he

acted willfully to risk harm of his daughter in any way. That

conclusion is further supported by his reputation. But his

reputation does not evidence an absence of carelessness or

negligence in the course of otherwise ordinary conduct.

13. _ Litoff's counsel aggressively interrogated Ms.

Knudson, the child protection social worker who

investigated the statements reportedly made by Dorothy.

Her responses are critically considered for her credibility,

having in mind that, as a practical matter, she is proxy for

Dorothy and Dorothy's credibility can be determined only

upon an evaluation of her credibility. It is at least arguable

that Ms. Knudson might have done more to inquire

concerning the social and family history of Dorothy, her

mother and stepfather, that the history and circumstances of

allegations of abuse and neglect made by Dorothy and her

mother against Litoff might have been investigated and

evaluated for any relevance to Dorothy's statements at issue

in this matter, and that the investigation would have

benefited by consultation with a psychologist. But accepting

the argument that more might have been done, there is no

evidence that any further investigation and study would

have even suggested a different conclusion by Ms. Knudson,

the Team, or the regional supervisor, Ms. Kenna, who

makes the final decision upon a review of the Team's

determination. Upon each challenge whether facts which

would have been disclosed by any further investigation and

study would have changed a conclusion made for the

assessment and determination, Ms. Knudson and Ms. Kenna

each answered "no" and offered cogent reasons why they

would not come to a different conclusion. Upon the

evidence of record and with careful consideration of the

argument of Litoff s counsel, there is no reason to disagree.

Whether upon the scope of the investigation. of the report of

58a

suspected child abuse and neglect by Ms. Knudson or the

assessment of the Team and Ms. Kenna, both considered in

the light of me policies and procedures of the Department

for an assessment of a report of suspected child abuse and

neglect as provided by its Manual, there is no reason to

reject the conclusions that Dorothy was truthful in making

the statements she initially made concerning her father's

conduct and in her responses to the questions asked her by

Ms. Knudson and Ms. Waters in the course of her interview

by them.

Ms. Knudson is educated and licensed as a social

worker, and is specially trained and qualified as a child

protection social worker. She has approximately four years’

experience as a child protection social worker. She processes

ten to twelve reports of suspected child abuse and neglect

each month. Her education, training, and experience were

not challenged, and her testimony reflected her

qualifications and suggested no reason to question her

evaluation.

CONCLUSIONS OF LAW

1. A "neglected child" means a "deprived child

as defined in N.D.C.C. ch. 27-20. N.D.C.C. § 50-25.1-02. As

relevant to this matter, a "deprived child" means a child who

is without proper parental care necessary for the child's

mental, or emotional health, or morals, and the child's

deprivation is not due primarily to the lack of financial

means of the child's parents. N.D.C.C. § 27-20-02(8)(a).

2 There is no requirement of law that conduct

resulting in the absence of proper parental care or conduct

which constitutes improper parental care be willful. The

absence of proper parental care or improper parental care,

as the case may be, may be a consequence of neglect to act as

59a

necessary to provide the proper parental care necessary for

the child's mental or emotional health or morals.

3. The conclusions of the child protection social

worker that Dorothy Litoff was truthful in making the

statements she initially made concerning her father's

conduct and in her responses to the questions asked her in

the course of her subsequent interview concerning her

statements, based upon the education, training and

experience of the social worker and the findings of her

investigation, are supported by the greater weight of the

evidence.

4. The evidence of record shows that the

investigation of the report of suspected abuse or neglect of

Dorothy Litoff by Robert Litoff and the assessment of the

findings of the in-vestigation were made in compliance with

the procedures of the North Dakota Department of Human

Services as provided by its Manual, Service Chapter 640,

excepting only that the policies of the Department were

erroneously applied for the assessment identifying risk

factors of sexual abuse of Dorothy Litoff by her father

Robert Li toff.

$. The greater weight of the evidence shows that

Robert Litoff negligently exposed his daughter to his

masturbation by failing to act reasonably to protect against

her observing such conduct, and thereby caused her to be

both troubled and frightened by his conduct.

6. In the circumstances of observing her father's

masturbation and being troubled and frightened as a result,

Dorothy Litoff was without proper parental care necessary

for her mental or emotional health, and was thereby a

“deprived child" within the meaning of N.D.C.C. § 27-20-

02(8)(a) and a "neglected child" within the meaning of

N.D.C.C. § 50-25.1-02(8). The deprivation of proper parental

60a

care for Dorothy's mental or emotional health is not,

obviously, due primarily to the lack of financial means of

her father.

YA There is insufficient evidence to establish that

Robert Litoff made inappropriate comments to his daughter

about her hips being wide for her age and her breasts

getting bigger which were willfully made by him or

"reasonably understood by his daughter to have any im-

proper sexual innuendo so that his daughter was troubled

or frightened and thereby for those reasons without proper

parental care for her mental or emotional health or morals

within the intent and purposes of N.D.C.C. § 27-20-02(8)(a)

and the requirement of N.D.C.C. § 50-25.1-02(8).

8. The determination of the Grand Forks County

Child Protection Team and the regional supervisor that

services are required for the protection of Dorothy Litoff is

correct in accordance with law; but not, however, upon the

assessment made, but rather upon an assessment that

Robert Litoff negligently exposed his daughter Dorothy |

Litoff to his masturbation by failing to act reasonably to

protect against her observing such conduct, thereby causing

her to be both troubled and frightened by his conduct, and

therefore Dorothy Litoff was without proper parental care

necessary for her mental or emotional health, and was a

neglected child within the meaning of N.D.C.C. § 50-25.1-

02(8).

9. The determination of the Grand Forks

County Child Protection Team and the regional supervisor

that services were required for the protection of Dorothy

Litoff should be affirmed, but modified in accordance with

an assessment of risk factors for neglect and to provide_

services appropriate for that assessment.

6la

ORDER

The determination of the Grand Forks County Child

Protection Team and the regional supervisor that services

are required for the protection of Dorothy Litoff shall be

affirmed, but the matter shall be returned to the regional

supervisor for further assessment and modification in

accordance with an assessment of risk factors for neglect

and for a determination of services required in accordance

with the assessment. The information maintained for the

Child Abuse and Neglect Information Index concerning

Robert Litoff shall be modified accordingly.

Dated at Bismarck, North Dakota this 12 day of

July, 2002.

/s/ Al Wahl

Al Wahl, Administrative Law Judge

_ Office of Administrative Hearings

1707 North 9th Street

Bismarck, North Dakota 58501-1882

Telephone: (701) 328-3260

62a

STATE OF NORTH DAKOTA

DEPARTMENT OF HUMAN SERVICES

APPEAL OF:

)

Robert Litoff ) : ORDER

POP SOE REESE EEE SESE SESS OST SESS SE SEEEESEERSEOE OOO SESOSESERSESESSEEEEE ESOS OOS ESE ESSE SE SESESSOSEESESESEEEESEESESESEEES

The evidence of record has been considered and

appraised. The administrative law judge's recommended

findings are adopted.

The determination of the Grand Forks County Child

Protection Team and the regional supervisor that services

are required for the protection of Dorothy Litoff shall be,

and hereby is, affirmed; but the matter shall be returned to

the regional supervisor for funher assessment and

modification in accordance with an assessment of risk

factors for neglect and for consideration of services required

in accordance with the assessment. The information

maintained for the Child Abuse and Neglect Information

Index concerning Robert Litoff shall be modified

accordingly.

Dated at Bismarck, North Dakota this day of

July, 2002.

Carol K. Olson

Executive Director

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IN DISTRICT COURT, GRAND FORKS COUNTY,

NORTH DAKOTA

Robert Stanley Litoff,

Plaintiff,

vs CIVIL NO. 18-02-C1352

APPEAL TRANSCRIPT

Helen Pinter,

Defendant.

BEFORE: Honorable Bruce E. Bohlman

District Judge

Grand Forks County Courthouse

Grand Forks, North Dakota

January 16 and 17, 2003

APPEARANCES:

FOR THE PLAINTIFF:

Thomas V. Omdahl

Attorney at Law

424 DeMers Avenue

Grand Forks, North Dakota 58201

FOR THE DEFENDANT:

Patti J. Jensen

Attorney at Law

P. 0. Box 386

East Grand Forks, MN 56721

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[**5]DR. DINA TREVINO,

a witness called on behalf of the Plaintiff, having been first

duly sworn by the Court, was examined, and testified, as

follcws:

DIRECT EXAMINATION BY MR. OMDAHL:

Q Dr. Trevino, can you hear me?

A Yes, I can.

Q Dr. Trevino, I understand you did perform a

psychological evaluation on Mr. Robert Stanley Litoff?

A Yes, I did.

Q I'm going to ask you a couple questions about

your background. I understand you're a _ licensed

psychologist?

A Yes, sir.

Q What is your education?

A I received a bachelor's degree in psychology in

1977 from the University of Texas in Austin. My master's

degree in 1981 also from the University of Texas in Austin

and my Ph.D. in psychology from the University of Texas at

Austin in 1987. I did an internship at Southwest Medical

School in Dallas, Texas in 1986 and as a psychologist I'm

licensed in the State of Texas only.

Q What is your current position at this time?

A I'm in private practice in San Antonio, Texas. I

have been here for the last ten years in private practice

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[(**6]primary involved in doing assessment and therapy with

children, adolescents and adults involved in litigation. I do

quite a bit of work with custody cases in Texas. I serve as a

Guardian ad Litem on occasion in Texas for Bexar County

and other counties.

Q How is it Mr. Litoff came to you for an

evaluation?

A_ I'm not quite sure how he got my name, Mr.

Omdahl. He called the office and said he needed a

psychological evaluation and subsequently brought the

court order.

OQ You do evaluations for the Court in San Antonio?

A In Bexar County.

Q And Dr. Trevino, do you know a Judge Peeples in

San Antonio?

A Yes.

. Q Were you aware that he had issued an order that

Mr. Litoff have a psychological evaluation?

A That was the order. The order was signed by

Judge Peeples.

Q You performed that evaluation; is that correct?

A Yes.

Q When did you do that?

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A I did the evaluation and I met with Litoff on 11-14

and 12-30 I had him come in and complete paper and

[**7] pencil testing.

Q And you also issued a written psychological

. evaluation; is that correct?

A On January 10th.

Q I have that in front of me. Do you have that? You

have referred to that you performed certain tests on Mr.

Lithoff is that correct?

A Yes, sir.

Q And you also received certain data that is listed?

A Yes, sir.

Q And you understand the purpose of this hearing

today it to look at the issue of visitation with Mr. Litoff and

his 14-year-old daughter Dorothy?

A Yes, sir.

Q What we're looking at is Mr. Litoff's psychological

functioning as it would relate to his ability for visitation

with Dorothy.

I would like to have you comment on your opinion

from our evaluation on whether Mr. Litoff should have

restricted visitation?

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MS. JENSEN: I'm sorry. My name is Patti Jensen.

I'm the other lawyer in this case; and, Your Honor, [**8]I

have an objection. First, to testimony off a record that is not

yet marked, offered, and admitted into evidence. And then

as to the question Mr. Omdahl just asked, I have an

objection. I don't think there is any foundation for this

doctor to testify as to opinions regarding visitation when the

total involvement that she has had is to evaluate one of the

parties involved in litigation,

First, we need to mark the evaluation.

THE COURT: Do you have one to mark?

MR. OMDAHL: I think it has been put in the file. It

has been filed with the Court.

Is that an extra copy?

THE COURT: I'll have one marked.

(Marked for Identification Plaintiff's Exhibit No. 3

by the Court Reporter)

MR. OMDAHL: I will offer Plaintiff's Exhibit No. 3.

THE COURT: Any objection.

MS. JENSEN: No objection.

THE COURT: Received.

Q (Continuing Mr. Omdahl) Dr. Trevino, I'm going

to ask you a little about what you thought the purpose of

your psychological evaluation was? This is Mr. Omdahl.

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[*9]A Yes, Mr. Omdahl, the purpose of my

evaluation was to assess whether this individual suffered

from any mental illness that would be of concern.

A Well, concern for visitation with his daughter,

supervised or unsupervised.

Q And what was your conclusions?

MS. JENSEN: This is Ms. Jensen. I have an

objection. We're on a speaker phone. I'm not so sure you

can pick up this up.

I have the same objection. I would ask that I be

allowed to ask the doctor some questions with respect to

that objection.

THE COURT: All right. Very well. Dr. Trevino,

there will be a few questions concerning the last questions

asked by Mr. Omdahl. These questions will be asked by Ms.

Jensen.

EXAMINATION BY MS. JENSEN:

Q Do I take it that you're involved recently in a

forensic setting where you're doing evaluations in

conjunction with litigation?

A Yes, Ma'am.

Q Have you ever met Mr. Litoff's daughter

Dorothy?

A No.

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Q Have you ever seen any psychological testing or

[**10]any information with respect to Dorothy?

A No.

Q Have you ever met my client, Dorothy's mother,

Ma'am, Helen Pinter? Have you ever met her?

A No. Ihave --

MS. JENSEN: First off,

THE COURT: You'll have to slow down and not

speak quite so fast.

THE WITNESS: Yes.

THE COURT: So we can pick up what you're saying

here that would help a lot. ~

Could you start that answer over again?

Q (Continuing Ms. Jensen) Do you remember my

question.

A Yes, Ma'am.

Q I was asking whether you ever had any contact or

had any information with respect to Dorothy's mother,

Helen Pinter?

A Yes, Ma'am. No, I have-not.

Q Would it be a fair statement, Ma'am, that the.

contact you have had with respect to this case is the

psychological evaluation you performed on Mr. Litoff which

we now have marked and admitted as Exhibit No. 3?

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A Yes.

MS. JENSEN: Your Honor, I would object. I

[**11]don't think this witness has sufficient information. I

don't think it would be appropriate for a psychological

professional to be commenting or making recommendation

to a court relative to visitation when there had been no

evaluation, no review of records, and no contact with other

parties.

THE COURT: I think the purpose of the evaluation

is clear in my mind that she was retained to do an

evaluation to determine if there were any psychological or

perhaps even psychiatric disorders which would affect Mr.

Litoff's ability to exercise visitation; and, I think, that was

the purpose of your examination, is that correct, Dr.

Trevino?

THE WITNESS: Yes, Your Honor, but my ability to

make opinions or recommendations as the opposing counsel

suggested, my purpose for judging people the way I

understand the evaluation was certainly that this report

would be used to make an assessment about his ability to

exercise visitation but I could make no recommendation

about that. What | can talk about is this individual's

personality functioning whether he has any severe mental

illness and what the prognosis is. What the expected

behaviors are with this kind of mental illness, if he has one,

and then it would be for the court to decide.

THE COURT: Yes, all right. I will overrule [**12]the

objection with that understanding and limitation upon the

scope of the testimony.

—

You may proceed, Mr. Omdahl.

MR. OMDAHL; Thank you, Your Honor.

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Q (Continuing Mr. Omdahl) Dr. Trevino, is it

correct you reviewed an Order for Clarification and

Visitation dated March 3, 2002?

A Yes, sir, I did.

Q You also indicated on your report you reviewed a

Temporary Order on Motion for Enforcement on Order to

Modify Parent-Child Relationship dated July 18, 2002?

A Yes.

on October 15th?

A Yes, sir.

Q You also reviewed an intake report from Child

Protective Services, Helen Pinter?

A Yes.

Q And there was another intake you also reviewed?

A Yes, sir.

QO And a letter dated October 15, 2001 from Mike

Haley addressed To Whom It May Concern. What was

that?

A I believe Mike Haley was an attorney of some sort

or consultant, if I recall, who was making an Affidavit, I

think, that said that the reason that Mr. Lithoff and the

[**13]child Dorothy was that he had suggested it in order

that they save money or something.

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Q And you reviewed the academic record of

Dorothy?

A Well, you know, if I may, Mr. Litoff presented me

with a significant amount of data that he wanted me to

review and I looked at some of that and I looked at the part

that I thought was relevant. However, as I realized the

extent of the material that he wanted me to review, I had to

make it clear to Mr. Litoff that I was not there to render an

opinion. I could not make a decision whether Dorothy or

Mrs. Pinter based on material he presented me and we

actually had to cancel one appointment because he had a

difficult time understanding that all I was to do was to doa

psychological assessment to see if he was -- and I'm trying to

think of the word I used when I talked to him -- coherent.

And, I think, I wrote in my report that he and I had a little

discussion about the meaning and definition and ability to

assess coherent but that was the limit of my assessment.

Yes, I feel, he realized the extent of everything that

he wanted and say it was not going to be useful for Mr.

Q And that is included in a letter from Social

Services dated October 11th, Grand Forks County Social

Services?

[**14]A Yes. Most of that once again was not useful

to me; but, yes, it was there.

Q In your testing of Mr. Lithoff, what were your

conclusions as to his psychological condition? _

A Well, I have some concerns initially about Mr.

Lithoff that, I think, that the request that Judge Peeples had

for the order for testing was quite appropriate because this

individual presented in a way that was knocking heads. He

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presented in a way that concerned me. In the testing there

was not any acute disturbance of his thinking. The man

based on informal assessment of intelligence, appears to be

quite bright; perhaps, super intellectual functioning. There

was not an acute psychological disturbance.

What I mean by that, he did not lose touch with

reality. He was not delusional. He was able, as most people

are, to look at the world and recognize it for the way it is

and to make reasonable assumptions about himself and

about others.

The part that I was concerned about is that this is an

individual whose diagnosis is likeiy to be a person to have a

personality disorder. And I don't know how familiar the

Court is with personality disorders but what that means is

just a characteristic style of functioning in the world that

because that is associates or leads to occupational and social

environmental problems. That he deems the particular

[**15]personality disorder suggests an individual meaning

you can still comport and have difficulty in dealing with

emotions with interpersonal situations. Quite awkward

socially, very isolated, lack of reciprocal, lack of actual social

support system.

I had some concerns about paranoia; Now the

paranoia I need to clarify is not that I saw him as paranoid

because I did not see a clinical evaluation in terms of his

functioning that he was thinking people were out to get him

but what I mean some paranoia sub-clinical paranoia. What

I mean by the paranoia is that when he's more stressed or

when there is -- when there is increased paranoia with

increased stress in the environment, he may come and feel

like people are doing it to him. It's difficult for me to say if

that paranoia is part of his characteristic personality because

litigation, particularly custody, I gather does raise peoples

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paranoia feeling that people are after him. He does feel as

though there is someone trying to hurt him.

In this case I feel he feels that way towards the court

system and Mrs. Pinter. The part of his personality that I do

think are of concern is that he's fairly narcissistic and what I

mean by that is that he is somewhat focussed on his own

needs, lacking empathy. He is what people maybe used to

say eccentric. Somewhat different in his view of the world

but there is not evidence of a [**16]thought disorder and

there is no evidence that he's violent, aggressive, psychotic

or acutely mentally ill.

I need to clarify that psychological testing cannot

guarantee or predict violence but this is an individual with

the best predictor of violence and aggressive behavior and

based on the little I know about this individual and based

on his testing, he seems to be much more into

intellectualizing, arguing, angry verbally than physically but

I do think even those personality disorders do not typically

respond to or take psychotropic medication that the

psychiatric counseling would be appropriate.

Q Dr. Trevino, in your opinion after evaluating Mr.

Litoff, does he pose a danger to his child, Dorothy?

MS. JENSEN: I have the same objection, Your

Honor. I don't think there is any foundation for this

testimony. Her knowledge is limited. She's indicated she's

testifying only with respect to a limited psychological

evaluation. I don't think there is any foundation.

THE COURT: Overruled. You may answer the

question.

THE WITNESS: I cannot answer in terms of specific

people but I can say based on his assessment the criteria -- is

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this individual a danger to himself or others is not met. And

in Texas that is the criteria that we use. [**17]Is he a danger

to himself or others? I do not see that.

MR. OMDAHL: [have no further questions.

THE COURT: You may cross-examine, Ms. Jensen.

CROSS-EXAMINATION BY MS. JENSEN:

Q Doctor, can you hear me? This is Patti Jensen. I'm ~

Mrs. Pinter's attorney.

A Yes, Ms. Jensen, I can hear you fine.

Q Mr. Litoff was self-referred; is that what you're

saying?

A Well, I know that Judge Peeples wrote my name

in the order. How Mr. Litoff got my name, I don't know. It

may have been Judge Peeples or it may have been Judy

Wemmert who is another attorney in San Antonio. I don't

know.

Q You have already indicated that your contact in

this case has been very limited; is that correct?

A That's correct.

Q You're not here making any recommendation

with respect to visitation for Dorothy with her father?

A No, Ma'am. I'm here to clarify his mental

condition.

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Q And when you said just now that you did not find

that Mr. Litoff was a danger to himself or others and that

was the criteria used in Texas

A Imminent danger to himself or others.

{**18]Q That's our criteria here in North Dakota for

commitment proceedings, mental health proceedings, is that

-what you're referring to?

A Yes, Ma'am.

Q And that's nothing whatsoever with what maybe -

MR. OMDAHL: Objection. She's telling the witness

and asking questions.

THE COURT: Overruled. Finish the question, first

of all.

Q (Continuing Ms. Jensen) Doctor, my question, the

commitment standard as to whether someone needs to be

voluntarily put in a hospital to protect themselves or to

protect others from them. Knowing that you're a forensic

psychologist, in your opinion, that has nothing to do with

the standard relative to establishing what is best for a child

for visitation rights?

A Two points, Ms. Jensen. One, I'm not a forensic

psychologist. I'm not diplomatic. I'm a psychologist. I do

quite a bit of forensic work, but secondly you're right the

only basis I can think of to clarify his testing because that's

really all I have done. I can't say anything in terms of his

visitation with his daughter or the child's best interest. |

don't know her.

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Q Thank you. Ma'am. You said in your testimony

when Mr. Omdahl was questioning you that Mr. Litoff

presented [**19]in a way that concerned me?

A Yes, Ma'am.

Q If I wrote that down correct, could you outline for

Judge Bohlman, please, what caused you concern when you

first met him?

A This is an individual who was unkept. Looking

as though he has slept in his clothes. I don't mean to be

offensive but on one occasion I saw him he looked as though

he had not bathed for several days.

On another occasion after he was agitated, he had a

difficult time understanding the purpose of the assessment

and was somewhat alarming to other patients.

Q You recommended, Doctor, I'm looking -- (Pause)

I'm back. Doctor, this is Patti Jensen, can you hear me?

A Yes, Ma'am.

Q I forgot where I was. | think I was asking you to

maybe elaborate on your statement that Mr. Litoff's

presentation concerned you?

A Yes.

Q Do you have any other comment?

A No, I finished.

Q Now, I'm looking at Exhibit 3 which is your

report and you have talked a little bit about the narcissistic

diagnosis that you made?

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[**20]A Yes, I did.

Q And you talked about the avoidant diagnosis that

you made?

A Yes.

Q But your report also indicates that he has

schizotypal features?

A That's correct.

Q For the Court Reporter, could you please go a

little slower. What does that mean?

A Schizotypal is an individual who presents with

some behavior difficulties and some eccentric kind of

orientation to the world.

Q You also and I'm looking at the bottom of the

page that had your diagnostic impression on it, where you

have a sentence that indicated his isolation and lack of

reciprocal interpersonal relationships is a concern,

particularly if his interaction with Dorothy becomes

conflicted?

A Yes, Ma‘am.

Q Did you find the sentence I was referring to?

A Yes, Ma'am.

Q Can you elaborate on that a little bit as to why

that would concern you especially with a 14-year-old girl?

A Ican't. I really -- I don't think I can make much of

a statement about a 14-year-old girl. I don't know [**21]her

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at all. What I said particularly if his interactions for any

contact anyway. Is that what you're saying? What that

would concern me is that if he has his point of view in mind

and doesn't open himself to and becomes argumentative or

stubborn or does not understand other people's point of

view and you have what sounds like a timid adolescent,

who is not assertive or able to stand up or any individual,

for example, becomes overwhelmed and timid and then this

would be a problem in having that person alone if there is

no one that person can call to help or have backing on their

side.

Q Doctor, you indicated or you used a secretary as

an example, did Mr. Litoff do something intimidating with

your secretary?

A No but she was intimidated by his agitation and

she was concerned.

psychiatric consultation, is that correct?

A Yes.

Q Based on my testing of this individual, Ma'am,

you believe that further consultation with a professional

would be helpful; is that correct?

A I think it might be helpful.

Q Ma'am, do you know whether or not Mr. Litoff

has had a psychiatric consultation?

A I don't know that.

[**22]}Q And is this a recommendation that you

relate to him?

A No, Ma'am.

Q But he would have had that recommendation by

virtue of the report that is now Exhibit 3, correct?

A Yes, Ma'am.

Q Could you elaborate to Judge Bohlman why you

think a psychiatric evaluation would be helpful to this

gentleman?

A That might help him somewhat. There also is

some depression and also some agitation and isolation and

sometimes with a personality disorder that can help

somewhat

MS. JENSEN: I think I'm done, Doctor.

Q (Continuing Ms. Jensen) Do you know if he's

under the care of any medical doctor at this time?

A lLhave no idea.

Q Do you know if he has any prescriptions for any

medication at this time?

A Ihave no idea.

MS. JENSEN: Thank you. I'm finished.

THE COURT: Mr. Omdahl, do you have anything

else?

MR. OMDAHL: [ have no further questions.

THE COURT: Dr. Trevino, I think, that's all then for

your testimony. We thank you for attending and

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[**41](Marked for Identification Defendant's

Exhibit 4 by the Court Reporter)

THE COURT: Dr. Simun, would you please come

forward and be sworn as a witness.

ANN E. SIMUN,

a witness called on behalf of the Defendant, having been

first duly sworn by the Court, was examined, and testified,

as follows:

DIRECT EXAMINATION BY MS. JENSEN:

Q Would you state your name?

A Ann Eugenia Simun. )

Q What is your professional address?

A 2808 - 17th Avenue South, Grand Forks, North

Dakota 58201.

Q_ That's an office that houses Lipp, Carlson,

Lornmen and Witucki, Psychologists, correct?

A That's correct.

Q Including yourself; is that correct?

A Yes.

Q Are you a licensed psychologist licensed in the

State of North Dakota?

A Yes.

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Q I have in front of me, Dr. Simun, what is marked

as Defendant's Exhibit 4, and that includes your curriculum

vitae as well as correspondence and a report relative to

[**42]Dorothy Litoff in this case. Taking a look at the first

couple of pages is that something that would help Judge

Bohiman understand your credentials and your educational

work experience? Rather than recite for us your education,

is that curriculum vitae complete and would that help Judge

Bohlman understand your credentials?

A Yes.

Q Do you know Dorothy Litoff?

A Yes.

Q When did you first meet Dorothy?

A Dorothy came in initially on June 3 of 2002 to my

office at Lipp, Carlson. I met the mother and the daughter

on the same day.

_Q _ Was there anyone else that you remember.

Doctor, with Helen and Dorothy when they came in?

A The siblings were also there.

Q Helen has two younger children; is that correct?

A Yes.

Q How did you come to meet her? Could you tell—

the Court how the referral was made.

A Yes. Dorothy's mother Helen brought her into my

office and had called up the office a few days before and

asked for an early appointment. At that phone call she

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indicated that she had been referred to get Dorothy

individual counseling under the recommendation of the

Grand [**43]Forks County Social Services.

Q What information other than that did you have

prior to actually physically seeing Dorothy?

A That's about it. We knew that they had insurance

under Tri-Care. We knew their addresses and the reason for

the referral. That's all we have before they come down.

Q Dr. Simun, there are volumes of papers in various

states involving litigation with Dorothy's visitation with her

father, you did not have any of that documentation before

you began?

A No, I did not know much about that. Even at the

first visit, the first visit was concentrated on getting a

history.

Q How did Dorothy present herself to you?

A She was very reticent. A lot of adolescents are

that way when they first come in but she was more'reticent

than most. She's almost shy, very quiet. I noticed that her

behavior with me in the office was markedly different from

her behavior in the waiting room with siblings.

hoping I have these in order. There is a copy of a June 25 or

maybe June 6th, let's look here. There is a copy of some

letters that were provided to the Court in Texas, correct?

[**44]A Yes.

Q You were asked to have some input in a

proceeding that was going on in San Antonio, Texas.

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A Actually, I was asked to testify and it was simply

not possible. So in lieu of testimony, I created a summary

for the Court.

Q And the documents are included in Exhibit 4? Do

you have your copy of that? |

A I brought that here.

MS. JENSEN: We would offer No. 4, Your Honor.

_ MR.OMDARL: No objection.

THE COURT: Defendant's Exhibit No. 4 is received.

Q (Continuing Ms. Jensen) The first document I

have, Dr Simun, is a letter of June 25, 2002 and that is a letter

that you wrote to the District Court in Bexar County, San

Antonio, Texas?

A Yes, I have it here.

Q Could you tell the Court how many visits you had

with Dorothy between June 3 when you first saw her and

June 25th when you provided some input to the Court?

A It would have been three if I'm not mistaken. I

think she came in every week between the 3rd and the 25th.

So, it would have been three visits.

Q Did you do any written testing in those first

[**45]three or four visits with Dorothy?

A It wasn't necessary. She was very open at the first

visit and willing to talk. It wasn't necessary to do any

formalized testing.

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Q Was there a point at which you did a formal

psychological evaluation?

A I did a formal psychological evaluation the first

visit. I did not include testing. That's typical with

adolescents.

Q Let's go back to where I interrupted you, you said

Dorothy's behavior was remarkably different in your office

than she was with her siblings, could you explain that to the

Court a little bit.

A She seemed somewhat reticent to talk to me, to

talk to me about personal things. She was almost

monosynaptic in her response. She would nod. She would

rarely look at me. She would be looking at the floor

frequently with eyes closed.

When I saw her up in the waiting room with her

siblings and engaging them in play, she was a little more

relaxed and she had more physical expressions. And as her

treatment progressed, she has related a lot better to me.

Initially, she did not want to be there was my impression.

Q So, from June 3rd then o; 2002 until today have

you had an ongoing therapeutic relationship with Dorothy?

{**46]A Yes, I have.

Q And in the beginning I understand it was every

week.

A Initially, we tried every week and then as she

showed improvement, we went to less frequent sessions of

once every two or three weeks.

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Q Can you tell the Court about when that

happened?

A_I think it was in October that we went to less

frequent sessions. She was doing much better. I didn't

bring all of the dates of the visits unfortunately. I'm going

to have to see.

Q Would it be your best recollection, Doctor, from

June to October the weekly sessions were necessary and

after that you saw behavioral improvement?

A Yes. Yes. She seemed to be functioning better.

She was much less tearful in session. She could describe

stressful events without being overly anxious or tearful. She

seems to be adjusting better. She was having fewer troubles

with her social functioning at school.

Q All right. Did she discuss with you her

relationship and her visitation with her father?

A Yes, she did.

Q Did she do that at the first session?

A A little bit. She was somewhat reticent to talk

about it.

[**47]Q Define what you mean by reticent?

A It's like unwilling. A fear based on unwillingness.

Q Do you recall whether she did visit with you in

that first session regarding her father?

A She was able to tell me that she didn't want to go

on visits; but that she was being made to go. And when |

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asked her who was making her, she said that her parents

were making her go. Her parents Helen and her husband

but that she understood that they were telling her it was

because she was required to go by the court. She knew that

but she still felt like it was her mother making her go.

Q Can you tell us about how long it took for you to

establish some trust and rapport with Dorothy so she was

more able to visit?

A Probably two or three visits. She started opening

up more about the third visit.

Q Was there ever a point, Dr. Simun, where Dorothy

made disclosure to you in a therapeutic setting where you

felt it was required of you to make a report to the Grand

Forks County Social Service Agency as a result of those

disclosures?

A Yes, I did.

Q And can you tell the Court when you got to the

point as a mandatory reporter that you felt you needed to

do [**48]that?

A Actually on the first visit based on a few things

that she said but also based on the comments from her

mother. I felt that I needed to make sure that this had been

reported formally.

Q Let's talk not about what Helen may have

reported to you but what Dorothy said. What in that first

visit caused you enough concern to make the social service

report?

A She indicated that the reason she didn't want to

visit her dad was because of the way he had behaved

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toward her on a lengthy visit she had had in the

summertime, [ think, in her 8th grade. She indicated that he

had made her feel uncomfortable making comments about

the development of her secondary sexual characteristics.

She was rather vague initially. I didn't want to press her on

the first visit. She felt she was being exposed in a sexual

manner and comments were made about her sexual

development.

Q And that caused enough concern to report?

A Yes. It made me very concerned because I felt

that she was so obviously affected by it.

Q And from her presentation to you, what lead you

~ to the conclusion that she was so obviously affected by it.

What was she doing.

A Tears running down her face. She was unable to

[**49]look at me. Her body was hung over and turned away

from me as if she was ashamed. She expressed fear at

disclosing this and fear at having to have another visit.

Q As your process went forward with Dorothy, did

she then make further disclosures?

A Yes, she did. She explained to me that in addition

to the comments that had been made on, I think, it was

multiple days, she indicated, I think, the visit was getting

long, forty-five days. This sort of comments had been made

almost every day. And, in addition, to that on almost a daily

basis for many weeks that she said that her father had been

masturbating himself in the room with her, with her

present, and that she felt extremely uncomfortable by that

and she made her discomfort known and the behavior was

continued.

— 89a

Q How long have you been practicing, Doctor?

A |, initially, got a master's level license in 1998 and

I have been practicing since then.

Q In your profession do you receive training with

respect to the assessment of patient's veracity, their

credibility?

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