# Petition for Writ of Certiorari — Litoff v. Pinter > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1621%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 546 U.S. 870 ## Text 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. 10 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. 11 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). 12 "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: 14 "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: 15 "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. 16 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) 17 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) 18 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: 19 "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 20 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 21 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). 22 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). 23 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). 24 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 25 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. 26 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 ia 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 la 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 v. 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. 2a 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 3a 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 4a 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 5a 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, 6a 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. 7a 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 8a IN THE SUPREME COURT STATE OF NORTH DAKOTA 2003 ND 172 Robert Stanley Litoff, Plaintiff and Appellant v. 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. 9a 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, I [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. Il [¥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. Il [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. IV [§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. V [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 al 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: 1. 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. 1. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1621%3A1. Public record. Not legal advice.