APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT LINCOLN COUNTY, SOUTH DAKOTA, HONORABLE BRADLEY G. ZELL Judge.
The opinion of the court was delivered by: Zinter, Justice
CONSIDERED ON BRIEFS ON NOVEMBER 3, 2008
[¶1.] Former wife commenced actions for a protection order and for modification of the visitation provisions of her divorce decree, alleging that her former husband was sexually abusing the parties' child during visitations. The circuit court found that former wife failed to prove her allegations and denied relief. Because the circuit court's findings of fact are not clearly erroneous, we affirm.
[¶2.] L.S. (Mother) and C.T. (Father) were married on August 29, 1999. They had one child, daughter C.M., born June 8, 2002. The parties were living in Nebraska at that time but separated approximately three months after C.M.'s birth. After the separation, Mother and C.M. moved to Missouri. For the next fourteen months, Father travelled ten hours, round-trip, to visit C.M.
[¶3.] The parties divorced on March 1, 2004. They were granted joint legal custody, with Mother having primary physical custody. In June or July of 2004, Mother relocated to Canton, South Dakota and registered the divorce decree as a foreign judgment. Shortly thereafter, according to Mother, C.M. began making allegations of sexual abuse by Father.
[¶4.] As a result of the allegations, Father was investigated in August and September 2004, by Detective Phil Lang of the Lancaster County, Nebraska sheriff's department and by Nebraska child protection officials. Detective Lang interviewed Father, who denied the allegations. C.M. was referred to the Child's Voice*fn1 in Sioux Falls for a physical examination. C.M.'s examination did not show signs of abuse. Lang ultimately closed his investigation, and Jennifer Clark, a child protection official for Nebraska Health and Human Services, determined that C.M.'s allegations were "unfounded."
[¶5.] In November 2004, Mother moved to modify or vacate the visitation ordered in the divorce decree. By stipulation of the parties, Dr. Andre B. Clayborne performed an evaluation. Following Dr. Clayborne's testimony in a visitation trial held in November 2005, the parties reached an agreement. Under the agreement, Father had visitation on alternating weekends, one of which was in Lincoln, Nebraska (where Father resided), and the other in the Canton area. The parties also agreed on alternating holidays. Mother did not object to unsupervised visitation at that time.
[¶6.] However, days after the parties reached their agreement, Father received a call from Nebraska law enforcement that there were new allegations of abuse. Father cooperated and was again interviewed.*fn2 Child's Voice examined C.M. on November 23, 2005. By this time, C.M. was almost three and one-half years old, and Colleen Brazil, a forensic interviewer at Child's Voice, interviewed C.M. for the first time. C.M. told Brazil that "her daddy pokes her in the bottom with a stick that looks like a finger." C.M. informed Brazil that Father gets "the stick from outside."
[¶7.] In late February of 2006, the South Dakota Department of Social Services, Child Protection Services (CPS) initiated an investigation, and Child's Voice examined C.M. for a third time. Brazil conducted a second interview of C.M. She again told Brazil that her daddy was poking her with a stick in her bottom and that Father would get the stick from outside. Based on the entire investigation, CPS sent Father a letter in March 2006, informing him that the allegations of abuse were "unsubstantiated."
[¶8.] On June 28, 2006, Mother moved to modify visitation for reasons other than the alleged abuse. On November 21, 2006, however, Mother realleged the abuse, moved to modify visitation again, and commenced a protection order action on behalf of C.M. The circuit court promptly enteredan ex parte temporary protection order limiting Father's visitation to a family visitation center pending a trial on the allegations.
[¶9.] Because of the allegations of sexual abuse alleged in Mother's action for a protection order, Father was again investigated by Detective Lang and Nebraska officials in December 2006/January 2007. Lang interviewed C.M. and later testified that it was apparent during C.M.'s interview that C.M. was "basically saying to me things that she has most likely overheard someone else saying." Lang explained:
[T]here was a -- there has been notations and documentations that "the stick" itself has transgressed -- or not transgressed -- but progressed from something that father got from the yard to looking like a finger or to being his finger. The "white stuff" that came out was at one time purple, and there's indications to me that through these investigations and through the contacts with this -- with [C.M.], that there is a high probability that she has been led, either intentionally or unintentionally, into making some of the disclosures that she makes, in my opinion.
On January 16, 2007, Nebraska Health and Human Services determined that the allegations against Father were "unfounded."
[¶10.] Trial was held on both actions on January 17, 2007 and May 7-8, 2007. Sixteen witnesses testified. Mother testified that when C.M. was just over two years-old, during diaper changes, C.M. would reach to her vaginal area, pull her labia apart, and make statements such as, "Dada do this." Mother also testified that C.M. would poke at her vagina. According to Mother, C.M. would additionally take her doll, spread its legs apart, and poke her finger between the doll's legs, saying "dad do this to [C.M.], dad do this to me." Mother indicated that these incidents would typically occur and increase in frequency around the time Father exercised visitation. Mother testified that when C.M. came home from visits with Father, C.M. demonstrated how she tried to resist the abuse by holding her legs together. According to Mother, C.M. informed Mother that "Dada hold me down and pull my legs apart and he poked me in the bottom."
[¶11.] Mother's great aunt testified that on two separate occasions, while C.M. was having her diaper changed, C.M. fondled her genitilia and made the statement, "Dada does this." She further testified that C.M. turned her doll upside down, rubbed it between the legs, kissed it between the legs, and said, "Dada does this." According toL.S.'s great aunt, during the summer of 2005, C.M. returned from visits with Father spontaneously reporting that Father would put his finger in her bottom and it would hurt. The most recent incident known was in the fall of 2006, when C.M. told her that Father "put his finger in my bottom and it hurts."
[¶12.] Mother's aunt reported the same type of statements. According to Mother's aunt, in 2004, C.M. poked her vagina in the bathtub and said, "Dada do. Dada do." In November 2006, C.M. allegedly stated, "Daddy puts his finger and stick in me." C.M. further indicated that she is always sore "down there." According to Mother's other witnesses, C.M. made similar comments to Mother's parents and friends of Mother's parents, including Joann Herrington. ...