Ls v. Ct

#24636, #24840-a-SLZ

2009 SD 2

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

L. S., Petitioner and Appellant,
v.
C. T., Respondent and Appellee.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

L. S., Plaintiff and Appellant,
v.
C. T., Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
LINCOLN COUNTY, SOUTH DAKOTA

* * * *

HONORABLE BRADLEY G. ZELL
Judge

* * * *
RICHARD A. JOHNSON
GREGORY T. BREWERS of
Strange, Farrell & Johnson, PC
Sioux Falls, South Dakota Attorneys for appellant.

MARY H. BURD of
Burd Law Office
Sioux Falls, South Dakota Attorneys for appellee.

* * * *

CONSIDERED ON BRIEFS
ON NOVEMBER 3, 2008

OPINION FILED 01/14/09
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ZINTER, Justice

[¶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

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Voice 1 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. 2 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

1. Child’s Voice is a private, non-profit children’s medical evaluation center that
accepts referrals from child protection agencies, law enforcement, and
physicians.

2. Another detective conducted this investigation as Detective Lang was
unavailable.

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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 entered an 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”

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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 to L.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

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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. Herrington

testified that C.M. told Herrington that she did not like to go to her dad’s house

because he hits her and pokes her.

[¶13.] Mother retained Dr. Joyanna Silberg as an expert. Dr. Silberg met

with C.M. the day prior to trial. Following a forensic interview, Dr. Silberg

concluded that C.M. had suffered sexual abuse by Father. Dr. Silberg’s testing

reflected standardized scores that she characterized as “literally off the charts” in

comparison to other children who had been sexually abused and significantly

traumatized. According to Dr. Silberg, C.M. was a “severely traumatized child with

an inordinate number of symptoms of both trauma and sexual preoccupation[.]” Dr.

Silberg opined, with the “highest level possible for confidence,” that C.M. was “a

sexually abused child with all the symptoms and associated behavioral patterns[.]”

Dr. Silberg believed it would be “dangerous even for supervised reunification

because the child presumes that [the abuse] must have been okay if nobody is

saying anything to them about it.” Dr. Silberg conceded, however, that children can

be subject to suggestion. She gave the example of telling a child “when you were a

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little baby, I brought you home – you know – some place that you didn’t bring her

home from, and if you say that enough times, the child will believe[.]”

[¶14.] Dr. Charles Haigh testified that in October 2006, he had examined

C.M. for dysuria (painful urination) 3 and prescribed treatment for a urinary tract

infection. After reading C.M.’s history, Dr. Haigh decided to call Mother and

examine C.M. again. Dr. Haigh’s re-examination was inconclusive regarding sexual

abuse. He acknowledged that his diagnosis was consistent with urinary tract

infections and that dysuria was rarely caused by abuse.

[¶15.] Mother relied heavily upon the testimony of Dr. Scott Benton. Dr.

Benton conducted a forensic evaluation by reviewing C.M.’s records from Child’s

Voice, the Nebraska investigations, videos of interviews, affidavits filed in support

of Mother’s motion, C.M.’s medical records, and Dr. Silberg’s report. Dr. Benton

concluded that C.M.’s disclosures were “incredibly detailed and intimate.” He also

found “no evidence of coaching of C.M.” He recommended that if the court found

that C.M. was a victim of abuse, he would strongly urge a protection order.

Regarding C.M.’s dysuria, Dr. Benton testified that dysuria would most likely be

caused by a urinary tract infection. And, like Dr. Silberg, Dr. Benton agreed that

when something is reinforced many times, children actually believe it is real.

[¶16.] C.M.’s child’s play therapist, Tara Olson-Larson, recommended that

the court limit any contact between Father and C.M. to the family visitation center.

3. It is undisputed that Father had contacted Mother on different occasions with
concerns about C.M.’s painful urination. Mother suggested diaper rash
ointment, which Father then applied.

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Olson-Larson recounted the long series of disclosures by C.M. and noted that C.M.

specifically disclosed on February 8, 2006, that Father “pokes” her in the vaginal

area. On the February 2006 examination at Child’s Voice, however, C.M. indicated

to Dr. Sieczkowski that no one touched or hurt her in her vaginal or buttocks areas.

C.M. also indicated that no one touched her in those areas with a stick.

[¶17.] Other witnesses also cast doubt on the allegations. Detective Phil

Lang recounted his office’s investigations. Lang testified that the allegations were

unsupported and that there was no probable cause to arrest Father. He opined that

C.M.’s disclosures of sexual abuse were “tainted.” Additionally, three South Dakota

CPS’s investigations and two Nebraska Health and Human Service’s investigations

were all declared “unsubstantiated” or “unfounded.”

[¶18.] Colleen Brazil, the forensic interviewer for Child’s Voice, also raised

some doubt. She testified that she first interviewed C.M. in November of 2005.

Although C.M. indicated that she was poked in her rectal area with “the stick,”

C.M. could not indicate on the anatomical drawing the location of “the stick.” C.M.

further informed Brazil that what comes out of the stick was “purple.”4 The second

time Brazil interviewed C.M. in February 2006, C.M. again indicated that she was

poked in her rectal area with “the stick” but that nothing came out of the stick.

[¶19.] Unlike Dr. Silberg, Brazil indicated that C.M. had related to

suggestibility. Brazil explained suggestibility as follows:

[T]he danger of repeated interviews with little children can be . .
. that when they don’t know the answer to something and they
guess, . . . that starts to become part of their history or part of

4. Both Brazil and Dr. Silberg testified that C.M. was competent in her colors.

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what they’re talking about and they don’t have an
understanding that this was something that may have been
suggested to them by someone else. 5

Brazil testified that preschool-age children are the most vulnerable to

suggestibility. She indicated:

The danger of suggestibility is that once a child that – whatever
it is that has been suggested to that child, it starts to become
truth to them. So we have seen children where we have strong
concerns about suggestibility, and the children truly believe
that whatever – I mean, they’re not lying necessarily. They
truly believe that whatever it is has happened. They often . . .
have fear about things because they do believe it has happened.

When asked, “So you feel that it’s a potential of suggestibility with regard to

[C.M.]?” Brazil answered, “Yes.”

[¶20.] Vicky Thompson, a child protection worker for Nebraska Health and

Human Services, conducted interviews of Mother, C.M.’s therapist (Olson-Larson),

and Father. Thompson found the allegations of abuse were unsubstantiated.

Thompson raised concerns that Mother had “gone from place to place to try – from

the Lancaster County Sheriff’s Department to get an investigation going, to South

Dakota CPS, the Nebraska child protection officials, to a therapist, to the Child’s

Voice in South Dakota, to the Child’s Advocacy Center in Lincoln, Nebraska, to the

doctors . . . to have someone find something that says her child has been sexually

5. Because of Brazil’s concerns about suggestibility, Child’s Voice did not
interview C.M. in November of 2006.

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abused.” Thompson believed that Mother was attempting to sabotage Father’s

visitation and his relationship with C.M. 6

[¶21.] Following consideration of this conflicting evidence at trial, the circuit

court denied the petition for a protection order, finding that Mother had not proven

by a preponderance of the evidence that C.M. had been sexually abused by Father.

The court found that “[b]ased on all of the testimony presented by various health

care professionals, experts, investigators and counselors,” the evidence regarding

the alleged abuse was “equal to both sides.” Regarding Mother’s request for

modification of visitation, the court stated that it would like more information

before it determined whether visitation should remain supervised. It ordered

Mother to undergo a psychological evaluation 7 and Father to undergo a

psychosexual evaluation. Pending those evaluations, the court continued visitation

6. The visitation center’s records from Father’s February 15, 2007 supervised
visit reflect the following:

[C.M.] asks dad to take my shoes off. Dad helps take them off. Dad
makes . . stinky noises to her shoes off. [C.M.] puts her feet in his face.
[C.M.] smacks dad. Dad asks her not to hit him. She says, “no
Mommy said I could.” He clarified, “Mommy said you could hit me[?]”
She said, “yes.” He said, “no you can not hit me.” She then says, “I
only listen to Mommy[,] not you. Mommy said to not listen to you.”

The records of Father’s supervised visit on October 10, 2007, reflect the
following:

[C.M.] said that Mom said if she keeps saying no that she is not going
to Dad’s house and will not see him again. Dad asked [C.M.] is that
what Mom said to her. [C.M.] replied, “Yes, and she never lies.”

7. The circuit court observed that “Vicky Thompson, of the Nebraska child
protection office, feels strongly that [Mother] is abusing [C.M.] and that she
needs a psychological evaluation.”

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at the family visitation center and ordered C.M. to continue counseling with Olson-

Larson.

[¶22.] After both parties completed their evaluations, the court held a second

trial, considered additional evidence, and again found that Mother failed to prove

her allegations by preponderance of the evidence. In the circuit court’s additional

underlying findings of fact, conclusions of law, and memorandum decision, the court

found that C.M. “believes these allegations to be true, but also the [c]ourt finds that

the child is exhibiting the phenomena of suggestion of the alleged sexual

allegations.” The court ultimately ruled that Father could exercise visitation

outside the visitation center on alternating weekends. However, at Father’s

request, “based on the fear of continued litigation,” visitation was to be supervised

by Mother or her designee.

Denial of the Protection Order

[¶23.] Under SDCL 25-10-5, a circuit court may grant a protection order if it

finds by a preponderance of the evidence that abuse has occurred. “Preponderance

of the evidence” is defined as “the greater of weight of evidence.” Gross v. CT Mut.

Life Ins. Co., 361 NW2d 259, 269 (SD 1985). The court found that Mother did not

prove by the greater weight of the evidence that abuse had occurred. Mother

disagrees, arguing that “the evidence strongly contradicted such a finding.” We

review this argument regarding a dispute of fact under the clearly erroneous

standard of review. Schaefer ex rel. S.S. v. Liechti, 2006 SD 19, ¶8, 711 NW2d 257,

260. In applying that standard,

[O]ur function is not to decide factual issues de novo. The
question is not whether this court would have made the same

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findings that the trial court did, but whether on the entire
evidence we are left with a definite and firm conviction that a
mistake has been committed. This court is not free to disturb
the lower court’s findings unless it is satisfied that they are
contrary to a clear preponderance of the evidence. Doubts
about whether the evidence supports the court’s findings of fact
are to be resolved in favor of the successful party’s ‘version of
the evidence and of all inferences fairly deducible therefrom
which are favorable to the court’s action.’

Goeden v. Daum, 2003 SD 91, ¶5, 668 NW2d 108, 110 (citations omitted).

Ultimately, “‘[w]hen there are two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous.’” Zarecky v. Thompson, 2001 SD

121, ¶11, 634 NW2d 311, 315 (quoting First Bank of Biwabik, MN v. Bank of

Lemmon, 535 NW2d 866, 869 (SD 1995)).

[¶24.] We first observe that the circuit court gave serious consideration to

Mother’s allegations and the evidence supporting those allegations. We also

observe that the court made its factual determination after considering the

testimony of sixteen live witnesses, including several experts, C.M.’s therapist, and

the documented interaction between Father and C.M. at the family visitation

center. Thereafter, the court carefully weighed all of the conflicting evidence in

light of the allegations and stated:

It appears to this [court] that these are serious . . . allegations,
disclosures that have been made by this young lady, and the
[c]ourt observed that first hand, against her father. However,
the evidence as it exists today, based upon those allegations,
when you compare it to the other evidence that there is in this
case that has been presented, essentially leaves this matter as
the facts are equal on both sides. That being the case, the . . .
[c]ourt is denying th[e] petition on a finding that [Mother] has
failed to meet the burden by a greater weight of convincing force
that domestic abuse . . . has been met.

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[¶25.] Mother, however, argues that the circuit court’s decision was only

based on “scant findings” that lack the detail necessary to provide meaningful

appellate review. Relying on Goeden, 2003 SD 91, 668 NW2d 108, Mother contends

that the court entered no findings regarding C.M.’s pattern of disclosures, facts

relating to reliability of the context of the disclosures, the credibility of the

witnesses, or the physical evidence. Mother further contends that the court only

summarized some of the evidence and did not reach factual conclusions based on

evidence.

[¶26.] Mother’s reliance on Goeden is misplaced. In Goeden, the circuit

court’s “only [finding] was a general statement [that] stalking had occurred” under

the statute. Id. ¶8, 668 NW2d at 111. In this case, the circuit court entered twenty-

seven findings of fact and five conclusions of law containing the underlying findings

for its decision. In those findings, the circuit court specifically acknowledged the

testimony of Dr. Silberg and Dr. Benton. The court also acknowledged the

conflicting testimony from Detective Lang and Colleen Brazil. And, as noted above,

the court found that all of the experts agreed that children are subject to

suggestibility. Thus, the circuit court’s analysis here is markedly distinguishable

from that in Goeden. Because the circuit court’s findings of fact sufficiently inform

this Court as to the basis of the circuit court’s decision, we are able to conduct a

meaningful appellate review.

[¶27.] Under our standard of review, we cannot conclude on this highly

contested record that the circuit court was clearly erroneous in its factual finding

regarding Mother’s proof of abuse. Considering the conflicting evidence and the

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circuit court’s superior position to weigh the testimony of the live witnesses, Mother

has not established clear error. As previously noted, “[d]oubts about whether the

evidence supports the court’s findings of fact are to be resolved in favor of the

successful party’s ‘version of the evidence and of all inferences fairly deducible

therefrom which are favorable to the court’s action.’” Id. ¶5, 668 NW2d at 110

(citations omitted). Further, as we have noted in other cases, “[t]here was a sharp

conflict in the evidence and it was for the [circuit] court to decide whom it could

believe.” See Johnson v. Mier, 76 SD 109, 112, 73 NW2d 342, 344 (1955). Finally,

“[w]here there are two permissible views of evidence, the factfinder’s choice between

them cannot be clearly erroneous.” Zarecky, 2001 SD 121, ¶11, 634 NW2d at 315.

The denial of the protection order is affirmed.

Modification of Father’s Visitation Rights

[¶28.] Mother argues that the circuit court abused its discretion in declining

to restrict Father’s visitation rights to the family visitation center. A circuit court’s

modification of visitation rights is reviewed under the abuse of discretion standard.

Osgood v. Osgood, 2004 SD 22, ¶9, 676 NW2d 145, 148. “The term ‘abuse of

discretion’ refers to ‘a discretion exercised to an end or purpose not justified by, and

clearly against, reason and evidence.’” Hrachovec v. Kaarup, 516 NW2d 309, 311

(SD 1994) (quoting Herndon v. Herndon, 305 NW2d 917, 918 (SD 1981)).

[¶29.] Before making its final decision on visitation, the circuit court

considered additional evidence. Father submitted to the psychosexual evaluation

and Mother to the psychological evaluation. Dr. James K. Cole, Ph.D., completed

the psychosexual examination of Father. According to Dr. Cole’s testimony and

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report, Father represented a “low risk to engage in sexual offenses.” Dr. Cole noted

that the sole risk factor Father presented involved the allegations that he had

sexually abused C.M. According to Dr. Cole, no other risk factor was present. Dr.

Stephan Langenfeld, Ed.D., completed Mother’s psychological evaluation. Dr.

Langenfeld opined that Mother “may be somewhat rigid or overly controlled

emotionally and . . . presents with obsessive-compulsive personality characteristics.”

Dr. Langenfeld found, however, that Mother “presents with no major psychological

disorders.”

[¶30.] The court also received updated family visitation center records and

Olson-Larson’s updated testimony. The court found it remarkable that Olson-

Larson indicated C.M. could never discuss a time that she liked her father.8 Olson-

Larson acknowledged that even abused children can have positive thoughts toward

the abuser and that most of the children she has worked with could identify one or

more positives about the abusing parent. Olson-Larson indicated that C.M.’s

behavior was atypical of abused children, even those who have been severely

abused. Olson-Larson disclosed that during one session, C.M. informed her that she

would like to take a big truck and knock “that place [the visitation center] down,” so

she would not have to go there anymore. C.M. informed Olson-Larson that when

she knocked the center down, Father would die. C.M. indicated she wanted her

father dead so she no longer had to have visitation with him. According to Olson-

8. Similarly, Detective Lang testified that during his interview with C.M., she
could not indicate one good quality about her father.

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Larson, she had never experienced this with other five-year-olds. 9 C.M.’s atypical

behavior was a factor in the court’s decision. The court noted:

Typically, children who have been abused by their parent,
whether it be sexually, physically, or otherwise, usually note
and express some positive parts of that relationship, meaning
that there may have been good times, although there were
these horrific, bad times. But they found because of the nature
of family, because of the nature of the relationship, because of
the nature of being offspring, they could recognize some good
things in their father or their mother. And, typically, those
children who were abused still want to maintain a relationship
with that parent, even though they may understand and know
that it sometimes had to be modified or at a distance because of
what took place. This isn’t the case here, meaning that [C.M.]
wishes at this point in her life, for whatever is so ingrained,
whether it be by the actual events that took place in her mind
that she believes is to be true; that this [c]ourt has not found
that there is a preponderance of the evidence to establish, or by
programming or power of suggestion that she believes it to be
true.

[¶31.] Following consideration of this additional evidence together with

updated family visitation center records, the court issued additional findings of fact

and conclusions of law that incorporated a five-page memorandum opinion. In that

decision, the court recognized that it had “a duty to protect the children, and its

decision must necessarily be guided by the best interest of the children.” See

Johnson v. Johnson, 471 NW2d 156 (SD 1991). The court, however, also noted that

“law enforcement, as well as child protection agencies of two states have found the

9. Olson-Larson testified that as a result of this unusual behavior, she asked
Mother where C.M. could have learned such thoughts. Mother related it to a
“book on tape” they had listened to involving a family, including an orphan
girl that died during a war.

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child’s allegations to be unsubstantiated.” 10 The court found that Mother failed to

prove her case because the child was “exhibiting [the] phenomena of suggestion of

the alleged sexual allegations.” The court specifically relied on the child’s therapist

and forensic interviewer explaining:

This [c]ourt finds that the testimony of by Tara Olson-Larson
shows that [C.M.’s] expressed terminology is not age consistent
with [C.M.’s] age. While Ms. Olson-Larson does not believe
[C.M.] has been coached as what to say, Ms. Colleen Brazil, of
Child’s Voice who has conducted a forensic interview with
[C.M.], however, expressed concern that [C.M.’s] belief system
may have been subjected to the phenomena of “suggestion.”

Based on those findings, the court ultimately modified Father’s visitation rights to

include one weekend per month in Nebraska and one weekend per month in South

Dakota. And, at Father’s request, the visitation was ordered with Mother (or a

designee) present at all times.

[¶32.] Because the circuit court lifted the family visitation center restriction,

Mother argues that the remaining restrictions did not go far enough. Mother

contends that the circuit court ignored Olson-Larson’s opinion recommending

visitation at the family visitation center. Mother further contends that the court

ignored Dr. Silberg’s and Dr. Benton’s opinions and did not consider the concerns

raised by the child protection workers. We disagree.

[¶33.] As previously noted, the court specifically discussed Olson-Larson’s

testimony, noting behaviors of C.M. that were atypical of abused children. The

10. The court also stated that C.M.’s statements were “not credible especially in
light of the absence of medical documentation or first party witness to
corroborate the alleged abuse.” Although we note that neither medical
(continued . . .)

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court also relied on Colleen Brazil, who conducted the forensic interview with C.M.,

expressing concerns that C.M.’s beliefs may have been subjected to suggestion. The

court further relied on the child’s actual interaction with Father, which was

inconsistent with the allegations of abuse. The court observed that the updated

family visitation center records suggested that with some encouragement, C.M.

played with Father without apprehension or fear. Additionally, the court

considered Mother’s psychological evaluation and Father’s psychosexual evaluation.

Finally, the court expressly considered Mother’s experts and the child protection

workers. The court noted:

[Mother] filed for a protection order and amended her motion on
visitation alleging sexual abuse of [C.M.] by Father. This
[c]ourt took several days testimony on these issues of the
protection order and [Mother’s] motion to modify visitations.
The [c]ourt found that based upon all the testimony presented
by various health care professionals, experts, investigators and
counselors, the [c]ourt denied the protection order finding
[Mother] had not proven by a preponderance of the evidence
that [C.M.] had been sexually abused by [Father.]

Ultimately, the court’s memorandum decision explained that even after considering

all of the evidence, “the child’s state of mind can only be explained by the

phenomena of suggestion.” Under this record, we reject Mother’s arguments that

the court did not consider all evidence. We find no clear error in the court’s findings

of fact, and consequently, no abuse of discretion in its decision to not further restrict

Father’s visitation.

______________________
(. . . continued)
documentation nor first party witness corroboration is required to prove child
abuse, those facts were not the focus of the circuit court’s analysis.

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Attorney Fees

[¶34.] Father and Mother have moved for appellate attorney fees under

SDCL 15-26A-87.3. Considering the seriousness of the issues presented and the

substantial conflicting evidence, we deny both parties’ requests.

[¶35.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY,

Justices, and SABERS, Retired Justice, concur.

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