Maryland Department of Human Resources v. Bo Peep Day Nursery

RODOWSKY, Judge. This is an administrative appeal in a business license revocation case. Appellant, Department of Human Resources, the successor licensing agency, revoked appellee’s license as a child care center based on findings, after hearings, that a number of preschool age children were victims of physical and sexual abuse while in appellee’s care. Before the proceedings began the agency’s hearing officer denied appellee’s request for discovery by way of psychological interviews of the alleged victims by an expert selected by appellee.

On appeal from the revocation order the circuit court remanded, having concluded that the agency’s denial of the discovery request violated appellee’s constitutional right to procedural due process. That ruling is the primary issue before us. For reasons set forth below, we shall reverse and direct affirmance of the agency’s order. Child care centers are licensed and regulated by the State.

Prior to July 1, 1988, the licensing authority was the county health officer, while the authority to review a health officer’s decisions and to adopt regulations was in the Department of Health and Mental Hygiene. Md.Code (1982, 1987 Repl.Vol.), §§ 14-101 through 14-114 of the Health-General Article. By Ch. 247 of the Acts of 1988, ⁵⁷⁸ authority to administer this regulatory licensing system was lodged in the Department of Human Resources. See Md.Code (1984, 1989 Cum.Supp.), §§ 5-570 through 5-585 of the Family Law Article.

The license year runs from April 1 through March 31. Bo Peep Day Nursery (Bo Peep) is a child care center conducted by Deborah Cassilly (Deborah) who is the licensee. The center is conducted on premises improved by a free-standing, three story building in Bel Air, Harford County. Deborah, who holds a bachelor’s degree in early childhood education, had worked while she was in school at a child care center conducted on those premises.

In January 1984 Deborah, then approximately twenty-three years of age, and her husband, Patrick Cassilly (Patrick), purchased the property from the prior owners/operators. The first two floors of the building are used for the child care facility. There are four classrooms, an office, a kitchen and a restroom on the first floor, and there are four classrooms and a restroom on the second floor. Until late July 1987, Deborah, Patrick and at that time their two children occupied the residential apartment on the third floor of the building.

Not every child who is enrolled at Bo Peep comes to the care center every day and not every child who comes to the center remains there the entire time the center is open. In the winter of 1986-87 the total enrollment at Bo Peep was approximately eighty children of whom no more than sixty were present at any one time. By May 1988 the enrollment was fifty-two children and the maximum number of enrollees at any one time was thirty-three. In the period September 1986 through June 1987, a typical day at Bo Peep would proceed in the following fashion.

Bo Peep began receiving children at 6:30 a.m. The children played on the first floor until approximately 8:00 a.m. when those children who attended kindergarten or grade school were taken by Bo Peep staff to their respective schools. Those enrollees who remained at Bo Peep for part or all of the rest of the day were divided into groups for the morn ⁵⁷⁹ ing structured programs. The three year old group stayed on the first floor.

The four year old and five year old groups were in classrooms on the second floor. Lunch was served around midday. From approximately 12:30 to 2:30 p.m. was nap time for the three and four year olds. No more than ten children utilized a classroom on the first floor for napping with any overflow using a second classroom on that floor.

After their naps, the children watched TV, had a snack around 3:00 p.m., and played games of their choice until their parents or others took them home. State regulations for child care centers require that a supervisory senior staff person be present at all times that enrolled children are on the premises. Md.Regs.Code tit. 10, § .05.01.58 (1985) (COMAR). 1 The operator of a center must periodically file staffing schedules with the regulating agency. COMAR 10.05.01.60 (1985).

At Bo Peep Deborah usually scheduled herself for the early morning and late afternoon hours when parents would be coming to the facility. During much of 1986-87 the senior staff person scheduled to supervise at Bo Peep from 8:30 a.m. to 11:30 a.m. was Rita Blevins (Blevins), who had been employed there from February of 1985. Patrick was not one of the regular staff at Bo Peep. He was employed at an automobile dealership.

In July 1987, the Harford County Health Officer wrote Deborah advising that Bo Peep’s license would be suspended. Three days later the Circuit Court for Harford County (Carr, J.) enjoined adult males from the Bo Peep premises from 6:30 a.m. to 6:30 p.m. Monday through Friday. On July 27, 1987, after four days of hearings, that court (Whitfill, J.) barred Patrick from the premises at all times, ordered a log to be kept of all male visitors, and directed the Bel Air Police to make random checks at Bo Peep. ⁵⁸⁰ Bo Peep appealed the health officer’s suspension order.

William F. Clark, Esq. (Clark), the chief hearing examiner in the Department of Health and Mental Hygiene, conducted hearings over seven days in August and September and recommended suspension of the Bo Peep license for the remainder of its term. In his report, which was adopted by the departmental secretary’s designee, Clark made the following ultimate finding: “I conclude that the facts as found in Part XI reflect that many children of Bo Peep were subjected to injurious treatment. Chief among those problems ... is that children at Bo Peep have been sexually abused.

The evidence in this case points in no other direction. While sexual child abuse is difficult to prove, and there may be conflicting reports from the children, the physical examination of the children involved here and their behavioral changes as observed by their parents and trained professionals allow no other conclusion to be drawn.” In March 1988, the departmental board of review affirmed. About one week before the expiration of its license for 1987-88, Bo Peep obtained from the circuit court (Whit-fill, J.) an order staying the suspension for the remainder of that license year. That order to stay incorporated the conditions of the July injunction.

Also in March 1988, the county health officer denied Deborah’s application for a renewal of Bo Peep’s license for the period April 1, 1988, to March 31, 1989. Bo Peep sought administrative review of that revocation. The matter was again assigned to Clark. Hearings were set to begin May 11, 1988, when, on May 2, Bo Peep’s counsel wrote to Clark requesting a postponement.

Bo Peep also requested that Clark “order the State to make available for interview those children who were involved with allegations of child abuse at Bo Peep. It is not intended that the interview would be conducted through counsel, but by a health professional of our choosing. The purpose of such interviews would be to attempt to resolve confusing and ⁵⁸¹ contradictory reports by others of the children’s statements which have figured in past proceedings in this matter. “If we are not provided with the above information and interviews, we intend to move to exclude from the proceeding, on the grounds of violation of due process and fundamental fair play, the use by the State of any evidence derived from information to which we were denied access.” At the commencement of the hearing, counsel for Bo Peep pointed out that “[w]e have moved, through various letter motions, for discovery and for postponement and they’re intertwined.” Counsel stated, in part, that they “would like an opportunity to have people on whom we have greater confidence and faith examine the children, if there is to be new evidence here.” Clark denied the discovery motion. The hearings on the propriety of the revocation order extended over nine days, ending June 8, 1988.

Introduced by the State as part of the record of the revocation proceeding were the records of the agency’s suspension order hearing and of the circuit court’s injunction hearing, including seven days of transcripts of the former and four days of transcripts of the latter. While Clark had the revocation matter under advisement, the State obtained an ex parte injunction from the Circuit Court for Harford County (Baldwin, J.) barring Blevins from the Bo Peep premises. Then, in those court proceedings, Bo Peep moved on the recited authority of Maryland Rule 2-423 for an order that the allegedly abused children “undergo diagnostic examination of the genital region to evaluate visible evidence of sexual assault[.]” Bo Peep designated the director of the Rape Care Center at Greater Baltimore Medical Center as their examining physician. Before the circuit court ruled on Bo Peep’s motion, Clark filed the proposed agency decision in the revocation case.

We set forth his explanation of the ultimate conclusion. ⁵⁸² “Regarding the issue of physical and sexual abuse of children having occurred at the Bo Peep facility, it is concluded that the preponderance of the testimony and evidence presented at this administrative hearing confirms the likelihood of those events, and supports the position of the Harford County Health Officer. The testimony of the the therapists and the parents is compelling, and substantiates the bases used by the Health Officer in denying relicensure. In weighing the testimony of the State’s witnesses and the Appellant’s witnesses, it is concluded that the evidence clearly shows that the license should not be renewed, based upon the mistreatment of children at the Bo Peep facility. A careful reading of the entire record in this case quite clearly shows that it is improbable for the events not to have occurred substantially as related by the children to their parents and to their therapists.

The verbalizations, drawings, and the emotions of the children, as observed by their parents and by trained and licensed professionals, and the physical evidence as found by [two examining physicians selected by the State], have not been refuted or shown to be erroneous or misinterpreted.” The decision was adopted by the Secretary, Department of Human Resources (the Department) in August 1988, and Bo Peep appealed. That appeal was consolidated with the earlier appeal in the suspension case. The circuit court (Baldwin, J.) stayed enforcement of the revocation order pending disposition of the administrative appeals. Judge Baldwin also refused to order medical examinations.

Because neither the children nor their parents were parties to the litigation, the circuit court correctly concluded that it had no authority under Rule 2-423 to grant that requested relief. Concerning the administrative appeals, Judge Baldwin held that the appeal from the suspension order was moot, and that holding is not challenged here. In the appeal from the revocation order the circuit court ordered a remand to the Department for further proceedings. The court also ⁵⁸³ continued the judicial stay of the Department’s revocation order during the pendency of the remand.

The Department appealed the circuit court’s order of remand. We granted the State’s petition for a writ of certiorari prior to consideration of the appeal by the Court of Special Appeals. Bo Peep has moved to dismiss the Department’s appeal. We deny that motion for reasons stated in Part I of this opinion.

The apparent purpose of the remand to the Department was to give the State an opportunity to cure what the circuit court believed to be a defect of constitutional dimension in the administrative procedure. None of the alleged victims of child abuse testified in any proceedings. Hearsay, of which the alleged victims were the declarants, was admitted through parents and others who had spoken with the children. Finding the content of the children’s statements to be “foundational,” the circuit court reasoned that Bo Peep’s request for an interview of the children by a psychologist of Bo Peep’s choice would have given the licensee “a meaningful opportunity to test the credibility of the out-of-hearing statements,” but Bo Peep’s request for such an interview was denied.

Recognizing that the hearing officer had no authority to order the type of discovery requested by Bo Peep, the circuit court nevertheless concluded that under those circumstances the hearing officer “should not have considered any of the evidence which was dependent on the foundational out-of-hearing statements where circumstances prevented an opportunity to challenge.” We discuss this issue in Part II, infra. The circuit court also found that the hearing officer had erred in restricting the scope of cross-examination by Bo Peep of a police officer who had participated in the investigation of suspected child abuse. We address that question in Part III hereof. Bo Peep argued, and the circuit court found, that the licensing agency had violated its own regulations by failing to reinspect the premises of the child care center prior to ⁵⁸⁴ revocation.

Bo Peep also sought, but failed, to persuade the circuit court that Clark should have recused himself from conducting the revocation hearing. Parts IV and V, below, respectively deal with those arguments advanced here by Bo Peep as additional support for the circuit court’s result. Bo Peep does not argue that there was a lack of substantial evidence before the agency to support its findings of physical and sexual child abuse at Bo Peep. Consequently, we need not review the evidence in detail.

In Part II we shall review the evidence only to the extent needed to illustrate Bo Peep’s due process contention. I Bo Peep, relying on the McKinney-Peco doctrine, has moved to dismiss the Department’s appeal. See Zoning Appeals Bd. v. McKinney, 174 Md. 551 , 199 A. 540 (1938) and Maryland Pharmacy Bd. v. Peco, Inc., 234 Md. 200 , 198 A.2d 273 (1964). In a line of cases beginning with McKinney , “this Court has taken the position that certain administrative agencies acting in a ‘quasi-judicial’ capacity cannot appeal the reversal of their decisions by a circuit court, unless the authority to appeal is specifically provided by statute.” Consumer Protection Div., Office of the Attorney Gen. v. Consumer Publishing Co., 304 Md. 731, 742 , 501 A.2d 48, 54 (1985).

In Consumer Protection, Judge Eldridge, writing for the Court, analyzed the McKinney-Peco line of cases and pointed out that the doctrine does not apply to all agencies. It does not apply to agencies whose functions “ ‘are so identified with the execution of some definite public policy as the representative of the State, that their participation in litigation affecting their decisions is regarded by the Legislature as essential to the adequate protection of the State’s interests.’ ” Consumer Protection, 304 Md. at 743 , 501 A.2d at 54 (quoting McKinney, 174 Md. at 561 , 199 A. at 545 ). In Consumer Protection we concluded that that Division in the Attorney General’s Office was not the kind of non-ad ⁵⁸⁵ versarial, quasi-judicial agency contemplated by the doctrine. The Division’s statutory powers included the power to receive and investigate complaints, to initiate investigations, to issue cease and desist orders, to adopt rules and regulations and to seek injunctions.

We held that “[w]ith its many different functions, its mandate to protect consumers and its role as a representative of the interests of the State, the Division is not the type of agency to which the rationale of McKinney applies.” 304 Md. at 746 , 501 A.2d at 56 . The reasoning of Consumer Protection applies with equal force here to permit the Department to pursue its strong interest in the outcome of this case which it initiated and vigorously prosecuted by appealing the reversal of its order. The statutory regulation of child care centers in Family Law Article, Title Y, “Children,” Subtitle 5, “Child Care; Foster Care,” contains legislative findings and statements of purpose in § 5-571. These include a finding that “if care of a child is given over to another, mental and physical risks arise that need to be offset by reasonable protective measures.” § 5-571(a)(l)(ii).

The purpose of the child care subtitle “is to aid each parent and protect each child from the risk present if: “(1) the child is cared for by an individual other than a relative or friend; and “(2) children of more than one family are cared for together____” § 5-571(b). Pursuant to those findings and purposes the Secretary of the Department is given authority to adopt rules and regulations which shall ensure, inter alia, “proper care, protection, and supervision of children in child care centers[.]” § 5-573(b)(2). The Department is authorized to issue, deny, suspend and revoke licenses for child care centers. §§ 5-574 through 5-580. The Secretary of the Department, or the Secretary’s designee, is authorized to petition a circuit court to enjoin unlicensed child care center ⁵⁸⁶ operations. § 5-580(e).

Child care centers must be open to inspection by, inter alia, representatives of the Department. COMAR 10.05.01.80 (1988). All cases of suspected child abuse are reported to a local department of the Social Services Administration. See Family Law Article, §§ 5-704 through 5-706.

The Social Services Administration is a division of the Department. § 5-501(b). Each local department is required to notify the designee of the Secretary of the Department within forty-eight hours after the local department’s receipt of a report of suspected child abuse. The Secretary’s designee then convenes a multi-disciplinary team, which the Secretary’s designee chairs, to coordinate procedures to be followed in investigating and otherwise responding to the report. § 5-584. Thus, the role of the Department in cases of suspected child abuse, particularly at a child care center, is not a passive one of quasi-judicial adjudication, but is an active role of policy formulation and protection of children.

The Department may appeal the circuit court’s order. II The next issue is whether the procedure which resulted in the revocation of Bo Peep’s child care center license violated due process because the procedure did not include a method for, and Bo Peep was not allowed to conduct, a psychological examination by an expert of its choice of the allegedly victimized children. In this Part II we shall (A) explain the general evidentiary framework of the case; (B) illustrate the due process problem by reviewing the evidence relating to a specific child; and (C) analyze and decide the constitutional issue. A The due process issue arises out of the largely circumstantial way in which the Department proved child abuse at Bo Peep.

In general that proof fell into four categories: (1) ⁵⁸⁷ testimony by physicians stating their observations when physically examining children and expressing their medical opinions based upon those observations; (2) testimony of parents, social workers and psychologists narrating their observations of relevant nonassertive verbal and nonverbal conduct of the children; (3) statements of history to treating clinicians; and (4) testimony from parents, social workers or other adults relating other assertive statements of the children, that is, statements relevant only for the truth of the content of the statements. Medical members of the interdisciplinary team or teams assembled to evaluate possible sexual child abuse at Bo Peep were Drs. Charles Schubin and Michael Reichel. Dr. Schubin is an assistant professor of pediatrics at the University of Maryland Hospital who has examined between 2,000 and 3,000 children for evidence of sexual abuse.

Dr. Reichel is assistant chairman of the Department of Pediatrics at Greater Baltimore Medical Center and has consulted in over 200 hundred cases of various forms of abuse of children. They collectively examined nineteen children who had attended Bo Peep during the summer of 1987 and concluded that eight, of whom seven were females, exhibited physical conditions consistent with sexual abuse. These conditions principally were gross enlargement of the hymen, vaginal scars and tears, and anal gaping and scarring. Each of the doctors testified in person and was subjected to cross-examination.

The relevance of the nonassertive verbal and nonverbal conduct of the children lies in certain behavior which is indicative of sexual abuse. Hearing Officer Clark explained the relevance and reliability of this class of evidence, saying: “Certain behavioral changes exhibited by young children are indicative that trauma has occurred to them, and certain behaviors are unlikely to be exhibited as a result of any trauma other than sexual abuse. Visible trauma to the sexual organs of children is indicative of sexual abuse; so is inappropriate sexual behavior with peers, ⁵⁸⁸ toys, or animals; so is verbalizing sexual language or knowledge that is atypical for that child's age. As the number of those physical confirmations rise in a particular day care center population, the concern is heightened that such abuse has in fact occurred there.

An example of behavioral indications that sexual abuse has occurred to her, is when a young child, three or four years old, becomes very sexually provocative, or has a marked change in her sexual activities. Other behavioral changes brought about in children who have been sexually abused include regression, i.e. toilet trained children begin to wet or soil themselves; loss of appetite; breaking out in rashes; crying; constipation; sleep disturbances; phobias or avoidance behavior; withdrawal or depression; aggressive behavior; excessive masturbation; hysterical reactions; perpetration of sexually unacceptable conduct upon others; genital or urethral trauma; genital infections; recurrent urinary tract infections; abdominal pain; and other manifestations.” The hearing officer’s view of the probative value of that evidence is supported in the literature. See Finkelhor, Williams, Burns & Kalinowski, Sexual Abuse in Day Care: A National Study, Family Research Laboratory, U. of New Hampshire at 7-8 (1988); Berkowitz, Sexual Abuse of Children and Adolescents, 34 Adv. Pediatr. 275, 278-79 (1987); Herbert, Expert Medical Assessment in Determining Probability of Alleged Child Sexual Abuse, 11 Child Abuse & Neglect 213, 216-17 (1987); Wherspann, Steinhauer & Klajner-Diamond, Criteria and Methodology for Assessing Credibility of Sexual Abuse Allegation, 32 Can.

J. Psychiatry 615, 622 (1987); Paul, “What Really Did Happen to Baby Jane”—The Medical Aspects of the Investigation of Alleged Sexual Abuse of Children, 26 Med. Sci. Law 85, 96-102 (1986); Krugman, Recognition of Sexual Abuse in Children, 8 Pediatr. in Review 199, 202-04 (1986); de Young, A Conceptual Model for Judging the Truthfulness of a Young Child’s Allegation of Sexual Abuse, 56 Amer. J. Orthopsychiat. 550, 555-56 (1986); Hunter, Kilstrom & ⁵⁸⁹ Loda, Sexually Abused Children: Identifying Masked Presentations in a Medical Setting, 9 Child Abuse & Neglect 17, 19 (1985).

The adults who testified to the relevant, nonassertive verbal and nonverbal conduct of the children did so in person and were subject to cross-examination. Testimony of the type described in this second category of proof would have been admissible in a judicial proceeding. See In re Dependency of Penelope B, 104 Wash.2d 643 , 709 P.2d 1185 (1985) (en banc). The third class of proof concerns a clinical psychologist, as to two children from Bo Peep whom she was treating, and a clinical social worker, as to three children from Bo Peep whom she was treating. 2 They opined that the children had been sexually abused at Bo Peep.

These opinions were based on personal observations of, and parental reports of, conduct of the type described above, as well as on statements made to the experts by the children in therapy sessions. Both of these experts were subject to cross-examination. The testimony of these witnesses was sufficiently reliable to be admissible in this administrative proceeding, whether or not some or all of the hearsay declarations of the children embodied within that testimony would have been admissible in a judicial proceeding. Under the law of evidence, as a general proposition, statements of medical history, made by a patient to a treating medical practitioner for the purpose of treatment, may be admitted as substantive evidence through the medical witness.

If the medical practitioner is engaged only to render an expert opinion, and not for purposes of treatment, statements of history related by the patient are admissible through that witness for the limited purpose of explaining the basis for the expert’s opinion. See State v. Allewalt, 308 Md. 89 , 517 ⁵⁹⁰ A.2d 741 (1986); Beahm v. Shortall, 279 Md. 321 , 368 A.2d 1005 (1977). From the standpoint of reliability, hearsay of the subject type has been recognized as evidence by the United States Court of Appeals for the Fourth Circuit. Applying Fed.R.Evid. 803(4), that court held that statements describing abuse, made by a four year old child to her psychologist for purposes of treatment, are admissible as substantive evidence.

Morgan v. Foretich, 846 F.2d 941 (4th Cir.1988). And see United States v. Renville, 779 F.2d 430 (8th Cir.1985). 3 In the fourth class of evidence in the Department’s case, adults related assertive statements made by children, not for purposes of medical treatment, in which the children described, in their terms, acts of physical and sexual abuse said to have been committed on them at Bo Peep. From the standpoint of comparison to a judicial proceeding particular statements may or may not have qualified as admissible hearsay under the excited utterance exception. Compare United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980), cert. denied, 450 U.S. 1001 , 101 S.Ct. 1709 , 68 L.Ed.2d 203 (1981); United States v. Nick, 604 F.2d 1199 (9th Cir.1979); Moore v. State, 26 Md.App. 556 , 338 A.2d 344 , cert. denied, 276 Md. 747 (1975) (exception applied) with Cassidy v. State, 74 ⁵⁹¹ Md.App.1, 536 A.2d 666 , cert. denied, 312 Md. 602 , 541 A.2d 965 (1988) (exception inapplicable).

Deborah testified in Bo Peep’s case. The thrust of her evidence was that Bo Peep was so closely supervised and so open to parents at all times that any abuse suffered by any children who happened to be enrolled there could not have occurred on the Bo Peep premises. A psychologist testified on behalf of Bo Peep from a review of medical records and transcripts of prior testimony, but without having examined the children. That expert opined, in essence, that the apparent abuse of particular children was explainable by masturbation, constipation, and/or separation anxiety, coupled with a strong suggestion of an overlay on the entire case of some hysteria on the part of some adults.

The hearing officer was persuaded that there was child abuse and that it had occurred at Bo Peep. Essentially Clark concluded that coincidence could not explain the number of children who bore physical findings consistent with sexual abuse, who manifested behavior indicative of having been sexually abused, and who were said to have described acts of physical and sexual abuse at Bo Peep. B To illustrate the due process issue in a factually specific context, we shall review the evidence concerning child 7. 4 Bo Peep argues that “[t]he statements of child 7 are a prime example of the effect of the due process denial upon Bo Peep.” Appellee’s Brief at 27. Child 7 is a female who was three and one-half years old in July 1987.

Because the child had exhibited several symptoms of abuse, as listed in a brochure which the child’s parents had obtained at a meeting sponsored by the Social Services Administration, the parents caused child 7 to be examined by Dr. Schubin on July 2, 1987. On that examina ⁵⁹² tion the diameter of the child’s hymen was two millimeters, a finding which was normal for her age. Child 7 did not thereafter attend Bo Peep until Monday, July 13. In the interim child 7 was constantly with her parents during the family vacation.

On Wednesday, July 15, the mother picked up child 7 at Bo Peep after 4:00 p.m. The child complained that her bottom hurt. The complaints continued into the evening. When bathing child 7 that evening the mother noticed a small cut near the child’s vaginal area.

On questioning the child told the mother that that was where Miss Debbie had put toilet paper in her. As a result the parents caused child 7 to be reexamined by Dr. Schubin on Friday, July 17 at noon. Dr. Schubin testified that on that examination the hymenal opening was then “grossly distorted” to ten by fifteen millimeters, with swelling and redness, in terms of a clock face, from two to six. In his opinion the injuries occurred within four to six days prior to his examination.

In his opinion the child could not physically have produced the injury with her own hands by masturbating. Child 7’s mother testified that child 7 said on Friday that Mr. Pat was also there when Miss Debbie put toilet paper in her. On Saturday the child told the mother that “Miss Rita” (i.e., Blevins) and “Miss Martha” were also there and that “a ball” had been put in her. At first she described the ball as orange and then as pink.

She said this happened when she was in the kitchen on the table. In September 1987 child 7 began to be treated by Mary Derbyshire (Derbyshire), a clinical social worker. Derby-shire was also treating two other children from Bo Peep whom she believed had been abused. Derbyshire testified for two full days in the revocation case.

Her direct and cross-examinations, and related colloquy, are reported in approximately 575 pages of transcript. The notes which she made of sessions with the children were introduced in evidence and made available to Bo Peep’s counsel overnight for preparation for cross-examination. Drawings made by the children in the therapy sessions were introduced as ⁵⁹³ exhibits. Child 7 was still in weekly therapy with Derby-shire when the latter testified in May 1988.

Derbyshire acknowledged that, particularly in the early phases of the treatment, the child “had confused thoughts that interfered with her being able to verbally articulate things in a way that she was experiencing them____” In September the child talked of Bo Peep as a bad place where Miss Rita had hurt the child’s “operation.” Child 7 had had a hernia operation resulting in a scar in her pelvic area. During a November session child 7 said that Miss Rita had beaten her “down there” (pointing to the vaginal area) when the child was going potty. When asked to demonstrate the child used both of her fists and started beating on her pelvic area. Derbyshire then asked the parents to join them and the child repeated the demonstration again.

After each demonstration the child stated that she was just kidding. Derbyshire’s interpretation of the statement, “just kidding,” was that child 7 had difficulty accepting the reality of what had happened and that was her way of making the occurrence not real. Child 7 refused to take naps. When Derbyshire was attempting to treat that fear, the child told Derbyshire that “Mr. Pat [had] sat next to her when she was asleep and he had newspapers ... and he put the newspapers on her and then he tried to choke her____” The child demonstrated by putting her hands around her neck.

When child 7 talked about Miss Rita hurting the child’s “operation,” the child would tremble, shake, cry, and beg to go home. The child said that Miss Rita would beat her in the belly and demonstrated by placing the palm of one hand flat against her stomach and striking the back of that hand with her other hand in a fist. Derbyshire understood that to be a technique for beating a child without leaving a bruise. The child also referred to Blevins as “big foot” and spoke of a “water machine” used to spray the children with colored water in a kitchen at Bo Peep.

The specific testimony on these points is set forth in the margin. 5 Derbyshire ⁵⁹⁴ testified that the child said that Miss Rita had told child 7 that if she ever told secrets she would be