DOUG A. HOLMES,                                  )
                                                 )
                       Respondent,               )
                                                 )
       vs.                                       )    No. SD32396
                                                 )
AMY F. HOLMES,                                   )    FILED: March 31, 2014
                                                 )
                       Appellant.                )

               APPEAL FROM THE CIRCUIT COURT OF IRON COUNTY

                            Honorable Randy P. Schuller, Judge

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
DIRECTIONS

       Amy Holmes challenges a dissolution judgment that divided marital property

and awarded Doug Holmes sole legal and physical custody of their young daughter.1

Amy contends that (1) the custody award is against the weight of evidence; (2) the

court did not comply with § 452.375.2; (3) the property division is not fair and

equitable; and (4) the court erred in calculating child support.


1
  Hereafter, we refer to the parties by their first names and to their daughter as “Child.” Statutory
citations are to RSMo as amended through 2010. Rule references are to Missouri Court Rules
2010.
       Relief is merited in only one respect: a child support credit for overnight

visitation. We reverse and remand to that extent and affirm the judgment otherwise.

                             General Principles of Review

       To quote Amy’s brief, it “is well settled in Missouri that matters such as this

are governed by the paramount decision in Murphy v. Carron, 536 S.W.2d 30, 32

(Mo. banc 1976),” which requires that we affirm the trial court’s judgment unless (1)

no substantial evidence supports it; (2) it is against the weight of the evidence; or (3)

it erroneously declares or applies the law.2

       It is Amy’s burden to show error. McCallum v. McCallum, 128 S.W.3d 62,

66 (Mo.App. 2003). “We do not retry the case, rather we accept as true the evidence

and reasonable inferences therefrom in the light most favorable to the prevailing

party and disregard contradictory evidence.” Id. at 65.3


2
  Amy suggests that this standard may be flawed, asserting that “neither party has found a case in
which the court of appeals has substantively reversed a lower court ruling related to custody in
original custody awards in dissolution of marriage or paternity cases,” and that “having a
standard of review that gives the impression that substantive reversal is possible may be
misleading.” “Furthermore,” Amy argues, “if substantive reversals on original custody
determinations in the context of dissolutions or paternity actions do not occur under the ‘no
substantial evidence’ challenge or the ‘against the weight’ challenge, the only remaining
standard of review set out by Murphy is the trial court ‘misstated or misapplied the law.’”
   We decline to reexamine Murphy for several reasons. First, we are constitutionally bound to
follow our supreme court’s last controlling decision. See In re X.D.G., 340 S.W.3d 607, 619
(Mo.App. 2011). Second, without research at length, we find that Amy’s premise overlooks at
least Kroeger-Eberhart v. Eberhart, 254 S.W.3d 38 (Mo.App. 2007), and this court’s opinion in
Marriage of Horinek, 41 S.W.3d 897 (Mo.App. 2001). Finally, Amy questions our standard of
review without proposing any change or showing how a change would alter the outcome here.
Failure to develop an allegation of error by argument waives the issue. See In re K.A.C., 246
S.W.3d 537, 547 (Mo.App. 2008).
3
  We summarize facts throughout this opinion in accordance with the last-stated principle. We
decline to publish, from a record well known to the parties, any more than is needed to
understand our rulings on Amy’s four points. This case is largely about unsubstantiated
allegations and a child who is innocent in any event.


                                                2
                                         Background

         Amy married Doug in 2003. Child was born in 2006. Doug worked as an

engineer. Amy kept the home and worked part-time. In April 2010, when Child was

age 3, the family moved from Virginia to Missouri, temporarily living with Amy’s

parents until they found a house.

         Amy took Child on a trip two months later. Unbeknownst to Doug, Amy also

took $41,417 from the couple’s bank accounts (leaving Doug $4.70),4 cancelled their

joint credit cards, “hotlined” a report that Doug had fondled or inappropriately

touched Child, and got an ex parte order of child protection.                For five months

thereafter, Doug was not allowed to see or have any contact with Child.

         Meanwhile, the Children’s Division (“CD”) investigated the allegations and,

within a month, found them to be unsubstantiated. Amy promptly hotlined Doug

again, adding allegations of oral sex and of an enlargement or stretching of Child’s

vagina. Following a second forensic interview and a medical examination finding no

signs of sexual abuse, the CD also found these allegations unsubstantiated.

         Authorities wanted Child to live, temporarily, with a neutral relative or friend.

Doug and Amy could not agree on such a person. The juvenile officer then took

custody of Child, who spent the next seven weeks in foster care. The foster parent

noted no sexual or inappropriate behavior by Child. During this time, according to

two trial witnesses, Child “apologized for the lies about her dad” and said “I’m just

tired of the lies.”



4
    Months later, when Child was in foster care, Amy sent $10,000 back to Doug.


                                                3
       In December 2010, Doug was granted a supervised visit with Child at the CD

office. Child “was elated to see him – very excited to see her daddy” and “ran right to

him,” according to the CD supervisor who oversaw this “very joyful, playful, and

appropriate visit,” and testified that Child acted similarly at all of Doug’s later visits.

       Thereafter, authorities decided not to pursue extended judicial custody and

instructed Amy and Doug to work out custody arrangements.                 For the next 19

months, Child stayed with Doug one week and with Amy the next.

       Amy hotlined Doug yet again in March 2011, repeating allegations previously

found to be unsubstantiated. The CD coded this third report “inappropriate” and

closed it without further investigation.

       At trial in August 2012, Amy opined that the CD “returned [Child] to a child

abuser” and that Doug was still abusing Child, even to the time of trial. Amy testified

that nothing could convince her otherwise, such that she even believes allegations

that she knows are actually false. We quote Amy’s trial testimony:

          Q. Is there anything that could be done that would convince you that
             Doug Holmes did not sexually abuse and is not sexually abusing
             your daughter?

          A. I don’t know how not to believe my daughter. I don’t know how to
             not believe her.

          Q. Even when she makes statements that he’s abused her on the
             trampoline, which you know is false, correct?

          A. I think --

          Q. Is that correct?

          A. That’s correct.

          Q. Even when she makes allegations that he’s abused her at the
             circus, which you know is false?


                                             4
             A. That’s correct.

                                                 ***

             Q. Okay. So Doug has never been on this trampoline with [Child],
                right? [5]

             A. No, he hasn't.

             Q. And so you’re aware that [Child] made allegations that Doug had
                abused her on the trampoline; is that correct?

             A. Yes.

             Q. Do you believe those allegations?

             A. Yes, I do.

             Q. Even though Doug has never been on the trampoline with
                [Child]?

             A. That’s right.

             Q. She’s also alleged that he abused her at a circus; is that correct?

             A. That’s correct.

             Q. Has Doug ever taken her to a circus?

             A. No.

             Q. So you believe that, too, though?

             A. Yes.

         Doug testified that he felt Amy had coached Child to lie about child abuse,

alienated Child from Doug, tried to convince others that Doug abused Child, and was

likely to persist in all of these. He requested sole legal and physical custody of Child.

The guardian ad litem (“GAL”) recommended likewise.6



5
    Amy previously testified that this trampoline was bought after she and Doug separated.
6
    A different GAL than was in the order of protection case.


                                                 5
      In its judgment, the court found that Doug “has not abused the minor child in

any way”; that Amy’s behavior prior to and at trial “raise[d] questions as to her

ability to properly raise the minor child, if the child resided with her primarily”; that

Doug was the parent more likely to allow Child to have frequent, continuing, and

meaningful contact with the other parent; and that it was in Child’s best interest to

remain in Doug’s home and school district. The court further observed that Amy

          made two hot line calls, one on July 18, 2010 and one on August 12,
          2010 and was involved in a third hot line call in April 2012. The first
          two hot line calls were extensively investigated by Children's
          Division. The first hot line call was reported unsubstantiated on
          August 30, 2010. The second hot line call was reported
          unsubstantiated on December 21, 2010. The third hot line call was
          determined to be an inappropriate report and was not investigated.
          A SAFE examination was conducted on August 5, 2010 at Cardinal
          Glennon Children’s Hospital…. The Children’s Division, the
          Juvenile Office and the medical personnel that conducted the SAFE
          exam found no evidence of sexual abuse.

The court also cited evidence that Child was assisted or coached in connection with

reports, and that there were “two physically impossible reports, i.e., the trampoline

incident and the circus incident.”

      Summing up, the court observed that Child “was subjected to two hot line

calls, two Children’s Division investigations, two psychological evaluations, two CAC

interviews, and numerous visits to counselors and therapists,” was taken to St. Louis

for a SAFE exam, and had even spent time in foster care.

             From the record, the minor child was subjected to significant
          instability, originating from [Amy’s] household. The record
          suggests that this instability may continue, based on [Amy’s] April
          2012 inappropriate report and [Amy’s] statements at trial that she
          wanted [Doug’s] parental rights terminated. A stable home with a
          good environment is the most important consideration as to
          custody.


                                           6
             The more stable home appears to be [Doug’s] and in the best
          interests of the minor child, [Doug] should have primary custody.
          [Amy] should have temporary custody and visitation as the Court
          deems appropriate.

              The Guardian ad Litem recommends that the custodial
          arrangement for the child remain in Rolla with [Doug], with
          visitation for [Amy].

Citing all these factors, the court found it in Child’s best interest to award Doug sole

legal and sole physical custody, with visitation to Amy. The judgment so ordered.

      Amy was ordered to pay Doug $546 monthly child support.                The court

awarded the parties their respective vehicles, retirement and financial accounts, and

personal property in their possession. The parties were to pay their own post-

separation debts. There was no other marital debt to divide.

      Amy appeals, raising four points.

                              Point I – Child Custody

      Amy contends that the custody decision was against the weight of the evidence

and that she should have sole legal and physical custody of Child.

                                 Standard of Review

      An appellate court will not disturb a custody decision unless it is manifestly

wrong and the child’s welfare requires some other disposition. Marriage of Sisk,

937 S.W.2d 727, 730 (Mo.App. 1996). “This court must presume the trial court

awarded custody in the child’s best interests, due to the trial court’s superior

position in judging the credibility of the witnesses, along with their character,

sincerity, and other intangibles not completely revealed by the record.” Id. The trial

court was entitled “to believe or disbelieve all, part or none of the testimony of any


                                           7
witness.” Id.

       To reiterate, we will affirm this custody award unless we are firmly convinced

that Child’s welfare demands another arrangement. Thorp v. Thorp, 390 S.W.3d

871, 877 (Mo.App. 2013). “We afford greater deference to the trial court’s decision in

child custody determinations than in other cases.” Sisk, 937 S.W.2d at 730.

                                             Analysis

       Amy’s Point I argument largely boils down to these assertions:

           1. The record, properly weighed, proves that Doug abused Child
              and that she is not safe with him.7

           2. To quote Amy directly: “The only way to reconcile the lower
              court’s decision in this case is to recognize that, in the heat of
              advocacy, it was difficult for the lower court to see the amount of
              fallout from Fred Nolen’s involvement.”8

Our careful consideration of the record, in accordance with our standard of review,

fails to convince us of either claim.

       As to #1, Amy concedes (and, to some degree, complains) that appellate courts

do not reweigh evidence in custody cases. “Regarding custody issues, we grant the

trial court broad discretion and do not reweigh the evidence, even if the evidence

may have supported another conclusion.” Id.; see also Durbin v. Durbin, 226

7
   The dissent purports to disprove, as a proposition allegedly “necessary to sustain the
judgment,” that Amy prompted Child to falsely accuse Doug of child abuse. Slip op. at 2. That
proposition is not necessary to sustain the judgment. The correctly-framed proposition
“necessary to sustain the judgment” (and subject to the four-step analysis cited by the dissent) is
that the custody award is in Child’s best interest.
8
  The CD hired psychologist Fred Nolen (sometimes misspelled “Nolan” in the record) to
evaluate Child and her parents after Amy’s second hotline, and Doug called Nolen as a trial
witness. Amy complains bitterly and at length that, inter alia, Nolen’s “shoddy work” unduly
influenced the CD; his reports “were the basis for taking [Child] into foster care”; and “foster
care had a chilling effect on [Child]’s disclosures, particularly in light of the fear that she would
be taken away from her Mother, which she was, after Nolen’s reports.”


                                                 8
S.W.3d 876, 879 (Mo.App. 2007). As noted previously, we give greater deference to

trial courts in custody cases than in other litigation because trial courts are better

positioned to judge the parties’ credibility, sincerity, character, and other intangibles

that we may be unable to glean from a cold record. See Durbin, 226 S.W.3d at 879;

Sisk, 937 S.W.2d at 730. Ultimately, what was said in Durbin, id., we also say

here: “We have thoroughly reviewed the record and found that, while the evidence

may also have supported a contrary decision, the evidence was more than sufficient

to support the trial court’s award of custody and that decision was not against the

weight of the evidence.”

      As to #2, Amy complains that Nolen “tainted” this case; had he not been

involved, Child “would never have been placed in foster care, she would never have

been taken from her Mother, and she would have been able to process what was

happening to her, therapeutically, and she would have been protected from her

abuser.”

      Accepting that Nolen’s report was flawed – the trial court said as much in its

judgment – we cannot agree that Nolen or his actions swayed the outcome. The

judgment mentions Nolen twice, neither time favorably, in a single paragraph which

we earlier quoted in part and now quote more fully:

           The first two hot line calls were extensively investigated by
           Children’s Division. The first hot line call was reported
           unsubstantiated on August 30, 2010. The second hot line call was
           reported unsubstantiated on December 21, 2010. The third hot line
           call was determined to be an inappropriate report and was not
           investigated. A SAFE examination was conducted on August 5, 2010
           at Cardinal Glennon Children’s Hospital. No indications of sexual
           abuse were reported. The Children’s Division investigation included
           two CAC interviews, a flawed report by Fred Nolan, and countless


                                           9
           interviews by case workers. Substantial weight must be given to the
           investigation and conclusions of the Children’s Division, regardless
           of the value of the Nolan Report. There were no reports of sexual
           abuse from Petitioner’s day care provider, Respondent’s babysitters,
           any family physician or the foster parents. The Children’s Division,
           the Juvenile Office and the medical personnel that conducted the
           SAFE exam found no evidence of sexual abuse. [emphasis added]

       Amy’s effort to pin the custody award on Nolen finds little or no support in the

record and none in the judgment.9 Her fixation with Nolen ignores investigations

and conclusions of two GALs, neither of whom believed that Doug abused Child.

“[I]t is significant that, even though the trial court is not bound by the

recommendation of the GAL concerning custody, it was the GAL’s recommendation

that Father be given primary custody of the child.” Sisk, 937 S.W.2d at 731.

       Returning to basics, we find further guidance in Sisk, a case like this one in

several respects.     There, as here, allegations of paternal sexual abuse were not

substantiated. There, as here, the trial court “found that Father did not sexually

abuse the child, awarded primary custody to Father and granted visitation rights to

Mother.” Id. at 730. There, as here, the mother raised an “against the weight”

complaint on appeal. Id. at 729. What the appellate court said there also fits here:

           We do not minimize the seriousness of the allegations of sexual
           abuse in this or any case and have thoroughly reviewed the record.
           Resolution of the conflicts in evidence on this subject hinged largely
           on credibility. The trial court, however, is in a far better position to
           evaluate the credibility of witnesses than an appellate court and the
           resolution of conflicting evidence concerning the relative fitness of
           parents for custody is left to the trial court with deference to be
           accorded its conclusions.

Id. at 731 (quoting Marriage of Patroske, 888 S.W.2d 374, 383 (Mo.App. 1994)).

9
 The dissent details, at length, evidence supporting the trial court’s determination that Nolen’s
work was “flawed” and to rest its custody decision on other evidence.


                                               10
       Here, as in Sisk, we have carefully reviewed the record and find no abuse of

discretion as to custody. Perhaps more to the point, we are not firmly convinced that

Child’s welfare requires what Point I seeks: sole custody to Amy. Point denied.

                           Point II – Statutory Findings

       Point II also challenges the custody award, urging that “the court abdicated its

fact finding responsibilities, failing to comply with the best interests requirements of

§ 452.375, RSMo, in that [Child’s] welfare is at risk.”

       Yet this is not a claim of failure to make statutory findings; Amy expressly

“acknowledges the trial court set out findings relative to § 452.375.2.” The charge is

inaccuracy, “that the court’s findings have numerous errors and inconsistencies

relative to the evidence presented at trial.” This merely repackages Point I’s failed

argument in § 452.375 terms, so we simply reiterate that the custody award is

supported by substantial evidence and is not against the weight of the evidence.

Point II fails.

                           Point III – Property Division

       Amy alleges, on appeal, that she is on the short end of an 81%-19% property

split. We find no error, but even if we did, Amy invited it by her own actions and

requests at trial.

       Amy expressly invited the trial court to credit her as having the net $31,359.45

that she had taken from joint accounts. She did so orally, on direct examination

under her counsel’s questioning.       She also did so in writing, in her proposed

“Distribution of Assets and Liabilities” (Amy’s Exhibit C2). Crediting $31,359.45 to




                                           11
Amy’s side of the ledger, as she proposed at trial, puts her slightly ahead of Doug.10

Point denied.

                                Point IV – Child Support

       Finally, Amy asserts that her $546 monthly child support obligation “is unjust

or inappropriate after consideration of all relevant factors.”11 She argues principally

that the court “failed to recognize [Doug’s] unjustified underemployment” and thus

erred in not imputing higher income to him.               She primarily cites Holmes v.

Holmes, 878 S.W.2d 906 (Mo.App. 1994), which recognizes that income may be

imputed

           to prevent a spouse from escaping responsibilities to support minor
           children … including where a spouse has: 1) voluntarily reduced his
           or her income without justification; and 2) involuntarily lost a job
           but failed to use his or her best efforts to obtain a new job, refused to
           accept employment offers, or failed to show that the unemployment
           was other than temporary.

Id. at 909 (internal cites omitted).

       We presume the court did not think Doug changed careers to evade support

obligations.12 Doug testified that he lost his engineering job because stress from the

accusations against him hurt his performance.               Amy acknowledged that Doug

previously sought engineering jobs nationwide but got only one job interview and

offer. Holmes is inapposite in our view.


10
   $31,359.45 + 9,090.96 other property = $40,450.41. Doug received $38,828.59.
11
   We deem abandoned a second complaint (“no findings as to child support”) which was not
developed in the argument portion of the brief. Hermann v. Heskett, 403 S.W.3d 136, 142
(Mo.App. 2013).
12
   Neither party timely requested specific findings of fact. Fact issues with no express findings
are deemed to have been resolved in accordance with the result. Marriage of Davis, 378 S.W.3d
426, 427 (Mo.App. 2012); Rule 73.01(c).


                                               12
       We cannot say the trial court abused its discretion in not imputing income to

Doug or in excluding income from his sporadic secondary employment.13 “The trial

court’s inclusion or exclusion of earnings from secondary employment benefits is

discretionary.” Thorp, 390 S.W.3d at 879 (citing Bridgeman v. Bridgeman, 63

S.W.3d 686, 690 (Mo.App. 2002)).

       However, Doug concedes that Amy should have been given a Form 14, Line 11

child support credit for overnight visitation.14 We agree, reverse the child support

award in that respect only, and remand with directions to determine the appropriate

credit and enter a judgment adjusting child support accordingly.

                                        Conclusion

       We reverse in part and remand the child support award as previously stated,

and affirm the judgment in all other respects.15

DANIEL E. SCOTT, J. – OPINION AUTHOR

NANCY STEFFEN RAHMEYER, P.J. – DISSENTS IN SEPARATE OPINION

WILLIAM W. FRANCIS, JR., C. J. – CONCURS

13
   Doug served on some National Science Foundation panels, but this work varied year to year.
He also worked part-time for an engineering firm prior to trial so he could pay expenses in the
dissolution case.
14
   To quote Doug’s brief:
     Father would concede that the Court should have given Mother the overnight credit
     she is entitled to based on the Court’s parenting plan. Father’s Form 14 did not
     include an overnight visitation credit because Father was proposing no overnight
     visitation for Mother. Since the Court adopted its own parenting plan which included
     overnight visitation for Mother, the overnight visitation credit should have been
     included in the calculation for child support. Father believes that Mother would be
     entitled to a 6% credit for overnight visitation based on the number of overnight
     periods awarded in the parenting plan. Based on awarding a 6% credit for overnight
     visitation the new presumed child support amount would be $494.
15
   The court commends counsel for both parties for their professionalism throughout this appeal.


                                              13
DOUG A. HOLMES,                                )
                                               )
               Petitioner-Respondent,          )
                                               )
       vs.                                     )              No. SD32396
                                               )
AMY F. HOLMES,                                 )
                                               )
               Respondent-Appellant.           )

                 APPEAL FROM THE CIRCUIT COURT OF IRON COUNTY

                           Honorable Randy P. Schuller, Special Judge

DISSENT

       I respectfully dissent. Acknowledging the deference that is due the trial court in one of

the most disturbing dissolution cases that I have reviewed, I believe the trial court erred in

awarding Father sole custody of the four-year-old child. I note that, at the end of the evidence,

the guardian ad litem (“GAL”) who represented the child suggested that a neutral therapist meet

with all of the parties. That never happened. Instead, the trial court decided that Father had not

sexually abused the child and, by inference, that Mother was at fault for the allegations. That

decision stemmed from the work of a licensed psychologist, Dr. Frederick Nolen. Although the

court claimed it “rejected other parts of the [trial] testimony as not credible” and referred to Dr.
Nolen’s report twice in its judgment as the “flawed report by Fred Nol[e]n” and “regardless of

the value of the Nol[e]n Report,” it is clear in reviewing the evidence that it was not possible to

separate Dr. Nolen’s influence on the juvenile court, the Children’s Division, and in the trial.

       Mother acknowledges the difficulty in prevailing on an “against the weight of the

evidence claim.” She identifies the steps per In re Marriage of Oakley, 340 S.W.3d 628 (Mo.

App. S.D. 2011):

       “(1) identify a challenged factual proposition, the existence of which is necessary
       to sustain the judgment;
       (2) identify all of the favorable evidence in the record supporting the existence of
       that proposition;
       (3) identify the evidence in the record contrary to the belief of that proposition,
       resolving all conflicts in testimony in accordance with the trial court’s credibility
       determinations, whether explicit or implicit; and,
       (4) demonstrate why the favorable evidence, along with the reasonable inferences
       drawn from that evidence, is so lacking probative value, when considered in the
       context of the totality of the evidence, that it fails to induce belief in that
       proposition.”

Id. at 637 (quoting Houston v. Crider, 317 S.W.3d 178, 187 (Mo. App. S.D. 2010)). The

challenged proposition is that Mother prompted her daughter to make false sexual abuse

allegations against Father. The favorable evidence supporting that proposition stems from Dr.

Nolen’s report. As set forth below, I believe that favorable evidence, along with all reasonable

inferences, is so lacking in probative value that it failed to induce belief in that proposition. The

majority opinion glosses over the conclusions reached by the decision-makers, including the

GAL and juvenile court, but fails to analyze the underlying evidence that supports those

conclusions.

       Dr. Nolen was brought into the investigation by Children’s Services after the minor child

disclosed to a therapist (Connilee Christie) during a second CAC interview in August 2010 that

she and Father played some “games” together. The child pointed to her genital area and said that




                                                  2
Father puts his head there and she pointed to places on the diagrams where he touched her.

Jessica Homeyer, a Children’s Division case worker, requested psychological and parenting

assessments on the adults and a psychological evaluation on the child. Homeyer, who had been

on the job for ten months, told Dr. Nolen prior to the interviews that she suspected the child was

being coached and the allegations were not true. Dr. Nolen did not receive any information

regarding the facts of the case prior to doing the evaluations and did not “specifically” know the

purpose of doing the evaluations. He is a traveling therapist who does reports for the Children’s

Division, and gets referrals from social services, juvenile offices, and private therapists

throughout the state, except the Springfield area. He issued reports in November of 2010.

           Dr. Nolen did something that no reputable therapist would do. He stated with absolute

certainty that the child’s statements were false. Then, based on his interviews, an encounter with

Mother on April 3, 2011, and “other e-mails”1 that Father had sent him subsequently, he came to

the conclusion that there was absolutely no possibility that Father had abused the child.2 That is

an important conclusion and one that is disturbing. But more disturbing is the manner in which

Dr. Nolen arrived at his conclusions. He reasoned that if the child’s statements were false, then

Mother must have been at fault for the child making the statements. Dr. Nolen indicated, in an

absolutely bizarre report, that he must “rule out for factitious disorder of [Mother] in [his] report

of her.” As a result of his conclusions in his report to the juvenile office, the child was taken into

foster care.



1
  During his testimony, Dr. Nolen repeatedly referenced other information and e-mails Father had sent him that, if
valid, “support the diagnosis strongly” regarding his conclusions about Mother’s mental and emotional issues. In
fact, after the April 3rd encounter, Father continued to send Dr. Nolen e-mails that “further confirmed [Dr. Nolen’s]
belief, [his] diagnosis”; however, he would not be specific about how many e-mails he had received from Father.
None of the e-mails were available at the hearing. Dr. Nolen had not been paid at the time of trial, but anticipated
payment from Father.
2
    Dr. Nolen testified his opinion was “[b]ased on the entire information obtained from everybody everywhere.”


                                                           3
           After Dr. Nolen’s initial testing, he was hired by Father for the dissolution. When

Mother went to Father’s apartment on April 3, 2011, Dr. Nolen was there attempting to re-

interview the child. Prior to this event, Dr. Nolen had contacted Mother repeatedly asking to re-

interview her and the child. She and her attorneys would not agree to further interviews unless

Father agreed to be interviewed by a different therapist. Dr. Nolen then knew he did not have

Mother’s permission to engage in further testing of the minor child.

           After Mother refused permission for further testing by Father’s expert, Dr. Nolen

prepared an unsolicited report to the juvenile court requesting that Mother have no contact with

the child. Once again, the juvenile court responded by denying custody and visitation to Mother

for three weeks.3 He described Mother’s behavior as “histrionic in terms of excessively

unnecessarily emotional, very agitated.”4 The report does not contain the names of the “reliable

collateral informants that Father named for [Dr. Nolen].”

           When asked about his unsolicited report, Dr. Nolen replied, “If I had a serious concern

about a child’s safety, I’m mandated to contact the authorities.” His “concern” was based on

information from Father that was not validated by any witness or testimony. In fact, Dr. Nolen

told Father to validate the concerns himself or give it to the authorities to have it validated.

Despite that advice to Father, Dr. Nolen then proceeded to ask the juvenile officer to take the

child into protective custody again “[b]ased on [Mother’s] behaviors” at the April 3rd encounter.

           Virtually every therapist who testified disputed Dr. Nolen’s methods and results. Briefly,

(1) Dr. Nolen made up an inventory to test the child which had absolutely no validity, reliability,

or peer testing, (2) he inappropriately used adult tests on the minor child, (3) he drew conclusions


3
 When Mother challenged Dr. Nolen’s behavior as unethical as he did not have consent, Dr. Nolen claimed the
consent form was good for one year after the date of signature.
4
    Father also had “elevated histrionic personality score.”


                                                               4
from a psychomotor test that cannot be used to support those conclusions, (4) he created a

diagnosis of Mother out of whole cloth, (5) he was hired by Father as an expert in a dissolution

but failed to inform the court of this very different role, (6) he arrived at a conclusion and in an

inflammatory manner presented the results to the court, and, most importantly, (7) he failed to

investigate the further allegations of a four-year-old child or recommend counseling for the child.

       It is necessary to commence with Dr. Nolen’s testing methods in order to challenge his

conclusion regarding Mother. Dr. Nolen used a test he called the “Nolen Trauma Inventory.”

He claimed it has not been “normed” as a “standalone published inventory,” but he claims it is

still a trauma interview. He described it as a “compilation of many symptoms that indicate

physical or sexual trauma . . . taken from the literature of peer reviewed, published in national

journals, as indicated of trauma.” He claimed it was published “within different articles [he’s]

written,” and that the information to validate that it has been peer reviewed is available from a

CD workshop company that sells his home studies in Jacksonville, Florida. Important to this

case is that he relied on this baseless trauma inventory when doing his evaluations.

       Additionally, Dr. Nolen made the diagnosis of factitious disorder as a rule out on October

26, 2010, based on only one contact with Mother, one contact with the child, and one contact

with Father. He did not review any other information from other counselors or medical

information related to the child. He was looking for “collateral validation” of his diagnosis when

Father asked for his help in the custody decision. Dr. Nolen considered his attempted interview

of the child and the encounter with Mother on April 3, 2011, as the additional validation he

needed. Dr. Nolen claimed Mother’s “histrionic subscale was also extremely elevated” and that

indicates she “does things to intentionally attract attention to herself.” He concluded that he




                                                  5
could rule out “possibly factitious disorder[5] on Axis I” for Mother. He then said “there might

be another heinous[6] process occurring here” and used the term “Munchausen’s syndrome by

proxy” in his report to the juvenile court. He did not support that diagnosis with any diagnostic

data and he did not explain how this diagnosis applied to Mother, he simply threw out a

possibility. Dr. Nolen further said that people with too much histrionics “create a lot of chaos

that’s focused on getting attention to themselves.” He did not determine anything about the way

either parent was able and willing to perform functions of a mother and a father. Dr. Nolen’s

concern regarding Mother’s parenting was his diagnosis of Munchausen’s by proxy.

           Although, in Dr. Nolen’s first interview with the child, the child disclosed allegations of

abuse by Father, he disregarded all of them by concluding they were false. After the first

meeting, he ruled out “any true sexual abuse to [the child]” by Father. There is no explanation

what he considered “true sexual abuse.” He reported that 100 percent of his data did not show

any sexual abuse. He claimed, “There would have to be physical forensic evidence done to 100

percent confirm it across the board.” Dr. Nolen further stated that “if somebody does have

forensic physical evidence of being sexually abused, that would override [his] conclusions.” He

did not suggest any follow-up or further investigation, or recommend counseling for the child.

           Dr. Nolen testified that he discounted the child’s statements to him because the “nature of

[the child’s] presentation of that information to me that [Father] had allegedly sexually abused


5
 Dr. Nolen testified this was “production or claims of either physical problems, psychological problems, or both
with the intent of garnering attention – pulling attention to oneself.” After one interview with Mother, he decided it
was possible she had factitious disorder.
6
    Dr. Nolen elaborated that he used the term

           heinous because we all have conflicts. We all have differences. We all have arguments, but only
           the truly mentally ill stoop to such low levels as to accuse a parent of the most degrading action
           they can do: defile their own child. Placing such false evil in the minds of children can seriously
           distort their perceptions of their parents’ true goodness, turning the child against the adults who
           are supposed to be their prime protectors and educators about morality: their parents.


                                                           6
her made [Dr. Nolen] suspicious that it was not true.” He further opined: “Children are not

always accurate. Children are not always honest. Children do not always fully clearly perceive

what’s going on around them.”7 He ruled out sexual abuse on his first and only visit with the

child.

         Further, it is alarming that after Dr. Nolen was hired by the juvenile court to be a neutral

investigator he stayed in contact with Father and advocated for Father in the custody dispute. He

testified his final conclusion at the time of trial was confirmed partly on the basis of Father’s e-

mails to him, but he would not say what was in the e-mails or even how many he had received.

At no time did he inform the court or juvenile office of this dual role. He based his conclusion

on what he was told by Father, but does not know if what was told to him was true or not; he told

Father to “validate it.” He did not make a hotline, rather, he wrote a letter to the court directly.

Dr. Nolen claims that his interviews with Mother, Father, and the child, his encounter with

Mother on April 3rd, and “all of the other information from other sources” added up to confirm

his previous diagnosis of Munchausen’s by proxy. Dr. Nolen’s letter to the court stated: “I

hereby petition the Court to suspend any and all contact between [Mother] and [the child].” He

also asked for a ban on Mother’s parents even though he had never talked to them. Dr. Nolen

was casual about the possibility of the child entering into and returning from foster care.

         Mother recorded the interview that Dr. Nolen had with the child with a baby monitor.

The experts employed by Mother had the original tape and the transcript available for their

analysis of Dr. Nolen’s methods and conclusions.




7
 Even if this statement were true, it does not indict Mother. Dr. Nolen did not disclose his training in diagnostic
efforts with children.


                                                          7
                                               Dr. James Harnsberger

           Dr. Nolen based his conclusion that the child had been coached on the child’s demeanor

and vocabulary. A linguistic expert, Dr. James Harnsberger, reviewed Dr. Olsson’s8 findings

and verified the transcription of the interviews by Dr. Nolen. The two critical words in question

that Dr. Olsson focused on were “uncomfortable” and a form of the word “vagina.” Dr.

Harnsberger analyzed a portion of Dr. Nolen’s report which claimed those are not words you

would ever find in the vocabulary of a four year old. Dr. Olsson claimed that while not typical it

would not be unusual for someone with very advanced verbal abilities. On the issue of blurting,

Dr. Harnsberger concurred in Dr. Olsson’s opinion that the child’s responses were neither

inappropriate in their content nor inappropriately timed. On the issue of congruent emotion, both

Drs. Olsson and Harnsberger concurred that the child spoke spontaneously with the emotion you

might expect in a spontaneous conversation. These findings were in disagreement with Dr.

Nolen’s characterization of the child’s congruent emotion and blurting. Dr. Harnsberger noted

that anyone claiming they have a detection system of any kind should be able to report both the

rate or the frequency with which it successfully detects what it is looking for paired with the

false alarm rate (how often the test inappropriately labels a signal as present when it is absent);

Dr. Nolen’s report lacked such validation.

                                                  Dr. Richard Scott

           Dr. Richard Scott is a certified forensic examiner and is in private practice as a

psychologist. He analyzed the reports of Dr. Nolen. He stated that a psychologist can never

diagnose a clinical disorder based on a single psychological test. Psychologists do not even

diagnose mental retardation based on an intelligence test because it is based on incorrect data.

He was critical of every aspect of Dr. Nolen’s testing on Mother and said it was not valid.
8
    Dr. Olsson was a forensic linguistic expert Mother hired to analyze the interviews done by Dr. Nolen.


                                                           8
        First, Dr. Scott noted there is no such thing as Nolen’s Trauma Inventory - a series of

questions Dr. Nolen pulled from literature at will, no articles, no peer reviews or published works

testing it to see if it is credible. It is not a recognized psychological test. There are other tests

but Dr. Nolen did not use them, and the ones Dr. Nolen did use, he more often than not used

them incorrectly. As to the specific tests used by Dr. Nolen, even the intelligence test was too

simple a test and not full-length.

        With regard to the Millon Clinical Multiaxial Inventory (the test used to claim Mother

was histrionic), Dr. Scott agreed it was acceptable for use in a forensic context; however, the

problem with such a test is that “it weighs very heavily on psychopathology.” That means it

overestimates the likelihood of psychopathology, of problems in character, when we may simply

have traits that are not of a clinically significant level. The test is also sensitive to response bias,

meaning the person taking the test can approach it in a variety of ways; the person being tested

can be open and honest, or attempt to present themselves very favorably as is common in

custody, parenting, or personnel evaluations. In a custody or parenting context, positive self-

presentation is very common and exposes a weakness in the test. If a man presents himself as

too positive, he comes across as very narcissistic; women who do this come across as histrionic,

or overly emotional, shallow, extremely flirtatious, or overtly sexualized. He criticized Dr.

Nolen’s finding of histrionic personality disorder because (1) you should never diagnose a

clinical disorder based on a single psychological test; and (2) it could be based on incorrect data

if it is a false finding based on Mother being too positive in her self-presentation.

        As for Dr. Nolen’s use of the Bender Motor Gestalt test, Dr. Scott testified that no valid

interpretations about personality can be made from it. It is “a test of psychomotor ability or

development. It is used more often with children than with adults any longer and there are norms




                                                   9
for assessing the development of hand-eye coordination or the ability to integrate visual and

motor activities.” Also, if Dr. Nolen viewed them as therapeutic hypotheses, they are not

appropriate in a forensic context. They are “fine in therapy to explore and consider, rule in and

rule out, but to toss them into a case involving the parenting of a child and who should get

custody and whether a mother is causing problems for her daughter, it’s inappropriate because

again they’re not reliable.” Forensic opinions, such as the ones Dr. Nolen presented to the court,

should be based on reliable and valid data that is corroborated across sources and presented to a

reasonable degree of psychological certainty to the court. They should not be presented as

hypotheses in a report to be used by lawyers and a judge in determining child custody. Dr. Scott

testified:

        A test must be reliable, it must be generally accepted to be used in a civil case in
        Missouri. And – and I’m not speaking as an attorney. This is part of my training
        as a forensic psychologist to know what I should and shouldn’t use and present to
        the Court as supported by reliable and valid data.

        Dr. Nolen’s statement -- that if a child inverted the father-figure card, she was likely

abused by the father, but that children who are abused by other men do not -- has no foundation

in fact. In other words, there is no validity to that testing idea. Dr. Scott was further critical as

he noted that Dr. Nolen admitted he did not administer the test in standard fashion. “If you don’t

use a test in its standardized method, the results mean nothing, and that’s just plain and simple.”

Even if the test had been appropriately administered, “[t]here is no empirical data that links

Bender-Gestalt results to child sexual abuse, just hypothesis.”

        Dr. Scott noted that Dr. Nolen did not get any history of the child, pregnancy, or

milestones. Dr. Nolen did use the Adult and Adolescent Parenting Inventory; it is a test with

known reliability and validity, is published, and is generally accepted. Dr. Nolen administered

and interpreted it properly and the results clearly state Mother was not similar to abusive parents



                                                  10
and none of the results would link her to a risk for abuse. However, the results are inconsistent

with Dr. Nolen’s conclusion that Mother suffers Munchausen’s by proxy or, more properly,

factitious disorder. Dr. Scott testified, “I see no link in his reasoning or in this – in the way he

drew his conclusion.” It would seem Dr. Nolen’s own report is internally inconsistent with his

testing and results. Dr. Scott further testified, “[t]his data certainly is not consistent with her

suffering this condition” and “[a] rule out or a provisional finding is not supported by this in any

way.” During the Gardner Disciplinary Attitudes Questionnaire, Dr. Nolen even mixed up the

examples of “reactive” and “proactive” parenting.

           Dr. Scott testified the Child Behavior Checklist is a good tool, but Dr. Nolen “extended

the interpretation too far” when both Mother and Father agreed the child showed no significant

behavioral issues. Dr. Nolen said that the child was not sexually abused given the absence of

behavioral problems and that is not necessarily accurate or supported by empirical research.9

           Dr. Nolen used the Phonetic Apperception Test even though it has no known reliability,

there are alternatives, and it is for adults, making no sense to apply it to a four-year-old child.

Further, Dr. Nolen “expressed surprise in his report that a child with a 120 estimated IQ would

tell complex stories” and that is a bit of a paradox – a child with superior verbal comprehension

skills would tell stories that are more complex than a child who is of average or below-average

intelligence at the same age. Dr. Nolen also declared the child unreliable, which Dr. Scott said

was not a logical conclusion. Dr. Scott stated the child is likely to be unreliable for one reason

only – she was four. The literature shows that children at that age are largely unreliable because

they themselves do not separate very well what happens to them from what happens to other

people or what they are told has happened to them.



9
    Dr. Nolen did not check with the child’s therapist to ascertain if there were behavior problems.


                                                            11
       Dr. Nolen’s main diagnoses, the Munchausen’s by proxy and the histrionic personality

disorder, are offered as though they are diagnostic and statistical manual disorders. This is

problematic in that: (1) it is not proper to diagnose a personality disorder based on a single test,

and (2) Munchausen’s by proxy “means that the person is trying to create illness in another

person in order to benefit from the sympathy and support in the caretaker, perhaps hero role that

the person causing the illness will . . . experience.” There is not a Munchausen’s by proxy in the

DSM-IV-TR, so presenting it as though it’s a DSM-IV-TR diagnosis is not proper. Factitious

disorder is “where the person presents themselves as persistently sick, and they do things to

promote their own illness to take on the sick role where they get the sympathy, the support, and

caretaking of others.” Factitious disorder is in the DSM-IV-TR, but Dr. Nolen “diagnosed it as

though the DSM recognizes a perpetrator type of Munchausen’s and that’s just not -- it’s not in

there at all.” Dr. Scott believes Munchausen’s by proxy exists, but it does not have the kind of

diagnostic clarity, diagnostic specificity, and reliability that would make it a “disorder.” He

testified that, likewise, parental alienation is not a mental disorder, per se, and that appears to be

what Dr. Nolen is really alleging.

       Dr. Scott asserted that none of Dr. Nolen’s conclusions could be founded on the limited

data acquired by spending one hour with someone and running all of these tests in a vacuum. Dr.

Scott’s general concerns about Dr. Nolen’s evaluations include (1) other and better tests

available; (2) short duration of interviews – more in-depth interviewing, etc., would be required;

(3) approach was biased – language throughout was very inflammatory, Dr. Scott referred to it as

“preaching,” as if Dr. Nolen wanted to usurp the decision-maker’s role; (4) no data supporting

Munchausen’s by proxy; and (5) no mention of parental alienation, which makes him worry Dr.

Nolen did not look at all possible options but instead “came to a conclusion and wrote the report




                                                  12
to support that conclusion.” In this case, Dr. Scott does not see data that supports either

Munchausen’s or histrionic diagnoses. Basically, Dr. Nolen had a “25% chance of being right

with a dart.” Dr. Scott’s impression was that “every bit of data was turned in the direction of

what ultimately was [Dr. Nolen’s] conclusion when there were more neutral ways to present the

data even if those were his conclusions.”

       It concerned Dr. Scott that Dr. Nolen rendered a conclusion that the child could return to

her father if she was not afraid of him, which tells him that Dr. Nolen saw something that told

him the child may be fearful of Father. Dr. Nolen’s insertion in the equation was more harmful

to child than positive. The problem is that no one knew how invalid his testing was. Dr. Nolen

even used the term “histrionic” incorrectly when he described Mother’s behavior at one point as

such, but Dr. Scott stated “hysterical” would be the proper term as she lost emotional control

versus being seductive and shallow. All the data was turned in the direction of Dr. Nolen’s

ultimate conclusion. Dr. Scott stated psychologists should not be “moralistic and judgmental . . .

and work for the court.” Dr. Nolen violated the APA ethics code in not avoiding conflictual

dual-role relationships as “[y]ou can’t keep the roles separate.” He believed Dr. Nolen’s “whole

assessment . . . has interfered with figuring out what really happened” with this little girl.

                                          CAC Interviewer

       The child made allegations of abuse to the CAC interviewer, Connilee Christie. Christie

commented that she just gathers the information and does not get involved in the determination

of whether or not abuse actually occurred. She conducted the CAC interviews with the child.

Homeyer testified that Connilee Christie told her it did not seem the child had been coached.

Christie was asked if there was anything about the child’s behavior that seemed like her




                                                  13
responses were contrived, to which she replied: “I wouldn't say there was anything that really

stood out, no.”

                                           Dr. Ann Beatty

       Dr. Ann Beatty is a clinical psychologist who looked at the child’s second interview. She

attended special training to work toward doing interviews better to get more of a response in

terms of disclosures. The recommendation was that it was better to give at least five interviews

on a particular subset of children that did not disclose during the first interview in order to get a

good disclosure. She reviewed the child’s second interview at the CAC and felt the interviewer

did a good job. The disclosure was appropriate for the child’s age and it says a lot in the fact that

it was pieced out instead of coming out all at once – Dr. Beatty placed a lot of value on that. She

did not have any concerns that the child was coached, in part because the disclosure was

piecemealed out. “Children that have been coached tend to walk in like little soldiers and tell

you the first thing out of their mouth what they’re supposed to say.” Based on her review, Dr.

Beatty feels that something probably happened to the child. It would not be unusual for a three

or four year old to make allegations that cannot be factually true. She would chalk that up to the

child’s age and not being able to recognize time and place. She would look at the whole picture,

not just one thing. The fact that Dr. Beatty does not believe the child was coached does not

necessarily make the child’s allegations true as she could still be either relating some fantasy that

she has had or relating something that is just untrue.

                                        Christi Brandenstein

       Christi Brandenstein is a licensed professional counselor; she is not a forensic counselor.

She saw the child when Mother took the child to see her in July 2010. Mother did not say Father

was sexually abusing the child; she suspected there had been some trauma and was concerned




                                                  14
about the child. Brandenstein’s role was to help the child through whatever internal conflicts and

distress she was experiencing. She engaged the child in child-centered play therapy. She found

the child to be very agitated and to be experiencing some significant internal conflicts. She drew

the conclusion that the child was in a great deal of distress and there were a lot of themes of

being trapped, fearing a villain/perpetrator, and intense and demonstrative emotions that she

described as agony and were not typical for a child that age.

       Mother asked the counselor what to do with the information she received from the child

and Brandenstein encouraged her to make a hotline call and take the child to see a forensically

trained counselor. Although the child did not verbally disclose abuse to her, Brandenstein

“considered [the child’s] behavior to warrant enough concern for [her] that it was not

inconsistent with a child who was being abused and that it was then time for someone to look

into it on a deeper level who has the forensic training.” She recommended the child have less

contact with Father based on the child exhibiting a great deal of distress initially that seemed to

diminish with absence from Father – she saw some correlation in those two things.

                                            Deanna Vito

       Another counselor working with the child, Deanna Vito, sent Homeyer three letters after

visiting with the child. Vito is a trained forensic interviewer and the CAC frequently referred

people to her. Vito reported that the child demonstrated to her what happened with Father by

spreading her legs and pointing her finger at her vaginal area with an in and out motion. Vito

further reported that the child continued to make disclosures, was consistent in indicating that

Father put himself right there (pointing between her legs), and said she felt mad, sad, and

confused because “she doesn’t want to do what Daddy did.” When discussing her scared

feelings, the child told Vito that “I’m in a cave and I am trapped. I can’t get out, I’m trapped.”




                                                 15
The child also disclosed that: “Daddy said he would kill Mommy. She also stated that Daddy

said he would take me away. [The child] was visibly scared as she repeated these statements.

This therapist continued to reassure her and resumed play activities to reduce her distress.”

       Although the child was scared her mother would be taken away, therapy was

discontinued during the child’s time in foster care and Vito recommended for the child to

continue therapy to provide consistency and security. Vito was concerned that the child acted

with the correct emotion when saying she was scared that her dad was going to take her away

from her mom. Both counselors, Brandenstein and Vito, were concerned about the child and the

Children’s Division recommended the child continue therapy with Vito.

                                        Dr. Betty Schlesing

       Dr. Betty Schlesing, a clinical psychologist, did a psychological evaluation on the child

on December 2, 2010. She met with the child for approximately two and a half to three hours.

Mother wanted her to do a mental, emotional, and behavioral evaluation of the child and find out

what was wrong to cause the child’s behaviors. The behaviors Mother reported included: the

child got upset if she was playing on the playground and other kids got too near her; she would

try to lick Father’s ears; she was interested in boys at an early age; she sucked on her arm a lot;

she slept a lot; and she alleged that “her daddy had done something scary.” The child had acted

out sexually.

       Dr. Schlesing found the child to be anxious and depressed, which intensified when the

child talked about Father. The child shuffled her feet back and forth like she was anxious. She

noted the child is very verbal, with an expressive language score in the 75th percentile. She drew

a picture of her and Father in some kind of cave, drew one of herself with tears running down her

face when Father was touching her, and drew a picture of her family, mom, nana and grandpa.




                                                 16
She identified body parts as she knew them. The child used the children’s names for body parts,

such as “gina”, “hiney”, and “rethra”, and asked for pictures to circle so that she did not have to

say bad words. The child said Father touched her in those private parts, said it was vagina,

tickling up the legs, and circled the breast parts. The child’s scores on the child sexual behavior

inventory were consistent with children who have been sexually abused.

        The data from the Children’s Apperception Test and the pictures suggested intrusive,

unwanted memories of the traumas she had suffered, as did her behaviors, and that is consistent

with a posttraumatic stress type of disorder. Based on the child’s personality type and

intelligence, Dr. Schlesing would expect the child “to be able to be very verbal and outgoing and

talk to Father and pretend that nothing happened.” There could be no outward signs that Father

had abused her unless she got alone with him. When asked if it made a difference in her

diagnosis whether the child’s memories were real or created/someone told her it happened, Dr.

Schlesing replied: “They’re real to her. Whether or not she perceives them correctly or

accurately or not, they’re real to her” and “it’s hard to say that somebody told her that they

happened because of her stress level. Her stress level wouldn’t be so high if – if something

didn’t happen to – to trigger these.”

        With regard to a question about the child saying she was sorry for all of the lies, Dr.

Schlesing stated,

        Well, there could be several reasons for her to say that to her foster parent. She
        might want to get back out of the situation. Children do not like to be in this kind
        of situation for an extensive amount of time. They – they want to be back with
        Mom or Dad, whoever their family – they perceive their family – grandma,
        grandpa, and they don’t like having to deal with all the aftermath of the
        disclosure.

In the child’s stories, “she indicated that she felt like she was at fault for the abuse and that’s a

guilt on the part of the child.” Dr. Schlesing testified that “a lot of people don’t believe sexual



                                                  17
abuse occurs to children” and that she can only testify as to what she saw, heard, and the test data

showed. Her testing did not show any signs that the child’s prior involvement with a

psychological evaluation, CAC interviews, and counseling had any effect on her testing. It

would have shown up with less anxiety, greater sense of security, better self-esteem, reduced

depression, and those types of things.

         Dr. Schlesing reported that the “indicators that she evaluated indicated strong probability

that [the child] was sexually abused by [Father.]” She recommended that the child continue with

counseling and that if there was any contact with the alleged perpetrator it be in a therapeutic

setting and supervised. What is concerning is the undisputed fact that this child disclosed to

every therapist that worked with her that her father was behaving in an inappropriate manner.

Despite all of the reports from the CAC interviewer, two children’s therapists, and two child

forensic interviewers, the child has never had therapeutic counseling, nor has Father.10

                                         Lacking in Probative Value

         The child was put into juvenile care on December 6, 2010; Homeyer testified that they

“wanted [the child] to go to a nonbiased friend, relative, family member” but the parents could

not agree on someone so the child went into foster care.11 Homeyer said the decision was based

on Dr. Nolen’s opinion, Mother’s behaviors, Mother refusing to leave her mother’s home, and

concerns about Mother’s mother. She testified that, “We wanted [the child] to be in a neutral

place because we were concerned about coaching, so we wanted her to be in a neutral

environment where no one was coaching her and nobody possibly was sexually abusing her.”



10
  I cannot help but note that we have affirmed criminal convictions and the termination of parental rights on less
evidence than this.
11
  The court clarified what happened when the child was taken into custody in December 2010, by recollecting that,
“Myself and all of the lawyers were in chambers when the juvenile officer removed the child because we were on
the verge of settling and they came and said they had removed the child which blew it up[.]”


                                                         18
None of the counselors, other than Dr. Nolen, indicated that Mother was coaching the child.

There was the inflammatory “diagnosis” of “Munchausen’s by proxy” from Dr. Nolen’s

psychological evaluation of Mother. Homeyer was only “a little bit” familiar with

Munchausen’s and had never had a case involving the diagnosis. She believed Dr. Nolen based

his diagnosis on the amount of counselors the child had seen and “just the rule out.” Yet, all of

the other professionals Mother had taken the child to see reported that Mother had valid reasons

to be concerned about the child.

       The majority opinion relies upon a statement made at trial that the child apologized for

lying. The testimony actually was that at one point the child told her foster mother that “she was

tired of the lies.” The foster mother had asked the child if she was scared, but the child said, “no,

I’m just tired of the lies” and the foster mother could not get her to open up more than that. The

child did not say who was lying, but the majority opinion seems to have taken that to mean the

child’s lies or Mother’s lies. They further inferred it was Mother coaching the child to lie.

       The foster mother characterized the child’s first visit with Mother as “very intense” as

both the child and Mother were very excited to see each other and then very upset to leave one

another. They were clinging to each other and the child was crying. Child would make

comments that she wanted to see both parents. She seemed to love both parents very much and

had different interactions with them. The child’s interaction with Father was calmer, such as

reading, whereas her interaction with Mother was a lot of play acting. To comfort herself, the

child would sometimes suck on her arm if she got nervous, sad, or uncomfortable.

       As the child’s therapist noted, the child perceives herself as to blame for what happened.

She was taken from her primary parent and placed with strangers for over a month at

Christmastime. This was a direct result of Dr. Nolen’s report.




                                                 19
       The majority opinion suggests that the first GAL, Lindell Dunivan, concluded there was

no abuse. Dunivan reasoned that because Father “passed” a lie detector test and Mother did not

take one, Mother was the culprit. He concluded with the logic that if no abuse occurred, then

Mother made it up. He advised Father that the only way to get the allegations “off him” was to

do a polygraph and that, as far as he was concerned as the GAL, passing a polygraph would do

that. His opinion that Father had not sexually abused the child was not based in any part on Dr.

Nolen’s evaluations, but was based largely on the polygraph and his own observations in

attending the depositions. It caused him some concern that Mother refused to do a polygraph

and initially refused to do a psychological evaluation. He claimed that once “the other side

wouldn’t cooperate, [he] was pretty sure we were looking at the right perpetrator.” He

acknowledged that he does not know if it was Mother or her attorney that did not want the

polygraph test, but he had the impression that it was Mother and the grandmother who made that

decision. Mother testified that she made repeated attempts with a polygraph administrator to

schedule a polygraph for herself and her mother. She further stated that Dunivan was under a

false impression that she was refusing to take a test.

       Despite the child’s disclosures to multiple counselors, Dunivan believed that the child

was coached and told what to say. He testified: “After [Father] passed the polygraph, that

convinced me he didn’t have any sexual-abuse problem. And then when the parent, the natural

mother wouldn’t take the polygraph, I – I believed that she and her mother had been coaching the

child.” He did not think the reports from the counselors were valid because he thought, “the

child was coached before she went to the counselor.” Although he acknowledged that polygraph

results are not scientifically sound enough to be admitted into evidence, Dunivan thought the

polygraph trumped whatever other evidence there was. He went so far as to admit that once




                                                 20
Father passed a polygraph test “it didn’t matter what [the child] ever said to anybody at any

time,” and that “nothing that [the child] had said really made any difference to [him] as her

advocate[.]” Mother subsequently took a stress test and passed; however, Dunivan did not think

stress test results were “worth very much” and discounted them. He testified that at this point he

was no longer “objective” as he had an opinion about who was telling the truth in this case and

who was not. He claimed the counselors were not objective either as they were paid by Mother

or the grandmother “so what they’re saying is not really worth very much.” Despite that

conclusion, he had the impression that “both of these people are pretty intelligent, pretty capable

people and able to take care of a child.” If you take away the allegations, “They’re on equal

ground, I think, if you wipe away all those allegations back and forth and either party could give

the child a home and they probably ought to have substantial time with the child, both of them.”

       Father admitted Mother was the primary caretaker of the child, but he wanted to limit her

visits because of Dr. Nolen’s evaluation and the first GAL. Both parents had mirror images of a

parenting plan that requested the other have no contact that was unsupervised. Dr. Nolen

testified that there was a “documented history of [Mother] preventing [Father] from having

contact with [the child], although she may have believed she had good reason.” Both parents had

enrolled the child in their home school districts and neither communicated with the other. Only

Mother asked that the child not be placed in foster care; Father thought it was fine. Father did

not tell Mother anything about school or trips to the doctor, nor did Mother. Father’s sole basis

for an award of sole custody to him (with two hours per month supervised visitation for Mother)

was that he believes Mother engaged in parental alienation. He arrived at that conclusion based

on Dr. Nolen’s report and Mother’s “refusal to take a polygraph.” He admitted Mother had been

the primary custodian and had no other complaints about Mother’s parenting.




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         Dr. Scott was asked, “This case has been presented as either/or, of either coaching or

abuse, and that’s not all the possibilities, is it?” Dr. Scott replied “no” and explained that a child

could change his/her story when being repeatedly asked the same questions in an attempt to keep

the peace. A third alternative exists to Mother coaching the child when all of the allegations of

coaching are disregarded.

         As noted in the beginning, the GAL addressed the new allegations being raised at trial

and asked that the child be interviewed again by Dr. Ann Duncan-Hively, the purported expert in

parental alienation. Mother testified that the new allegations, since January 26, 2011, are that the

child said Father “still plays bad games. She says that they hurt. She says that sometimes he

touches her with his tongue, sometimes he touches her with his hand, sometimes he touches her

with this part. She’s not – she’s just showing me, she’s pointing.” There was no interview by

Dr. Ann Duncan-Hively. Despite the overwhelming probative evidence contrary to the

proposition that Mother coached the child into making allegations that she had been sexually

abused by her father, the judgment awarded Father sole legal custody. I believe the judgment is

against the weight of the evidence and should not stand.12 I would reverse the judgment.



Nancy Steffen Rahmeyer, P.J. – Dissenting Opinion Author




12
  At a minimum, the child should be seeing a therapist to resolve the issues raised. Father testified he would not
take the child to a therapist.


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