HS-86-015-RL

                                                     7-1800-112-2

 

                               STATE OF MINNESOTA

                        OFFICE OF ADMINISTRATIVE HEARINGS

 

                 FOR THE MINNESOTA DEPARTMENT OF HUMAN SERVICES

 

In the Matter of the Family Foster                       FINDINGS OF FACT,

Home License of Georgina and Stanley                     CONCLUSIONS  AND

Van Every                                                RECOMMENDATION

 

 

    The above-entitled matter came on for hearing before  Administrative  Law

Judge Richard C. Luis on December 18, 19, and 20, 1985, at the Office  of

Administrative Hearings in Minneapolis.  The record in this matter closed on

July 3, 1986.

 

    Gary A. Davis, Assistant Ramsey County Attorney, and Nancy Nager,

Certified Student Attorney, Ramsey County Attorney's Office, Suite 400,  350

St. Peter Street, St. Paul, Minnesota 55101, appeared on behalf of the Ramsey

County Community Human Services Department ("Agency" or "County").  Mark  W.

Gehan, Jr., Collins, Buckley, Sauntry and Haugh, Attorneys at Law, W-1100

First National Bank Building, St. Paul, Minnesota 55101, appeared on behalf of

Georgina and Stanley Van Every ("Licensees" or "Respondents").

 

    Notice is hereby given that, pursuant to Minn.  Stat.  14.61 the final

decision of the Commissioner of Human Services shall not be made until  this

Report has been made available to the parties to the proceeding for at least

ten days, and an opportunity has been afforded to each party adversely

affected to file exceptions and present argument to the Commissioner.

Exceptions to this Report, if any, shall be filed with Leonard W. Levine,

Commissioner, Department of Human Services, 4th Floor, Centennial  Office

Building, 658 Cedar Street, St. Paul, Minnesota 55155.

 

                               STATEMENT OF ISSUE

 

    The issue in this matter is whether disciplinary action should be  taken

against the Family Foster Home license of Georgina and Stanley Van  Every

because of an alleged act of child molesting by Licensee Stanley Van Every on

July 4, 1985, in violation of Minn.  Rule 9545.0900A.(l).

 

    Based upon all of the proceedings herein, the Administrative Law Judge

makes the following:

 

                                FINDINGS OF FACT

 

    1. Georgina and Stanley Van Every have been licensed as  foster  parents

since 1981.  They have  been married for 13 years and have two children of

their own, ages 11 and 2.

 


    2. On July 14, 1985, the Van Everys lived in a house at 528  Como  Avenue,

St. Paul.  In addition to themselves and their two children, L.S.,  a  13-year

old foster child, lived in the household at that time.  L.S., who  lived  with

the Van Everys for four years, is the eighth foster child to have lived  with

the Licensees.  She was removed from the Van Every household by the  County  in

late August, 1985.  No  foster children had been placed with them since.

 

    3. On July 4, 1985, the Van Everys hosted the extended family of  Erv  and

Elaine Weiler, who are foster parents living in St. Paul Park.  The  fanilies

are acquainted because Mrs. Van Every is a former employee of Mr.  Weiler's

business and because of mutual interests and concerns such as foster

parenting.  The two couples are friends of each other.

 

    4. The purpose of the July 4 gathering at the Van Every's was  for  the

families to celebrate the holiday by attending the Taste of Minnesota  Festival

(held at the State Capitol grounds, which are located two miles southeast  of

the Van Every home), followed by a cook-out supper.  The families  planned  to

end the party after the finish of the Taste of Minnesota's fireworks  display,

which can be seen from the area of the Van Every's garage.

 

    5.  Approximately 12 people attended the festivities at the Van Every's

after the families left the Taste of Minnesota Festival and returned for  the

party and fireworks.  In addition to the couples, both Van Every  children  and.

L.S. were there, as well as several natural and foster children of the

Weilers.  The party lasted for several hours, from early evening  until  shortly

after 11:00 p.m.

 

    6.  The Van Every house at 528 Como Avenue is at the southeast end of a

large "triangle" block formed by Dale Street (which runs north and  south),

Topping Street (which runs east and west) and Como Avenue (a diagonal  street

running northeast to southwest between Dale and Topping).  The lot at  528  Como

is close enough to the "V-shaped" intersection of Como and Topping that  it

fronts on Como and backs out on Topping.  It is from the back of the  yard,  on

Topping, that the families planned to view the fireworks.

 

    Across Como on Topping, a railroad spur track crosses the street about  150

feet from the Como intersection.  There is a small parking area near a

warehouse next to the track.  Another track crosses Topping a few  hundred  feet

northeast of the first track.  The area in between the tracks is  occupied  by

warehouses and small manufacturing operations.

 

    7. There were no alcoholic beverages served, and no  drugs  were-consumed,

at-the party hosted by the Licensees on July 4, 1985.

 

    8.  Prior to the scheduled start of the fireworks show, three of the

adolescent children in the group decided to get away from the rest and  obtain

a better view of the show than would be available at 528 Como.  They  walked  on

Topping from the Van Every's to a bridge on Dale Street, immediately south  of

Topping, which bridge arches over a large rail yard and affords a clear  view

of the State Capitol.  There was already a large amount of traffic  on  Como

Avenue and Dale Street, from cars leaving the Taste of Minnesota  vicinity.

 

    9.  Sometime after the children left for the Dale Street bridge, the

persons remaining at 528 Como heard a radio announcement that the Taste  of

Minnesota Festival had been cancelled due to wet weather (it had rained

 

 

                                      -2-

 


intermittently throughout the evening).  Upon hearing  this  announcement,  Erv

Weiler and Mr. Van Every decided to look for the children, Weiler on  foot  and

Van Every by car.

 

    10. Mr. Weiler walked down Topping to Dale Street  (in  the  same  direction

the children had gone) a distance of several hundred feet, turned  left  (south)

on the sidewalk going over the bridge and, within a few seconds  of  heading

south, saw the children coming toward him down the bridge.  He motioned for

the children to join him, turned around, and walked back the way he  had  come.

 

    11. Within a matter of seconds after Erv Weiler set out on  foot  to  find

the other children, Mr. Van Every got into one of his cars, a 1981 Ford

Granada, which was in the driveway on Topping next to his garage, to  join  the

search for the children.  At that point, T.B., a (then)  15-year  old  (born

February 18, 1970) foster daughter of the Weilers, announced, "I'm  going"  and

entered Mr. Van Every's car.

 

    12. Stanley Van Every, with T.B. in the front passenger's  seat,  drove  his

car in search of the children around the "triangle" block described  in  Finding

6 in a direction opposite that taken on foot by Erv Weiler.  They  drove  east

on Topping to Como, a distance of two lots, northwest (after a left  turn)  on

Como to Dale, a distance of several hundred feet, south on Dale  to  Topping

(after another left turn), a distance of several hundred feet, and  east  on

Topping (after a third left turn) in the direction of the Van Every back

yard.  The drive was performed in a relatively slow fashion  because  of  the

traffic on Como Avenue (a main road to and from the Taste of  Minnesota  area)

and because the purpose of the drive was to look for people.  The Como-Dale

intersection is also a junction with Front Street, and the three stre  ets  form

six "V" corners controlled by semaphore lights.

 

    Mr. Van Every and T.B. did not divert in any way from the  route  described

in the preceding paragraph.  They did not stay on Topping, past  Como,  to  enter

the area described in the second paragraph of Finding 6.

 

    13. Approximately halfway between the Dale-Topping  intersection  and  the

Van Every yard (about 100 yards from Dale Street), Mr. Van Every  and  T.B.

caught up with Mr. Weiler and the three children, who, by that time, had

caught up with Mr. Weiler.  At that point, approximately  five  minutes  had

passed since Mr. Weiler had left the Van Every's to look for  the  children.

 

    14.  During the course of drivin  g around the large "triangle"  block  with

T.B., Mr. Van Every made no physical advances toward the young  woman.  He  did

not kiss her or touch her, or her clothing, with any part of his body.

 

    15. After returning home to St. Paul Park later in evening  of  July  4-5,

T.B. told B.R., another foster daughter of the Weilers who is  five  months

older than T.B., that "Tony" (Stanley Van Every's nickname) had pulled over

during the course of the drive earlier that night, had kissed her, and  put  his

hands "up her shirt".  B.R. was asked by T.B. to keep silent about the

situation, which B.R. did.

 

    16.  On July 5, 1985, T.B. attended a scheduled out-patient therapy

session at the Adolescent Treatment Unit of United Hospitals of  St.  Paul,

where she had been treating on a daily basis for over two years.  At  the  July

5 session, she reported to therapist Bill Merchant that she had  been  touched

 

 

                                      -3-

 


on the breasts by a friend of her foster  parents.  She  also  reported  to

Merchant that the man had tried to touch her leg.  She  did  not  identify  the

man.  Merchant did not testify that be believed T.B.

 

    17. On July 8, 1985, again during a  scheduled  therapy  session  at  United

Hospitals, T.B. reported to Paula Doll (T.B.'s primary  therapist  who  was  not

at work on July 5) about the events of July 4. Ms.  Doll  had  been  informed  in

advance by Bill Merchant of T.B.'s report to him, as  described  in  Finding  15.

In addition to what she had told Merchant, T.B. told Doll that  she  and  the  man

had gone out earlier on July 4 to a quick store  in  the  neighborhood,  during

which trip he had put his arms around her and touched  and  hugged  her  several

times.

 

    T.B. did not testify that physical advances had been  made  toward  her  on

the first trip.  T.B. then told Doll that, on  the  second  ride-with  the  man,

she had been kissed, her breasts had been fondled and she had stopped_an

attempt by the man to move his hand to her  vaginal  area.  Ms.  Doll  believes

that T.B. is being truthful in telling about the sexual  advances  on  the  second

ride.  If there was any physical touching of T.B. by Mr. Van Every on the

first trip, Doll believes it to be non-sexual.

 

    18.  On July 19, 1985, T.B. told Sergeant   Don McGlothlin of  the  Was  hington

County Sheriff's Department of the alleged sexual advance made upon her on

July 4. On that same day, prior to  informing  Sergeant  McGlothlin,  she  also

told Elaine Weiler her version of the incident.  This was the first time,

since her conversation with B.R. on July 4-5, that T.B.  had  revealed  to  anyone

the name of the accused perpetrator.  She told  McGlothlin  that  Van  Every  had

kissed her, had fondled her breasts over her clothing and move   d his hands

toward (but did not reach) her vaginal area.  She  informed  McGlothlin  that  the

incident took place along the side of the road, (possibly  a  dirt  road)  near

some railroad tracks.  McGlothlin did not  testify  that  he  believed  T.B.

 

    At the time T.B. had her interview with McGlothlin,  she  was  preparing  to

move from the Weiler home to the home of her natural  father  in  Cannon  Falls.

She moved to Cannon Falls on or about July 24, 1985.

 

    19. During the week following T.B.'s  report  to  Sergeant  McGlothlin  and

her foster mother, Mrs. Weiler informed Erv Weiler, who  in  turn  informed  Mr.

Van Every of the allegations made against him by T.B.  Mr.  Van  Every  did  not

inform his wife of the allegations.  Mrs. Van Every did not learn of the

allegations against her husband until August 8, 1985, when  she  was  informed  of

them by Terry Reyes, a social worker employed by the  Ramsey  County  Child  Abuse

Intake Unit, who had conducted his own investigation  into  the  case.  Mr.  Van

Every did not report the allegations to his wife because  he  perceived  that  she

was under a great deal of stress at that time.

 

    20. During July of 1985, Mrs. Van Every was  under  stress  because  she  had

recently lost two close friends (one died and the other  moved  to  New  Mexico),

the couple were waiting for approval of a loan -application to buy  a  new  house,

and she was preparing to deliver five 90-minute  lectures  for  a  Chemical

Dependency course at the University of Minnesota.

 

 

 

 

                                       -4-

 


    21. The Licensees are American Indians.  Mr.  Van  Every,  a  member  of  the

Cayuga-Mohawk Tribe who grew up in New York and  Ontario,  is  a  recovered

alcoholic who has not consumed alcohol for 13 years.  He believes in the

Indian folk belief that it is improper for a man to have  sexual  contact  with  a

woman during her "time of the moon" (while she is menstruating).

 

    22. During the course of the evening at the Van  Every's,  T.B.  asked  Elaine

Weiler whether she, or anyone else in the house, had a  tampon  (a  product  used

'Lo absorb menstrual bleeding).  Mrs. Weiler, in turn,  asked  the  question  to

Mrs. Van Every and Mr. Van Every overheard the question.

 

    23. T.B. told Paula Doll that she had driven to  the  store  with  Mr.  Van

Every prior to going out around the block and looking  for  the  children,  which

occurred, according to her, on a second drive.

 

    At the hearing, T.B. testified that the first drive was  in  a  small  car

with bucket seats.  The Van Everys, in addition to  the  Ford  Granada,  owned  a

Volkswagen automobile on July 4, 1985.  The  Volkswagen  was  not  driveable  on

that date because of defective breaks.  Therefore, the Ford Granada (a

full-sized car) was the only vehicle Van Every had available to  him  on  July  4,

1985.

 

    24. From time-to-time during the course of  the  evening,  persons  at  the

party made trips to a "Speedy Mart" quick store at the three-street

intersection of Como, Dale and Front to buy a  variety  of  items  (cigarettes,

candy, meat, extra buns).  T.B. did walk to the store  on  at  least  one  such

occasion on July 4, but she did not go to the store  with  Stanley  Van  Every.

 

    25.  Dr. Bart Main is the Medical Director of Child Psychiatry at

Children's Hospital in St. Paul and also directs the treatment program at

United Hospitals.  In connection with T.B.'s report of  a  sexual  advance  by  Mr.

Van Every, Dr. Main met with T.B. sometime during the week  of  July  8  to

discuss the alleged incident (with a view to designing  a  treatment  program,  if

necessary).  Paula Doll and Bill Merchant  were  also  present.  Main  believe-s

that T.B  .  was truthful in her report of the  sexual  advances  because  she

related the events in a consistent manner, her story  was  realistic  and  her

emotions, as she related the incident, were consistent  with  a  truthful  report.

 

    26. Dr. Main has been T.B.'s treating  physician  since  she  entered  the

Adolescent Day Treatment program at United in  December  of  1983.  He  believes

T.B. to be a manipulative person, sexually experienced,  and  that,  at  times,

she lies.  Main acknowledges that T.B. could have lied  to  him  in  relating  the

events of July 4, 1985.

 

    27. While at the Van Every home on July 4,  T.B.  came  up  behind  Erv

Weiler, her foster father, put her hands in front of his  eyes  and  said  "Guess

who?".  While performing this act, the girl put her  body  against  the  back  of

Mr. Weiler's head and upper body.

 

    28. During the course of her time as  T.B.'s  therapist,  Paula  Doll  has

observed that T.B. has, at times, been  untruthful.  T.B.  also  seeks  the

attention of older men.

 

 

 

 

                                       -5-

 


    29. Relations were strained between T.B. and the Weilers before  the  girl

left the Weiler home on July 24, 1985.  On July 9, 1985, Elaine Weiler

confronted T.B. about making flirtatious advances toward Erv Weiler.  Prior  to

that, Mrs. Weiler had noticed that T.B. was physically attracted to, and  would

flirt with older men.  In addition, Mrs. Weiler once confronted T.B.  with  a

discrepancy between the account of an incident that T.B. had told Mrs.  Weiler

and T.B.'s recollection of the event in her diary.  T.B. did not  deny  the

version as recorded in the diary (which story differed from the one she  had

told Mrs. Weiler), so Mrs. Weiler concluded that T.B. had been lying.     I  .

 

    30. While staying with the Weilers and attending the Adult  Day  Treatment

Program at United Hospitals, T.B. received an assignment to "work on"  her

"story telling".

 

    31. T.B. stayed with the Weilers for approximately four  months.  She  saw

Mr. Van Every on one occasion prior to July 4, when the Van Everys had come  to

the Weiler home for dinner and a business discussion with Mr.  Weiler.  They

were in the Weiler home for about four hours, and T.B. saw Mr. Van Every for  a

short time that evening on two different occasions.

 

    Based upon the foregoing Findings of Fact, the Administrative Law  Judge

makes the following:

 

                                   CONCLUSIONS

 

    1. The Administrative Law Judge and the Commissioner of  Human  Services

have jurisdiction in this matter and the authority to take the action  proposed

pursuant to Minn.  Stat.  245.801, subd. 4 and 14.50 (1984).

 

    2. The Notice of and Order for hearing in this case was proper,  and  all

relevant substantive and procedural requirements of law or rule have  been

fulfilled.

 

    3. The County has advanced evidence establishing reasonable  cause  to

bel eve that T.B. was molested by Licensee Stanley Van Every.

 

    4.  Minn.  Stat.  245.801, subd. 4 (1984), provides that upon a

demonstration by an agency that reasonable cause exists to take the action

proposed with respect to a family foster care license, the burden of proof

then shifts to the licensees to demonstrate compliance with the rule by  a

preponderance of the evidence; the Licensees have proved by a preponderance  of

the evidence that there is no substantial evidence that Stanley  Van'Every

committed an act of child molesting against T.B. on July 4, 1985.

 

    Based upon the foregoing Conclusions, the Administrative Law Judge  makes

the following:

 

                                 RECOMMENDATION

 

    IT IS HEREBY RECOMMENDED that the Commissioner of Human Services take  no

disciplinary action against the Family Foster Home license of Georgina and

Stanley Van Every.

 

 

 

 

                                      -6-

 


Dated this         day of August, 1986.

 

 

 

                                         RICHARD C. LUIS

                                         Administrative Law Judge

 

 

 

                                     NOTICE

 

    Pursuant to Minn  sec.   Stat.  14.62, subd.  I  '  the agency is required  to  serve

its final decision upon each party and the Administrative Law Judge  by  first

class mail.

 

Reported:  Taped

 

 

 

                                   MEMORANDUM

 

    Minn.  Rule 9545.0900A.(1) provides for adverse action against  a  family

foster home license if there is substantial evidence that any person  living  in

the household has committed an act of child molesting.

 

    Minn.  Stat.  609.345(b) provides that a person is guilty of criminal

sexual conduct in the fourth degree if (s)he engages in sexual contact (a

touching of the intimate part5of the body, or the clothing covering those

intimate parts) with a person under age 16 and (s)he is more than  four  years

old than the younger person.  An affirmative defense to this  crime  exists  if

the older person be.lieves that the younger person was over 16, but Mr.  Van

Every (who was 39 at the time) offered no evidence that he did not  know  T.B.'s

age (15) on July 4, 1985.  Therefore, if T.B.'s account of the  events  on  that

night is true, the record contains substantial evidence that Stanley  Van  Every

committed an act of child molesting that day.

 

    However, the Administrative Law Judge does not believe  T.B.'s  account.

Rather, he believes Stanley Van Every's testimony that he and T.B. drove

counterclockwise around the triangular block, and nowhere else, and that he

never touched her during the drive.  He also believes that there was no

"first" drive (to the store) taken by the Licensee and T.B.  Even  if  there

were, T.B. testified at the hearing that there was no physical contact  on  that

drive, so the only act(s) of molestation had to have occurred on  the  drive

looking for the other children.

 

    The Licensees' burden in this case is to prove by a preponderance  of  the

evidence that the record contains no substantial evidence of  child  molesting.

Minn.  Stat.  245.801, subd. 4. "Substantial evidence" is  defined  by  Black's

Law Dictionary (5th Ed., 1979) as "Such evidence that a reasonable  mind  might

accept as adequate to support a conclusion".  It is obvious that for any

evidence to qualify as "substantial", it must be credible.  Since the

Administrative Law Judge believes that the Licensees have proven by a

preponderance (greater weight) of the evidence that T.B.'s account of the

 

                                      -7-

 


alleged sexual advances  made  against  her  by  Licensee  Stanley  Van  Every-is

untrue, there is no substantial evidence establishing a violation of the

Rule.  Therefore,  the  Licensees  have  demonstrated,  by  a  preponderance  of  the

evidence, compliance with  the  Rule,  and  no  disciplinary  action  should  be  taken

against their license.

 

    The testimony  of  T.B.  and  other  witnesses  for  the  County  is inconsistent

in  a  variety  of  significant  details.  In  contrast,  the   Licensees   established

that Mr. Van Every was alone with T.B.  for  so  short  a  time  that  he  could  not

have driven around the block and  met  Erv  Weiler  and  the  children  when  he  did

if he had consumed time by parking the car and kissing and fondling T.B.

 

    The amount of time consumed by  Erv  Weiler  in  walking  from  the  Van  Every

garage to the Dale  Street  bridge,  finding  the  children  and  walking  half-way

back on Topping from the bridge to the Van Everys was approximately five

minutes.' That this was the route  taken  and  time  consumed  by  Mr.  Weiler  is,

established not only through  the  testim ony:of  himself,  his  wife,  and  Mr.  Van

Every, but also through portions  of  the  testimony  of  T.B.  and  her  friend,  B.R.

(who is one of the children found  on  the  Dale  Street  bridge  by  Erv  Weiler).

The corroboration of  Weiler's  testimony  by  T.B.  and  B.R.  is  very  significant,

because they are witnesses who are adverse to the Licensees.

 

    B.R.'s testimony established  that  there  was  heavy  traffic  in  the  area  at

the time.  This is  important  because  it  implies  that  Mr.  Van  Every  would  have

needed more time than ordinary  to  drive  around  the  block,  giving  him  even  less

time to stop and  make  advances  toward  T.B.  B.R.  also  testified  that  the  time

it took to walk back to the  Van  Everys  after  being  spotted  by  Mr.  Weiler  was

two to five minutes, which is  consistent  with  meeting  Mr.  Van  Every  and  T.B.  a

very short time after being found by Weiler.

 

    Further corroboration of the  testimony  by  the  Weilers  and  Mr.  Van  Every

that it was five minutes between the time Mr. Weiler went looking for the

children and the time T.B. and Mr.  Van  Every  met  them  with  Van  Every's  car

comes from evidence  that,  in  a  reconstruction  of  the  incident  performed  later

by Erv and Elaine Weiler, Erv repeated  his  walk  and  Elaine  drove  a  car  the

other way around the block and the two met five minutes later at the same

place Erv had meet Mr. Van Every and T.B. on the night of July 4.  The

Administrative Law Judge believes the testimony of the Weilers in this

regard.  In addition, the Judge, accompanied by counsel for the County

(counsel for the  Licensees  was  invited,  but  declined  to  attend),  repeated  this

reconstruction on a subsequent site  visit  (see  the  June  27,  1986  letter  to

counsel from the Administrative Law Judge) and his observations on that

occasion were not  inconsistent  with  the  conclusion  that  the  meeting  took  place

five minutes after Mr. Weiler left the garage.

 

    The most likely place for Mr.  Van  Every  to  make  the  alleged  advances  on

T.B. is on Topping Street  as  it  runs  northeast  of  Como  Avenue.  That  area  is

non-residential, and contains a number of places to pull a car over and

"make-out" for a short time.  The  area  described  in  Finding  6  is  seen  as  the

closest place that  the  advances  allegedly  made  against  T.B.  could  have  taken

place.  It is  just  off  the  Como-Topping  intersection,  and  any  spot  directly  on

the triangular block  was  too  busy  with  traffic  and/or  potential  witnesses.

The time involved  in  proceeding  northeast  on  Topping  (instead  of  turning  left

on Como),  stopping,  parking,  engaging  in  the  alleged  molestation,  returning  to

 


Como Avenue and picking up the route described by Mr. Van Every in his

testimony, makes it highly unlikely for Mr. Van Every and T.B. to have  met  up

with the children and Erv Weiler when and where they did.  And  even  T.B.

testified that they met Weiler and the children in the area  described  by  the

other witnesses.

 

    T.B.'s testimony about the drive with Mr. Van Every  actually  weakens  her

account, when weighed against the other evidence involving time and place.

She testified that she drove with Mr. Van Every for "five to ten"  minutes

before he stopped the car and proceeded with his advances.  She  testified  that

he stopped the car on a "dark street," which means somewhere other than

Topping (where there were witnesses from the party), Como or Dale

(well-traveled, well-lit thoroughfares).  She went on to say that  Mr.  Van

Every then gave some reason for stopping, put his arm around her to ask if  she

was cold, leaned over and kissed her.  She then moved away, and  he  kissed  her

on the lips and "french kissed" her.  After (or  during)  the  "french  kissing"

he allegedly felt her breasts.  She testified that he than moved  his  hand

toward her vaginal area, and she moved away from him  again.  After  that,  she

alleges, a conversation took place between herself and Mr. Van Every,  which

consisted of her telling him that "This isn't right, this shouldn't be

happening.", his reply of, "You don't look nervous, but I'll  stop  for  now.",

her statement of, "Let's get back, they'll wonder where were at."  and,his

statement, "Don't tell, it's our secret.  I'll come see you later at

Elaine's.".  This testimony has been written out to emphasize the

Administrative Law Judge's reasoning that such an incident, if it  happened,

would have taken too much time for Mr. Van Every to have gotten back on  the

search route and still meet Erv Weiler where and when he did.  Yet,  T.B.

further testified, that after Mr. Van Every began driving again, they met  with

Erv Weiler at the same location as testified to by the other witnesses.

 

    Two of the professional persons involved in treatment of T.B. at  the

Adolescent Day Treatment Program of United Hospitals, therapist Paula Doll  and

Dr. Bart Main, both testified that they thought that T.B. was truthful  when

she related to them the alleged advances made by Mr. Van Every.  For  a  variety

of reasons, the Administrative Law Judge has concluded that their  beliefs  are

erroneous.  First, evidence regarding the events of July 4,  1985,  as  detailed

in the preceding paragraphs, makes it apparent that T.B. fabricated the  sexual

advances.  The activity simply could not have occurred in the  time  it  had  to

have occurred, if she were telling the truth.  Second, Doll and Main  were  told

in advance of seeing T.B. about this affair that T.B. had said that the  events

occurred.  They were analyzing her from the perspective of  mental  health

professionals who assessed T.B.'s story for the purpose of  treating  her,  not

for the sole purpose of finding out whether she was telling the  truth.  Dr.

Main testified that while T.B.'s recitation of events struck him as  consistent

and believable, T.B. is a manipulative person and has been known  to  lie.  In'

this case, the Judge has concluded that she lied again.

 

   A variety of circumstantial evidence in this case supports Mr.  Van  Every's

version of the events.  He is an American Indian who believes in  the  tenet  of

his people that men must not sexually disturb women during their menstrual

periods, and he knew T.B. was in such a period on July 4, 1985.  T.B.  had

reason to try to embarrass her foster parents, with whom her relations  were

strained, by accusing one of their friends of making a sexual advance  on  her.

Mrs. Weiler had earlier caught T.B. in a lie, and T.B. never identified  Mr.

 

                                     -9-

 


Van Every until after Elaine Weiler accused her of flirting with  Mr.  Weiler

(although she had told B.R. and people at United Hospitals she had been

molested).  In the past, T.B. has had episodes of rebellion against

authority.  Each time she told another person events that had taken place on

July 4, 1985, her story seemed to get larger.  In her hearing  testimony,  she

accused Mr. Van Every of slapping her rear, as the two got out of the  car,

after arriving at the Van Every's (an unbelievable accusation,  considering  the

probable proximity of witnesses).  She had earlier claimed that  she  and  Mr.

Van Every rode together to the Speedy Mart store before driving off to,  look

for the children, but no one else testified to that assertion.  Mr. Van Every

had only one car, a large one, operating on the night in question,  but  T.B.

testified that the first drive was in a small car, with bucket  seats.  She

told Paula Doll that man had hugged her in the car on the first drive,  but

testified at the hearing that they only talked.  Also, if it  had  happened  that

Mr. Van Every had touched her earlier in the evening, and/or made  suggestive

advances at the party (as she had told others), it is inconsistent for  T.B.  to

,have driven off alone with him later if (as she testified) his sexual  advances

were unwelcome.

 

    The inconsistencies apparent from the evidence in the record lead to  the

conclusion that T.B. was not being truthful in accusing Licensee Stanley  Van

Every of sexual advances.  Therefore, it has been recommended that no adverse

action be taken against the Family Foster Home license of Mr. and Mrs.  Van

Every.

 

 

                                     R.C.L.

 

 

 

 

 

 

 

 

                                     -lo-