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PLAINTIFF-RESPONDENT DEFENDANT-APPELLANT FACTUAL BACKGROUND In 1984-85, Wee Care, located in St. George's Episcopal Church in Maplewood, provided services for approximately fifty families with children between the ages of three and six. The nursery school was usually staffed by five teachers and two assistants or aides. The school had use of three levels of the church, although the primary rooms it used were located in the basement. Located in the basement was a block room or play room. Adjacent to the block room was the work and language room, which doubled as a lunch room. An art room was connected to the block room, separated by a vinyl divider. A large closet was used for art supplies. No bathrooms were in the basement of the school. The church secretary's office and the pastor's office were on the first floor above the basement. Mens' and ladies' rooms were located on the first-floor level, and the children at Wee Care used that ladies' room. The gym, a large room with a stage on one end, was on the same level. Behind the stage was a storage room with a doorway that opened into the hallway. The gym also had a doorway which led outside. At the opposite end of the gym was a large kitchen with other small rooms. Another bathroom was located at the end of a hallway. A set of stairs led to the second level. The church sanctuary was on the second floor. The nursery school director's office, a room characterized as a living room, and a few other rooms were on one end of this floor. On the other end was a bathroom, Kindergarten room, and the choir room. The choir room, also referred to as the music room and piano room, was adjacent to the Kindergarten room. The hallway door to the Kindergarten room had a glass insert. Pianos were located in the gym, the Kindergarten room, and the choir room. The jury had the opportunity during trial to visit the premises. At the end of the summer of 1984, Wee Care advertised for teachers in a local paper. Defendant had moved to New Jersey in September 1984 from Pittsburgh to become involved in New York theater work. She was only a few credits short of a bachelor's degree in theater arts. She moved in with a friend and looked for a temporary job. Defendant answered the Wee Care advertisement. She was interviewed at the end of September for a teacher's aide position. Defendant, who had no teaching experience, explained that she came from a large family, liked little children, and would like to try teaching. She had musical abilities and could play the piano. Wee Care hired defendant as a teacher's aide for a one-week probationary period. After three weeks, Wee Care decided that she would make an excellent teacher for the three-year-old class. As a teacher her day started at 8:30 a.m. and ended at 5:00 p.m. Her teaching schedule was active. Between 8:30 and 9:00, teachers prepared for the upcoming day. Between 9:00 and 9:15 the teachers gathered the children from the playground or the gym to go to classes. First period (9:15 to 10:00) consisted of math, language, art or workshop. At about 9:35 or 9:40, there would be a bathroom call by an aide. A mid-morning snack was served between 10:15 and 10:45. The second class period went from 10:45 to 11:45. The children would wash up for lunch between 11:45 and 11:55. Defendant would set up the afternoon nap mats between 11:55 and 12:20, and performed her lunch room duties from 12:20 to 12:55. Although lunch was split into two periods, everyone had the same nap time, which was between 1:00 and 2:30. Defendant was scheduled to monitor nap time in the block room between 1:00 and 1:45. She usually ate her own lunch between 1:45 and 2:30, after being relieved from her nap duties. Between 2:30 and 3:30 the children were organized for the afternoon snack, which would take place about 3:30. Between 4:00 and 5:00 defendant was usually in charge of her own group of children. Some children began leaving Wee Care as early as 1:00, while others left after nap time intermittently until approximately 6:00. By letter dated April 15, 1985, defendant gave two weeks' notice that she was leaving Wee Care. She verbally told the school director that she had to leave for personal reasons and was returning home. Defendant also wrote a letter of explanation to the parents of her students. Defendant had in fact taken a job at another day care facility. Of the nineteen children who testified at trial, only five were actually assigned to defendant's class. The facts surrounding the alleged sexual abuse came from two sources: the children testified in the judge's chambers via CCTV, and the children's parents and grandparents testified regarding what the children had told them after defendant left Wee Care. A good deal of the parental testimony was devoted to the behavioral changes that they had observed in their children. The recollections of the children's behavior came at the behest of the State's expert, Eileen Treacy, who provided the parents with a checklist of behavioral changes to consider as they recalled their children's actions at the time of the alleged abuse. Treacy did not become involved in this case until late October 1986. Consequently, the parents were being asked to reconstruct events a substantial time after they had actually observed the events. A child-specific recitation of the alleged abusive acts would serve no useful purpose at this juncture. No complaints of abuse were made during defendant's tenure at Wee Care. However, on April 30, 1985, a Wee Care child visited his pediatrician. While the nurse was taking his temperature rectally, the child commented that his teacher did the same thing to him. When the nurse asked the child what teacher, he responded "Kelly" -- the name the children knew defendant by. Although the pediatrician found no evidence of abuse, this comment by the child started the investigation at Wee Care. A defense expert opined at trial that it was patently obvious that the child's comment was misunderstood and that the child was referring to the rubbing of his back and not the anal penetration. That child, six-and-a-half years old at trial, started Wee Care when he was almost four. He remembered that Joan was his teacher but that he had Kelly, not Joan, at nap time. He testified that he hated nap time because Kelly had once taken his temperature and he did not want her to. She had put "gasoline" (vaseline) on the thermometer first. Kelly put the thermometer in his "bum," and she said nothing when he told her not to do it. He stated that she also took the temperatures of two other children, and he saw her pull their pants down. Neither of those two children indicated that their temperatures were taken at school. Their assertions of abuse were far more egregious, as were those of many other children after they had been "interviewed" by the authorities. However, during the time defendant was teaching at the school, no children had ever complained of experiencing any difficulties with her. Defendant's co-employees observed no inappropriate behavior by defendant during her employment at Wee Care. Nor did any of the Wee Care employees notice that any of the children exhibited any fear or reluctance to be with defendant. Defendant denied ever doing anything improper with the children. She pointed out that she had little contact with many of the children, and that there were always people who arrived unannounced. After the parent notified the authorities that the child alleged his temperature had been taken by Kelly, the authorities commenced an investigation that initially encompassed only a few children. Eventually, however, on the recommendation of a Division of Youth and Family Services (DYFS) investigator, the interviewing of children was expanded and intensified to include virtually all of the children Kelly could have had contact with. The accounts of sexual abuse obtained through interviews of the children ranged from relatively minor accounts of touching to virtually incomprehensible heinous and bizarre acts. A common act alleged by both boy and girl students was that Kelly inserted knives, forks, and spoons into their "butts," penises, or vaginas. One girl stated that Kelly inserted a light bulb in her vagina, and a boy claimed Legos were inserted in his "tushie." The children told of games where both they and Kelly took off their clothes and, according to varying accounts, laid on each other, licked each other and Kelly, including applying and licking off peanut butter and/or jelly, had "intercourse" with Kelly while she apparently was having her menstrual period, defecated on the floor, ate "pee and poop," and performed cunnilingus on her. Kelly allegedly committed fellatio on some of the boys. Kelly was said to have played "Jingle Bells" on the piano during many of those games. The acts were said to have taken place in the music or choir room, the gym, lunch room, nap room, and bathroom. Kelly was said to have "pooped and peed" on or in a piano bench, on the floor, on the lunch table, and made a cake out of poop that the children had to taste. She was also said to have taken off her clothes in the lunch room in the presence of both children and adults. Testing at the Federal Bureau of Investigation laboratories of a wooden spoon and piano benches for inculpatory evidence proved negative. Several of the children claimed to have told their parents of Kelly's activities while they were happening, and some children claimed that Wee Care personnel were present or had been told of the occurrences. No adults corroborated the children's contemporaneous complaints. Many of the children asserted that Kelly threatened to harm their parents if they told of the activities. Opinion: Introduction
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