THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Friday, March 8, 1996 TAG: 9603080547
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY ELIZABETH SIMPSON, STAFF WRITER
DATELINE: VIRGINIA BEACH LENGTH: Medium: 88 lines
A mother being tried on charges of abducting her daughter took the stand Thursday and broke into tears when explaining why she kept her daughter in hiding for 18 months.
Mary ``Kathy'' Smigielski said she took her daughter to California in February 1994 because she believed the girl was being sexually abused by the girl's father, who had been given primary custody of the child the month before Smigielski fled.
Smigielski told the jury of nine women and three men that she felt she had exhausted all means of protecting her daughter, who is now 6.
``I felt pushed up against a wall,'' Smigielski testified, her voice cracking. ``There was nothing left inside of me to keep going through the daily torment. The situation had gotten unbearable.''
Smigielski said her daughter had started screaming and crying whenever she went to visit her father, beginning in 1993. The girl had also started stuttering and sometimes referred to herself as someone named Cindy. ``It was different from an imaginary playmate,'' Smigielski said. ``She said Cindy was bad and that Daddy didn't like her.''
The name of the girl is not being used because The Virginian-Pilot does not identify children in sexual abuse cases.
In September 1993, the girl told her mother her bottom hurt, Smigielski said. When her mother asked if she had been putting her fingers in her vagina, the girl said ``No, not me,'' and said that her father had, Smigielski said.
The next month, Child Protective Services investigators found ``reason to suspect'' that the girl's father, John Smigielski, had abused the girl, which means there was no clear and convincing evidence, but there was reason to suspect abuse had occurred.
Included in the evidence was a report from Dr. John deTriquet, an expert in child abuse examination, that the girl's hymen, the membrane that closes part of the vagina, was abnormally stretched.
John Smigielski appealed the reason-to-suspect ruling, which was later overturned and changed to ``unfounded.''
Norfolk police told Kathy Smigielski they would not prosecute the case because the girl had not told police officers her father had mistreated her in any way, and they didn't think the girl, then 3, would be able to testify.
John Smigielski had been ordered to have only supervised visitation with his daughter pending the outcome of the investigation. But once the investigation was over, a Circuit Court judge gave primary physical custody of the girl to John Smigielski in January 1994.
Kathy Smigielski said she wanted to appeal the decision, but found out it would cost $6,000 for court transcripts, which she didn't have. She contacted various child-abuse prevention agencies, but couldn't find anyone to help her.
``There weren't really any options for situations like ours,'' she told the jury.
She fled with her daughter to Palm Springs, Calif., rather than return the girl to her father on Feb. 13, 1994, the court-ordered date of exchange.
Two police officers testified Thursday that the girl didn't tell them her father had abused her. ``She said she loved her Daddy, that he never hurt her, and that she missed him,'' said Melody Joseph, a police officer with the Norfolk Police Department, who also said she didn't think John Smigielski was an abuser.
Relatives of John Smigielski said the girl always seemed happy with her father, and that, in fact, she would cry when her mother came to pick her up.
``When my brother would come home she would practically knock over furniture to get to him,'' said Susan Smigielski, John's sister. ``The room lights up when Daddy walks in.
The 6-year-old girl at the center of the case was absent from the courtroom. She was called by the prosecution to testify on closed circuit TV Thursday. At the last minute, however, attorneys for the defense and the prosecution agreed to have the assistant commonwealth's attorney relay information from the girl, to keep the girl from having to testify.
``I specifically asked her if her father ever touched her private parts, and she said no,'' said Paula Bruns, assistant commonwealth's attorney.
The jury is expected to begin deliberations on the case today. ILLUSTRATION: Color photo
STEVE EARLEY/The Virginian-Pilot
Mary ``Kathy'' Smigielski, with her attorney, Thomas Shuttleworth,
says she hid her daughter, now 6, in California for 18 months.
Primary custody of the girl had been awarded to Smigielski's
ex-husband the month before they fled.
KEYWORDS: KIDNAPPING CHILD MOLESTER SEX CRIME by CNB