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Neglect//Evidence:
Admissibility of children’s statements, preservation, testimony
regarding credibility:
In this
split decision, the respondent mother appealed the trial court’s
adjudication of neglect alleging the court improperly admitted (1)
testimony regarding whether the children should testify in court;
(2) hearsay evidence of statements by the children, their father,
and others; and (3) evidence of the children’s credibility. The
appellate court affirmed the judgment of the trial court, agreeing
that some evidence produced at trial was inadmissible hearsay, but
finding the admission of such evidence harmless error in light of
the overwhelming evidence of child neglect.
The respondent
alleged that she was unfairly surprised by the testimony of the
children’s court-appointed therapist—who indicated that the children
would suffer harm if forced to testify—and argued that as a result
she could not adequately prepare for cross-examination of the doctor
or challenge his testimony with an independent evaluation. The majority
rejected this argument, noting that in fact the respondent was made
aware of the substance of the doctor’s testimony on several separate
occasions, including at the beginning of trial and in a discussion
with the doctor in court four months prior to his testimony.
The majority
then turned to the substance of numerous hearsay objections at trial,
rejecting the respondent’s evidentiary challenge to the admissibility
of the children’s out-of-court statements under the residual exception
to the hearsay rule. Citing an “adequate basis” for the court’s
ruling that the children were unavailable to testify and noting
that the residual hearsay exception was “particularly well suited
for the admission of statements by victims of child abuse,” State
v. Dollinger, 20 Conn. App. 530, 540–41 (1990), the majority upheld
the admissibility of the children’s statements contained in the
police report, the report of suspected child abuse-neglect submitted
by the family relations officer, the court-ordered psychological
evaluation, the social worker’s testimony, and numerous DCF documents.
The majority focused on evidence that the children would be harmed
by being forced to testify against their mother as proof of their
“unavailability.”
The majority
also declined to review the respondent’s claim that the trial court
improperly admitted hearsay evidence of the father’s statements
contained in various documents and DCF reports, holding that the
respondent either failed to preserve her objection on appeal by
not specifically objecting to the father’s statements contained
in the documents or failed to state with any specificity at trial
which parts of the documents she believed were inadmissible hearsay.
Without alerting “the trial court to potential error while there
[was] still time for the court to act,” the majority found the trial
record insufficient for appellate review.
The court,
however, agreed with the respondent that the trial court had abused
its discretion in admitting the family relations officer’s report
of suspected child abuse-neglect as a business record and in permitting
the social worker and the court-appointed therapist to testify about
the children’s credibility, but found neither admission constituted
harmful error. Although information contained in the abuse-neglect
report was gathered through an arraignment, and not “based on the
entrant’s own observation or on information of others whose business
duty it is to transmit it to the entrant,” the author’s testimony
and other overwhelming evidence of neglect eliminated any claim
of harm. And although the social worker and psychologist’s testimony
as to the children’s credibility invaded the province of the trier
of fact, the error was harmless because the respondent failed to
object when both more comprehensive and more specific testimony
and evidence of credibility were offered at trial.
The dissent,
however, alleged that the majority had “strained the residual hearsay
exception beyond all reasonable bounds,” permitting the trial court’s
admission of “uncorroborated hearsay evidence of the children’s
claims . . . without any testimony on the mindset of the children,
the effects on them were they to testify or the reliability of the
statements prior to its ruling on the admissibility.” Citing a case
relied upon by the majority, the dissent argued that the residual
hearsay exception is to be used “very rarely” and in “exceptional
circumstances,” and not as a “broad license to admit hearsay inadmissible
under other exceptions.” Dollinger, 20 Conn. App. at 540.
The
majority opinion may be accessed by going to the Judicial Branch
website at http://www.jud.state.ct.us/external/supapp/Cases/AROap/AP111/111AP515.pdf
The dissent
is available at http://www.jud.state.ct.us/external/supapp/Cases/AROap/AP111/111AP515E.pdf
Note:
this case was decided prior to the effective date of the new "tender
years" exception to the hearsay rule. (Evidence Code § 8-10). The
"tender years" rule, effective January 1, 2009, provides that a
statement of a child 12 years old and under is admissible if:
1. the
child is a victim
2. of
ANY sexual assault/misconduct or
3. physical
abuse that is committed by a parent/guardian or other person with
comparable authority
AND
1. the
court finds the statement is trustworthy;
2. statement
is not made in preparation of litigation AND
3. child
testifies and is subject to cross either by appearance or video
OR
4. child
is unavailable BUT .. there is independent corroboration AND statement
made before arrest or juvenile proceedings commenced.
The new rule allows statements to come in under other
applicable hearsay exceptions. However, the rule specifically prohibits
courts from “(1) applying broader definitions in other hearsay exceptions
for statements made by children … that they do for other declarants;
and (2) admitting by way of a residual hearsay exception [such statements].”
The commentary to the rule explains that the rule
was intended, in part, to “provide[] more specific guidance for
this category of statements than does the residual exception.” The
commentary also emphasizes that the rule “prohibits the use of the
residual exception for statements treated by this section.”
A further note:
The rule appears to limit the opportunities for admission
of children’s statements regarding alleged acts of physical and
sexual abuse. However, be aware that Connecticut General Statute
§ 46b-129(g) specifically provides that during a contested OTC
hearing, “credible hearsay evidence regarding statements of
a child to a mandated reporter or to a parent” may be admissible
“upon a finding that the statement is reliable and trustworthy and
that admission of such statement is reasonably necessary.” Additionally,
an affidavit provided by a mandated reporter may be admitted as
well during the contested OTC hearing without the need for the reporter
to appear unless called by the respondent or child provided the
statement:
1. was provided at the preliminary hearing;
2. reasonably describes the qualifications of the
reporter and the nature of his contact with the child; and
3. contains only the direct observations of the reporter
and statements made to the reporter that would be admissible if
the reporter were to testify to them in court and any opinions reasonably
based thereupon.
Justin
Taylor,
Law student intern
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