Connecticut Appellate Court
October 28, 2008
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 athttp://www.jud.state.ct.us/external/supapp/Cases/AROap/AP111/111AP515.pdf
The dissent is available athttp://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
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.
Filed in Tags: Abuse and Neglect
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