June 30, 2022
In re Alizabeth L. (AC 44814)
Pursuant to statute (§ 46b-129 (g)), at a contested OTC hearing, ‘‘credible hearsay evidence regarding statements of the child or youth made to a mandated reporter . . . may be offered by the parties and admitted by the court upon a finding that the statement is reliable and trustworthy and that admission of such statement is reasonably necessary.’’ Father appealed the judgments of the trial court sustaining the ex parte orders granting temporary custody of his three children to DCF.
Following the receipt of an anonymous report that the children were victims of physical and sexual abuse and possible sexual exploitation, DCF filed neglect petitions on their behalf, as well as motions seeking ex parte orders of temporary custody. The trial court granted the ex parte OTC and, after the children were removed, held a contested hearing on the motions. At that hearing, DCF offered testimony from Z, the children’s adult sister-in-law, and B, a DCF social worker. Z testified, inter alia, that she was a mandated reporter, and the court allowed her to testify, pursuant to § 46b-129 (g), as to certain discussions she had with the children in which they disclosed that they were abused by Mother and her boyfriends. B also testified about discussions she’d had with the children, in which they disclosed instances of abuse, and a forensic interview that she conducted with one of the children, A. The court also admitted certain exhibits, over the hearsay objections of Father’s counsel, including a copy of the social worker’s affidavit, which had accompanied DCF’s filings; it contained the children’s hearsay statements, photos of cell phone screenshots showing text messages between the children and Z, and a copy of a text message from Z to the social worker that memorialized a conversation that Z had with A.
On Father’s appeal, this Court held the following:
- The trial court improperly admitted hearsay statements of the minor children under § 46b-129 (g) because, before the court could rely on that statutory exception to the hearsay rule to admit the challenged statements, DCF had the burden of establishing some “reasonably necessary” basis as to why the children should not be required to testify at the contested hearing. Specifically:
- Because the term ‘‘reasonably necessary,’’ as used in § 46b-129 (g), was ambiguous, this Court reviewed extra-textual evidence, and especially the legislative history of the statute, to conclude that a trial court is not required to find that children declarants are unavailable to testify as a prerequisite to admitting hearsay statements made to a mandated reporter but, instead, is required to consider a number of factors in light of the specific circumstances of the case, including the age of the child; the materiality of the offered hearsay statement; the likelihood of prejudice to the parent due to the inability to cross-examine the child regarding the hearsay statement; any difficulties in obtaining the in-person testimony of the child; and whether in-court testimony could result in emotional or mental harm to the child. Moreover, considering those factors will require trial courts to weigh various interests, namely, the state’s interest in conducting OTC hearings in a timely and efficient manner, versus protecting the procedural rights of the parents to challenge DCF’s evidence, versus ensuring that the children are protected from unnecessary psychological harm.
- Thus, the Court here held that the trial court abused its discretion in admitting the testimony of Z and B, each of whom recounted various out-of-court statements made by the children. It made no finding that the children would have suffered psychological harm from testifying, or that there was any other reasonable basis for DCF not to have presented the in-court testimony of the children. Although the AAG argued that testifying likely would be difficult and potentially harmful to the children, the court was not free to accept that representation without supporting evidence, given that Father’s counsel contested it, arguing the children were teenagers who easily could be brought to court to testify. Moreover, at the contested hearing, the AAG focused on the reliability of the statements, apparently believing that that was sufficient. However, the allegations of physical and sexual abuse all involved Mother or her boyfriends, and there was little chance of the children being confronted by her at the hearing. The court offered no analysis supporting its conclusion that the admission of the hearsay statements was reasonably necessary.
- The Court here also found that the trial court improperly admitted certain exhibits that contained inadmissible hearsay statements, or that were authenticated by way of hearsay statements of the children. The exhibits containing the cell phone screenshots showing messages between the children and Z, and a text message from Z to the social worker that memorialized a conversation that Z had with A, were inadmissible for the same reasons that the hearsay statements offered through the testimony of Z and B were improperly admitted by the court pursuant to § 46b-129 (g). Moreover, certain photographs that were offered by DCF as corroborating evidence of the alleged physical abuse inflicted by Mother were improperly admitted through Z, who did not have the necessary personal knowledge to authenticate the photographs but, rather, relied entirely on the children’s inadmissible hearsay statements in attempting to do so.
- The court improperly admitted the affidavit of B into evidence, which was filed in support of the neglect petitions and motions for orders of temporary custody: although such an affidavit generally is admissible under the affidavit provision of § 46b-129 (g), B’s affidavit was inadmissible to the extent that it contained the children’s inadmissible hearsay statements in light of the general prohibition on hearsay within hearsay.
- The Court here also found that the trial court improperly admitted hearsay statements made by A to the social worker during the forensic interview on the alternative ground that they fell under the “medical diagnosis or treatment” exception to the hearsay rule. Specifically:
- Father properly preserved his claim regarding the medical treatment exception. Part of the objection made by Father’s counsel to the admission of A’s statements was that there was no evidence that any medical treatment occurred as a result of the forensic interview. Counsel’s arguments were sufficient to put the court on notice to consider whether all necessary requirements under the medical treatment exception had been satisfied, including whether DCF had demonstrated that A understood her statements to have been made in furtherance of medical treatment.
- The Court here found that the trial court was ultimately not presented with any evidence from which it reasonably could have inferred that A understood the forensic interview to have a medical purpose. Rather, the record suggests that the children understood the interview to be for investigatory purposes, as they elected to have only one of the children interviewed by the social worker, in order to limit the risk of angering their parents if they were implicated in wrongdoing; this indicated that A understood the purpose of the forensic interview to be furthering the investigation against the parents. Moreover, the record was silent as to whether A understood the interview to potentially involve a medical treatment component, and no medical exam or interview with a medical professional occurred in conjunction with the social worker’s forensic interview, from which such an understanding might have been inferred.
As a result of the above, this Court found that the trial court’s evidentiary errors were harmful and, accordingly, reversed the judgments of the trial court and remanded the case for a new contested OTC hearing. Outside of the evidence that this Court determined to be inadmissible, there was nothing in the record from which the court reasonably could have found that the children presently were in danger of a serious physical injury or illness, or that they were in immediate physical danger from their surroundings, as all of the evidence of abuse implicated Mother, who was living in Puerto Rico; although there was testimony that Father intended to have Mother return to the residence, there was no evidence that her return was imminent. Accordingly, without the improperly admitted hearsay testimony and exhibits, it was likely that the outcome of the hearing would have been different.