Burchfield, In re

• Decision Date: 16 August 1988
• Docket Number: No. 1396,1396
• Citation: 555 N.E.2d 325,51 Ohio App.3d 148
• Parties: In re BURCHFIELD et al.
• Court: Ohio Court of Appeals

Page 148

51 Ohio App.3d 148

555 N.E.2d 325

In re BURCHFIELD et al.

No. 1396.

Court of Appeals of Ohio, Fourth District, Athens County.

Aug. 16, 1988.

Syllabus by the Court

1. R.C. 2151.3511 applies only when the accused is a child and the victim is a child under the age of eleven years.

2. In civil abuse, neglect or dependency hearings, allowing a child victim of alleged sexual abuse to testify live via two-way closed circuit television does not violate due process or the Confrontation Clause of the Sixth Amendment to the United States Constitution.

3. The Confrontation Clause of the Sixth Amendment does not apply to dependency and neglect proceedings in juvenile courts.

John P. Lavelle, Athens, for appellants Bradley and Barbara Burchfield.

D. Michael Mullen, Asst. Pros. Atty., for appellee Athens County Children Services.

STEPHENSON, Judge.

This is an appeal from a judgment entered by the Court of Common Pleas of Athens County, Juvenile Division finding Florence Burchfield to be an abused, neglected, and dependent child, and also finding Marsella Burchfield and Bradley Burchfield, Jr. to be dependent children. The juvenile court granted temporary custody of the children to Athens County Children Services, appellee herein. Barbara and Bradley Burchfield, appellants herein, are the parents of the children.

Appellants assign the following errors:

"I. The trial court committed reversible error in allowing a six year old girl to testify by videotape thereby depriving the parents of due process of law.

"II. The judgment of the trial court is against the weight of the evidence."

On October 26, 1987, a complaint was filed by Thomas Marx, a caseworker employed by appellee, averring that Florence Burchfield, who was then five years old, appeared to be an abused, dependent, and neglected child in that she exhibited evidence of being a victim of "sexual activity" as defined under R.C. Chapter 2907. The complaint further averred that the natural father, Bradley Burchfield, engaged in "sexual contact" and "sexual activity" as defined in R.C. 2907.01(B) and (C), respectively. Appellee prayed that Florence be declared to be abused pursuant to R.C. 2151.031(A) and/or (B), dependent pursuant to R.C. 2151.04(C), and neglected pursuant to R.C. 2151.03(B). Appellee further requested temporary custody of Florence.

On October 26, 1987, Marx also filed complaints in which he averred that Marsella Burchfield, who was then three years old, and Bradley Burchfield, Jr., who was then one year old, were dependent children because the condition or environment of the children posed a danger to their physical, mental, and emotional health and well-being. Both complaints prayed that the two minors be adjudicated dependents pursuant to R.C. 2151.04(C) and that appellee be granted temporary custody of the children. Also on October 26, 1987, appellee moved for an ex parte order placing immediate temporary custody of all three Burchfield children in appellee pending a hearing on the complaints. The motions, filed pursuant to Juv.R. 13(D), were granted by the trial court the following day.

On December 10, 1987, appellee filed a motion to videotape the testimony of Florence Burchfield pursuant to R.C. 2151.3511. In the memorandum in support of the motion, appellee asserted that Florence, now six years old, would suffer emotional trauma if she were to testify in the usual manner. In their memorandum opposing the use of videotaped testimony, appellants asserted that the rules of competency should prohibit the use of not only videotaped testimony of Florence but also her testimony at trial. In its journal entry filed December 11, 1987, the trial court ordered that the testimony of Florence should be given in accordance with R.C. 2151.3511(C), which permits testimony to be presented via two-way closed circuit television.

At the adjudicatory phase of the hearings held on this matter, the following pertinent facts were adduced. Dr. William H. Carlson, a pediatrician who had previously treated the three Burchfield children, testified that his physical examination of Florence Burchfield disclosed that her hymen was no longer intact and that her vaginal opening was abnormally large for a girl her age. Dr. Carlson concluded that Florence's vagina had been penetrated, but he did not know the source of the penetration or when it occurred. Dr. Carlson testified, however, that previous examinations of her genitalia during well child visits should have disclosed any sexual abuse. The physical examinations of Bradley, Jr. and Marsella Burchfield were largely unremarkable except that Marsella exhibited a few irregularities of her hymen. Dr. Carlson testified that Marsella had extra folds of thickening on the left side of her hymen, but he could not determine whether this was the result of trauma or a normal variant.

Dr. James M. Orr, also a pediatrician, performed an independent examination at the request of appellants on their two daughters. Dr. Orr testified that his examination of Florence's genitalia revealed a torn hymen and enlargement of the vaginal opening. Although Dr. Orr's measurement of the vaginal opening was slightly different from that of Dr. Carlson, Dr. Orr testified that the two measurements were not inconsistent since his measurement was smaller than Dr. Carlson's measurement and the difference could be the result of healing in the time interval between the two examinations. Dr. Orr concluded that, based upon his examination and the history, there was a strong suspicion that Florence had been sexually abused.

Dr. Orr testified that examination of Marsella's genitalia revealed possible evidence of scar tissue around the vaginal opening, and the vaginal opening was at the upper limits of normality for a girl of Marsella's age. Dr. Orr further testified that there was a strong suspicion of sexual abuse based upon the history and physical examination of Marsella, but without the history, the findings would be borderline. Dr. Orr stated that he was more concerned about sexual abuse in Florence's case, but that he was concerned enough about the prospect of sexual abuse in Marsella's situation that he would want to note the findings in the chart and follow up on the matter.

Janet M. McDaniel, the fifteen-year-old niece of appellants, testified that she occasionally baby-sat for appellants and also visited their home to see their children. McDaniel testified that she observed her uncle, Bradley Burchfield, insert his finger into Florence's vagina on two separate occasions. On the first occasion in January 1987, the incident took place on the couch in the living room of appellants' home. The second instance of sexual abuse occurred in September 1987, in appellants' bathroom. McDaniel testified that each episode lasted between one and two minutes and that the mother, Barbara Burchfield, was unaware of what was occurring. McDaniel stated that she did not initially tell anyone about the abuse because she was afraid of Bradley Burchfield and because she was also afraid she would not be able to see her nieces and nephew anymore.

McDaniel testified that she was prompted to report these incidents as the result of what occurred after a trip to Coolville, Ohio. McDaniel testified that several family members and friends, including her aunt and uncle, drove to Coolville to evaluate repairs just made to the transmission of a car and to pick up a check. She further testified that both her aunt and uncle were drinking that day and that Bradley Burchfield was drunk. On the drive back from Coolville, according to McDaniel, Bradley kept trying to grab her leg. Once back at appellants' home, McDaniel was instructed to sleep in appellants' daughters' room since she had earlier requested her parents to allow her to spend the night at appellants' home. While McDaniel was lying in bed, Bradley Burchfield came into the room after his wife went to bed and attempted to get in bed with her, according to McDaniel. After shoving her uncle back, McDaniel wrapped the blanket around herself. Bradley Burchfield grabbed the blanket and at the same time he ripped McDaniel's shirt and bra. McDaniel further testified that she shoved her uncle away and that he was scared off when he saw the headlights of an approaching car. McDaniel stated that she did not say anything to either appellant the next day.

The record reflects that when McDaniel gave her initial statement to appellee, she stated that she observed the first incident of sexual abuse of Florence by Bradley Burchfield while standing in appellants' hallway. At the hearing, however, she stated she observed the incident while sitting on the couch in the living room. She stated that her statement at the hearing was correct rather than the statement made at the initial interview. McDaniel further testified that she was nervous at the initial interview and uncomfortable about the subject of sexual abuse. She further stated that she appreciated the gravity of the allegations, that she did not fabricate the incidents because Bradley attempted to molest her, and that her testimony was not the result of a family feud.

Both appellants testified that Bradley did not sexually abuse any of their children. Appellants also testified that their two daughters inserted either pencils, crayons, or their fingers into their vaginas on their own. Bradley Burchfield testified that he told his daughter, Florence, not to insert objects into her vagina, but neither appellant sought medical care for the problem. Mrs. Burchfield, however, did take Florence to a pediatrician when she developed symptoms of vaginitis, according to the testimony of Bradley Burchfield.

Appellants further testified regarding one possible instance of molestation of Florence involving a teenaged boy named Matthew Willison. Mrs. Burchfield testified that her daughter told her about the incident, but she did not know whether to believe her daughter....