A.D.B., Matter of

• Decision Date: 15 August 1989
• Docket Number: No. 71286,No. 4,71286,4
• Citation: 778 P.2d 945
• Parties: 1989 OK CIV APP 55 In the Matter of A.D.B. and C.B., alleged deprived children. STATE of Oklahoma and A.D.B., Appellants, v. Ronald BATES and Velma Bates, Appellees. . Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 945

778 P.2d 945

1989 OK CIV APP 55

In the Matter of A.D.B. and C.B., alleged deprived children STATE of Oklahoma and A.D.B., Appellants, v. Ronald BATES and Velma Bates, Appellees.

No. 71286.

Released for Publication by Order of the Court

of Appeals of Oklahoma.

Court of Appeals of Oklahoma Division No. 4.

Aug. 15, 1989.

Mary H. Smith, Asst. Dist. Atty., Oklahoma City, for appellant State.

Jane Conner McKiddy, Oklahoma City, for appellant A.D.B.

Jerry V. Beavin, Robinson & Bower, Inc., Oklahoma City, for appellees.

STUBBLEFIELD, Judge.

On March 24, 1988, the State of Oklahoma filed a petition to have two minor children made wards of the State on the basis that they were deprived children as defined in 10 O.S.Supp.1988 § 1101(4). The State alleged that A.D.B., four years old, had been sexually abused by her father, and that her mother knew or should have known of the abuse and had failed to protect the child. The State alleged that the other child, C.B., eight years old, was at risk of harm in the home due to the abuse. The parents contested the action.

Prior to a trial in the matter and pursuant to 12 O.S.Supp.1988 § 2803.1(B), the State filed its notice of intent to use testimony regarding various extra-judicial statements of A.D.B. However, on May 31, 1988, a pretrial hearing was held in the case, and at the conclusion of that hearing the trial court ruled that A.D.B. was "not competent to testify in this proceeding" and was "not unavailable to testify as a witness in this action." Based upon the State's affirmation that it could not proceed without the presentation of the child's statements, the trial court dismissed the action and ordered the children returned to Defendant parents. It is from the trial court's dismissal that the State and A.D.B. appeal, particularly complaining of the ruling that A.D.B. was not unavailable as a witness after the trial court found that she was incompetent to testify.

This court is presented with a narrow question of law arising from the interpretation of the statute dealing with statements of minor children in proceedings involving alleged sexual abuse. ¹ In 1984, the Oklahoma legislature enacted 12 O.S.Supp.1988 § 2803.1, which as amended now provides:

A. A statement made by a child twelve (12) years of age or younger, which describes any act of sexual contact performed with or on the child by another, is admissible in criminal and juvenile proceedings in the courts in this state if:

1. The court finds, in a hearing conducted outside the presence of the jury, that the time, content and circumstances of the statement provide sufficient indicia of reliability; and

2. The child either:

a. testifies at the proceedings, or

b. is unavailable as defined in Title 12 as a witness.

When the child is unavailable as defined in Title 12 as a witness, such statement may be admitted only if there is corroborative evidence of the act. (Emphasis added.)

Herein, because the trial court ruled that A.D.B. was not competent to testify, the use of her previous statements depended upon her unavailability as a witness "as defined in Title 12," which provides:

A. "Unavailability as a witness," as used in this section, includes the situation in which the declarant:

....

4. Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity.

12 O.S.1981 § 2804(A)(4). The child, A.D.B., was not deceased. Therefore, her unavailability could have been based only upon her testimonial incompetence resulting from an "existing physical or mental illness or infirmity."

There are no Oklahoma cases which have addressed unavailability as used in this specific situation. However, the courts of other states have addressed the issue and we take some guidance from their pronouncements.

Although Montana had not enacted a specific hearsay exception for child sexual abuse victims, the court in State v. J.C.E., 767 P.2d 309, 315 (Mont.1988), in construing its unavailability requirement, held that its residual hearsay exception statute would render admissible a child's out-of-court statements when the victim was "unavailable as a witness, whether through incompetency, illness, or some other like reason (e.g., trauma induced by the courtroom setting)." Likewise, the court in New Mexico found that for purposes of the unavailable witness exception to the hearsay rule, the crucial factor is not the unavailability of the witness but the unavailability of her testimony. State v. Maestas, 92 N.M. 135, 584 P.2d 182 (1978). The court in State v. Drusch, 139 Wis.2d 312, 319, 407 N.W.2d 328, 332 (1987) (emphasis added), found that an eight-year-old sexual assault victim was competent to testify but then found her unavailable to testify because of a "then existing physical or mental illness or infirmity," when on the stand she began to cry and was unable to respond to questions.

However, most enlightening is the judicial treatment of the unavailability issue in states that have statutes similar to section 2803.1. The legislatures in several other states have also established specific hearsay exceptions for a child-declarant in sexual abuse cases. ²

In determining whether a child victim was unavailable as required by a statute virtually identical to section 2803.1, the court in State v. Ryan, 103 Wash.2d 165, 169, 691 P.2d 197, 202 (1984), held that unavailability of a witness means that "the proponent is not presently able to obtain a confrontable witness' testimony." The concept of a confrontable witness was addressed by the court in State v. Doe, 105 Wash.2d 889, 895, 719 P.2d 554, 557 (1986) (citation omitted):

While the concepts of availability and competency do not overlap entirely, it is quite clear that an incompetent child is not available. The term "available" denotes a witness who can be confronted and cross-examined. A child unable to take the stand obviously cannot respond to opposing counsel's questions.

In the case of State v. Gitchel, 41 Wash.App. 820, 706 P.2d 1091 (1985), the court was presented, as we are in this case, with whether the out-of-court statements of a child sexual abuse victim, who had been found to be incompetent, were admissible based upon the child's unavailability as a witness. That court held that incompetency of a witness is the equivalent of unavailability, and that statements of a three-year-old child who was found to be incompetent at a pretrial hearing were admissible in a first degree statutory rape case. Id. at 825, 706 P.2d at 1095. A Minnesota court also treated a child, who had been ruled incompetent to testify, as an unavailable witness in State v. Carver, 380 N.W.2d 821 (Minn.Ct.App.1986).

The court in State v. Myatt, 237 Kan. 17, 697 P.2d 836 (1985), recognized that often the child victim's out-of-court statements constitute the only proof of the sexual crime because of the secrecy in which the acts were committed, the relationship of the accused to the victim and the usual lack of corroborating physical evidence. The court stated:

The child may be unable to testify at trial due to fading memory, retraction of earlier statements due to guilt or fear, tender age, or inability to appreciate the proceedings in which he or she is a participant. Therefore, these hearsay statements are usually necessary to the proceedings as the only probative evidence available.

Id. at 21-22, 697 P.2d at 841. The Myatt court then held that the exception to the general rule excluding hearsay with respect to extra-judicial statements of children allows for admission of such statements if the two-pronged test of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), is met, namely, if the witness is unavailable and the witness' out-of-court statements have adequate indicia of reliability. Myatt, 237 Kan. at 24, 697 P.2d at 843.

The Kansas court reiterated and clarified its position in State v. Lanter, 237 Kan. 309, 310, 699 P.2d 503, 505 (1985), when it stated: "First, the trial judge must hold a hearing to determine whether the child is disqualified or unavailable as a witness." Then citing Lancaster v. People, 200 Colo. 448, 615 P.2d 720 (1980), it concluded that "[a] child is considered to be unavailable for constitutional purposes if the trial court determines that the child is incompetent to testify." Lanter, 237 Kan. at 310, 699 P.2d at 505.

Herein, it is without question that, at the time of the hearing, A.D.B. was not competent to testify based on an infirmity or incapacity, which is defined as ...