Department of Health and Rehabilitative Services v. M.B.

• Decision Date: 29 May 1997
• Docket Number: No. 88840,88840
• Citation: 701 So.2d 1155
• Parties: 22 Fla. L. Weekly S295, 22 Fla. L. Weekly S564 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. M.B., et al., etc., Respondents.
• Court: Florida Supreme Court

Page 1155

701 So.2d 1155

22 Fla. L. Weekly S295, 22 Fla. L. Weekly S564

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. M.B., et al., etc., Respondents.

No. 88840.

Supreme Court of Florida.

May 29, 1997.

Rehearing Denied Sept. 11, 1997.

Scott D. Leemis, District IV Legal Counsel, Jacksonville, K.C. Tusher, Assistant District Legal Counsel, Jacksonville, and Cynthia B. Glazier, Guardian Ad Litem Program, Jacksonville, for Petitioner.

Noel G. Lawrence, Jacksonville, for Respondent G.B.

ANSTEAD, Justice.

We have for review M.B. v. Department of Health & Rehabilitative Services, 21 Fla. L. Weekly D1817, (Fla. 1st DCA Aug.13, 1996). We accepted jurisdiction to answer the following questions certified to be of great public importance:

DOES THE TERM "STATEMENT" IN SECTION 90.803(23), FLORIDA STATUTES, PERMIT THE ADMISSION OF A CHILD VICTIM'S PRIOR UNSWORN STATEMENT WHICH IS INCONSISTENT WITH THE CHILD'S IN-COURT TESTIMONY, IF THE EVIDENCE SUPPORTS A DETERMINATION THAT THE EARLIER UNSWORN STATEMENT MEETS SUFFICIENT SAFEGUARDS OF RELIABILITY?

IF SECTION 90.803(23) PERMITS A CHILD VICTIM'S PRIOR INCONSISTENT STATEMENTS TO BE ADMITTED AS SUBSTANTIVE EVIDENCE, IF FOUND TO BE TRUSTWORTHY AND THE RECORD SUPPORTS SUCH A FINDING, IS THE COMBINATION OF SUCH STATEMENTS AND THE CORROBORATING MEDICAL EVIDENCE, INDICATING ONLY THE POSSIBILITY THAT ABUSE MAY HAVE OCCURRED, SUFFICIENT TO ESTABLISH THE DEPENDENCY OF THE CHILD UNDER THE PREPONDERANCE OF THE EVIDENCE OR THE GREATER WEIGHT OF THE EVIDENCE STANDARD?

21 Fla. L. Weekly at D1818. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we answer both certified questions in the affirmative and quash the decision under review. We commend both the majority and the dissent in the district court for their thorough examination of the issues before us.

TRIAL COURT PROCEEDINGS

On February 16, 1993, eight-year-old D.W. told her third grade teacher that her stepfather had sexual intercourse with her during the previous month. D.W. also reported that her stepfather forced her to perform fellatio on one occasion when she was between four and six years of age. D.W. later repeated this information to a guidance counselor, a Child Protection Team (CPT) coordinator, a CPT nurse practitioner, and a clinical psychologist on referral from CPT. Medical examinations yielded physical findings consistent with the history detailed by D.W.

Detention petitions for D.W. and her four siblings were subsequently filed by the Department of Health and Rehabilitative Services (HRS) ¹ based on D.W.'s assertions. D.W.'s mother, G.B., acknowledged to investigating officials that her daughter had been molested, but she refused to believe her husband was the perpetrator. She also noted that several of her husband's friends had been visiting the family's home the night the sexual abuse occurred.

After the delinquency petition was filed, D.W. told investigators that she no longer could remember who abused her. A psychologist who examined her attributed this inconsistency to "child sexual abuse accommodation syndrome." ² Under that theory, a child sexual abuse victim, whose story is distrusted by the non-offending parent--D.W.'s mother in this case--eventually retracts the accusation in order to restore the family system to its pre-accusation status.

At the trial on the dependency petition, D.W. testified that "someone" had sexually abused her, although she was unable to identify that person. Medical evidence, including physical findings of abuse, was also admitted. The trial court also admitted hearsay testimony of several witnesses regarding D.W.'s At the conclusion of the dependency hearing the trial court entered an order of dependency finding that M.B. had sexually abused D.W. two different times; that G.B. failed to protect her daughter by refusing to support her emotionally after being informed of the abuse; and that G.B. neglected to provide D.W. with the necessary medical, legal, and psychological services. Based on these findings, the trial court concluded that all five children were in danger of prospective abuse and neglect. Accordingly, the trial court declared them all dependent. ³

initial statements about her sexual abuse and identifying her stepfather as the abuser. In admitting the child's out-of-court statements, and as required by section 90.803(23), Florida Statutes (1995), providing for a child victim hearsay exception, the trial court entered a detailed order with specific findings as to the reliability of the statements.

APPEAL

On appeal, the First District reversed. M.B., 21 Fla. L. Weekly at D1817,. The district court reasoned that once D.W. failed to identify her stepfather as the abuser, her earlier unsworn statements became prior inconsistent statements and were, thus, inadmissible as substantive evidence. Id. The district court cited the common law rule that unsworn, out-of-court statements which were inconsistent with a witness's in-court testimony were never admissible as substantive evidence and only admissible for the limited purpose of impeachment. Id. Therefore, the court concluded that "the only rational interpretation that can be given to the term 'statement,' as used in section 90.803(23), is that in order for it to be admitted as substantive evidence, it must be consistent with the child's in-court testimony." Id. Based on its conclusion that D.W.'s out-of-court statements were inadmissible, the district court determined that the medical evidence, by itself, was "insufficient to sustain the dependency adjudication," i.e., did not meet the preponderance of the evidence standard. Id. The court cited State v. Green, 667 So.2d 756 (Fla.1995), in support of its holding. Finally, the court acknowledged a concern about its ruling and certified the above questions for this Court's review. Id.

REQUIREMENTS OF SECTION 90.803(23)

We first hold that section 90.803(23), Florida Statutes (1995), permits the admission into evidence of certain out-of-court statements of a child crime victim without the necessity that those statements be consistent with the child's trial testimony. Section 90.803(23) provides:

The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:

....

(23)HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM.

(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 11 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding 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 safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the 2. The child either:

nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and

a. Testifies; or

b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to section 90.804(1).

(b) In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the child's statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.

(c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.

Since the legislature enacted section 90.803(23) in 1985, we have decided various questions of law concerning this important hearsay exception. ⁴

In 1993, we acknowledged that the statute's purpose as "clearly [being] the Florida Legislature's response to the need to establish special protections for child victims in the judicial system." State v. Jones, 625 So.2d 821, 825 (Fla.1993). ⁵ We found that the statute's legislative history revealed an intent to expand the medical diagnosis and treatment and excited utterance hearsay exceptions in order to include an exception for statements of child abuse victims. Id. We noted that by "providing for such safeguards as a hearing out of the jury's presence in order to assure reliability of the statements and special notice of the intent to use the statements, the Legislature sought to strike a balance between the need to consider child hearsay statements in judicial proceedings and the rights of the accused." Id. at 826.

In State v. Townsend, 635 So.2d 949 (Fla.1994), we emphasized the heavy responsibility of the trial court in ensuring that a high standard for reliability is met before a child victim's hearsay statement may be admitted into evidence. ⁶ Beyond the factors [A] consideration of the statement's spontaneity; whether the statement was made at the first available opportunity following the alleged incident; whether...