In re J.D.C., 95,610.
| Citation | 159 P.3d 974 |
| Decision Date | 08 June 2007 |
| Docket Number | No. 95,610.,95,610. |
| Parties | In the Interest of J.D.C., dob: 02/21/1990. |
| Court | United States State Supreme Court of Kansas |
Robert D. Hecht, district attorney, argued the cause, and Amy M. Memmer, assistant district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
This case arises out of allegations of sexual abuse of a 14-year-old girl by her stepfather and the district court's determination that the girl was a child in need of care (CINC). We granted the natural mother's petition for review to consider whether the district judge erred in admitting hearsay evidence from the girl under K.S.A. 60-460(a), when the State did not call her in its case in chief and she was merely made available for cross-examination by her mother's lawyer.
Fourteen-year-old J.D.C. reported to her school counselor that her stepfather, E.D., had been sexually assaulting her for a couple of months. She reported that he fondled her breasts and put his fingers into her vagina. The school contacted the Kansas Department of Social and Rehabilitation Services (SRS), which contacted police. Detective Phillip McKay, of the Shawnee County Sheriff's office, along with another officer and Nancy Kessler, an investigator from SRS, went to the girl's residence and conducted a brief interview with J.D.C. and the family. J.D.C. stated that E.D. touched her on her breasts and vaginal area, above and below her clothing, in the morning while she was in bed. Because the stepfather lived in the home with J.D.C., McKay placed J.D.C. into emergency custody the same day over her parents' objection and despite E.D.'s offer to leave the home.
Kessler conducted a Safe Talk 3 days later at the Family Resource Center; in the Safe Talk, J.D.C. again repeated her allegations. She stated that E.D. had entered her room every weekday morning between 6:05 and 6:15 a.m., after her mother had left for work, and that he had touched her on her breasts and vaginal area, above and below her clothing. McKay monitored and videotaped the Safe Talk from a separate room.
Two days later, the State filed a CINC petition under three subsections of K.S.A. 38-1502(a) (). It alleged J.D.C. was: (1) without adequate parental care not due solely to lack of financial means; (2) without care or control necessary for physical, mental, or emotional health; and/or (3) had been subjected to physical, mental, or emotional abuse; neglect; or sexual abuse. J.D.C.'s allegations of sexual abuse formed the factual basis for the relief sought in the petition. The petition also included information about two of J.D.C.'s brothers who, while in the sole legal custody of J.D.C.'s mother, had previously been adjudicated children in need of care under K.S.A. 38-1502(a)(1), (2), and (3) because of physical abuse by E.D.
The State sought orders for temporary and continued protection, custody, and support. It asserted that remaining in the home would be contrary to J.D.C.'s welfare and stated that an investigation was being conducted by the Shawnee County Sheriff's office.
Seven months later, Leslie Carr of SRS contacted McKay about numerous emails she had received from Brooke Grier, the foster parent with whom J.D.C. had been staying. These emails documented correspondence among J.D.C., her mother, and E.D. The gist of this correspondence was that J.D.C. needed to recant her story about being assaulted by E.D. so that she could come home.
The State then filed an amended CINC petition, adding the information regarding the "inappropriate emails" between E.D. and J.D.C. The amended petition also noted that J.D.C. had told her foster parent that E.D. used to come into her bedroom and watch her and stroke her hair. The State alleged that remaining in the home would be contrary to J.D.C.'s welfare, because the reported sexual abuse was at the hands of her stepfather, who was still residing in the home; that there was pressure on J.D.C. to recant her story, which was under investigation; and that the email communications violated a prohibition on unsupervised contact.
At trial, J.D.C.'s mother testified that she did not believe the allegations of sexual abuse. She said J.D.C. had admitted the allegations were false approximately 5 months after J.D.C. was removed from the home. J.D.C.'s mother also testified that she had been married to E.D. for 13 years. She conceded that two of J.D.C.'s brothers had previously been adjudicated children in need of care because of physical abuse by E.D.
McKay testified about J.D.C.'s statements at the in-home interview and during the Safe Talk. He also responded to questions concerning the emails between J.D.C. and E.D. The emails were admitted into evidence but are not in the record on appeal.
Kessler testified that SRS had received a sexual abuse report and that she had been assigned to investigate and make a safety assessment. She described the Safe Talk, including McKay's monitoring and videotaping from a separate room. The videotape was admitted and played before the district court; it is not included in the record on appeal.
Brenda Sue Holaday, the head counselor at Washburn Rural High School who had initial contact with J.D.C., testified about J.D.C.'s allegations. Holaday said she contacted Dr. Wayne Peterson, the school psychologist, who contacted J.D.C.'s mother at work and interviewed her when she came to the school.
Peterson testified about his interview of J.D.C.'s mother in J.D.C.'s presence. He testified that J.D.C.'s mother was "upset" but was "being patient and not contradicting anything or discounting what was said."
Grier testified that J.D.C.'s social worker, Felicia Livingston, asked Grier about an email account J.D.C. maintained under Grier's main account. Grier then discovered emails between J.D.C. and her parents, printed those emails, and delivered them to SRS.
Finally, the State called E.D. to the stand. After acknowledging that he was unrepresented, and after being advised of his right against self-incrimination under the Fifth Amendment to the United States Constitution, E.D. admitted that he and J.D.C.'s mother had corresponded with J.D.C. via email after J.D.C. was removed from their home. He confirmed that, in an email dated April 4, 2005, he told J.D.C.: The email also told J.D.C. that her stepfather's future was in her hands and said: "Dr. Lion will be asking you the same thing, just tell them the same story as you did at the family meeting."
When the State implied that E.D. and J.D.C.'s mother were pressuring J.D.C. to recant, E.D. maintained that he had not asked J.D.C. to change her story or to tell a particular story, but had supported her in telling the truth about what happened. He said he left it to "the good lord and [J.D.C. to] decide" what that story would be. He also testified that he did not realize he was not to have contact with J.D.C.; that J.D.C. had initiated the email contact; and that J.D.C. wanted E.D. to adopt her "after this [was] over with."
The State rested its case without calling J.D.C. to testify. J.D.C.'s guardian ad litem called E.D. to testify in response to one clarification question, and then rested his case as well.
Throughout the State's case, and at the close of the guardian ad litem's' case, counsel for J.D.C.'s mother made repeated hearsay objections to testimony concerning J.D.C.'s allegations of sexual abuse — including her statements made at school, at the in-home interview, in the Safe Talk, and in the emails. Counsel argued that such testimonial hearsay violated the Confrontation Clause, as discussed in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); that it did not fit any recognized hearsay exception; and that the State was shirking its evidentiary burden. The district judge noted a continuing objection on these grounds but overruled it. The judge stated that J.D.C., who was present in the courthouse during the trial, was available and subject to call, citing K.S.A. 60-460(a). He also stated that he considered the Safe Talk to be J.D.C.'s direct testimony and that counsel for J.D.C.'s mother could call J.D.C. to cross-examine concerning her hearsay statements admitted into evidence through the videotape and testimony of State witnesses. After conferring with his client, counsel for J.D.C.'s mother declined the judge's offer.
Ultimately, as part of his closing and in later written filings, counsel for J.D.C.'s mother moved to dismiss, primarily arguing that the admission of the hearsay statements and the State's failure to put J.D.C. on the stand were fatal to the case. In his memorandum decision, the district judge denied the motion to dismiss, noting that "[t]he court offered counsel . . . the opportunity to place [J.D.C.] on the stand and cross-examine reference the [S]afe [T]alk," but J.D.C.'s mother and counsel declined the opportunity. The court ruled that the Safe Talk interview was admissible pursuant to K.S.A. 60-460(a), and the State produced "clear, convincing, and unrefuted evidence" that J.D.C. was a child in need of care pursuant to K.S.A. 38-1502(a)(1), (2), (3).
A panel of the Court of Appeals affirmed the district court's ruling, holding that the Confrontation Clause of the Sixth...
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