In re J.D.C.

• Decision Date: 23 June 2006
• Docket Number: No. 95,610.,95,610.
• Citation: 136 P.3d 950
• Parties: In the Interest of J.D.C., A Minor Child Under the Age of Eighteen.
• Court: Kansas Court of Appeals

136 P.3d 950

In the Interest of J.D.C., A Minor Child Under the Age of Eighteen.

No. 95,610.

Court of Appeals of Kansas.

June 23, 2006.

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Richard W. Benson and Joe Huerter, of The Law Firm of Tenopir and Huerter, of Topeka, for appellant.

Amy M. Memmer, assistant district attorney, and Robert D. Hecht, district attorney, for appellee.

Before MARQUARDT, P.J., LARSON, S.J., and WAHL, S.J.

MARQUARDT, P.J.

D.D. (Mother), natural mother of J.D.C., appeals the trial court's finding that J.D.C. is a child in need of care (CINC). We affirm.

Fourteen-year-old J.D.C. reported to her school counselor that she had been sexually assaulted by her stepfather, E.D. According to the counselor, J.D.C. claimed that E.D. would come into her room in the morning after J.D.C.'s mother left for work and would rub his hands over her breasts and put his hands under her shorts or underwear. J.D.C. would pretend to be asleep during the episodes. J.D.C. reported that the assaults had been occurring for several months. The counselor reported the incident to Kansas Social and Rehabilitation Services (SRS). SRS subsequently removed J.D.C. from the home.

J.D.C. was interviewed by SRS personnel. A sheriff's detective videotaped the interview. The videotape was played to the trial court over Mother's objections. The detective testified that he interviewed J.D.C. the day she reported the incidents to her counselor. During that interview, J.D.C. recounted the same events she had told her counselor. Mother objected to this testimony, arguing it was hearsay. The detective testified about emails E.D. and Mother sent to J.D.C. The emails instructed J.D.C. to recant her allegations and to whom and how J.D.C. should communicate the information. E.D. testified and acknowledged the existence of the emails. Mother testified that she did not believe J.D.C. had been sexually abused by E.D.

At the close of the State's CINC case, Mother moved to strike all the testimony, arguing it was hearsay since the State did not call J.D.C. to testify. The State argued the evidence was admissible under K.S.A. 60-460(a) or (dd). The trial court denied the motion, ruling that J.D.C. was available to testify under K.S.A. 60-460(a) and that Mother could call her and cross-examine her as to anything J.D.C. had said on the videotape. Mother did not call J.D.C. The trial court found J.D.C. to be a CINC. Mother appeals.

Mother argues that the trial court did not have substantial competent evidence to declare J.D.C. a CINC. The admission of evidence is within the sound discretion of the trial court. Accordingly, an appellate court will not reverse the trial court's decision absent a showing by the party attacking the ruling that the court abused its discretion. Garrett v. Read, 278 Kan. 662, 667, 102 P.3d 436 (2004).

In the Kansas Code for Care of Children, K.S.A. 38-1554 reads in relevant part:

"(a) In all proceedings under this code, the rules of evidence of the code of civil procedure shall apply, except that no evidence relating to the condition of a child shall be excluded solely on the ground that the matter is or may be the subject of a physician-patient privilege, psychologist-client privilege or social worker-client privilege."

Mother's primary argument is that J.D.C. must testify and be subject to cross-examination before her statements are admissible. She cites several Kansas cases for this position, including State v. Speed, 265 Kan. 26, 961 P.2d 13 (1998), State v. Fisher, 222 Kan. 76, Syl. ¶ 5, 563 P.2d 1012 (1977), and City of Colby v. Cranston, 27 Kan. App.2d 530, 537, 7 P.3d 300, rev. denied 269 Kan. 931 (2000).

K.S.A. 60-460 reads in relevant part:

"Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:

(a) Previous statements of persons present. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness."

It is obvious that the statements by the counselor, the SRS investigator, the sheriff's detective, and the taped interview are hearsay as out-of-court statements presented to prove that J.D.C. had been sexually abused in the home. However, the cases cited by Mother are all criminal cases which involved a right of confrontation under the Sixth Amendment to the United States Constitution. A CINC case is a civil proceeding and the evidentiary safeguards guaranteed in a criminal case do not apply. See K.S.A. 38-1554.

In Fisher, the Kansas Supreme Court specifically held that "[i]n a criminal proceeding, the declarant must testify at trial before hearsay evidence of his out-of-court statements may be admitted under K.S.A. 60-460(a)." 222 Kan. 76, Syl. ¶ 5, 563 P.2d 1012. However, Fisher was a criminal trial for indecent liberties and aggravated sodomy. The court's holding on this issue was tied directly to the Confrontation Clause. "For reasons of policy and fairness, and to ensure the right of confrontation is not abridged, we hold that in a criminal proceeding the declarant must testify at trial before hearsay evidence may be admitted under K.S.A. 60-460(a)." (Emphasis added.) 222 Kan. at 82, 563 P.2d 1012.

In Cranston, a DUI case, the State argued that a passenger's out-of-court statements were admissible because she was available to testify. This court found that pursuant to Fisher, her testimony was inadmissible pursuant to K.S.A. 60-460(a) because she had not in fact testified. The opinion goes on to find that the passenger's statements were admissible under K.S.A. 60-460(d)(1). 27 Kan.App.2d at 537-38, 7 P.3d 300.

In Speed, the defendant was charged with murder, aggravated kidnapping, and aggravated robbery. On appeal he argued it was error to admit a coconspirator's out-of-court statements when that coconspirator did not testify. The Kansas Supreme Court agreed, citing Fisher. The court went on to find the coconspirator's statements were admissible under K.S.A. 60-460(i)(2). Speed, 265 Kan. at 41-42, 961 P.2d 13.

Mother cites an opinion from this court, In re C.F., No. 64,098, unpublished opinion filed June 22, 1990, for support. In re C.F. was a CINC case where the parents were accused of physically abusing two of their children. During the trial, the judge allowed an SRS representative and a school nurse to testify about what the children had told them concerning the discipline allegedly administered by the parents and the source of the bruising on C.F.'s body. The trial court, over objection by the parents, did not permit C.F. or T.F. to testify. Without holding a hearing on the question, the judge found the children were per se unavailable as witnesses.

This court reversed the lower court because the trial court had not complied with the procedures in K.S.A. 60-460(dd). The court also noted that the hearsay statements did not appear to be admissible under any other exception found in K.S.A. 60-460. In addressing the State's argument that the error was harmless, the court stated:

"In the face of such extreme penalties [i.e., potential criminal charges and termination of parental rights], and considering we deal with a parent's constitutional rights in these matters, we believe that the parties are entitled, at the very least, to a trial that is conducted according to the rules established by the legislature and appellate courts of this state."

In re C.F. is distinguishable. First, factually, the trial court found the children were unavailable and did not allow the parents to examine them on direct or on cross-examination. In the instant case, the trial court ruled that J.D.C. was available and gave Mother the opportunity to cross-examine her as to anything J.D.C. said during the videotaped interview.

Second, the issue in In re C.F. revolved around the application of K.S.A. 60-460(dd). Here, the question is confined to K.S.A. 60-460(a) as the trial court specifically found K.S.A. 60-460(dd) was inapplicable because J.D.C. was available to testify on cross-examination. Third, arguably Mother was given the right to a trial according to the rules established by the legislature because there is no language in K.S.A. 60-460(a) that requires a declarant to testify at all. All that is required by the plain language of the statute is that the declarant be present and available for cross-examination.

Next, Mother goes to great length to outline the United States Supreme Court's shortcomings in interpreting the Sixth Amendment in the context of hearsay exceptions. She cites frequently from Swift, Smoke and Mirrors: The Failure of the Supreme Court's Accuracy Rationale in White v. Illinois Requires a New Look at Confrontation, 22 Cap. U.L.Rev. 145 (1993). The problem with this line of argument, as above, is that the law review article criticizes White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), and Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), both criminal cases, where the Supreme Court held that it was not a violation of the Confrontation Clause for a court to allow hearsay testimony in a criminal trial as long as it fit one of the firmly established exceptions to the hearsay rule or bears a particularized guarantee of trustworthiness. Again, these were criminal cases, not civil proceedings. Also, the holding in Roberts has been overruled in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). As White was based on Roberts, it also is arguably no longer good law.

In Crawford, the Court states that "the principle evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." (Emphasis added.) 541...