In re J.J., 5, Sept. Term, 2017

• Decision Date: 28 November 2017
• Docket Number: No. 5, Sept. Term, 2017,5, Sept. Term, 2017
• Citation: 456 Md. 428,174 A.3d 372
• Parties: IN RE: J.J. and T.S.
• Court: Court of Special Appeals of Maryland

456 Md. 428

174 A.3d 372

IN RE: J.J. and T.S.

No. 5, Sept. Term, 2017

Court of Appeals of Maryland.

November 28, 2017

Argued by Nenutzka C. Villamar, Assistant Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD) and Deborah A. Ullmann, Appointed Public Defender (Pocomoke City, MD) on brief, for Petitioners.

Argued by Ann M. Sheridan, Assistant Attorney General (Leslie K. Ridgway, Assistant Attorney General and Brian E. Frosh. Attorney General of Maryland, Baltimore, MD) on brief, for Respondent.

Argued before Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

Barbera, C.J.Out-of-court statements offered for the truth of the matter asserted are generally inadmissible as hearsay unless otherwise permitted by statute or rule. One such statutory exception, known as the "tender years exception," is found at § 11–304 of the Criminal Procedure ("CP") Article of the Maryland Code. Section 11–304 applies to criminal cases and juvenile court proceedings, including child in need of assistance ("CINA") proceedings.¹ That section further provides that a child's out-of-court statement is admissible to prove the matter asserted "only if" the statement has "particularized guarantees of trustworthiness." CP § 11–304(e)(1). In making that determination, the court "shall consider, but is not limited to" thirteen factors listed in the statute. CP § 11–304(e)(2).

We address in the present case the admissibility at a CINA proceeding of the out-of-court statement of J.J., the then- nine-year-old daughter of Petitioner James J. ("Mr. J."), alleging that Mr. J. had sexually abused her. The Wicomico County Department of Social Services sought to introduce J.J.'s statement to prove the truth of the matter asserted at the CINA adjudication and disposition hearings involving J.J. and her brother, T.S. The Circuit Court for Wicomico County, sitting as a juvenile court, determined that J.J.'s statement would be admissible to prove the truth of the matter asserted because the statement possessed the requisite particularized guarantees of trustworthiness.

The Court of Special Appeals affirmed the judgment of the juvenile court. In re : J.J. and T.S. , 231 Md. App. 304, 311, 150 A.3d 898 (2016). In an apparent exercise of its discretion, the intermediate appellate court first addressed Mr. J.'s argument, raised for the first time on appeal, that the juvenile court should have ruled on J.J.'s competence to distinguish between truth and falsehood before determining whether her out-of-court statement was admissible under CP § 11–304. Id . at 327–31, 150 A.3d 898. The intermediate appellate court concluded that CP § 11–304 does not require a juvenile court to determine a child's truth competency when ruling on the admissibility of the child's out-of-court statement. Id. at 331, 150 A.3d 898. The court then held that the juvenile court complied with the requirements of CP § 11–304 in concluding that J.J.'s statement possessed particularized guarantees of trustworthiness. Id. at 335, 150 A.3d 898.

We similarly exercise our discretion to address the unpreserved competency issue, and, like the Court of Special Appeals, hold that competency is not a prerequisite to admission of a child's out-of-court statement for the truth of the matter asserted under CP § 11–304. We also agree with the Court of Special Appeals that the juvenile court did not err in finding that J.J.'s out-of-court statement possessed the requisite particularized guarantees of trustworthiness required for admissibility under that section. Accordingly, we affirm the judgment of the Court of Special Appeals.

I.The Statute

We begin with a more detailed overview of CP § 11–304. That section prescribes the conditions under which a child's out-of-court statement is admissible to prove the truth of the matter asserted in a juvenile court proceeding. As a threshold matter, the statement must be made by a child victim who is under thirteen years old and "is the alleged victim or the child alleged to need assistance in the case before the court concerning ... a juvenile court proceeding[.]" CP § 11–304(b). Next, the statement must be "made to" and "offered by a person [who is] acting lawfully in the course of" certain professions, including, as relevant here, a social worker, when the statement was made. CP § 11–304(c).

The statement may be admitted in a CINA proceeding pursuant to the statute "if the statement is not admissible under any other hearsay exception" and "regardless of whether the child victim testifies." CP § 11–304(d)(2)(i). If the child victim does not testify, the statement "will be admissible only if there is corroborative evidence that the alleged offender had the opportunity to commit the alleged abuse or neglect." CP § 11–304(d)(2)(ii).

As noted above, to be admissible, the statement must also have "particularized guarantees of trustworthiness." CP § 11–304(e)(1). When determining whether the statement has such guarantees, the juvenile court "shall consider, but is not limited to," the following thirteen factors:

(i) the child victim's personal knowledge of the event;

(ii) the certainty that the statement was made;

(iii) any apparent motive to fabricate or exhibit partiality by the child victim, including interest, bias, corruption, or coercion;(iv) whether the statement was spontaneous or directly responsive to questions;

(v) the timing of the statement;

(vi) whether the child victim's young age makes it unlikely that the child victim fabricated the statement that represents a graphic, detailed account beyond the child victim's expected knowledge and experience;

(vii) the appropriateness of the terminology of the statement to the child victim's age;

(viii) the nature and duration of the abuse or neglect;

(ix) the inner consistency and coherence of the statement;

(x) whether the child victim was suffering pain or distress when making the statement;

(xi) whether extrinsic evidence exists to show the defendant or child respondent had an opportunity to commit the act complained of in the child victim's statement;

(xii) whether the statement was suggested by the use of leading questions; and

(xiii) the credibility of the person testifying about the statement.

CP § 11–304(e)(2).

Prior to the hearing at which the out-of-court statement is to be introduced, the court conducts a hearing at which the court must "make a finding on the record as to the specific guarantees of trustworthiness that are in the statement" and "determine the admissibility of the statement." CP § 11–304(f). Section 11–304(g)(1) directs the court to examine the child as part of its determination unless "the court determines that an audio or visual recording of the child victim's statement makes an examination of the child victim unnecessary."

We have said that a judge who is called upon to determine "the admissibility of a tape recorded interview offered into evidence pursuant to [CP] § 11–304... must comply with the foundational requirements of that statute, including the requirement that the court ‘make a finding on the record as to the specific guarantees of trustworthiness that are in the statement [.]’ " Jones v. State , 410 Md. 681, 699–700, 980 A.2d 469 (2009) (quoting CP § 11–304(f)(1) ). The hearing at which that determination is made is generally referred to as the " § 11–304 hearing." We shall employ that description here.

II.The Present Case

A. Factual Background

The underlying facts relevant to this appeal are not extensive. J.J. was born in April 2006 and, as mentioned, was nine years old when she made the allegation of sexual abuse against her father, Mr. J. Her brother, T.S., born in December 2011, was three years old at the time of the allegation. J.J. and T.S. are the children of Petitioners, Mr. J. and Ms. B. The children were living alone with Mr. J. in August 2015 because Ms. B. was incarcerated. On August 30, 2015, during a visit with her maternal grandmother, J.J. told her grandmother that Mr. J. had sexually abused her twice in the prior week. Someone—the record does not disclose who—contacted the Fruitland Police Department on August 30, 2015, to report J.J.'s allegation that Mr. J. had sexually assaulted her. That same day, the Fruitland Police Department contacted Trooper Donna Hale of the Wicomico County Sheriff's Office about J.J.'s allegations. Sometime between 5:00 p.m. and 6:00 p.m. that afternoon, Tiffany Gattis, a licensed clinical social worker with the Child Advocacy Center, received a report of the allegation.

At 7:09 p.m. on August 30, Ms. Gattis conducted an audio-recorded forensic interview of J.J. in a treatment room at the Peninsula Regional Medical Center. The interview was audio-recorded because visual recording was unavailable due to the location of the interview. Trooper Hale was present when the interview was conducted. Ms. Gattis interviewed J.J. using a forensic interview method known as RATAC, an acronym for Rapport, Anatomy, Touch, Abuse, and Closure. RATAC is a guided, non-leading, standardized approach for interviewing children about alleged abuse. The interview lasted approximately twenty-one minutes and ended when J.J. asked to stop the interview.

Later on the evening of August 30, Ms. Gattis spoke with Mr. J. and T.S. at the police department. Mr. J. told Ms. Gattis that J.J. and T.S. had gone to visit their maternal family on Wednesday, August 25, and returned to his care on the evening of Saturday, August 29. Mr. J. denied abusing J.J., stating that "he would not consider fighting for his children because it was becoming an old and tiring process to be accused of sexual abuse." Mr. J. also told Ms. Gattis that J.J. was "starting [a] mess, again" and that "he should have never allowed her to visit ... her family because they were filling her head with nonsense." Ms. Gattis also spoke with T.S., who was three years old at the time. No useful information was gathered because the information sought was beyond the scope of his age.

That same...