In re R.L.

• Decision Date: 04 December 2018
• Docket Number: No. M2017-02404-COA-R3-JV,M2017-02404-COA-R3-JV
• Parties: IN RE R.L. ET AL.
• Court: Tennessee Court of Appeals

IN RE R.L. ET AL.

No. M2017-02404-COA-R3-JV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

Assigned on Briefs July 2, 2018

December 4, 2018

Appeal from the Circuit Court for Montgomery County

No. CC-16-CV-2321

Ross H. Hicks, Judge

In this dependency and neglect case, the juvenile court adjudicated father's (E.L.) six children dependent and neglected and one of the female children (R.L.) a victim of severe abuse perpetrated by father. Father appealed to the circuit court. After a de novo hearing, the circuit court entered an order holding that clear and convincing evidence exists to demonstrate that R.L. was sexually abused by father and as such was a dependent and neglected and severely abused child. The court similarly found clear and convincing evidence that father's additional children were also dependent and neglected. Father appeals. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which RICHARD H. DINKINS, and KENNY ARMSTRONG, JJ., joined.

Jacob P. Mathis, Clarksville, Tennessee, for the appellant, E.L.

Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

OPINION

I.

R.L. was born with down syndrome, in 2004. Her down syndrome causes developmental delays and limits her both cognitively and communicatively. At school, she attends special needs classes with teachers trained to accommodate students with her limitations. Her teachers testified that they utilize their respective training and experience to help them understand how students with limited cognitive and verbal abilities, like R.L., learn and communicate.

As a preliminary matter at the hearing, and because of R.L.'s mental limitations, DCS moved the circuit court for a finding of unavailability under Tenn. R. Evid. 804. An in-camera examination of R.L. was conducted by counsel. The court subsequently held her to be an unavailable witness, for purposes of Tenn. R. Evid. 804,¹ due to her mental capacity. Accordingly, the trial court instead heard testimony about the alleged abuse from R.L.'s teacher, two of her teaching aides, her DCS case worker, her therapist, a forensic social worker, two law enforcement officials, and the father.

The events giving rise to the sexual abuse allegations occurred in August of 2014, at R.L.'s elementary school. Her teacher testified that it was a Monday when he noticed that the child arrived on the school bus appearing unusually distraught. When he asked her to sit down to eat breakfast she refused and instead began to cry uncontrollably. He testified that this was unusual behavior because R.L. was typically a happy child who enjoyed eating breakfast. He asked one of his teaching aides to take R.L. to the restroom to see if that was the source of her problem. While in the restroom, the teaching aide testified that the child disclosed to her that her "daddy" had "squished" her "bottom." The aide asked the child if this meant that she had been disciplined by her father, and she said no. The teacher subsequently came to assist the aide and also heard the child state that her "daddy" had harmed her "bottom." The teacher testified that it appeared to him that the event she was conveying was traumatic for her.

A similar incident occurred on Friday later that same week. The child again arrived at school appearing distraught. On this occasion, she was taken to a sensory room where two teaching aides and the teacher witnessed and testified to the child's alarming statements and gestures. During the second incident, when the child was asked what was wrong, she indicated that her "daddy" had again harmed her, but this time she also made accompanying gestures that her teacher and aides found alarming. The child indicated what had happened to her by placing her hand over her mouth and pointing to her anal region. The school personnel testified that they could tell where she was pointing because her pants were down.

On August 22, 2014, DCS received the referral alleging that R.L. was the victim of sexual abuse perpetrated by her father. The next day, R.L. was taken to Our Kids² for an examination by a forensic social worker and a nurse practitioner. The social worker testified that there was some difficulty communicating with the child initially, but that as the interview progressed it became easier. She testified that the results of her interview indicated that R.L. was referring to her genitals when she referenced her "bottom." She testified that it is common for children to refer to their genitals by many different names, including their "bottom." She testified that R.L. made disclosures of inappropriate touching during the interview and examination. She testified that she had no doubts the child was clear about having been touched by her father. When questioned about whether the child meant her biological father or her stepfather when referring to "daddy," the social worker stated that she had asked R.L. and that R.L. responded with the biological father's name or something phonetically similar.

The special victims unit detective assigned to the matter testified to receiving the present child abuse referral and to the subsequent criminal investigation of father. Father initially cooperated with her investigation, including driving himself to and from two separate voluntary interviews. The first interview occurred on August 26, 2014, and was conducted by the SVU detective. She testified that, when they were discussing disciplining the child, father made an analogy to 50 Shades of Grey.³ The detective testified that she found his reference to this novel inappropriate and concerning under the circumstances. A follow-up interview was arranged.

On September 2, 2014, the second interview was conducted with the SVU detective and a special agent of the United States Secret Service present. Father again voluntarily agreed to attend the interview, drove himself, and executed a form regarding his Miranda rights. During the second interview, father told the detective and the special agent about an incident where he explained the difference between "good touches" and "bad touches" to R.L. Father admitted that, during the discussion, he digitally penetrated the child, became aroused, and then ceased touching her. After the digital penetration conversation, the special agent and detective testified that father began to describe another incident to them, but then stopped and indicated he needed an attorney. The second interview was terminated upon father's request for legal counsel.

The interviews were not recorded and father did not execute any type of written statement. Although the detective and the special agents' testimonies differed in some respects, such as how deep father told them he inserted his finger, the trial court

[found] those discrepancies to be minor and immaterial. Given the fact that neither interview with [father] was recorded, and the passage of time (three years) between the time the interviews were conducted and their testimony at the final hearing, such discrepancies are certainly not unusual and in fact should be expected.

(Paragraph numbering omitted). Conversely, when father testified regarding the allegations, the court found several aspects of his testimony not credible. The court held that

[b]ased on the inconsistencies of [father's] statements and his illogical explanation of the incident, the Court finds that [father] is not a credible witness and that his admission to law enforcement was a true admission of sexual touching of his child and any explanation he is providing now to explain his confession or the incident that occurred is not credible.

The testimony has clearly established that the child [R.L.] has given every indication that she is a victim of sexual abuse and has named her father [] as the perpetrator of said abuse.

The Court would find the father had ample opportunity and inclination to sexually abuse the child, that the child has made consistent statements regarding inappropriate touching by the father and that her behavior has been consistent with sexual touching, that the father in his explanations of the child's disclosures and behaviors are not credible, and that the father's admission of digital penetration and sexual abuse of the child is reliable.

(Paragraph numbering omitted).

After the hearing, the court requested that the parties submit proposed findings of fact and conclusions of law. On November 14, 2017, the court entered its memorandum opinion and order finding by clear and convincing evidence that R.L. was sexually abused by her father and as such is a dependent and neglected and severely abused child. The court held that

The actions of the father [] constitute an act as set out in T.C.A. 39-13-522 as Rape of a Child and therefore the child [R.L.] is a victim of severe abuse [] as perpetrated by her father.

Additionally, due to this finding, the Court would also find clear and convincing evidence that the child's siblings are also dependent and neglected children within the meaning of the law.

Father's appeal followed.

II.

On appeal, father raises two issues:

Whether the record supports the trial court's finding by clear and convincing evidence that the children were dependent and neglected.

Whether the trial court erred in allowing hearsay statements of the alleged victim to be introduced at trial.

III.

We review de novo the trial court's findings of fact in the record with a presumption of correctness, and we will not overturn those factual findings unless the evidence preponderates against them. Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). We review a trial court's conclusions of law under a de novo standard with no presumption of correctness attaching to the trial court's legal conclusions. Campbell v. ...