Jason S., In re, 4683

• Decision Date: 04 November 1986
• Docket Number: No. 4683,4683
• Citation: 516 A.2d 1352,9 Conn.App. 98
• Court: Connecticut Court of Appeals
• Parties: In re JASON S. *

Page 1352

516 A.2d 1352

9 Conn.App. 98

In re JASON S. ^*

No. 4683.

Appellate Court of Connecticut.

Argued Sept. 16, 1986.

Decided Nov. 4, 1986.

Mark D. Malley, Plymouth, for appellant (respondent mother)

Jane S. Scholl, Asst. Atty. Gen., with whom, on brief, were Joseph I. Lieberman, Atty. Gen., and Robert W. Garvey, Asst. Atty. Gen., for appellee (petitioner).

Andre D. Dorval, Bristol, for minor child.

Thomas C. White, Winsted, for natural father.

Before HULL, SPALLONE and BIELUCH, JJ.

HULL, Judge.

This case involves a petition of neglect ¹ brought by the commissioner of the department of children and youth services (hereinafter DCYS). The trial court granted the The following facts could reasonably have been found by the court. On November 16, 1984, the commissioner of DCYS filed a petition in the Superior Court for Juvenile Matters, alleging that Jason S. was physically abused. At the time of the petition, Jason was seven years old. The petition alleged that on October 23, 1984, Jason was observed to have numerous welts and bruises on his arms, a large bruise and several smaller bruises on his leg, and a bruise and several scratches around his right eye. The petition stated further that on November 2, 1984, Jason had a "U" shaped bruise under his right eye. On November 14, 1984, he was observed to have scratches on his neck and red marks on his back. He complained at that time that his chest and buttocks hurt him. Allegations of physical abuse were corroborated by the principal, nurse and two teachers at the Edgewood School in Bristol, where Jason was a student.

                petition and the respondent mother of the minor child appealed. 2  The respondent claims [9 Conn.App. 100] that the court erred (1) in admitting out-of-court statements made by the minor child, Jason S., regarding his abuse, (2) in granting the petition when there was insufficient evidence presented, and (3) in allowing the questioning of two witnesses regarding a previous child abuse conviction of Allen T., the live-in boyfriend of Jason's mother
                

A preliminary hearing was held on the petition on November 26, 1984, at which time the court ordered that temporary custody of Jason be given to the commissioner of DCYS. In March of 1985, the neglect petition was amended to add further allegations of abuse. The allegations of the petition were amended to include statements allegedly made by Jason to a social worker and others to the effect that Allen T. had beat him, kicked him, urinated on him and forced his finger into a pencil sharpener.

The trial was commenced on September 19, 1985. At that time, the court took judicial notice of a separate neglect petition filed in 1983, and of the finding contained therein that Allen T. had abused Jason. The result of that proceeding was that Jason was temporarily removed from his mother's home. He was restored to her care four months before the petition in the present case was filed.

In the present case, the state presented several witnesses in support of its allegations of abuse. Jason's teacher and the principal of the school testified that they saw various cuts and bruises on Jason's face and body. The social worker who became involved in the case at the principal's request testified to similar observations.

Jason apparently changed his story as to the cause of his injuries at least once. School and DCYS witnesses testified that Jason initially blamed his dog for some of the injuries, blamed school children for others, and blamed his mother for still other injuries. The social worker then testified that Jason had changed his story and blamed Allen T. for virtually all of his injuries. A psychiatrist at Riverview Hospital Jason also testified after being called as a witness by his mother. Jason told the court that Allen T. beat him with a belt every day, punched him and gave him marks and bruises "from head down." Jason stated that he would like to go home, but that if Allen T. were there he would want someone else to stay there also.

                For Children, where Jason was admitted in February, 1985, testified that Jason told him that he had been abused by a man in [9 Conn.App. 102] his mother's home.   Jason said the man had urinated on him, put cigarettes out on him, and forced him to kneel on grated shelving.   The psychiatrist testified that Jason's statements remained consistent throughout his stay.   The director of a foster care program into which Jason was placed after his stay at Riverview Hospital testified that Jason had given her reports similar to those he had given the psychiatrist
                

Jason's mother, Camedeva V., testified that Allen T. had never hit or disciplined Jason. She blamed many of Jason's bruises on the dog, and had no answers for the cause of others. She did admit, however, that Allen T. had urinated on Jason. She claimed that he did this to help "toilet-train" Jason. Allen T. did not testify. Two of his friends did testify, however. Both testified that they had not seen Allen T. beat Jason. At that point in the trial, the petitioner introduced a child abuse conviction that a South Carolina court entered ten years earlier against Allen T. That information was admitted in the form of a question to one of the witnesses, asking him whether his opinion of Allen T. would be different if he had known of the conviction.

The court concluded that Allen T. had been abusing Jason for at least two years, and that Camedeva V. was too emotionally unstable to accept that fact. The court further held that until Camedeva V. could acknowledge the fact that her son had been abused by Allen T., there could be no reunion with Jason.

I THE OUT-OF-COURT STATEMENTS OF JASON

The respondent's first claim of error refers to the admission of statements Jason allegedly made to others outside the courtroom. The statements Jason made to school personnel, social workers, the psychiatrist and the foster home supervisor were admitted at trial on two grounds. First, the court found that the statements were admissible as admissions of a party. The court also held that the statements were admissible as "verbal acts."

"An out-of-court statement that is offered to establish the truth of the matters contained therein is hearsay. State v. Packard, 184 Conn. 258, 274, 439 A.2d 983 (1981)." State v. Stepney, 191 Conn. 233, 249, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772, reh. denied, 466 U.S. 954, 104 S.Ct. 2163, 80 L.Ed.2d 547 (1984). "Among the recognized exceptions to the hearsay exclusionary rule is that for admissions of a party. State v. DeMatteo, 186 Conn. 696, 702, 443 A.2d 915 (1982); Tait & LaPlante, Connecticut Evidence (1976) § 11.5, p. 186; McCormick, Evidence (2d Ed.1972) § 262, p. 628." State v. Stepney, supra, 191 Conn. at 250, 464 A.2d 758.

The respondent asserts that the court erred in admitting the out-of-court statements as "admissions of a party." She claims that the statements do not fit into this narrow exception to the hearsay rule. We agree. The crucial distinction between the cases cited by the state; State v. Stepney, supra; Bonner v. Winter, 175 Conn. 41, 44, 392 A.2d 436 (1978); Fico v. Liquor Control Commission, 168 Conn. 74, 77, 358 A.2d 353 (1975); Perrelli v. Savas, 115 Conn. 42, 43, 160 A. 311 (1932); and the present situation is that, in the cases cited, the statements are those of a party opponent. The exception applies exclusively to admissions of a party opponent. In the present case, the statements were introduced by the party who made them.

Further, the cases have held that the admission can be used only against the party who made it. Palombizio v. Murphy, 146 Conn. 352, 355-56, 150 A.2d 825 (1959); C. Tait & J. LaPlante, supra, § 11.5. The state's argument that the admissions are against Jason's interest is without merit. The allegation that the statements injured Jason are not persuasive when their only effect was to keep him out of a dangerous situation. Jason apparently has no desire to return to his mother's house under such circumstances, and the statements he made served to keep him out of that house until the conditions change.

The present case therefore does not fall within the party opponent exception to the hearsay rule. The statements were not made by a party opponent; they were made by the party introducing them. The statements were not used against the party who made them. Jason made the statements, and DCYS sought to introduce them for the benefit of Jason.

The alternate ground under which the statements were admitted is not an exception to the hearsay rule. The statements were admitted as "verbal acts." The verbal acts rule applies when statements are introduced purely to show that they were made, not for their truth. In support of the claim that the statements Jason made are "verbal acts," the state cites In re Juvenile Appeal (85-2), 3 Conn.App. 184, 485 A.2d 1362 (1985). In that case, the court allowed into evidence out-of-court statements of a three year old in which he threatened to "make love" to his sister and in which he told his aunt about being sexually abused. The statements were held admissible for purposes other than their truth. They were allowed as "verbal acts," to show only that the three year old had an abnormal amount of knowledge about sex. "Those statements, totally apart from the truth of their content, were relevant to the conditions in which the children lived, if not to an inference of outright parental misconduct." In re Juvenile Appeal (85-2), supra, 191-92, 485 A.2d 1362.

The statements of the child were important regardless of their truth. They were introduced to show that the three year old child was inappropriately aware of explicit sexual contact. The trial court in the present case made the following statement in an attempt to equate this situation with In re Juvenile Appeal (85-2), supra: "There have been details, whether he had his finger sharpened or not, it really is not the...