Lac v. STATE DEPT. OF HUMAN RESOURCES
Decision Date | 24 October 2003 |
Citation | 890 So.2d 1026 |
Parties | L.A.C. v. STATE DEPARTMENT OF HUMAN RESOURCES. |
Court | Alabama Court of Civil Appeals |
W.D. Sulzby, Jr., Cullman, for appellant.
William H. Pryor, Jr., atty. gen., J. Coleman Campbell, deputy atty. gen., and Lois Brasfield and Connie M. Carraway, asst. attys. gen., Department of Human Resources, for appellee.
L.A.C. ("the mother") appeals from a judgment terminating her parental rights to her son, seven-year-old T.J.H. ("the child"). The case for terminating the mother's rights hinged largely on proof that the mother was addicted to drugs, that the mother had failed to acknowledge that the child had been sexually abused by his 15-year-old stepbrother, and, accordingly, that the mother had failed to protect the child from abuse.
On appeal, the mother raises two issues: (1) that the juvenile court erred by admitting hearsay, and (2) that the judgment terminating her rights was not supported by clear and convincing evidence. The mother argues that the juvenile court erred by admitting hearsay in three instances, namely: (A) statements by the child indicating that he had been sexually abused by his stepbrother and that he had "smoked pot [marijuana] with his mother," that were admitted through the testimony of Alicia McClain, a child-abuse-and-neglect investigator for the Cullman County Department of Human Resources ("DHR"), and Lisa McSwain, a forensic interviewer with the Children's Advocacy Center of Cullman; (B) a report prepared by an employee of the Children's Hospital Intervention Program ("CHIPS"), submitted to DHR caseworker Summer Davis and admitted through the testimony of Alicia McClain; and (C) a written report of a home study conducted by DHR foster-care worker Janan Blaylock and admitted through the testimony of Janan Blaylock.
Three statements by the child are at issue, one elicited through Alicia McClain's testimony and two elicited through Lisa McSwain's testimony. Alicia McClain testified without objection that she had received two sexual-abuse reports concerning the child. She stated that both reports named J.C., the mother's 15-year-old stepson and the child's stepbrother, as the perpetrator of the alleged abuse. McClain said the investigation of the first report, which she received in 1999, was closed and the allegations were deemed to be "not indicated" because the child was only four years old at the time and was "not verbal enough to give any disclosure." McClain received the second report in March 2001. McClain testified that, in response to the second report, she, along with Lisa McSwain, questioned the child who, at that time, was five and one-half years old. During the direct examination of McClain, the following occurred:
The juvenile court overruled the mother's hearsay objection. Thereafter, McClain testified as follows:
Lisa McSwain testified that she and McClain interviewed the child on April 2, 2001. During the direct examination of McSwain, the following occurred:
Section 12-15-65(i), Ala Code 1975, provides:
(Emphasis added.)
In T.W.W. v. Lauderdale County Department of Human Resources, 628 So.2d 761 (Ala.Civ.App.1993), this court assumed without deciding that § 12-15-65(g), Ala.Code 1975 (the predecessor to § 12-15-65(i)), was applicable in a parental-rights-termination proceeding. We now make explicit what was implied in T.W.W.: the procedure for admitting, at a parental-rights-termination proceeding, a "statement made by a child under the age of 12 [that describes] any act of sexual conduct performed with or on the child by another" is set out in § 12-15-65(i), Ala.Code 1975. The child's statement is admissible if the following requirements are met: (a) the statement was made to one of the persons named in subsection (1) of the statute; (b) the court determines, under the guidelines set out in subsection (2) of the statute, that the statement has "sufficient indicia of reliability" to make it admissible; and (c) the proponent of the statement has provided the adverse party with the notice and opportunity to rebut the statement described in the last paragraph of § 12-15-65(i).
In the present case, none of the requirements for admitting the child's statements relating to the alleged sexual abuse were satisfied. Compare L.M. v. State, 591 So.2d 883, 885 (Ala.Civ.App.1991)(the trial court's order addressed the "factors specified in § 12-15-65 [(i)]" and the trial court could have found the child's hearsay statement to a physician was admissible because the statement had "`sufficient indicia of reliability'" based on the "`time, content, and circumstances of the statement'") that . Nevertheless, we hold that the admission of testimony by McClain and McSwain regarding the child's reports of sexual abuse did not constitute reversible error.
(1) For the first statement (referring to anal penetration), the mother failed to make a timely objection to McClain's testimony. It is well settled that an objection that comes after the witness's answer is too late. See Crowne Invs., Inc. v. Reid, 740 So.2d 400, 408 (Ala.1999); Ford v. Thomas, 482 So.2d 1217, 1219 (Ala.Civ.App.1985).
Crowne Invs., 740 So.2d at 408.
(2) For the child's second statement (that his stepbrother J.C. had subjected him to oral sex), the mother timely objected to the question that resulted in McSwain's testimony. The juvenile court overruled the objection. That ruling was erroneous. Although testimony concerning the child's statement that he had been subjected to oral sexual...
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