Lac v. STATE DEPT. OF HUMAN RESOURCES

Decision Date24 October 2003
Citation890 So.2d 1026
PartiesL.A.C. v. STATE DEPARTMENT OF HUMAN RESOURCES.
CourtAlabama 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.

CRAWLEY, Judge.

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.

I. Hearsay
(A) Statements by the child

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:

"Q. [By the attorney for DHR]: And how were [the child's] verbal skills at that point?
"A. [By McClain]: He — You could understand him. He was very verbal.
"Q. And did he disclose anything or can you tell us the nature of that interview with [the child]?
"A. I can. He stated that [J.C.] `put his wienie in his butt' and that [J.C.] would touch his wienie —
[Attorney for the mother]: Object to the statement as hearsay. The child is not present, Your Honor."

The juvenile court overruled the mother's hearsay objection. Thereafter, McClain testified as follows:

"[The child] also said that [J.C.] would try to get him to touch his wienie and that [J.C.] would touch his wienie on top of his clothing also.
"When we asked [the child] about oral sex, if [J.C.] had performed oral sex on him or if [J.C.] had asked him to perform oral sex on him, [the child] became very fidgety and got up and started to move around and said he didn't want to talk about it anymore, he wanted to watch a movie. So we stopped that discussion. We also spoke with him about possible drug use, and he said that his mother smoked weed and he talked about her using a pipe and a bong, and he said that she gave him weed to smoke also. And he said that since he had been staying with his stepmother, ... that he had stopped smoking pot."

Lisa McSwain testified that she and McClain interviewed the child on April 2, 2001. During the direct examination of McSwain, the following occurred:

"Q. [By the attorney for DHR]: Okay. Can you tell us about that interview?
"A. [BY McSwain]: In interviewing [the child], he disclosed anal penetration on more than one occasion by [J.C.]
"Q. Did he disclose anything else of concern in the interview?
"A. He also disclosed —
"[Attorney for the mother]: I'm going to object on hearsay. Again, Your Honor, this child is old enough to appear in court.
"[Attorney for DHR]: Your Honor, again, we — Ms. McSwain is a forensic interviewer for sexual abuse allegations and this is what her department does. There is no way of us getting what her investigation or interview did without her testimony, and she is here to be cross-examined by the counsel when we're finished with direct.
"THE COURT: ... I'm going to go ahead and overrule again. At the time, [the child] was very young, plus we're going to — we can't get her records in under the business exception, so she's here for you to cross-examine and that's the reason we have her here today.
"Q. [By the attorney for DHR]: Okay. Again, were there any other concerns that were — you were made aware of other than the sexual penetration?
"A. [The child] also disclosed that [J.C.] had put his mouth on his wiener, which was his penis — he referred to that as his penis — and he also disclosed that he had smoked pot with his mother."

Section 12-15-65(i), Ala Code 1975, provides:

"(i) A statement made by a child under the age of 12 describing any act of sexual conduct performed with or on the child by another, not otherwise admissible by statute or court rule, is admissible in all dependency cases brought by the State of Alabama acting by and through a local department of human resources if:
"(1) The statement was made to a social worker, child sex abuse therapist or counselor, licensed psychologist, physician, or school or kindergarten teacher or instructor; and
"(2) The court finds that the time, content, and circumstances of the statement provide sufficient indicia of reliability. In making its determination, the court may consider the physical and mental age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, and any other factor deemed appropriate.
"A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the proponent's intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to rebut the statement. This child hearsay exception applies to all hearings involving dependency including, but not limited to, the 72-hour hearing, the dependency hearing, and the disposition hearing."

(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)(noting that 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'"). 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).

"One cannot preserve error by objecting to a question after the witness has given a responsive answer. General Motors Corp. v. Johnston, 592 So.2d 1054 (Ala.1992). If the witness's answer came too quickly for [the mother] to object, then [the mother's] proper remedy would have been to make the belated objection and to make a companion motion to strike or exclude the question and answer. Green v. Standard Fire Ins. Co. of Alabama, 398 So.2d 671 (Ala.1981). [The mother] made no such motion."

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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