State ex rel. CYFD v. Frank G.

• Citation: 108 P.3d 543,137 N.M. 137
• Decision Date: 17 December 2004
• Docket Number: No. 497, No. 23, No. 787.
• Parties: STATE of New Mexico ex rel. CHILDREN, YOUTH and FAMILIES DEPARTMENT, Petitioner-Appellee, v. FRANK G. and Pamela G. Respondents-Appellants. In the Matter of P.A.G., Child.
• Court: Court of Appeals of New Mexico

108 P.3d 543

137 N.M. 137

STATE of New Mexico ex rel. CHILDREN, YOUTH and FAMILIES DEPARTMENT, Petitioner-Appellee, v. FRANK G. and Pamela G. Respondents-Appellants.

In the Matter of P.A.G., Child.

Nos. 23,497, 23,787.

Court of Appeals of New Mexico.

December 17, 2004.

Certiorari Granted February 21, 2005.

Angela L. Adams, Chief Children's Court Attorney, Rebecca J. Liggett, Children's Court Attorney, New Mexico Children, Youth and Families Department, Santa Fe, for Appellee.

Jane Bloom Yohalem, Santa Fe, for Appellant Frank G.

Nancy Simmons, Law Offices of Nancy L. Simmons, PC, Albuquerque, for Appellant Pamela G.

Colene Flynn Robinson, Denver, CO, for Amicus Curiae National Association of Counsel for Children.

Certiorari Granted, No. 29,042, February 21, 2005.

OPINION

ROBINSON, J.

{1} Parents Frank G. (Father) and Pamela G. (Mother) appeal from an adjudication by the children's court finding child abuse and neglect of their three-year-old adopted daughter/natural granddaughter (the Child). In an Amended Neglect/Abuse Petition, the Children, Youth and Families Department (CYFD) alleged that Father had sexually abused the Child and that Mother had failed to protect her from that abuse. The children's court found by clear and convincing evidence that the Child was an abused and neglected child as defined in NMSA 1978, § 32A-4-2(B)(3) and (4) (1999) and NMSA 1978, § 32A-4-2(E)(3) (1999). On appeal, Father and Mother contend that the children's court erred when it admitted hearsay statements made by the Child regarding the sexual abuse. We affirm the judgment of the children's court.

I. FACTUAL AND PROCEDURAL BACKGROUND

{2} Initially, CYFD took the Child into physical custody because of the living conditions in Parents' home. A neglect and abuse petition was filed in November 2001, alleging that the Child lived in an "unsafe, unsanitary, and uninhabitable home." The petition stated that the home contained no food, that it was filthy throughout, and that fifteen to twenty dogs and cats lived in the home, resulting in a strong odor of feces and urine. The Child's hair was dirty and badly matted. Her body and clothing were described as being filthy and having the same strong odor as the home.

{3} After a custody hearing in December 2001, the children's court placed legal custody of the Child with CYFD and ordered an evaluation of the four-year-old Child. Parents were represented by their individual attorneys and the Child by a guardian ad litem. Parents were granted visitation with the Child and ordered to undergo psychological, parenting, and substance abuse assessments. An adjudicatory hearing was held in January 2002, and Parents entered pleas of no contest to the allegations of the abuse and neglect petition. In the stipulated judgment and disposition, the children's court found that the Child was abused and neglected, under Section 32A-4-2(B)(4) and Section 32A-4-2(E)(2), and adopted CYFD's treatment plan. The court ordered that legal custody of the Child should remain with CYFD for a period up to two years and that Parents should participate fully in the treatment plan. Parents do not contest the stipulated judgment and disposition which found the Child to be abused and neglected because of the unsafe and unsanitary condition of Parents' home. Rather, they challenge only the adjudication on the amended abuse and neglect petition resulting from the allegations of sexual abuse.

{4} The Child was placed in a foster home in January 2002. On March 8, 2002, she told her foster mother about an occurrence of sexual abuse involving Father. The foster mother immediately reported the disclosure to the CYFD social worker assigned to the Child's case. The social worker came to the home that same day and interviewed the Child. Based on that interview, in which the Child told the social worker about the sexual abuse, the social worker arranged for an interview with a clinical forensic interviewer at the Children's Safe House at All Faiths Receiving Home in Albuquerque, New Mexico, an agency specializing in the treatment of families affected by sexual abuse. In April 2002, the Child had a physical examination with Dr. Ornelas at Para Los Ninos. Dr. Ornelas reported a normal vaginal exam but had concerns about anal penetration; her findings were non-specific. The doctor prescribed an oral antibiotic for the treatment of an anal infection. Subsequently, in April 2002, an amended abuse and neglect petition was filed to include the allegations that Father had sexually abused the Child and that Mother had failed to protect her from that abuse. The Child was referred to a program therapist at All Faiths Receiving Home for diagnosis and for therapy.

{5} An adjudication hearing on the new allegations was set for June 2002, and in May 2002, CYFD filed a notice of its intent to offer the Child's statements to the foster mother, the CYFD social worker, the Safe House interviewer, and the All Faiths program therapist as exceptions to the hearsay rule. The notice did not indicate which exceptions to the hearsay rule CYFD would be relying upon, but Rule 11-803(X) NMRA 2004 and Rule 11-804(B)(5) NMRA 2004, the two catchall exceptions to the hearsay rule, require prior notice to an adverse party. See Rule 11-803(X)(3); Rule 11-804(B)(5)(c). In response, Father filed a motion in limine to exclude the hearsay statements. He contended that any statements by a "non-competent minor child" would lack the "equivalent circumstantial guarantees of trustworthiness" required by the catchall hearsay exceptions of Rule 11-803(X) and Rule 1-804(B)(5) and would also deny Father his right, under the United States and New Mexico Constitutions, to confront the witnesses against him. Mother concurred in the motion.

{6} At the adjudicatory hearing in June 2002, the children's court reviewed the motion in limine and heard argument of counsel regarding the admissibility of the Child's statements. The children's court ruled that the Child's statements about the sexual abuse would be admitted conditionally, stating to Parents that it would be mindful of their objections as it weighed the credibility of the statements. In opening remarks, both Parents objected to the admission of the statements on the basis of hearsay, the Child's competency as a witness, and the confrontation clause. CYFD presented testimony from the Child's foster mother, the social worker from CYFD, the interviewer from the Children's Safe House, and the program therapist from All Faiths about the Child's hearsay statements concerning sexual abuse. Parents did not testify at the hearing or offer any witnesses, other than recalling the CYFD social worker to testify.

{7} The foster mother, a retired registered nurse, testified that the Child had come to her home in January 2002. When she arrived, the foster mother had gone over some house rules with the Child. Among those rules was the importance of telling the truth, including a discussion of the difference between truth and lies. The foster mother testified that she believed the Child understood the difference between truth and lies and also understood that the consequences in the foster home for lying would be a time-out. The foster mother stated that she had never had a reason to put the Child in a time-out for lying. She also described some behaviors the Child had exhibited when she came to live in the foster home that concerned the foster mother. In the beginning, the Child would attempt to kiss the foster parents with her mouth open and also attempt to thrust her tongue into their mouths at the same time. When the foster parents objected, the Child said, "That's how we kiss at home," and also stated that was how she kissed Mother. Additionally, when she first came to their home, the Child would perform a song and dance which she called her "Oh, I'm so sexy, oh, I'm so cute" dance. The Child told the foster mother that Father had taught her the dance. The foster mother testified that one morning, while the Child was taking a bath with the foster mother in the room, the Child began to sing "I'm so sexy, I'm so cute" and began "sticking a washcloth up her bottom." When the foster mother asked her what she was doing, the Child responded, "I'm sexing myself." The foster mother asked her who had told her about that. When the Child replied, "My Dad," the foster mother clarified that the Child was referring to Father and not to the foster father. The foster mother testified that the Child had explained her behavior with the washcloth by saying, "This is the way [Mother] and [Father] have sex-[Father] sexes [Mother] back here," pointing to her anus. The Child then opened her legs, pointed to her vaginal area, and said, "[Father] sexes [Mother] here too." The foster mother said that the Child went on to say, "And when [Father] was sexing me, I tried to push him off because he was too heavy, and I kept saying `No! No!', but he wouldn't get off and I couldn't push him off." The foster mother testified that she then told the Child that "Mommies and Daddies don't touch their kids down there," to which the Child responded "Yes, they do." After the foster mother told her husband what the Child had said, the foster parents called CYFD, and the CYFD social worker came to their home. At the adjudicatory hearing, the foster mother also described a number of other disturbing behaviors exhibited by the Child, which included being short-tempered and easily frustrated, tantrums, hitting, and a number of sexualized behaviors. The sexualized behaviors included frequent masturbating with her hand, with her dolls and stuffed animals, and with the family dog. The Child would masturbate openly in front of her foster parents as well as in front of strangers. She also engaged in aggressive play with her dolls as well as simulating acts of sexual intercourse between the dolls.

{8} The CYFD social worker came to the foster home on the same day that...