Zmijewski v. B'Nai Torah Congregation of Boca Raton, Inc., 93-0822

• Citation: 639 So.2d 1022
• Decision Date: 06 July 1994
• Docket Number: No. 93-0822,93-0822
• Parties: 93 Ed. Law Rep. 454, 19 Fla. L. Weekly D1442 Chester ZMIJEWSKI, Marci Zmijewski, and Joshua Zmijewski, by his next friend, Chester Zmijewski, Appellants, v. B'NAI TORAH CONGREGATION OF BOCA RATON, INC., and Samuel Sheck Hillel Day School and Juan Maurice Direus, a Florida resident, Appellees.
• Court: Court of Appeal of Florida (US)

Page 1022

639 So.2d 1022

93 Ed. Law Rep. 454, 19 Fla. L. Weekly D1442

Chester ZMIJEWSKI, Marci Zmijewski, and Joshua Zmijewski, by

his next friend, Chester Zmijewski, Appellants, v. B'NAI TORAH CONGREGATION OF BOCA RATON, INC., and Samuel

Sheck Hillel Day School and Juan Maurice Direus, a

Florida resident, Appellees.

No. 93-0822.

District Court of Appeal of Florida,

Fourth District.

July 6, 1994.

Donald S. Hershman of Hershman & Roth, and Rick A. Saturn, Boca Raton, for appellants.

John S. Freud and Allan S. Reiss of John S. Freud, P.A., Miami, for appellee Samuel Sheck Hillel Day School.

Richard A. Sherman and Rosemary B. Wilder of Richard A. Sherman, P.A., and Jay B. Green of Green, Haverman & Ackerman, P.A., Fort Lauderdale, for appellee B'Nai Torah Congregation of Boca Raton, Inc.

POLEN, Judge.

The parents of a minor child appeal from a final summary judgment entered against them on their complaint for negligence and breach of contract against the B'Nai Torah Congregation of Boca Raton, the Hillel Community Day School and the school's janitor for the alleged sexual abuse of their son. We reverse.

The complaint alleged that in October 1990 the mother went to the Hillel school to pick up the child and found him disheveled and crying, with a white substance on his mouth, cheek and shirt. It further alleged that one month later the child told the mother that the janitor had sexually molested him. The parents relied upon the affidavits of two experts to establish the abuse. Dr. Michael Geraldi, a specialist in child sexual abuse, stated that he examined the child in November of 1990 and concluded that at a minimum the child's penis and anus had been fondled. The affidavit of Dr. Sarah Siciliano, a psychologist, concluded that the child presented the psychological profile of a child who had experienced sexual abuse. The parents also relied upon the mother's affidavit which recited that her son had disclosed that he had been sexually molested by the janitor at the school.

The defendants sought to compel the deposition of the child. The parents opposed the motion on grounds that the child would not be testifying at trial. The defendants then filed motions for summary judgment on grounds that without the child's testimony there would be no admissible evidence that a molestation had occurred since there were no witnesses to the incident, no physical evidence of a sexual battery, and the affidavits were based entirely on hearsay. The parents argued that the affidavits were admissible under section 90.803(23), Florida Statutes (1991), which provides:

HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM.--

(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 11 or less describing any act of child abuse or neglect, any act of sexual abuse against a child ... with, by or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:

1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability ...; and

2. The child either:

a. Testifies; or

b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1).

(Emphasis added.)

The parents asked the court to conduct a section 90.803(23) hearing to determine if the affidavits were admissible. Although the court was initially inclined to have the hearing, it later decided that the statutory requirements hadn't been met and instead entered summary judgment in favor of the defendants.

The parents now argue on appeal that the affidavits of the two doctors and the mother are admissible under section 90.803(23) and that the trial court erred by failing to conduct a hearing to determine whether the child's statements to the doctors were reliable and admissible.

We agree that the trial court was required to conduct a hearing to determine whether the hearsay statements which the child made to his mother and the doctors were reliable. The proper procedure for conducting a section 90.803(23) hearing is discussed in State v. Townsend, 635 So.2d 949 (Fla.1994); Feller v. State, 637 So.2d 911 (Fla.1994); and Perez v. State, 536 So.2d 206 (Fla.1988), cert. denied, 492 U.S. 923, 109 S.Ct. 3253, 106 L.Ed.2d 599 (1989). ¹

State v. Townsend, 635 So.2d 949 (Fla.1994) concerned the admissibility of a two-year-old's hearsay statements in a child sexual abuse case. There the trial court conducted a hearing pursuant to section 90.803(23) to determine whether the child's hearsay statements were sufficiently reliable to allow the admission of those statements at trial. The trial court listed each statement to be considered and then concluded without explanation that the circumstances surrounding most of the statements showed them to be trustworthy. The case proceeded to trial. At trial the state presented a psychologist who testified as to a number of statements made by the child and concluded that the child had been sexually abused. Townsend was convicted and appealed. The district court reversed, found the child's testimony to be inadmissible and granted a new trial, but certified the question of whether the child had been unavailable to testify within the meaning of section 90.803(23)(a)(2). The Florida Supreme Court approved the decision of the district court and remanded for a new trial, explaining that for a hearsay statement to be admitted (1) the source of the information through which the statement was reported must indicate trustworthiness, and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability. The court went on to explain that the courts have consistently found trial courts to have committed reversible error when those courts have failed to place on the record specific findings indicating the basis for determining the reliability of a child's statements introduced as hearsay.

In addition to the criteria contained in section 90.803(23)(a)(1) for determining whether a hearsay statement is trustworthy and reliable, the court also set forth other factors:

Other factors may include ... a consideration of the statement's spontaneity; whether the statement was made...