In re C.K.

IN_RE_CK.94-508; 164 Vt 462; 671 A.2d 1270

[Filed 15-Dec-1995]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                              No. 94-508 & 95-381

In re C.K., Juvenile                              Supreme Court

                                                  On Appeal from
                                                  Franklin Family Court

                                                  September Term, 1995


Linda Levitt, J. (no. 94-508)

John Meaker, J. (no. 95-381)

       Robert Appel & Henry Hinton, Defender Generals and Judith A. Ianelli,
  Appellate Defender, Montpelier, for appellant father

       Jeffrey L. Amestoy, Attorney General, Montpelier, Alexandra N. Thayer,
  Assistant Attorney General, Waterbury, Charles Martin of Martin & Paolini,
  Barre, Howard Van Benthuysen and James A. Hughes, Franklin County State's
  Attorneys, and Howard Stalnaker, Deputy State's Attorney, St. Albans, for
  appellees


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



       DOOLEY, J.   This is a consolidated appeal from a Franklin Family
  Court CHINS merits order finding C.K. to be a child in need of supervision
  (CHINS),(FN1) and an order terminating parental rights.  First, the
  appellant-father appeals the CHINS finding, arguing that (1) the trial
  court improperly admitted hearsay testimony under V.R.E. 804a(a)(3), (2)
  the court

 

  violated his right to confront witnesses by excluding him from the
  courtroom as the child testified, and (3) the court improperly admitted and
  relied upon hearsay expert testimony to find that C.K. had been sexually
  abused.  We affirm the merits determination.  Second, the father appeals
  the subsequent order terminating his parental rights, arguing that (1) the
  court violated his due process rights by prohibiting him from deposing the
  child or calling the child as a witness, and (2) the court erred in
  refusing to admit evidence that he did not sexually abuse the child as
  found in the merits adjudication.  Because we find that the court erred in
  the resolution of the second issue, as we recently held in In re J.R., No.
  94-038, slip op. at 5 (Vt. Oct. 20, 1995), we reverse and remand the
  termination order for a new hearing consistent with that holding.

       On November 27, 1990, the Vermont Department of Social and
  Rehabilitation Services (SRS) took C.K. into custody after she had reported
  to the school nurse that her father had sexually abused her.  She told the
  nurse that her father had touched her "privates," that it hurt, that he had
  asked her to keep it a secret.

       Based on the allegations of sexual abuse, SRS sought to have C.K.
  declared a child in need of supervision.  A contested merits hearing was
  held on December 19-20, 1990.  As his first witness, the father called a
  pediatrician who had examined C.K. after she had been placed in SRS
  custody.  On direct examination, the pediatrician testified that he had
  performed a physical examination of C.K.'s vaginal area and found no
  evidence of trauma.  During cross-examination, the State asked the
  pediatrician whether he had an opinion as to whether C.K. had been sexually
  abused.  Over the father's objection, the pediatrician testified that he
  believed C.K. had been sexually abused.  Also over objection, the
  pediatrician testified to what C.K. had told him about the specific acts of
  sexual abuse by her father.  He then testified that the information that
  C.K. had given him had been taken for treatment purposes and was therefore
  medical history.  The father objected to the admission of C.K.'s statements
  to the pediatrician on the ground that the statements did not fall within
  the hearsay exception under Rule 804a.  The

 

  court overruled the objection, concluding that the statements by C.K. to
  the pediatrician were taken for the purposes of treatment and therefore
  were admissible under Rule 804a.

       The school nurse testified next, recounting what had happened during
  her routine examination of C.K. on November 27, 1990.  The nurse explained
  that, while treating C.K. for a possible hearing problem, C.K. disclosed to
  her that she had been molested by her father.

       After the nurse concluded her testimony, C.K. took the stand and gave
  extensive testimony during both direct and cross-examination.  Initially,
  C.K.'s attorney informed the court that she would not testify in the
  presence of her father because she was concerned that her testimony would
  hurt him.  In response, the court altered seating arrangements in the
  courtroom so that the father would be out of C.K.'s line of sight.  Once in
  the courtroom, however, C.K. became upset when she realized her father was
  still in the courtroom.  When asked to tell the court about the incidents
  of sexual abuse, she replied, "I can't say it in front of my dad."  The
  court then excluded the father from the courtroom during C.K.'s testimony,
  but ordered that C.K.'s testimony be read to the father, in the presence of
  his attorney, before the attorney cross-examined C.K.  Once the father was
  out of the courtroom, C.K. testified that she had been sexually abused.

       Based on the evidence, the court found that C.K. had been sexually
  abused, and therefore, was a child in need of care and supervision.  The
  court particularly based its decision on the extensive testimony of C.K.,
  whom the court found to be a "spontaneous, honest witness, knew what the
  truth was and knew what a lie was, [and] told the truth."  C.K.'s testimony
  was corroborated by the testimony of the pediatrician and the school nurse,
  whom the court found to be "credible witness[es]."  After a disposition
  hearing, custody and guardianship of C.K. were transferred to SRS.

       SRS filed a petition to terminate parental rights on January 17, 1994. 
  On September 9, 1994, the court terminated the parental rights of both of
  C.K.'s parents, concluding that, in the four years since the initial SRS
  intervention, "no progress has been made towards family

 

  reunification."  The father appeals both the CHINS findings, and the
  termination of his parental rights.

       The father's first arguments involve the admissibility in the merits
  hearing of the testimony of the pediatrician and nurse, relating C.K.'s
  statements to them that she had been sexually abused by her father.  The
  court admitted this testimony under Vermont Rule of Evidence 804a.  The
  pertinent part of Rule 804a provides that a witness may testify to hearsay
  statements made by a child ten years old or younger if there is an
  allegation of sexual assault on the child, the statements concern the
  alleged crime, the statements were not taken in preparation for a legal
  proceeding, the child is available to testify in court or under Rule 807,
  and the time, content, and circumstances of the statements provide
  substantial indicia of trustworthiness.  See State v. Weeks, 160 Vt. 393,
  399, 628 A.2d 1262, 1265 (1993).

       The father contends that, because the court excluded him from the
  courtroom during C.K.'s testimony, C.K. was not "available" to the father
  within the meaning of Rule 804a(a)(3). The father's interpretation of
  "available to testify in court" is without merit.  For Rule 804a(a)(3)
  purposes, limited testimony does not equal unavailability.  See State v.
  Lawton, No. 93-098, slip op. at 11 (Vt. Sept. 1, 1995) (testimony limited
  by child's willingness to testify); In re M.B., 158 Vt. 63, 69, 605 A.2d 515, 518 (1992) (testimony limited by child's partial loss of memory).  The
  rule's requirement that the child be available to testify is to allow for
  cross-examination, to ensure the reliability of the hearsay statements. 
  See State v. Gallagher, 150 Vt. 341, 344, 554 A.2d 221, 223 (1988), cert
  denied, 488 U.S. 995 (1988); Reporter's Notes, V.R.E. 804a.  In this case,
  the child testified at length, and was subject to cross-examination.

       The language of the rule does not support the father's argument that
  the child witness must somehow be "available" to him.  Indeed, the rule
  specifically authorizes testimony pursuant to Vermont Rule of Evidence
  807(e), which provides for testimony by closed circuit television where the
  child is not present in the courtroom and is not in the presence of the
  defendant.  In that circumstance the child is no more available to
  defendant than in this case.

 

       Next, the father claims that the testimony of the pediatrician and
  nurse were inadmissible under Rule 804a(a)(2), because the statements
  elicited from C.K. were "taken in preparation for a legal proceeding."  The
  requirement of Rule 804a(a)(2) is met if the totality of the circumstances
  indicates that the statements were gathered primarily for reasons other
  than preparation for a legal proceeding.  See Lawton, slip op. at 11; State
  v. Blackburn, 162 Vt. 21, 25, 643 A.2d 224, 226 (1994).  The factual
  circumstances as found by the trial court govern unless found to be clearly
  erroneous.  Blackburn, 162 Vt. at 24, 643 A.2d  at 226.  In CHINS
  proceedings, we have held that statements made during an initial SRS
  investigative interview are not made in preparation of legal proceedings. 
  State v. Duffy, 158 Vt. 170, 173, 605 A.2d 533, 535 (1992).  We reasoned
  that the exclusion of all or any statements made during an SRS interview
  would frustrate the purpose of Rule 804a, which is to allow highly
  trustworthy early communications by child victims to reach the factfinder. 
  Id. at 172, 605 A.2d  at 535.

       In the present case, C.K.'s statements to the nurse were made during
  the course of a routine hearing examination, and the nurse contacted SRS in
  response to what C.K. told her. C.K.'s statements to the pediatrician were
  made on the same day and in the course of her medical treatment.  The
  totality of the circumstances indicate that the statements to the nurse and
  pediatrician were made primarily for medical treatment, and were not made
  in preparation for a legal proceeding.  Were we to accept the father's
  broad interpretation of what statements are made in preparation for legal
  proceedings, we would have to place virtually every statement of a minor
  victim in this category.  See Blackburn, 162 Vt. at 24, 643 A.2d  at 226. 
  Such a broad interpretation would clearly frustrate the purpose of Rule
  804a.  See Duffy, 158 Vt. at 172, 605 A.2d  at 535.

       In a related argument, the father claims that the court violated Rule
  803(4) when it admitted the hearsay statements made by C.K. to the
  pediatrician after concluding that the statements were made for treatment
  purposes.  The father argues that, under Rule 803(4), statements about the
  cause or origin of a medical condition are not admissible, and that in the

 


       present case, C.K.'s statements about who had sexually abused her were
  statements about the cause of her medical condition.  We decline to
  consider this argument because the statements were admissible under Rule
  804a, as we have held above.  See Gallagher, 150 Vt. at 349, 554 A.2d  at
  226 (erroneous admission of hearsay statement of minor victim under Rule
  803(4) was harmless where statement admissible under Rule 804a).

       Next, the father argues that even if the pediatrician could testify to
  C.K.'s statements under Rule 804a, the court erred by allowing him to
  testify that he believed C.K. had been sexually abused.  This testimony, he
  argues, runs afoul of our prohibition on testimony by expert witnesses who
  vouch for the truthfulness of the child alleging sexual abuse.  See Weeks,
  160 Vt. at 400-403, 628 A.2d  at 1266-67 (1993).  In Weeks, we held that
  Rule 804a does not allow a witness who testifies to a child victim's
  statement about sexual abuse to also vouch for the victim's story.  Id. at
  399-400, 628 A.2d  at 1265-66.

       We agree that if this had been a criminal proceeding tried to a jury,
  the pediatrician's testimony that he believed that C.K. had been sexually
  abused, as she claimed, would be grounds for reversal.  The standard of
  review in a juvenile proceeding is different, however, and warrants a
  different result.  We explained the standard in In re R.M., 150 Vt. 59, 65,
  549 A.2d 1050, 1054-55 (1988), as follows:

          [T]he erroneous admission of evidence by itself is not
          grounds for reversal.  The burden is on the excepting party to
          demonstrate that the error resulted in prejudice.  See V.R.C.P. 61
          (error must "affect the substantial rights of the parties" and failure
          to take action to correct must be "inconsistent with substantial
          justice") . . . .

          In determining whether the hearsay testimony of Dr.
          Holmes was fatal to the merits proceedings, we first consider the
          effect of the testimony on the decision of the juvenile court.   . .
          .  The court's findings . . . briefly reference the tainted portion of
          Dr. Holmes' testimony . . . .

          We have reversed a CHINS determination based on tainted
          evidence only when we have determined that the "findings
          independent of the challenged [evidence] do not support a
          conclusion that the child is without proper parental [care and



         supervision] . . . ."  In re M.P., 133 Vt. at 147, 333 A.2d  at 118.
         See also In re J.L.M., 139 Vt. at 450, 430 A.2d  at 450
         (determination of unmanageability reversed where it rested
         "solely" on the evidence that was erroneously admitted).  Here,
         the court's conclusions are adequately supported by the findings,
         exclusive of the single reference to hearsay testimony.  There are
         no grounds to reverse.

  We have consistently followed the standard of review expressed in R.M.  See
  In re B.S., ___Vt.___, ___, 659 A.2d 1137, 1143-44 (1995); In re M.B., 158
  Vt. at 70, 605 A.2d at 518-19; In re C.M., 157 Vt. 100, 103, 595 A.2d 293,
  294 (1991).

       This case is similar to R.M. in the use and impact of the erroneously
  admitted evidence. Although the improper conclusion of the pediatrician is
  mentioned in the court's findings in passing, it is clearly not the primary
  basis for the court's conclusion that the father sexually abused C.K.  The
  court characterizes the pediatrician's conclusion as reached "for his
  treatment purposes" based on "his medical history."  The court's conclusion
  that C.K. was sexually abused is based primarily on C.K.'s thorough and
  detailed testimony.  The findings state: "[T]his court believes that girl." 
  The reliability of C.K.'s testimony was bolstered by her consistent
  statements to the pediatrician and the nurse.  As in R.M., the court's
  ultimate finding that the father sexually abused C.K. is based on the
  findings other than the reference to the improper evidence.  We find no
  grounds to reverse.

       In reaching this result, we recognize that expert evidence about the
  truthfulness of a child victim can be prejudicial even in a CHINS case. 
  Both the nature of the evidence, and the court's use of it convince us that
  insufficient prejudice has been demonstrated in this case.  The testimony
  came from a medical doctor rather than from an expert in the actions of
  child sexual abuse victims who might be seen to have special insight into
  the credibility sexual abuse claims. The purpose of his conclusion was
  solely to determine his medical treatment.  The court's passing finding
  noted this limited purpose for the conclusion.  Even if we accept that a
  trial judge's decision could be swayed improperly by the credibility
  assessment of a pediatrician, there is no indication that it was in this
  case.

 

       Finally, with respect to the merits adjudication, the father claims
  that the court erred by excluding him from the courtroom during C.K.'s
  testimony.  He argues that this action violated 33 V.S.A. §§ 5519(b)
  (hearing at which parents and child appear required on CHINS petition),
  5523(c) (CHINS hearing is non-public, and only certain persons, including
  the parties, may be admitted), and the confrontation clause of the Sixth
  Amendment to the United States Constitution.  We have recently rejected the
  constitutional argument because the constitutional confrontation right is
  inapplicable.  See In re A.L., No. 93-509, slip op. at 2 (Vt. Apr. 14,
  1995) ("parents do not have a right to face-to-face confrontation in CHINS
  proceedings"). Neither of the statutes cited by the father creates a
  confrontation right.

       In this case, C.K.'s attorney informed the court that C.K. would
  testify only if her father was not present in the courtroom because she was
  afraid that her testimony would hurt her father.  The court attempted to
  accommodate C.K.'s needs by arranging for the father to be seated in a
  place where he would be out of C.K.'s line of sight, but this action was
  unsuccessful. The court then excluded the father from the courtroom while
  C.K. testified, but only after ensuring the father could advise his counsel
  on appropriate cross-examination.

       The facts of this case are similar to those in In re Michael C., 557 A.2d 1219, 1220-21 (R.I. 1989), one of the decisions relied upon in In re
  A.L.  In Michael C, the trial judge cleared the courtroom when the child
  became upset, and proceeded to ask the child questions with only the court
  reporter present to record the testimony.  Id. at 1219-20.  The Rhode
  Island Supreme Court held that use of such a procedure "lies within the
  discretion of the trial justice after consideration of the best interests
  of the child as weighed against the interests of the parents and the
  state."  Id. at 1221.  In the absence of a specific contrary rule, we agree
  with this approach. See V.R.E. 611(a) ("court shall exercise reasonable
  control over the mode . . . of interrogating witnesses . . . so as to   . .
  .  protect witnesses from harassment or undue embarrassment"). There was
  adequate justification for the court's exercise of discretion here.  There
  is no error.

       Finally, we address the father's appeal from the order terminating
  parental rights.  The

 

  father attacks this order because the court prohibited him from calling
  C.K. as a witness, and refused to allow him to present evidence that he
  never sexually abused her.  We agree with the latter argument and do not
  reach the former.

       The court refused to allow evidence of whether the father sexually
  abused C.K., giving preclusive effect to the merits finding that he had
  sexually abused her.  The father argues, however, that the merits finding
  cannot be given preclusive effect because it was based on a preponderance
  of evidence standard of proof and not the higher standard of clear and
  convincing evidence that applies in a termination proceeding.  We recently
  approved this rule in In re J.R., No. 94-038, slip op. at 5 (Vt. Oct. 20,
  1995).

       The facts here are essentially the same as those in J.R.  There is no
  indication that the court found in the merits proceeding by clear and
  convincing evidence that C.K. had been abused.  The disposition
  adjudication was perfunctory, relying entirely on the merits findings. In
  the absence of a finding of sexual abuse at the higher standard of proof,
  the father is entitled to relitigate the question at the termination
  proceeding as bearing on the grounds for termination. See 33 V.S.A. §
  5540(1), (4) (at termination, court must consider best interests of child,
  including "interaction and interrelationship of the child with his natural
  parents" and "[w]hether the natural parent has played . . . a constructive
  role . . . in the child's welfare").

       Accordingly, the termination of the father's parental rights must be
  reversed and the matter remanded for a new termination hearing.

       The merits order is affirmed.  The termination of parental rights
  order is reversed, and the cause is remanded as to appellant father.


                              FOR THE COURT:


                              _______________________________________
                              Associate Justice




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                                  Footnotes



FN1.  The procedural history of this case is unusual and rather
  lengthy.  The original merits hearing occurred on December 19-20, 1990, and
  the merits order finding C.K. to be CHINS was dated January 25, 1991.  The
  father's brief was filed in this Court in August 1995, over four years
  after the original merits determination.  We bear some of the
  responsibility for this delay. Due to a clerical error, the appeal was
  never separately docketed, and no "record complete" notice was sent to
  trigger the time limits for events in this Court.  Notwithstanding this
  error, we would normally dismiss an appeal this old for lack of progress. 
  SRS has requested this relief.  In CHINS proceedings, however, a parent
  facing removal of his or her child is guaranteed legal counsel.  We will
  not punish the parent for the delay.