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L.P. v. State of Alaska, in the Matter of T.P. (9/25/92), 838 P 2d 1236
<![CDATA[
Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of: )
) Supreme Court File No. S-4488
T.P., ) Superior Court File Nos.
) 3AN-89-565/566/567 CP
A Minor Under the Age of )
Eighteen (18) Years. )
______________________________)
) O P I N I O N
L.P., )
)
Appellant, )
)
v. )
)
STATE OF ALASKA, )
)
Appellee. ) [No. 3889 - September 25,
1992]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, Joan M. Katz, Judge.
Appearances: Mary C. Geddes and Susan
Orlansky, Assistant Public Defenders, and
John B. Salemi, Public Defender, Anchorage,
for Appellant. Richard P. Sullivan, Jr.,
Assistant Attorney General, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee. Barbara Malchick, Office of
Public Advocacy, Anchorage, Guardian ad
litem.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
MOORE, Justice.
In this CINA appeal, L.P. challenges the trial court's
ruling that his daughter, T.P., is a "child in need of aid." He
maintains that the trial court erred in admitting his daughter's
hearsay statements under Alaska Rule of Evidence 804(b)(5),
arguing that T.P. was not "unavailable"and that her statements
lacked the necessary guarantees of trustworthiness. He also
claims that the trial court improperly relied on a psychologist's
testimony and report in making its CINA ruling. Finally, L.P.
argues that the court's finding is not supported by a
preponderance of the evidence.
We affirm the trial court on all issues.
I. Facts and Proceedings
In November 1989, the Alaska Department of Health and
Human Services (the Department) assumed emergency jurisdiction
over T.P., a six-year-old child. The Department also initiated
Child In Need of Aid (CINA) proceedings under AS
47.10.010(a)(2)(D).1 The Department's petition alleged that T.P.
had told a social worker that her father had touched her between
her legs and hurt her.
An adjudication hearing was held in October 1990. At
the commencement of the hearing, Judge Katz addressed two
preliminary issues. First, L.P. challenged T.P.'s competency.
After an examination of T.P., the court found that T.P. was
"minimally competent."2 Second, the Department and the guardian
ad litem sought to exclude L.P. from the courtroom during T.P.'s
testimony pursuant to CINA Rule 3(c) which provides that a parent
may be excluded during the testimony of a child witness "to
protect the child from material psychological harm."
The Department offered the testimony of Dr. Karen
Senzig to show that T.P. would suffer "material psychological
harm" if she testified in her father's presence. L.P. objected
in advance to any testimony by Dr. Senzig which would indicate
that she considered T.P. to exhibit symptoms typical of sexually
abused children. The court agreed that Dr. Senzig should not
state her opinion as to whether T.P. had been sexually abused.
The Department qualified Dr. Senzig as an expert
witness in "general psychological evaluation." Dr. Senzig
testified that she had observed T.P during a two and one-half
hour evaluation in July 1990. At that time, she did not have any
background information concerning T.P. and she did not know why
the Department had sent T.P. to be evaluated. During the
evaluation, she administered several psychological tests and
conducted a clinical interview. Dr. Senzig testified that T.P.
suffered from serious delays in intellectual, visual/motor and
self-concept development. She also testified, in general terms,
that a child at T.P.'s stage of development could easily be
confused by complex questions and that if T.P. had been
threatened and abused, testifying before her father would
probably cause her considerable anxiety. On cross-examination,
Dr. Senzig stated that T.P.'s emotional problems could have been
caused by marital discord, relocation, or possibly be
neurological in origin. The trial judge then ruled that L.P.
could not remain in the courtroom during T.P.'s trial testimony.
T.P. was called to testify the next day. Initially,
T.P. responded to the Department's questions. She remembered
seeing a movie in her kindergarten class and subsequently talking
to her teacher. However, she became unresponsive when asked what
she had told her teacher. She similarly failed to respond to
questions concerning her father and the alleged abuse.3 Judge
Katz concluded that further examination would not be productive.
The Department next attempted to present testimony from
Sandra Knight-Richardson, T.P.'s kindergarten teacher, concerning
T.P.'s statements to her. L.P. objected to the admission of
T.P.'s out-of-court statements as hearsay. In the ensuing
discussion, Judge Katz observed that T.P. was "unavailable"under
Alaska Evidence Rule 804(a)(2) or (3). The judge then stated
that she would admit the statements if the Department could
establish that they were sufficiently reliable.
As a preliminary showing of reliability, Ms. Knight-
Richardson testified that, sometime around Halloween 1989, she
had shown a film entitled "Touching"to her kindergarten class.
The animated film was used to educate children about
inappropriate touching and sexual abuse. Ms. Knight-Richardson
noticed that T.P. started to cry during a discussion about "good
and bad touching." At the conclusion of the film, T.P continued
to cry and Ms. Knight-Richardson asked T.P. what was wrong.
Based on Ms. Knight-Richardson's testimony, the court ruled that
T.P.'s out-of-court statements were sufficiently reliable to be
admitted under Evidence Rule 804(b)(5).
Ms. Knight-Richardson then testified as follows:
When [T.P.] started to cry, I did ask
her what's wrong and she told me nothing, and
I said are you sure and she said yes. I
didn't want to press it, so this is when I
continued to follow through with the film and
then as I explained to the class what they
were to do with the follow-up activities, she
came to me this time because I just left her
alone and she came up to me and put her arms
around me and started to cry again and I
asked her again what's wrong and she said
well, nothing, and I said well, why are you
crying, you don't cry for no reason, and then
she said well, I'll get in trouble if I tell
you, and I said no, you won't get in trouble,
you can trust me, and she said well, I'll get
my butt whipped if I tell you, and I said
well, you can trust me, and at this -- the --
the other children were doing their follow-up
and I had the opportunity to go over and just
talk to her one on one and at that time,
that's when she told me. She said well, my
dad touched me and it was -- and I didn't
like it or it was uncomfortable. I don't
remember her exact words, but she said my dad
touched me and it wasn't -- I didn't like it
I think is what she said, and I said what do
you mean, and she said well, he touched me
and it was painful, and I said where did he
touch you, and she said between my legs, and
I just -- I said --I said it's going to be
okay and I hugged her and I said it'll be all
right, don't worry about anything, and at
that time, I went to the counselor and I
shared with the counselor what had happened
and they took it -- they took it from that
point.
When asked if she could recall any other comments by T.P. about
the incident, Ms. Knight-Richardson testified:
Well, I did ask her where did it take
place. She told me on the -- on a porch, and
I said are you sure. She said yes. I can
say if I remember correctly that she felt
very comfortable talking to me.
The Department then called T.P.'s mother, P.P., who
testified that after she and L.P. separated in August 1989, she
came to Alaska and moved in with her parents. P.P.'s parents
live in a two bedroom mobile home with an exterior porch in an
Anchorage trailer park. According to P.P., T.P.'s behavior
changed around this time. When L.P. arrived in Alaska in the
middle of October 1989, he and his family shared a single bedroom
in the mobile home for several weeks. P.P. testified that she at
first did not believe T.P.'s statements to her teacher concerning
her father's alleged abuse, but over time, she came to believe
that her daughter had been abused by her husband.
On cross-examination, P.P. testified that T.P. was a
frequent bed wetter and that both she and L.P. regularly checked
her daughter's diaper several times a night. She also testified
that she did not wake up T.P. when she checked her diaper and
that there would be no reason to take T.P. outside to the porch.
L.P. only called one witness, the physician who had examined T.P.
He testified that although he had found no indication of physical
trauma, his exam could not rule out either penile or digital
penetration.
In its closing argument, the Department referred to Dr.
Senzig's testimony and report in arguing that T.P. had been
sexually abused. The court noted that Dr. Senzig's report had
not been entered into evidence. L.P. then withdrew his previous
objection and the report was admitted.4 In L.P.'s closing
statement, L.P. argued that Dr. Senzig's testimony was neither
relevant nor probative on the issue of abuse. L.P. maintained
that T.P. had confused his innocent diaper check for abuse after
viewing the movie in her kindergarten class.
Following the hearing, the court ruled that T.P. was a
"child in need of aid"due to the threat of sexual abuse and
placed her in the custody of the Department until January 14,
1993. The Department placed T.P. in the care of her mother.
L.P. was granted supervised visitation to be arranged by the
Department.
This appeal followed.
II. Unavailability
A finding of unavailability is a prerequisite to the
admission of hearsay testimony under the catch-all provision of
Alaska Evidence Rule 804(b)(5).5 Rule 804(a) provides, in
pertinent part:
(a) Definition of unavailability.
Unavailability as a witness includes
situations in which the declarant
. . .
(2) persists in refusing
to testify concerning the subject
matter of his statement despite an
order of the court to do so; or
(3) establishes a lack of
memory of the subject matter of his
statement. . . .
Alaska R. Evid. 804(a). L.P. argues that the record fails to
support a finding of unavailability under either subsection (2)
or (3). We disagree.
A witness must "persist[] in refusing to testify . . .
despite an order of the court to do so"before the trial court
may declare the witness "unavailable"under Rule 804(a)(2). See,
e.g., Rychart v. State, 778 P.2d 229, 231 (Alaska App. 1989)
(holding that a criminal defendant was unavailable under Rule
804(a)(2) when he refused to testify despite an explicit order
from the trial judge). Although Judge Katz did not "order"T.P.
to respond, she made repeated attempts to prompt T.P. to speak
about the alleged abuse. It is our opinion that the trial judge
should have considerable discretion in setting the tone of its
"order" since the judge is in the best position to observe the
child's demeanor and to determine how best to impress on the
child the importance of answering questions. Given the nature of
these proceedings and T.P.'s age, a direct order from the court
would have been inappropriate and probably counterproductive. We
conclude that T.P.'s persistent refusal to testify despite the
prodding of Judge Katz, counsel and her mother is sufficient to
support the trial court's Rule 804(a)(2) finding of
unavailability.
The trial court also ruled that T.P. was unavailable
under Alaska Rule of Evidence 804(a)(3). Generally, lack of
memory under this subsection must be established by testimony.
See Alaska R. Evid. 804(a); Alaska R. Evid. 804(a), Commentary;
see also State v. Just, 675 P.2d 1353, 1363 (Ariz. App. 1983)
(holding that a nine-year-old child was unavailable where she
specifically testified that she did not remember what she had
told the investigating officer shortly after her mother was
murdered). L.P. maintains that the trial court erred in finding
T.P. unavailable under this subsection because T.P. did not
"testify" that she had no current recollection of the alleged
abuse.
We believe that the trial court must have the
discretion to rule that a child's testimony indirectly reveals
the child's lack of memory when the child's age and relative
maturity makes it difficult for the child to clearly articulate a
lack of memory of the relevant events.6 See, e.g., State v.
Slider, 688 P.2d 538, 541 (Wash. App. 1984) (holding that a two-
year-old child was unavailable where her testimony at the pre-
trial hearing showed that she lacked any memory of the alleged
incident of abuse, although she did remember that the defendant
had baby-sat her). Given T.P.'s age and cognitive development,
such a ruling is appropriate here.7
Cases involving the sexual abuse of children present
very difficult evidentiary issues for the courts. Despite the
adoption of procedures making the process of testifying less
intimidating for a young child, the fact remains that many
children are not able to discuss incidents of abuse even in a
modified courtroom setting. See, generally, Note, A
Comprehensive Approach to Child Hearsay Statements in Sex Abuse
Cases, 83 Colum. L. Rev. 1745, 1749-50 (1983). Generally
speaking, the rules of evidence were not developed to handle the
problems presented by the child witness. Therefore our courts
must be free to adapt these rules, where appropriate, to
accommodate these unique cases. However, this increased
flexibility places a proportionately greater burden on the trial
judge to articulate clearly the reasons for her or his
unavailability ruling. See, cf., People v. Thomas, 770 P.2d
1324, 1328 (Colo. 1989) (under statute permitting the use of
videotaped deposition when child victim of sexual assault is
unavailable, trial court must make particularized findings
concerning the unavailability of the child witness). Although we
conclude that a finding of unavailability under either subsection
(2) or (3) is sustainable on the record presented in this case,
for the future, we strongly recommend that trial judges make
specific findings explaining their controlling evidentiary
rulings which involve children.
III. Reliability
L.P. contends that the superior court erred in
admitting T.P.'s out-of-court statements, arguing that they lack
the circumstantial guarantees of trustworthiness required under
Rule 804(b)(5).
We have recently addressed what guarantees of
trustworthiness are required in CINA proceedings under Rule
804(b)(5). See In re A.S.W. and E.W., ___ P.2d ___, Op. No. 3847
at 6-11. In In re A.S.W., we noted a number of factors relevant
to this determination: (1) the spontaneity of the child's
statements; (2) the age of the child; (3) the use of "childish"
terminology; (4) the consistency of the statements; (5) the
mental state of the declarant; and (6) the lack of motive to
fabricate. Id. at 9.
L.P. argues that T.P.'s statements do not exhibit
sufficient indicia of reliability because they do not reveal a
sexual awareness incompatible with those in T.P.'s age group.
However, we emphasized in In re A.S.W. that the listed factors
were not all inclusive and that they should not be applied
mechanically. Id. at 9. "_[T]he unifying principle is that
these factors relate to whether the child declarant was
particularly likely to be telling the truth when the statement
was made._"Id. at 9 n.7 (quoting Idaho v. Wright, 483 U.S. 1041,
1052 (1990)). The absence of any single factor is not
dispositive.
L.P. also argues that the circumstances prompting
T.P.'s statement were not sufficiently explored at trial since
the film which provoked T.P.'s statements was neither entered
into evidence nor adequately described. Without more information
about the film's narrative, he maintains that the court could not
find that the circumstances surrounding the statement were
sufficiently reliable. He concludes that the spontaneity of
T.P.'s statements is uncertain since the film may have led her to
interpret innocent parental conduct (i.e., a diaper check) as
"bad touching." Judge Katz considered and rejected this
position, noting that T.P.
hadn't cried to the teacher's
recollection all year, she cries noticeably
for the first time when she's been shown a
film on this very subject and then she
spontaneously after initially refusing to
talk about it goes and tells the teacher that
yeah, this is what's happened to her and the
part that I found of particular note was that
she said it happened on the porch. This
wasn't suggested I don't -- there's no reason
to think it was suggested in the film about a
cat. If it were just the touching to check
the diaper, you know, I guess the question is
why would she have come up with that?
Doesn't that have a ring of truthfulness to
it and doesn't that suggest that something
was going on beyond checking the diaper?
Judge Katz's observations are reasonable and support her decision
to admit the hearsay testimony. Furthermore, L.P.'s objections
at this stage are untimely. L.P.'s counsel did not seek to enter
the film into evidence nor did he question Ms. Knight-Richardson
about the possible suggestiveness of the film's content and
narrative during cross-examination. See In re A.S.W., Op. No.
3847, at 6 n.3 (holding that defendant could not argue on appeal
that alleged child abuse victim's videotaped statement was
coached where he had failed to cross-examine the trooper who had
conducted the interview on this issue at trial).
Given T.P.'s age, the apparent lack of motive to
fabricate, the spontaneity and timing of her statements, and the
fact that she located the abuse as occurring on the porch, we
conclude that Judge Katz did not abuse her discretion in
admitting these statements.8
IV. Sufficiency of the Evidence
Under AS 47.10.010, we will only overturn a trial
court's finding that a child is in need of aid if we are "left
with the definite and firm conviction that a mistake has been
made." A.H. v. State, 779 P.2d 1229 (Alaska 1989).
The trial court found T.P. to be a "child in need of
aid" due to the threat of sexual abuse. It based its finding
primarily on T.P.'s statements to her teacher. The court also
stated that Dr. Senzig's and P.P.'s testimony concerning T.P.'s
emotional state corroborated Ms. Knight-Richardson's testimony.9
L.P. correctly points out that both Dr. Senzig's and
P.P.'s testimony is not particularly probative on the issue of
abuse because T.P.'s emotional state could have resulted from a
number of factors unrelated to child abuse. Although some of
this testimony indicated that T.P.'s emotional problems were
linked to her father, the nature of this link is unclear. Our
review of the record indicates that this testimony neither
supports nor weakens the trial court's finding that T.P is a
child in need of aid.
The only telling evidence in this case is T.P.'s
statement to her teacher that her father had touched her between
her legs and hurt her. Although this does not constitute a clear
accusation of sexual abuse, T.P.'s statement that the incident
occurred on the porch cannot be easily reconciled with L.P.'s
theory that T.P. misinterpreted an innocent diaper check for
abuse.
T.P. made these unsolicited statements to her teacher
after watching a film designed to educate young children about
"bad touching." This film provoked a strong emotional response
in T.P., who had never cried in class before. T.P. was also
clearly frightened of the consequences of telling her teacher
that her father had touched her.
The Department has the burden of proving by a
preponderance of the evidence that a child is in need of aid.
CINA Rule 15. Under this standard, the court only needed to find
that it was more likely than not that T.P. had been abused.
"Something is more likely than not true if you believe that the
chance that it is true is even the slightest bit greater than the
chance that it is false." Alaska Pattern Civil Jury Instructions
2.22. On the record before us, we cannot say that the trial
court's decision was "clearly erroneous."
AFFIRMED.
_______________________________
1. AS 47.10.010(a)(2)(D) provides, in pertinent part:
Jurisdiction. (a) Proceedings relating
to a minor under 18 years of age residing or
found in the state are governed by this
chapter, when the court finds the minor
. . .
(2) to be a child in need
of aid as a result of
. . .
(D) the child
having been, or being in
imminent and substantial
danger of being, sexually
abused either by the child's
parent, guardian, or
custodian, or as a result of
conditions created by the
child's parent, guardian, or
custodian, or by the failure
of the parent, guardian, or
custodian adequately to
supervise the child. . . .
2. Specifically, the court observed:
I think in terms of her ability to
perceive events now, to relate them and to
know the difference between truth and a lie
in terms of present matters I think that she
is competent and I think at this point that's
probably as far as we have to go. If she
doesn't remember things in the past, she
doesn't remember them and the record will
stand, but she does appear to be at least
minimally competent as the court opinions
require.
3. The trial transcript reveals that T.P. failed to
respond to a number of questions put to her by counsel
and the court.
Counsel: [T.P.], after talking with your
teacher and talking with this other lady, you
talked to Miss Newell . . . from the police
department and she asked you some questions.
Do you remember talking with her? [T.P.]?
Counsel: She asked you some questions
about what happened with your dad. Do you
remember talking with her? Let the record
reflect that [T.P.] is shrugging her
shoulders in response to that question.
Counsel: Can you tell me about what you
said to her [T.P.]? Can you say yes or no,
[T.P.]? Let the record reflect that [T.P.]
indicates no, she can't tell me about what
she said and she's unwilling to respond in
the
negative. . . .
Counsel: [T.P.], you also talked with
your mom about stuff that happened with your
dad. Do you remember talking with her about
that stuff? Hum? Can you say yes or no,
[T.P.]? Let the record reflect that [T.P.] is
shrugging her shoulders. . . . Can you tell
the judge what you said to your mom about it?
Hum? What does that mean when you shrug your
shoulders like that? Does that mean yes, no,
or you don't know?
4. The court had delayed ruling on the admissibility of the
report when L.P. objected to its admission during Dr. Senzig's
testimony.
5. Rule 804(b)(5) provides, in pertinent part, that an out-
of-court statement is admissible if it is:
A statement not specifically covered by
any of the foregoing exceptions but having
equivalent circumstantial guarantees of
trustworthiness, if the court determines that
(A) the statement is offered as evidence of a
material fact; (B) the statement is more
probative on the point for which it is
offered than any other evidence which the
proponent can procure through reasonable
efforts; and (C) the general purposes of
these rules and the interests of justice will
best be served by admission of the statement
into evidence. However, a statement may not
be admitted under this exception unless the
proponent of it makes known to the adverse
party sufficiently in advance of the trial or
hearing to provide the adverse party with a
fair opportunity to prepare to meet it, his
intention to offer the statement and the
particulars of it, including the name and
address of the declarant.
Alaska R. Evid. 804(b)(5). The admission of evidence is
committed to the trial court's discretion and its rulings will
not be overturned on appeal except for an abuse of discretion.
Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980); In re A.S.W.,
___ P.2d ___, Op. No. 3847 at 6 n.3 (Alaska, May 29, 1992).
6. We emphasize that a child's lack of memory should not be
confused with the child's competency to testify. In State v.
Ryan, 691 P.2d 197 (Wash. 1984), the Washington supreme court
observed that:
incompetency and unavailability serve
separate purposes and mean different things.
. . .
Unavailability means that the
proponent is not presently able to obtain a
confrontable witness' testimony. It is
usually based on the physical absence of the
witness, but may also arise when the witness
has asserted a privilege, refused to testify,
or claims a lack of memory. . . .
Competency, on the other hand,
means that the witness _has sufficient mental
capacity to understand the nature and
obligation of an oath and [is] possessed of
sufficient mind and memory to observe,
recollect, and narrate the things she has
seen or heard._
Id. at 202-03 (quoting State v. Moorison, 259 P.2d 1105 (Wash.
1953)). On the record presented in this case, we see no reason
to question the trial court's determination that T.P. was
minimally competent.
7. L.P. further argues that the trial court erred in
relying on T.P.'s limited testimony (i.e., that she remembered
seeing the movie in her kindergarten class) after finding T.P. to
be unavailable. We disagree. A witness may be "partially
unavailable" if a witness has partial recollection of the
relevant events. See E. Cleary, McCormick on Evidence, 253 754-
55 (3rd Ed. 1984) ("if the forgetfulness is only partial, the
appropriate solution would appear to be to resort to present
testimony to the extent of recollection, supplementing with the
hearsay testimony to the extent required.") (footnote omitted).
8. We have recently held that an alleged abuser's due
process right to cross-examine a child witness in CINA
proceedings is adequately protected by the unavailability and
reliability requirements of Rule 804. See In re A.S.W. and E.W.,
___ P.2d ___, Op. No. 3847, at 11-14. We therefore reject L.P.'s
argument that the admission of T.P.'s out-of-court statements
violated his state and federal right to confront the witnesses
against him.
9. In making its oral ruling, the trial court also referred
to Dr. Senzig's conclusion in her written report that "[s]exual
matters are occupying most of [T.P.'s] energy right now." The
court's reliance on Dr. Senzig's report is troubling, since the
report was written with the underlying assumption that T.P. had
been abused. However, the court explicitly noted the underlying
flaw of the report. Since we conclude that Ms. Knight-
Richardson's testimony is sufficient, standing alone, to support
the trial court's ruling, we do not feel that the report
improperly influenced the court's decision. See Love v. State,
457 P.2d 622, 631 (Alaska 1969) (holding that an error is harmful
if there is reasonable probability that the error affected the
outcome).
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