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In re J.J.

Court of Appeals of Maryland

November 28, 2017


          Argued: September 7, 2017

         Circuit Court for Wicomico County Case Nos. 22-I-15-000008; 22-I-15-000009

          Barbera, C.J., Greene Adkins McDonald Watts Hotten Getty, JJ.


          BARBERA, C.J.

         Out-of-court statements offered for the truth of the matter asserted are generally inadmissible as hearsay unless otherwise permitted by statute or rule. One such statutory exception, known as the "tender years exception, " is found at § 11-304 of the Criminal Procedure ("CP") Article of the Maryland Code. Section 11-304 applies to criminal cases and juvenile court proceedings, including child in need of assistance ("CINA") proceedings.[1] That section further provides that a child's out-of-court statement is admissible to prove the matter asserted "only if" the statement has "particularized guarantees of trustworthiness." CP § 11-304(e)(1). In making that determination, the court "shall consider, but is not limited to" thirteen factors listed in the statute. CP § 11-304(e)(2).

         We address in the present case the admissibility at a CINA proceeding of the out-of-court statement of J.J., the then-nine-year-old daughter of Petitioner James J. ("Mr. J."), alleging that Mr. J. had sexually abused her. The Wicomico County Department of Social Services sought to introduce J.J.'s statement to prove the truth of the matter asserted at the CINA adjudication and disposition hearings involving J.J. and her brother, T.S. The Circuit Court for Wicomico County, sitting as a juvenile court, determined that J.J.'s statement would be admissible to prove the truth of the matter asserted because the statement possessed the requisite particularized guarantees of trustworthiness.

         The Court of Special Appeals affirmed the judgment of the juvenile court. In re: J.J. and T.S., 231 Md.App. 304, 311 (2016). In an apparent exercise of its discretion, the intermediate appellate court first addressed Mr. J.'s argument, raised for the first time on appeal, that the juvenile court should have ruled on J.J.'s competence to distinguish between truth and falsehood before determining whether her out-of-court statement was admissible under CP § 11-304. Id. at 327-31. The intermediate appellate court concluded that CP § 11-304 does not require a juvenile court to determine a child's truth competency when ruling on the admissibility of the child's out-of-court statement. Id. at 331. The court then held that the juvenile court complied with the requirements of CP § 11-304 in concluding that J.J.'s statement possessed particularized guarantees of trustworthiness. Id. at 335.

         We similarly exercise our discretion to address the unpreserved competency issue, and, like the Court of Special Appeals, hold that competency is not a prerequisite to admission of a child's out-of-court statement for the truth of the matter asserted under CP § 11-304. We also agree with the Court of Special Appeals that the juvenile court did not err in finding that J.J.'s out-of-court statement possessed the requisite particularized guarantees of trustworthiness required for admissibility under that section. Accordingly, we affirm the judgment of the Court of Special Appeals.


         The Statute

         We begin with a more detailed overview of CP § 11-304. That section prescribes the conditions under which a child's out-of-court statement is admissible to prove the truth of the matter asserted in a juvenile court proceeding. As a threshold matter, the statement must be made by a child victim who is under thirteen years old and "is the alleged victim or the child alleged to need assistance in the case before the court concerning . . . a juvenile court proceeding[.]" CP § 11-304(b). Next, the statement must be "made to" and "offered by a person [who is] acting lawfully in the course of" certain professions, including, as relevant here, a social worker, when the statement was made. CP § 11-304(c).

         The statement may be admitted in a CINA proceeding pursuant to the statute "if the statement is not admissible under any other hearsay exception" and "regardless of whether the child victim testifies." CP § 11-304(d)(2)(i). If the child victim does not testify, the statement "will be admissible only if there is corroborative evidence that the alleged offender had the opportunity to commit the alleged abuse or neglect." CP § 11-304(d)(2)(ii).

         As noted above, to be admissible, the statement must also have "particularized guarantees of trustworthiness." CP § 11-304(e)(1). When determining whether the statement has such guarantees, the juvenile court "shall consider, but is not limited to, " the following thirteen factors:

(i) the child victim's personal knowledge of the event;
(ii) the certainty that the statement was made;
(iii) any apparent motive to fabricate or exhibit partiality by the child victim, including interest, bias, corruption, or coercion;
(iv) whether the statement was spontaneous or directly responsive to questions;
(v) the timing of the statement;
(vi) whether the child victim's young age makes it unlikely that the child victim fabricated the statement that represents a graphic, detailed account beyond the child victim's expected knowledge and experience;
(vii) the appropriateness of the terminology of the statement to the child victim's age;
(viii) the nature and duration of the abuse or neglect;
(ix) the inner consistency and coherence of the statement;
(x) whether the child victim was suffering pain or distress when making the statement;
(xi) whether extrinsic evidence exists to show the defendant or child respondent had an opportunity to commit the act complained of in the child victim's statement;
(xii) whether the statement was suggested by the use of leading questions; and
(xiii) the credibility of the person testifying about the statement.

CP § 11-304(e)(2).

         Prior to the hearing at which the out-of-court statement is to be introduced, the court conducts a hearing at which the court must "make a finding on the record as to the specific guarantees of trustworthiness that are in the statement" and "determine the admissibility of the statement." CP § 11-304(f). Section 11-304(g)(1) directs the court to examine the child as part of its determination unless "the court determines that an audio or visual recording of the child victim's statement makes an examination of the child victim unnecessary."

         We have said that a judge who is called upon to determine "the admissibility of a tape recorded interview offered into evidence pursuant to [CP] § 11-304 . . . must comply with the foundational requirements of that statute, including the requirement that the court 'make a finding on the record as to the specific guarantees of trustworthiness that are in the statement[.]'" Jones v. State, 410 Md. 681, 699-700 (2009) (quoting CP § 11-304(f)(1)). The hearing at which that determination is made is generally referred to as the "§ 11-304 hearing." We shall employ that description here.


         The Present Case

         A. Factual Background

         The underlying facts relevant to this appeal are not extensive. J.J. was born in April 2006 and, as mentioned, was nine years old when she made the allegation of sexual abuse against her father, Mr. J. Her brother, T.S., born in December 2011, was three years old at the time of the allegation. J.J. and T.S. are the children of Petitioners, Mr. J. and Ms. B. The children were living alone with Mr. J. in August 2015 because Ms. B. was incarcerated. On August 30, 2015, during a visit with her maternal grandmother, J.J. told her grandmother that Mr. J. had sexually abused her twice in the prior week. Someone-the record does not disclose who-contacted the Fruitland Police Department on August 30, 2015, to report J.J.'s allegation that Mr. J. had sexually assaulted her. That same day, the Fruitland Police Department contacted Trooper Donna Hale of the Wicomico County Sheriff's Office about J.J.'s allegations. Sometime between 5:00 p.m. and 6:00 p.m. that afternoon, Tiffany Gattis, a licensed clinical social worker with the Child Advocacy Center, received a report of the allegation.

         At 7:09 p.m. on August 30, Ms. Gattis conducted an audio-recorded forensic interview of J.J. in a treatment room at the Peninsula Regional Medical Center. The interview was audio-recorded because visual recording was unavailable due to the location of the interview. Trooper Hale was present when the interview was conducted. Ms. Gattis interviewed J.J. using a forensic interview method known as RATAC, an acronym for Rapport, Anatomy, Touch, Abuse, and Closure. RATAC is a guided, non-leading, standardized approach for interviewing children about alleged abuse. The interview lasted approximately twenty-one minutes and ended when J.J. asked to stop the interview.

         Later on the evening of August 30, Ms. Gattis spoke with Mr. J. and T.S. at the police department. Mr. J. told Ms. Gattis that J.J. and T.S. had gone to visit their maternal family on Wednesday, August 25, and returned to his care on the evening of Saturday, August 29. Mr. J. denied abusing J.J., stating that "he would not consider fighting for his children because it was becoming an old and tiring process to be accused of sexual abuse." Mr. J. also told Ms. Gattis that J.J. was "starting [a] mess, again" and that "he should have never allowed her to visit . . . her family because they were filling her head with nonsense." Ms. Gattis also spoke with T.S., who was three years old at the time. No useful information was gathered because the information sought was beyond the scope of his age.

         That same evening, a doctor at the Peninsula Regional Medical Center performed a Sexual Assault Forensic Exam ("SAFE") on J.J., but J.J. had brushed her teeth, showered, urinated, and defecated prior to the exam. The SAFE report documented that J.J. was observed to have a "notch" on her hymen and that she was "tender." The report also noted that "[J.J.] pointed to [a] penis sketch to say 'it went in me.'"

         On August 31, 2015, the Department of Social Services ("Department") removed J.J. and T.S. from their home and placed them in shelter care. That day, after the children had been removed from their home, the Department filed a Petition for CINA. At the shelter care hearing on September 2, 2015, both parents agreed to shelter care, and an adjudication was scheduled. On September 3, 2015, a medical doctor conducted a Child Abuse Medical Providers ("CHAMP") exam and produced a report. The CHAMP report documented that J.J. stated, "[D]ad put his finger in me and made me suck his private part." Though the physical CHAMP exam "show[ed] no lacerations, scars, bruises, [and] no evidence of acute trauma, " the examiner found that this "exam CAN be consistent with disclosure." (emphasis in original).

         The Department filed an Amended CINA Petition on September 22, 2015, supplementing the Petition with allegations of neglect dating back to 2012. B. The Proceedings

         1. The § 11-304 Hearing

         Pursuant to CP § 11-304(d)(3), the Department filed a notice of intent to introduce J.J.'s audio-recorded out-of-court statement to Ms. Gattis and, on November 30, 2015, the juvenile court conducted a hearing on its admissibility. Both parents were present and represented by counsel. J.J. and T.S., though not present at the hearing, were also represented by counsel. The court heard testimony from Ms. Gattis and Christine Whitworth, a Department in-home case worker assigned to Petitioners' family from December 2014 through and including August 2015. Mr. J. also testified.

         Ms. Whitworth testified that Mr. J. lived alone with J.J. and T.S. on the days immediately preceding the alleged sexual abuse. Although she could not confirm that Mr. J. remained alone with the children on the exact days of the alleged abuse, she saw no reason that Mr. J. would have discontinued his role as the sole caregiver.

         Ms. Gattis's testimony focused on her interview of J.J. At the time of trial, Ms. Gattis had eight years of experience with the Department and had interviewed approximately 3500 children in her work with the Child Advocacy Center, though not exclusively for sexual abuse. She described J.J.'s demeanor during the interview. She stated that J.J. was initially "very pleasant, " showing no signs of physical distress in the interview. When, however, the conversation turned to anatomy and abuse, J.J. became more "quiet and reserved, " her "shoulders would cave in and her head dropped down, " and "she withdrew from conversation." Ms. Gattis interpreted such changes as a "sign of distress." Ms. Gattis described J.J.'s allegations of sexual abuse by her father:

[J.J.] was very specific during the forensic interview. She identified that her father forced her, and she identified as wee wee, adult or others would say penis. She identified that her father forced her to suck his wee wee. She also identified that her father rubbed his wee wee on her vagina at some point in time. . . . She was very specific to say that it occurred in the living room of their current home[.] . . . When asking about dates, [J.J.] referred to the incidents as occurring, she stated last night [August ...

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