Opinion
Nos. CP04-004754D, CP04-004755D
November 17, 2010
MEMORANDUM OF DECISION RE MOTION TO PERMIT MINOR CHILDREN'S TESTIMONY
The respondents in the above matter filed a motion on October 1, 2010 for permission to call the two minor children as witnesses during the ongoing termination of parental rights trial. The children are Justin, who is 13 years old, and Hailee, who is seven years old.
Objections to the motion were filed by petitioner's counsel, and the attorney for the minor children. A contested hearing on the motion and objections was held before the undersigned on November 5, 2010.
OFFER OF PROOF AND FACTUAL FINDINGS
The respondents are representing themselves in this matter, although they have had the assistance of court-appointed standby counsel throughout the proceeding.
The respondents did not offer evidence or testimony at this hearing. The respondent, Anthony L., made an offer of proof about the nature of the children's testimony. He informed the court that Justin and Hailee would be called as witnesses to testify about the respondent's visits with the children between April 18, 2007 and July 2008. He also asserted in very general terms that the children's testimony would be relevant to the adjudication, disposition, and permanency plan issues that are in dispute in the trial. Anthony L. also claimed that Justin and Hailee should testify during the trial so that they could express their preferences to the court. The respondent, Kimberly A.-L., concurred with Anthony L.'s offer of proof and position on this motion.
For purposes of this hearing, the court takes judicial notice of the following facts, which do not appear to be in dispute: Justin and Hailee have been in the custody of the Department of Children and Families (DCF) continuously since September 23, 2004. The children were committed to DCF's care and custody by order of the Superior Court for Juvenile Matters on December 1, 2005. DCF previously filed a petition to terminate the respondents' parental rights with respect to the children. That case ended on April 18, 2007 when the court (Winslow, J.) denied DCF's petitions to terminate Kimberly A.-L.'s parental rights to Justin, and both respondents' parental rights to Hailee. (Anthony L. is the biological father of only Hailee).
The respondents' motion also included a request that the children be interviewed by an expert witness, supplied by the defense, in the presence of the respondents. During his proffer, Anthony L. stated that the purpose of the proposed interview was to determine if the children were afraid to testify, or would be psychologically harmed if they did so. Anthony L. also stated during the hearing that the children should be interviewed by the expert to determine what the children "are desiring."
The court has received evidence during the current TPR trial that the respondents have not visited with either child since July 2008.
Counsel for the petitioner called Atty. Lynn Dawson, the children's court-appointed guardian ad litem (GAL), to testify at the hearing. Atty. Dawson has been the children's GAL in this case since 2007. She is a licensed Connecticut attorney who is certified as a child welfare law specialist. Atty. Dawson is not a psychiatrist or psychologist. She has served as a court-appointed GAL in child protection cases in this state 75-100 times since 1996. Prior to that, she also was a guardian ad litem in Massachusetts.
Atty. Dawson testified credibly that she has read all of the pleadings and social studies in this case. She has reviewed all of the mental health evaluations and assessments pertaining to Justin and Hailee, and has maintained ongoing contact with the therapists who are treating the children. Additionally, she speaks with the children's attorney, foster parents and social workers. Atty. Dawson has met with Justin and Hailee twice during the past 11 months.
Her most recent visit with the children occurred in September 2010. Prior to that she met with the children last December, around Christmas. The GAL also testified that she has participated in numerous court hearings concerning this case during the past three years.
Atty. Dawson testified credibly that both children are currently in therapy. She testified that Justin is an immature and anxious child who is currently displaying behavioral problems. Atty. Dawson has not personally observed Justin misbehaving. Based upon her knowledge of Justin's current situation, Atty. Dawson believes that it would be "immensely stressful" and "traumatic" for Justin to testify in court.
Per the GAL, Hailee, who is seven years old, is currently in therapy where she is dealing with issues of abandonment. Based upon Hailee's age, the length of time that she has been in foster care, and the fact that the child has not seen the respondents since July 2008, Atty. Dawson believes that it would be detrimental for Hailee to testify. During her testimony at this hearing, the GAL stated: "I think it would be highly damaging and psychologically harmful to both children to testify."
Atty. Dawson testified that she has never spoken with Hailee about this court case. She has had limited discussions about the matter with Justin. The GAL described those discussions as being consistent with Justin's age. Atty. Dawson testified that neither child has ever indicated that they wished to testify at trial. The court found the GAL to be very knowledgeable about the children's legal case and about the totality of their present circumstances.
DISCUSSION
Connecticut Practice Book Section 32a-4(b) deals with child witnesses and states in pertinent part: "Any party who intends to call a child or youth as a witness shall first file a motion seeking permission of the judicial authority."
The language of that practice book section, and several appellate and trial court decisions, suggest that the trial court has "gatekeeper" responsibilities in the determination of whether or not it is in the best interests of a minor child to testify at a trial. See, for example, In Re Lauren R., 49 Conn.App. 763 (1998). "The court must evaluate the unique factors in each case to assess whether a child's testimony is appropriate and right and equitable under the circumstances and the law." (Internal quotation marks omitted). In Re Connor E., 2009 Ct.Sup. 5269, Wolven, J. (March 19, 2009), citing In Re Lauren R., op. cit.
Although the trial court is vested with discretion in making such decisions, that discretion is limited. Children are statutorily presumed to be competent witnesses. See: C.G.S. § 54-86h. Furthermore, the Connecticut Supreme Court recently held that trial courts may determine that a child is "psychologically unavailable" to testify at trial only if there is ". . . competent evidence that the child will suffer psychological harm from testifying." In Re Tayler F., 296 Conn. 524, p. 545 (2010). "The court's determination must be based, however, on evidence specific to the child and the circumstances, and not a generalized presumption that testifying is harmful." Id.
In the present case, no allegation has been made by either child against either respondent. Justin and Hailee have been in the petitioner's custody since September 2004, and have not had contact with the respondents since July 2008. The pending termination petitions were filed on November 24, 2008. The respondents' limited offer of proof at the November 5, 2010 hearing did not satisfactorily demonstrate that there was a compelling need for Justin and Hailee to testify, or that the evidence sought by the respondents could not be obtained through some other means. However, for purposes of this hearing, the court is assuming arguendo that the children could offer some relevant testimony. The court will determine whether or not psychological harm would be done to the children if they testified.
The respondents object to the court's consideration of the guardian ad litem's testimony at this hearing for two reasons. First, they claim that because the GAL is not a psychologist or psychiatrist, she is not qualified to testify about psychological harm to the children. Secondly, they assert that since Atty. Dawson is basing her opinions and recommendations on information about the children that she received from other persons and sources, her testimony is unreliable hearsay. The court does not agree.
Although Atty Dawson is not a mental health professional, she has had 14 years of experience as an attorney involved with child protection cases in this state. As Justin and Hailee's court appointed guardian ad litem, she is obligated to familiarize herself with all the facts and circumstances pertaining to her wards, and to make informed recommendations to the court about the children's best interests. The evidence established that Atty Dawson has read all of the court pleadings, DCF social studies, and mental health evaluations and assessments in this case. She has conferred with the children's attorney, foster parents, therapists and social workers. The GAL has participated in numerous court hearings in connection with this case. Atty. Dawson has spoken with, and observed, the children during her contacts with them. Her most recent contact occurred in September 2010. As an experienced child welfare lawyer, she is familiar with the practices and procedures in juvenile court, and is well aware of the courtroom environment where Justin and Hailee would testify.
This court did not accept that the GAL's testimony as the expert opinion of a mental health professional. But the court finds from her testimony that Atty. Dawson is quite familiar with the present circumstances of both children. Based on the GAL's demonstrated knowledge of the children, the court finds that Atty. Dawson can competently testify and offer opinions and recommendations in this proceeding about possible psychological harm that they would experience if permitted to testify.
Additionally, the court does not agree with the respondents that the GAL's testimony should be excluded because it is based, in part, upon information that Atty Dawson received from third parties. The social histories and mental health evaluations and assessments that the GAL reviewed were prepared by professionals who are mandated reporters, and who are under the professional obligation to accurately record and report information about Justin and Hailee's status and treatment. As such, that information has an inherent, threshold indicia of reliability that would justify the GAL to consider and act upon it. Also, the evidence at hearing suggested that in addition to her analysis and consideration of the information from third-party sources, the GAL also relied upon her personal knowledge of this case, and her professional training and experience, in arriving at the opinions that she expressed to the court.
This court's decision that the testimony of a mental health professional is not required in this proceeding appears to be supported by language contained in the recent In Re Tayler F. decision of our Supreme Court. "Proof of psychological harm must be adduced at an evidentiary hearing, either from an expert, or another uninterested witness with knowledge of the child." In Re Tayler F., p. 547.
During the hearing, Atty. Dawson offered specific reasons, based on her knowledge of each child, why Justin and Hailee would be psychologically harmed if permitted to testify. The GAL pointed to Justin's ongoing therapy, anxiety, immaturity, and behavioral problems when she opined that it would be traumatic and too stressful for him to testify in court. Atty. Dawson testified about Hailee's age, the length of time that she has been in foster care, the amount of time that has passed since she last had contact with her parents, and the feelings of abandonment for which Hailee is in therapy. Based on those factors, she believes that Hailee would also be subjected to emotional harm if required to testify.
The court credits the testimony of Atty. Dawson, and infers from all of the evidence that the children, who have not seen either respondent for more than two years, could find it confusing and unsettling to be questioned by their parents and the lawyers during direct and cross examination at this trial. The court finds as proven by a preponderance of the evidence that Justin and Hailee would be psychologically harmed if they were required to testify at trial.
As noted previously, the respondent's motion includes a request that Justin and Hailee be interviewed by an expert witness selected by the respondents, with the respondents present. At hearing on November 5, Anthony L. indicated that he had not as yet determined who that expert would be. He stated that he would confer with standby counsel concerning the selection of the expert. Accordingly, the court was provided with no information at the motion hearing about the identity, area of expertise, or professional credentials of the individual who would interview the children. Additionally, despite the respondents' limited proffer at hearing, the exact purpose of the interview remains unclear to the court. If the purpose of the interview is to determine whether or not the children would be psychologically damaged, the "interview" would really be a forensic evaluation of the children. The TPR trial is underway, and requests for psychological evaluations should have been made and resolved well before this point in the proceeding. Based on the evidence presented at hearing, the issue of psychological harm to the children from testifying is being decided now by the court, and further interviews or evaluations are not necessary.
If the purpose of the expert witness' interview is to ascertain the preferences of the children, the request is also unwarranted. Justin and Hailee are represented by a court-appointed attorney who is professionally obligated to advocate their positions at trial. They also have a guardian ad litem who is responsible for making recommendations to the court about their best interests. No evidence has been presented that these professionals are unable to perform those duties on behalf of the children.
The respondents' motion dated October 1, 2010 is denied. The objections to the motion are sustained.
SO ORDERED.