Opinion
Case No. 94-1865 94-1867
Opinion filed August 13, 1997.
An appeal from the Circuit Court for Duval County. Karen K. Cole, Judge.
Raymond I. Booth III, of Raymond I. Booth, P.A., Jacksonville, for Appellant M.B.; Noel G. Lawrence, Jacksonville, for Appellant G.B.
K.C. Tusher, Assistant District Legal Counsel, Department of Health and Rehabilitative Services, Jacksonville, for Appellee.
Appellants, M.B. and G.B., the stepfather and mother of D.W. and the parents of the remaining children, appeal an order adjudicating the children dependent, based upon the lower court's determination that M.B. had sexually abused D.W. and that G.B. was negligent in failing to protect D.W. from the abuse. We conclude that the court erred in so finding, because its determination was grounded primarily on prior hearsay statements which the child later recanted at trial. We therefore reverse with directions that the petition for dependency be denied.
The evidence reveals that on February 16, 1993, D.W. informed her third-grade teacher that her stepfather had intercourse with her on January 13, 1993, when she was eight years old. The child subsequently gave the same information to a guidance counselor, a Child Protection Team (CPT) coordinator, a CPT nurse practitioner, and a clinical psychologist on referral from CPT, identifying her stepfather as the perpetrator. Medical examinations disclosed findings consistent with the history given by D.W. Her mother, G.B., however, steadfastly refused to believe that her husband had committed the act, although she did acknowledge that her daughter had been molested. D.W. further related that her stepfather had forced her to perform fellatio on one occasion when she was between four and six years of age.
Several male friends of M.B.'s had been present at the family's house on the evening of January 13.
At some time during the investigation, D.W. began to report that she did not remember who, in fact, had abused her. An attending psychologist attributed her change in story to the child sexual abuse accommodation syndrome, which posits that a child victim of sexual abuse, whose account is distrusted by the non-offending parent, eventually retracts his or her report in an attempt to restore the family system to the status quo ante. At the beginning of trial, D.W. testified in camera that "someone" had sexually abused her, but she was unable to identify the person.
The trial court admitted most of the witnesses' hearsay testimony and rejected D.W.'s retraction as an untruthful product of coercion by D.W.'s mother. The court found that M.B. had sexually abused D.W. two different times, and that G.B. failed to protect her daughter by refusing to support her emotionally after being told about the incidents, and neglected to provide her with necessary medical, legal, and psychological services. Based on M.B.'s abuse and G.B.'s neglect and abuse of D.W., the court concluded that the five children were in danger of prospective abuse and neglect and declared them dependent. We reverse.
The trial court erred in admitting as substantive evidence the hearsay statements in which D.W. identified M.B. as the perpetrator. Once D.W. recanted the identification at trial, her earlier, unsworn statements became prior, inconsistent statements; as a result, they were inadmissible as substantive evidence at the dependency proceeding. Williams v. State, 560 So.2d 1304, 1306 (Fla. 1st DCA 1990); Jaggers v. State, 536 So.2d 321, 325 (Fla. 2d DCA 1988). The common law rule was clear that unsworn, out-of-court statements which were inconsistent with a witness's in-court testimony were never admissible as substantive evidence and could be used only for impeaching the credibility of the testifying witness. State v. Green, 667 So.2d 756, 758-61 (Fla. 1995). See also Tomlinson v. Peninsular Naval Stores Co., 61 Fla. 453, 55 So. 548 (1911); Wallace v. Rashkow, 270 So.2d 743, 744 (Fla. 3d DCA 1972). The Florida Evidence Code, specifically section 90.608(1)(a), Florida Statutes, codifies the common law rule by recognizing the limited use of inconsistent statements for such purposes.
If the provisions of the evidence code do not cover a particular evidentiary issue, the common law controls. § 90.102, Fla. Stat. (1993); Charles W. Ehrhardt, Florida Evidence § 102.1 (1996 ed.).
We conclude from our examination of the pertinent statutes in Florida's Evidence Code that if the legislature had intended to create an exception to the common law rule and thereby allow the prior, unsworn statements of a witness to be used as substantive evidence, it could have employed language clearly and unambiguously expressing that intention. The courts have long recognized that statutes designed to change the common law must so state in clear and unequivocal terms, for the presumption is that no change in the common law is intended unless the statute is specific in that regard. City of Pensacola v. Capital Realty Holding Co., 417 So.2d 687 (Fla. 1st DCA 1982). This rule is altogether applicable to section 90.803(23), Florida Statutes (1993), which creates an exception to the common law hearsay rule for child abuse victims' statements, because of its general, unrestricted reference to the term "statement."
Another rule of statutory construction is that a more specific statute concerning a particular subject controls over one covering the same subject in general terms. Adams v. Culver, 111 So.2d 665, 667 (Fla. 1959). Section 90.801(2)(a), Florida Statutes (1993) is the only statute in Florida's Evidence Code that deals expressly with the limited purposes for which prior, inconsistent statements may be admitted as substantive evidence. It provides that such statements are not hearsay if the statements were made under oath "at a trial, hearing, or other proceeding or in a deposition." This statute is clearly inapplicable in that D.W.'s pretrial statements were not under oath.
Thus, in our judgment, the only rational interpretation that can be given to the term "statement," as used in section 90.803(23), is that in order for it to be admitted as substantive evidence, it must be consistent with the child's in-court testimony. This interpretation appears to have been the conclusion of the Second District Court of Appeal in Jaggers v. State, 536 So.2d 321 (Fla. 2d DCA 1988), which this court quoted extensively with approval in Williams v. State, 560 So.2d 1304, 1306 (Fla. 1st DCA 1990). In Jaggers, as in the case at bar, the child victims gave testimony at trial which was inconsistent with their prior, unsworn out-of-court statements implicating the defendant as the perpetrator of the abuse. In reversing the trial court's allowance of these statements into evidence, the Second District remarked: "[I]t amounts to nothing more than evidence of prior inconsistent statements of a testifying witness which are not admissible except when offered to contradict and to impeach the direct testimony offered at trial." Id. at 324. Again, at page 325, the court commented:
Moreover, we do not find the intent of section 90.803(23) is to allow the state to breathe substantive reliability into such prior inconsistent statements when they are otherwise admissible only to impeach those prosecuting victim witnesses whose testimony is introduced by the state at trial. Before it is admissible, evidence offered under section 90.803(23) must, like any other evidence, also comply with all applicable evidentiary rules of admissibility and purpose. . . . Once the state introduced the exculpatory testimony, the inculpatory prior unsworn statements became prior inconsistent statements and should not have been allowed into evidence, in this case, for any purpose, and certainly not as substantive evidence.
(Emphasis added.) The Jaggers rule has been followed in a number of cases. See, e.g., L.E.W. v. State, 616 So.2d 613 (Fla. 5th DCA 1993) ("[s]tatements repudiated at trial may not be used as substantive evidence that the act occurred"); Bell v. State, 569 So.2d 1322 (Fla. 1st DCA 1990), review denied, 581 So.2d 1310 (Fla. 1991); Williams v. State, 560 So.2d at 1306.
The supreme court, in State v. Green, 667 So.2d 756, 760 (Fla. 1995), also cited substantially the same language with approval.
The above broad language from Jaggers clearly makes no distinction between the inadmissibility of a child victim's earlier, unsworn inconsistent statements as substantive evidence in a civil or criminal proceeding. Consequently, it is immaterial to the issue of the statements' admissibility whether the burden on the proponent of the evidence is that of the preponderance of the evidence or evidence beyond a reasonable doubt, because such statements must be deemed inadmissible hearsay. Nor is it pertinent to our decision whether the child's earlier, unsworn statements were properly determined to be reliable, because, as we have said, the statements were simply inadmissible hearsay.
The dependency proceeding conducted below is considered civil in nature and thus is governed by the preponderance of the evidence standard. Orange County v. Fishalow, 513 So.2d 1109 (Fla. 5th DCA 1987).
Finally, although medical evidence is in the record which could conceivably be viewed as corroborating the victim's report of abuse, this evidence, in itself, is insufficient to sustain the dependency adjudication. The medical evidence, consisting of the testimony of a nurse practitioner, qualified as an expert in the area of child abuse, discloses that a physical examination of the victim's vagina revealed the presence of an inflammation and a mild infection. During a later examination, the witness noticed that the inflammation had resolved but that scarring was evident; the scarring, in the nurse's opinion, indicated that blunt penetration to the vaginal area had occurred. Based upon these observations, she opined that her findings were consistent with the history of abuse provided by the victim.
We cannot conclude that this evidence, once the child's statements are excluded, meets the preponderance-of-the-evidence standard applicable in civil cases. The preponderance standard has been variously defined as evidence which is of greater weight or more convincing than that offered in opposition to it; evidence which is more credible and convincing to the mind; that which denotes not simply the weight of the evidence but a superiority of weight or "outweighing." Black's Law Dictionary 1182 (6th ed. 1990). The only relevance of the medical testimony would be to show that the child's condition was consistent with some form of penetration; it could not, of course, by itself, determine the source of the penetration. Therefore, as stated, this evidence clearly was insufficient to meet the standard of the preponderance of the evidence.
A recent decision of the Florida Supreme Court in a criminal case supports our decision. The court in State v. Green, 667 So.2d 756 (Fla. 1995), approved this court's decision excluding a child victim's prior, unsworn, inconsistent statements as substantive evidence, commenting that the remaining medical evidence, like that in the present case, was consistent only with some form of vaginal penetration, but it was not sufficient to supply corroboration.
In deciding that D.W.'s hearsay statements were not admissible, we have not overlooked Professor Ehrhardt's comments advocating that section 90.803(23) should not be interpreted as precluding the admissibility of a child's out-of-court statements simply because they are inconsistent with the child's in-court testimony; that the correct inquiry should instead be whether the statements are reliable. Charles W. Ehrhardt, Florida Evidence § 803.23, at 702 (1996 ed.). This court has, in numerous opinions, acknowledged Professor Ehrhardt's unrivaled expertise in the field of Florida evidence. Nevertheless, we cannot ignore our own precedent, which we consider has clearly followed a course opposite to that championed by him. See Williams v. State, 560 So.2d 1304, 1305-06 (Fla. 1st DCA 1990).
Because of our concern regarding the proper interpretation of the statutory language at issue, as voiced by both the dissent and Professor Ehrhardt, and being uncertain from certain dicta of the supreme court in Green, whether the same rule of exclusion would apply in a civil case if the evidence supported a determination that a child victim's prior unsworn statements were reliable, we certify the following as questions of great public importance:
In Green, the court noted that the child victim had made certain prior, inconsistent statements that might be deemed admissible under section 90.803(23), but, emphasizing their unreliability, i.e., the fact that the mentally retarded child had charged two persons with her abuse and then at trial had later recanted as to one, held the allowance of such evidence would create too great a risk of convicting an innocent person. The court continued, however, with the following important caveat: "This does not mean that inconsistent statements admitted under section 90.803(23) can never be used as substantive evidence when other proper corroborating evidence is admitted." Id. at 761. Although this language is certainly supportive of Professor Ehrhardt's position, we note that the court also quoted with approval from the Jaggers opinion, stating that "'[w]e do not find the intent of section 90.803(23) is to allow the state to breathe substantive reliability into . . . prior inconsistent statements when they are otherwise admissible only to impeach those prosecuting victim witnesses whose testimony is adduced by the state at trial . . . .'" Id. at 760 (quoting Jaggers, 536 So.2d at 325). We therefore conclude that the clarification of any uncertainty regarding whether such statements are admissible under the statute as an exception to the hearsay rule should be determined by the supreme court.
1. DOES THE TERM "STATEMENT" IN SECTION 90.803(23), FLORIDA STATUTES, PERMIT THE ADMISSION OF A CHILD VICTIM'S PRIOR UNSWORN STATEMENT WHICH IS INCONSISTENT WITH THE CHILD'S IN-COURT TESTIMONY, IF THE EVIDENCE SUPPORTS A DETERMINATION THAT THE EARLIER UNSWORN STATEMENT MEETS SUFFICIENT SAFEGUARDS OF RELIABILITY?
2. IF SECTION 90.803(23) PERMITS A CHILD VICTIM'S PRIOR, INCONSISTENT STATEMENTS TO BE ADMITTED AS SUBSTANTIVE EVIDENCE, IF FOUND TO BE TRUSTWORTHY AND THE RECORD SUPPORTS SUCH A FINDING, IS THE COMBINATION OF SUCH STATEMENTS AND THE CORROBORATING MEDICAL EVIDENCE, INDICATING ONLY THE POSSIBILITY THAT ABUSE MAY HAVE OCCURRED, SUFFICIENT TO ESTABLISH THE DEPENDENCY OF THE CHILD UNDER THE PREPONDERANCE OF THE EVIDENCE OR THE GREATER WEIGHT OF THE EVIDENCE STANDARD?
REVERSED and REMANDED with directions that the petition for dependency be denied.
WEBSTER, J., CONCURS. BOOTH, J., DISSENTS WITH WRITTEN OPINION.
Reading the majority opinion, one might easily forget (as I believe my learned colleagues have) that this is not a criminal case. The primary focus in these proceedings is not the identity of the abuser, but the safety and welfare of the child in an environment where abuse has occurred. I would affirm the dependency order entered below.
It is noteworthy that the majority does not take issue with the trial court's findings that: (1) the child's trial testimony was the product of coercion and unworthy of belief; (2) the child's out-of-court statements were trustworthy and reliable; and (3) the mother was guilty of neglect and abuse of the child. The majority does, however, disparage the trial court's finding that sexual abuse occurred. The parties themselves do not take issue with that finding, and the occurrence of the sexual abuse is not an issue on this appeal.
Accordingly, I would propose to certify the following as questions of great public importance:
1. IN A CASE INVOLVING CHILD SEXUAL ABUSE, IS AN OUT-OF-COURT STATEMENT BY A CHILD VICTIM IDENTIFYING THE ABUSER, WHICH IS FOUND TO BE ADMISSIBLE UNDER SECTION 90.803(23), FLORIDA STATUTES, RENDERED INADMISSIBLE AS SUBSTANTIVE EVIDENCE BY SUBSEQUENT INCONSISTENT TESTIMONY OF THE CHILD VICTIM AT TRIAL, WHICH TESTIMONY THE TRIAL COURT FINDS TO BE THE PRODUCT OF COERCION?
2. IN A CIVIL DEPENDENCY PROCEEDING, MAY A CHILD VICTIM'S OUT-OF-COURT STATEMENT ADMITTED UNDER SECTION 90.803(23), FLORIDA STATUTES, SUPPORT A FINDING OF DEPENDENCY BASED ON SEXUAL ABUSE, EVEN THOUGH THE SAME STATEMENT MAY BE INSUFFICIENT TO ESTABLISH GUILT OF THE ACCUSED ABUSER IN A CRIMINAL CASE?
D.W. identified her stepfather as her sexual abuser in a series of prehearing out-of-court statements to, among others, her teacher, school guidance counselor, and several health care professionals. However, at the dependency hearing, D.W. testified that she did not know or remember who had sexually abused her, and that she had not told the truth about her stepfather. The trial court rejected this testimony as "unworthy of belief" and "the result of coercion by [D.W.'s] mother and fear by [D.W.] of the consequences of her truthful identification of her [stepfather as] her assailant." There is record support for these findings.
D.W. was eight years old when she was sexually abused in Florida and when she made the out-of-court statements identifying her stepfather as the perpetrator. D.W. was nine years old when she testified at the dependency hearing.
See generally 24A Fla. Jur. 2d Evidence and Witnesses § 1052 (1995) ("[T]he fact that a witness has been threatened with respect to his or her testimony may bear on the witness's credibility, regardless of who made the threat."); see also id. at § 1034 ("An appellate court is not entitled to substitute its judgment for that of the trier of fact on the question of the credibility of the witnesses[.]"). As found by the trial court in the present case, it is "tragic that the mother exerts more effort to exculpate her husband than to protect her daughter."
The trial court found D.W.'s out-of-court statements to be reliable and admitted them into evidence under Florida Statute section 90.803(23), through the testimony of five witnesses. The extensive order of the trial court sets out specific findings as to each of these witnesses, in pertinent part, as follows:
Florida Statute section 90.803(23) provides, in pertinent part:
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, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible 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. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; 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).
Deborah Clausen
Deborah Clausen [D.W.'s teacher, testified that D.W.] came to her on February 16, 1993 following a presentation by Officer Moore, also known as "Officer Friendly." [D.W.] was teary-eyed and very upset. She spoke to Ms. Clausen under a tree and looked about to be sure that the other children were not listening to their conversation. She told Ms. Clausen that her stepfather had recently hurt her. . . .
The Court finds that [D.W.'s] statement to her teacher that "my stepfather hurt me" is admissible under Fla. Stat. § 90.803(23) as an out-of-court statement made by a child victim under the age of 11 describing an act of child abuse. Testimony at trial established that the abuse occurred on January 13, 1993 and this statement to Ms. Clausen was made approximately one month later on February 16, 1993. The statement is surrounded by sufficient safeguards of reliability inasmuch as it was prompted by a specific presentation on the subject of child molestation by an authority figure, Officer Moore, and was made to and related at trial by a responsible person, a teacher with 16 years of experience with young children. Further, the child's demeanor when confiding to her teacher and her obvious fear that her conversation would be overheard by classmates suggests that the statement is a credible one.
. . . .
Judy Sheklin
Judy Sheklin [a guidance counselor at D.W.'s school] . . . testified that she was alerted by Debbie Clausen to [D.W.'s] situation and talked with [D.W.] on February 16, 1993. [D.W.'s] body language throughout the conversation suggested distress and fear. She was tearful and needed hugs from the counselor to relate the incident. [D.W.] told Ms. Sheklin that her stepfather had "put his private part in her private part" while [D.W.] was sleeping in bed. [D.W.] said, "I guess he couldn't see me crying because he wouldn't stop" . . . .
The Court finds that [D.W.'s] statements to Ms. Sheklin concerning the occurrence of the sexual abuse in Florida are admissible under 90.803(23). The statements to Ms. Sheklin were made on the same day as the statements made to Ms. Clausen and were made one month after the occurrence of the abuse and were prompted by a specific school presentation on the subject of sexual abuse. The Court finds the statements to be reliable. It is logical that the child would confide in her school guidance counselor and Ms. Sheklin's trained observations of the child's body language suggest the child's truthfulness in relating the occurrence of the abuse.
. . . .
Susan Oliver, M.A.
Susan Oliver, M.A., [lead case coordinator with the Child Protection Team] . . . interviewed [D.W.] on February 16, 1993 at the Child Protection Team. When questioning the child, she used open-ended, non-leading questions. [D.W.] seemed fearful throughout the interview and, although quiet and cooperative, decreased eye-contact when asked to describe her sexual abuse. The child reported to Ms. Oliver that her stepfather abused her sexually in January of 1993. She reported experiencing pain during the incident. She said, however, that she concealed both her pain and her wakefulness, but quietly sobbed during the abuse. [D.W.] told Ms. Oliver that the others who had been at her home earlier in the evening left before the abuse occurred. [D.W.] reported that she was afraid, because of what her mother had told her, that she would have to go to a foster home and her family would have to survive without her stepfather's income if she identified her stepfather as the perpetrator. The child said that she did not want her stepfather to go to jail. She denied having been abused by anyone other than her stepfather. She indicated that her stepfather drank beer and would get angry and verbally "mess with" her mother.
Ms. Oliver interviewed [D.W.'s] mother, . . . who admitted that [D.W.] had described the same abuse incident to her and had identified the stepfather . . . as the perpetrator. [D.W.'s mother] said that she did not believe [D.W.] and thought that [D.W.] had made up the story because she didn't like her stepfather. At one point during her conversations with Ms. Oliver, [D.W.' s mother] stated that [D.W.] had never before told her of any previous incidents of sexual abuse. At a later time, however, [D.W.'s mother] changed her story and said that [D.W.] had claimed while in Japan and California that she had been abused. The mother said that she had obtained a medical examination for the child in Japan which showed no evidence of any abuse but had failed to obtain a medical examination for the child while in California. [D.W.'s mother] claimed that the incident in Japan occurred in 1988. [D.W.] would only have been four years old at the time.
. . . .
In the presence of Ms. Oliver, [D.W.'s mother] challenged [D.W.] by asking, "Why didn't you tell me you didn't like your stepfather? The family wouldn't be going through this now . . . ."
Ms. Oliver testified that, in her opinion as an expert on child sexual abuse, [D.W.] had been sexually abused.
Ms. Oliver admitted that there were inconsistencies in [D.W.'s] report of sexual abuse. . . . None of [D.W.'s mother's] anger was directed at the fact that the child had been abused; indeed, she indicated that she did not believe that the child had been abused.
The Court finds that the child's statements to Ms. Oliver are admissible under Fla. Stat. § 90.803(23) as the statements of a child sexual abuse victim describing the act of abuse. [D.W.'s mother's] statements to Ms. Oliver are admissible as admissions of a party opponent. The Petition for Dependency alleges that [D.W.'s mother] did not believe her daughter's allegations of sexual abuse and has been emotionally non-supportive. [D.W.'s mother's] statements constitute admissions that she did not believe her daughter's report of sexual abuse and has therefore been emotionally non-supportive.
The statements made by the child to Ms. Oliver were made approximately one month after the occurrence of the abuse and as a direct outgrowth of the child's statements to her teacher and guidance counselor. The statements were made to an expert in the field of child abuse who has special training in observing and reporting on actions taken by child victims and their relatives. This clothed the statements made by the child to Ms. Oliver and related by Ms. Oliver to the Court with sufficient indicia of reliability.
. . . .
Carol Morgan, M.A.
Carol Morgan, M.A. [D.W.'s counselor] testified that [D.W.] was cheerful in group therapy when discussing superficial matters but withdrew when the discussion turned to sexual abuse. She exhibited dramatic body language by curling into a fetal position, falling silent and staring at the floor.
On May 24, 1993, [D.W.] completed a psychological test known as the sentence completion test. In response to question 13, she wrote, "I was sexually abused by my stepfather." Ms. Morgan testified that [D.W.'s] behavior and presentation in group therapy were similar to the behavior and presentation of children who have been sexually abused and are reacting to familial pressure not to reveal that abuse. The Court finds that [D.W.'s] written hearsay statement is admissible under Fla. Stat. § 90.803(23) as a hearsay statement made by a child victim describing an act of child abuse. The Court finds that this statement, made as it was in the context of a counseling session to a person experienced in administering and interpreting tests for child sexual abuse victims, is of sufficient reliability to be admitted. Further, the statement is consistent with [D.W.'s] behavior in group therapy as observed by Ms. Morgan, who was trained to perform such observations.
. . . .
Diane Larson, A.R.N.P.
Diane Larson, A.R.N.P., [a nurse practitioner with the Child Protection Team] . . . testified that the child identified her stepfather as the perpetrator. The Court finds this testimony . . . admissible under the statement of child victim exception to the hearsay rule [§ 90.803(23)]. This statement was made within a reasonable period of time after the actual abuse and was made to a medical examiner specializing in child sexual abuse cases. [End of Trial Court Order quote.]
The majority holds that the trial court erred in admitting the foregoing testimony into evidence. In so holding, however, the majority fails to give credence to the plain language of the child abuse victim hearsay exception of section 90.803(23). That statute is controlling and was properly applied by the trial court in the present case.
Section 90.801(2)(a), cited by the majority, does not preclude the evidence at issue here because (1) D.W.'s testimony that she could not remember the identity of her sexual abuser is not necessarily inconsistent with her out-of-court statements identifying her stepfather as her sexual abuser; and (2) the trial court rejected D.W.'s testimony in this regard as not credible.
D.W.'s testimony regarding the incidents of sexual abuse was essentially identical to her out-of-court statements, except for the identification of the perpetrator; and even in this regard, D.W. never affirmatively testified that "My stepfather didn't do it," nor did she identify someone else as the perpetrator. Instead, D.W. testified that she did not know or remember who had sexually abused her. While D.W. also testified that she had not told the truth when she previously identified her stepfather as her sexual abuser, she testified that she had done so because she wanted to live with her mother, but didn't know how implicating her stepfather would affect that. As previously discussed, D.W.'s testimony in this regard was rejected by the trial court as "unworthy of belief" because it was "the result of coercion by [D.W.'s] mother and fear by [D.W.] of the consequences of her truthful identification of her assailant." See footnote 7, supra. Substantial record evidence supports this conclusion. Specifically, in addition to the testimony of Susan Oliver and Carol Morgan (quoted above), Dr. Keith D'Amato, a clinical psychologist who evaluated D.W., testified that D.W. told him: "If I say it is my stepdad, he will stay in jail and my mom will be sad and I will go to a foster home. My mom said so." The trial court admitted this testimony into evidence as non-hearsay or, alternatively, as an exception to the hearsay rule under Florida Statute section 90.803(3) as a statement of D.W.'s then-existing state of mind or emotion evidencing her motive for recantation. Furthermore, Robert Chapman, M.A., who counselled both D.W. and D.W.'s mother, testified that, in his opinion, D.W. was being coerced by relatives not to identify the perpetrator of the abuse.
The trial court, as the fact-finder here, rejected D.W.'s in-court testimony as to the identity of her sexual abuser because that testimony was coerced, "unworthy of belief," and not credible. So rejected, D.W.'s testimony in this regard is a nullity and, accordingly, there exists no testimony from D.W. that is inconsistent with her out-of-court statements identifying her stepfather as her sexual abuser. In the absence of any such inconsistency, section 90.801(2)(a), as relied upon by the majority, does not apply.
The Florida Supreme Court has held that "section 90.803(23) is the Florida Legislature's response to the need to establish special protections for child victims in the judicial system."State v. Jones, 625 So.2d 821, 825 (Fla. 1993). The statute was enacted to salvage potentially valuable evidence from child sexual abuse victims who might, for any number of reasons, be unable or unwilling to testify in a manner expected of adults.
The Florida Supreme Court in State v. Townsend, 635 So.2d 949, 953 (Fla. 1994), held:
Section 90.803(23), the child-sexual-abuse-hearsay exception, was enacted to enable trustworthy and reliable statements not covered under any other hearsay exception to be admitted in court. Fla.S.Comm. on Judiciary-Civ., tape recording of proceedings (May 1, 1985) (Florida State Archives) (comments of Florida State University Law Professor Charles Ehrhardt). [(Emphasis original.)]
This court in Childress v. State, 543 So.2d 413, 414 (Fla. 1st DCA 1989), held:
The Legislature's intent [in enacting section 90.803(23)] was expressed in Ch. 85-53, Laws of Florida, which provides:
WHEREAS, reports of sexual abuse and the commission of unlawful sexual acts against children have increased dramatically, and
WHEREAS, children are in need of special protection as victims or witnesses in the judicial system as a result of their age and vulnerability, and
WHEREAS, the rights of the defendant in a criminal prosecution must be balanced with the right of a child victim to be protected, and
WHEREAS, a young child is able to relate descriptions of acts involving sexual contact or sexual acts performed in the child's presence in a reliable manner based upon consideration of the child's age and development, and
WHEREAS, the credibility and reliability of a child's testimony can be assured by procedural safeguards that will not infringe upon the defendant's right to a fair trial or the rights or [sic] any party in a judicial proceeding, and
WHEREAS, it is necessary that safeguards be instituted for the children of the State of Florida who are victimized to assure that their right to be free from emotional harm and trauma occasioned by judicial proceedings is protected by the court, and
WHEREAS, effective handling of child abuse cases in the judicial system is essential to future protection of the child, and
WHEREAS, the Legislature recognizes that special provisions are necessary to assure that evidence of unlawful sexual offenses against children is admissible in the courts, based upon sound principles of child development, and
WHEREAS, the assistance of professionals and persons having a special relationship with the child can aid the courts in assuring full access to legal remedies for the protection of children, NOW, THEREFORE . . . . [(Emphasis added.)]
Under section 90.803(23), the linchpin of admissibility is not whether a child abuse victim does or does not testify consistently at a trial or hearing, but whether "the time, content, and circumstances of the [child abuse victim's out-of-court] statement[s] provide sufficient safeguards of reliability." See footnotes 8 and 9, supra; Charles W. Ehrhardt,Florida Evidence § 803.23, at 702 (1996 ed.) (child sexual abuse victim's out-of-court statements not inadmissible under § 90.803(23) simply because child victim testifies inconsistently; appropriate focus is on reliability of out-of-court statements under circumstances they were made).
As fully stated by Professor Ehrhardt in Florida Evidence § 803.23, at 702 (1996 ed.):
There is some authority that, if the [child abuse] victim's trial testimony does not indicate that abuse occurred, the victim's out-of-court statements that the abuse occurred are not sufficient, by themselves, to support a conviction. The rationale for these decisions is not clear. If the rationale is that the out-of-court statement is lacking the necessary reliability as a result of the circumstances in which it was made, the analysis is appropriate. Section 90.803(23) and the defendant's confrontation rights require this analysis. If the basis is that, because the out-of-court statement which is admissible under a recognized hearsay exception, is inadmissible simply because it is inconsistent with the in-court testimony of the witness, the reasoning should not be followed. Although a prior statement which is admitted pursuant to section 90.801(2) is not sufficient by itself to support a conviction, the rationale should not be extended to statements admitted under a section 90.803 hearsay exception. These exceptions are surrounded by circumstantial guarantees of reliability which are not necessarily present when a statement is offered under section 90.801(2). [(Footnote omitted, emphasis added.)]
Professor John E.B. Myers, in volume 2 of his treatise onEvidence In Child Abuse And Neglect Cases, states at section 7.47, p. 275-76, "[i]n dependency proceedings, . . . reliable hearsay should be regarded as sufficient to support an adjudication of abuse or neglect." (emphasis added).
As fully stated by Professor John E.B. Myers in volume 2, Evidence in Child Abuse And Neglect Cases, § 7.47, p. 275-76:
Although the majority of courts agree that in civil litigation, hearsay alone is sufficient to sustain a finding of fact or a judgment, many decisions state that such evidence must be considered with caution and if hearsay is unreliable, it will not support a finding or verdict.
. . . .
In dependency proceedings, . . . reliable hearsay should be regarded as sufficient to support an adjudication of abuse or neglect. [Emphasis added.]
The trial court properly determined reliability and found D.W.'s out-of-court statements admissible under section 90.803(23). I find no abuse of discretion in this regard, and would affirm the trial court's admission of D.W.'s out-of-court statements into evidence.
The critical question is whether a "condition of dependency" exists as to this child and her siblings. Fla. Stat. section 39.404(2) provides:
The purpose of a petition seeking the adjudication of a child as a dependent child is the protection of the child and not the punishment of the person creating the condition of dependency.
Accordingly, the care, safety, protection, health and well-being of the subject child controls in a dependency proceeding. Evidence assisting the judge in determining the best interest of the child should be admitted, unless expressly precluded. Dependency is established by a mere preponderance of the evidence, rather than the "beyond a reasonable doubt" criminal standard.
See Fla. Stat. § 39.001(1)(b); In the Interest of S.C., 471 So.2d 1326, 1328 (Fla. 1st DCA 1985) ("The overriding principle in cases of child abuse and neglect is the ultimate welfare and best interest of the child, and parental rights are subject to that principle.") (citation omitted, emphasis added). Dependency proceedings are generally less formal, and evidence on the welfare of the subject child should be liberally received — Florida Statute section 39.408(2)(b) even allows the court to consider evidence received by anonymous calls, so long as there is corroboration.
Florida Statute section 39.408(2)(b) explicitly provides that "a preponderance of evidence will be required to establish the state of dependency."
In the instant case, the trial court's dependency order concluded as follows:
1. [D.W.'s stepfather] sexually abused [D.W.] both in California and Florida.
2. [D.W.'s mother], after having been advised of the abuse in California, failed to protect [D.W.] from further abuse, failed to support her emotionally and failed to provide her necessary medical, psychological and legal services.
3. [D.W.'s mother] pressured [D.W.] to recant her identification of [D.W.'s stepfather] as her abuser.
4. [D.W.'s mother] failed to cooperate in her own and her daughter's therapy and in fact has been an obstacle to the success of her daughter's therapy.
5. [D.W.'s mother] intends to believe her spouse, [D.W.'s stepfather], rather than her daughter, [D.W.], regardless of contrary evidence, and intends to reunify her daughter with the man who sexually abused her.
6. [D.W.'s mother], within the meaning of Fla. Stat. § 39.01(2), abused [D.W.] by committing the above willful acts which resulted in physical, mental and sexual injury to [D.W.] which has significantly impaired [D.W.'s] mental and emotional health. Further, the mother's continuing and willful non-support is likely to further impair [D.W.'s] mental and emotional health.
7. [D.W.'s mother], within the meaning of Fla. Stat. § 39.01(37), neglected [D.W.] by depriving her of necessary medical and psychological treatment and by allowing her to live in an unhealthy environment, i.e., in the home occupied by [D.W.'s stepfather]. These acts significantly impaired the child's physical, mental and emotional health because they resulted in [D.W.'s stepfather] sexually abusing [D.W.] for a second time and because they deprived [D.W.] of the opportunity to obtain healing and supportive medical and psychological care. [D.W.'s mother] continues to neglect [D.W.] by refusing to cooperatively participate in the child's and her own psychological counseling, thus making it more likely than not that [D.W.'s] mental and emotional health will be further impaired.
8. [D.W.'s stepfather's] sexual abuse of [D.W.] has caused her physical, mental and emotional health to be significantly impaired.
9. Because of [D.W.'s stepfather's] sexual abuse of [D.W.] and [D.W.'s mother's] neglect and abuse of [D.W.], [D.W.] and her siblings are in danger of prospective abuse and neglect.
These findings are abundantly supported by competent, substantial record evidence. Accordingly, I would affirm.