In re W.H., 261 N.C. App. 24 (2018) (originally unpublished but subsequently published)

  • Facts: This case involves 2 boys and 2 girls who were born to mother and father. In December 2011, mother reported to DSS that father sexually abused the older daughter. The daughter was interviewed by the DSS social worker and disclosed the sexual abuse. In the following month, the daughter had a forensic evaluation at the TEDI Bear Clinic where she did not disclose the sexual abuse, and the report indicated that recantation of child sexual abuse is not uncommon. Later that month, the daughter met the DSS social worker again and redisclosed the sexual abuse. More than 3 years later, DSS reopened the case when the younger sister disclosed sexual abuse by the father. A different DSS social worker interviewed both daughters and both described inappropriate sexual contact by the father. The younger daughter disclosed to the TEDI Bear Clinic. Both girls were interviewed by the sheriff’s department and stated that their father did something they “didn’t like.” At a preliminary hearing in the abuse and neglect proceeding, the trial court determined the girls were unavailable to testify and the residual hearsay exception applied to the girls’ statements to the interviewers at the TEDI Bear Clinic, DSS social workers, and law enforcement. All 4 children were adjudicated neglected and the girls were adjudicated abused. Father appeals.
  • The appellate court reviews the admission of evidence under the residual hearsay exception for an abuse of discretion, and “the appellant must show that ‘[he or she] was prejudiced and a different result would have likely ensued had the error not occurred.’ ” Sl. Op. at 5 (citation omitted).
  • The residual hearsay exception in Rule 803(24) requires a 6-prong analysis by the trial court: “(1) proper notice has been given; (2) the hearsay statement is not specifically covered elsewhere; (3) the statement possesses circumstantial guarantees of trustworthiness; (4) the statement is material; (5) the statement is more probative than any other evidence which the proponent can procure through reasonable efforts; and (6) the interest of justice will be best served by admission.” Sl. Op. at 5.
    • Notice is sufficient when “it gives the opposing party ‘fair opportunity to meet the proffered evidence.’ ” Sl. Op. at 5 (citation omitted). Here, notice was sufficient to allow the father to prepare. DSS sent the father written notice of its intent to use the daughters’ out-of-court statements that were made to the DSS social workers, law enforcement, and the TEDI Bear Clinic between 1 week − 7 months before the statements were introduced at the various hearings and trial. Additionally, the statements were provided to the father months before the notice was sent to him.
    • Factors a court considers when determining whether a statement is trustworthy include the declarant’s (1) personal knowledge of the underlying event, (2) motivation to be truthful, (3) history of recanting, and (4) practical availability at trial for cross-examination. Although recantation is a factor, “none of these four factors, alone or in combination, may conclusively establish or discount the statement’s circumstantial guarantees of trustworthiness.” Sl. Op. at 6-7 (citations omitted). The lack of a finding about the 2012 TEDI Bear interview is not fatal.
    • The trial court determined the daughters were unavailable to testify after finding testifying would traumatize the daughters, cause them confusion, and that there would be a risk that they would not testify truthfully due to guilt and fear. The findings that guilt and fear may impact the testimony distinguish this case from State v. Stutts, 105 N.C. App. 557 (1992), which held any statements (including out-of-court statements) made by the child were untrustworthy because she could not tell truth from fantasy.
Abuse, Neglect, Dependency
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