IN THE INTEREST OF C.W., A CHILD. L.W., APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, APPELLEE

Fla. 2d DCA | 1996-10-16
No. 95-1593
THREADGILL, C.J., and LAZZARA, J., concur.
681 So. 2d 1181 Florida District Court of Appeal, Second District (1996) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

A mother appealed a dependency order based on sexual abuse allegations against her child. The court reversed because the trial court improperly admitted the child's hearsay statements by finding the child "testified" when she actually had memory loss and was unavailable, and there was insufficient corroborative evidence as required by statute.


Holding

The court held that the child's inability to remember rendered her "unavailable" under § 90.803(23)(a)2(b), and therefore her statements were admissible only if other corroborative evidence was presented. The trial court erred by concluding the child "testified" merely by being sworn and subject to cross-examination when she could not recall material facts. Because the trial court did not properly consider whether corroborative evidence existed, and the record showed no such evidence, the admission of the statements was error.


Headnotes

[1] Hearsay statements of a child describing sexual abuse are admissible under section 90.803(23)(a)2, Florida Statutes, if the child testifies or is unavailable as a witness…

[2] A child is considered an unavailable witness under section 90.803(23)(a)2, Florida Statutes, if the child has a lack of memory of the subject matter of the statement, the…

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Key Quotes

“Well, all right. I'm going to stretch the outer limits of the definition for testifying, deem that [the child] has testified in this case, and I'll let the Second District Court of Appeal, if it gets to that point, decide whether or not a proper predicate has been laid.”

Trial court's ruling admitting the hearsay statements, which the appellate court found was an improper application of the statute's "testify" requirement.

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Facts & Procedural History

The Department of Health and Rehabilitative Services (HRS) filed a petition alleging the child had been sexually abused. At trial, the child was calle…

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Opinion of the Court
FULMER, Judge.

FULMER, Judge.

In this appeal of a dependency order, the mother contends that hearsay statements of the child were improperly admitted into evidence. We agree. Because we are unable to conclude that the error was harmless, we reverse.

The facts giving rise to the dispute in this case are as follows. The primary allegation in the petition for dependency was that the child had been sexually abused. Before trial, the trial court conducted a hearing, pursuant to section 90.803(23)(a)l, Florida Statutes (1993), to determine the reliability of the child’s videotaped interview with a member of the child protection team. The trial court found “sufficient indicia of reliability to warrant its admissibility if the proper predicate is laid,” pursuant to section 90.803(23)(a)2.

At trial, the Department of Health and Rehabilitative Services (HRS) called the child as a witness. After the child was determined to be competent to testify, HRS attempted to elicit testimony regarding the sexual abuse. The child was unable to testify to any material and relevant facts regarding the assault. She stated that she did not remember. HRS offered into evidence the child’s videotaped interview as well as statements made by the child to her foster mother.1 The mother objected and argued, primarily, that the hearsay statements were not admissible because the child failed to “testify,” as required by section 90.803(23)(a)2. HRS responded that the child did testify by taking the witness stand and being subject to cross-examination. The trial court ruled:

Well, all right. I’m going to stretch the outer limits of the definition for testifying, deem that [the child] has testified in this case, and I’ll let the Second District Court of Appeal, if it gets to that point, decide whether or not a proper predicate has been laid.

So I’ll admit the videotape, and then I’ll admit the statements made by Miss Schu-ler as to what [the child] told her. A close reading of the statute reveals that the child’s inability to remember and recount the sexual abuse rendered her “unavailable.” Section 90.803(23)(a)2 provides that reliable statements of a child victim, eleven years or younger, which describe an act of child or sexual abuse are admissible if:

2. The child either:

a. Testifies; or

b. Is unavailable as a witness, provided 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 section 90.804(1).

A child is unavailable under section 90.803(23)(a)2 if the trial court finds that “the child’s participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm” or if the trial court finds that any of the definitions of “unavailability” set forth in section 90.804(1), Florida Statutes (1993), are met. Charles W. Ehrhardt, Florida Evidence, § 803.23, at 699 (1996). One of those definitions is that the declarant “[h]as suffered a lack of memory of the subject matter of his statement so as to destroy his effectiveness as a witness during trial.” § 90.804(l)(c), Fla.Stat. In this case, the child suffered a lack of memory and was, therefore, “unavailable.” Consequently, her statements were admissible only if other corroborative evidence was presented.

During the discussion leading up to the ruling that the child “testified” the trial court commented, “We also really don’t have any corroborative evidence of the assault.” However, because the trial eourt improperly concluded that the child testified, it did not specifically rule on the question of whether there was other corroborative evidence. Based on our review of the record, it does not appear that there was corroborative evidence and, therefore, we conclude that the trial court erred by admitting the statements into evidence. Because we are unable to conclude that the error was harmless, we reverse and remand for further proceedings.

THREADGILL, C.J., and LAZZARA, J., concur. . During the trial and prior to the admission of the statement made to the foster mother, the trial court conducted a hearing on the issue of reliability and made the requisite findings.


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Citator

Cited By

  • T.O. v. Dep't of Child. & Families, 21 So. 3d 173 (Fla. 4th DCA 2009)
    …to the subject-matter of the hearsay statements to satisfy the requirement in section 90.803(23), or whether testimony on any matter is sufficient. The Second District dealt with this issue in L.W. v. Department of Health & Rehabilitative Services, 681 So. 2d 1181 (Fla. 2d DCA 1996). There, the child victim was unable to testify to any facts relevant to the alleged sexual assault. Id. at 1182. She stated that she did not re [*178] member the events. Id. The court held that she was unavailable as a witness bec…

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