Facts: Child was removed from Mother shortly after birth because child was born with various drugs in her system.

Child was initially placed with Father. After a few years, Child was removed from Father’s custody because of drug use and environmental neglect.

Eventually, the Department of Children’s Services (“DCS”) petitioned to terminate the parents’ parental rights on various grounds, including severe child abuse.

At trial, Foster Mother testified to statements made by Child regarding abuse to which Father’s lawyer objected. Specifically, Foster Mother testified that when Foster Mother was teaching Child how to wash her “privates,” Child told her that “Franco likes my whooha,” which Child indicated was her vaginal area.

Foster Mother also testified that Child called Father “Franco.”

Father’s counsel objected to Foster Mother’s hearsay statements, but the testimony was admitted into evidence.

Father denied that Child ever called him “Franco,” instead always calling him “Daddy.” He also denied that anyone ever called him Franco and denied all abuse allegations.

The trial court terminated the parental rights of both parents. Only Father appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Hearsay is

• an out-of-court statement
• used in court
• to prove the truth of the matter asserted.

Because hearsay is generally considered unreliable, as anyone who has played the “telephone” game knows, hearsay is not admissible in court unless it fits one of several exceptions.

Tennessee law provides an exception for hearsay for “statements about abuse or neglect made by a child alleged to be the victim of physical, sexual, or psychological abuse or neglect, offered in a civil action concerning … termination of parental rights….” The child must be 12 years old or younger and the circumstances surrounding the statement must indicate “trustworthiness.”

Because Child was under 13 and there was an allegation of sexual abuse in a case to terminate parental rights, the trial court could allow Foster Mother’s statements regarding Child’s disclosures if the circumstances indicated “trustworthiness.”

Father argued that the circumstances did not indicate trustworthiness because Child underwent forensic interviews and did not disclose abuse during those interviews. The trial court disagreed.

The Court found it was not an abuse of discretion to allow the hearsay statements into evidence:

First, other evidence in the record corroborates the hearsay statements. It is undisputed that Child had to be removed from a prior foster placement in part due to putting her hands down another child’s pants. Foster Mother also testified that Child tended to be “touchy-feely” with men. Further, while Father makes much of the fact that Child never disclosed abuse during her forensic interviews, this argument does not provide a full picture of the evidence. When testifying about the forensic interviews, [the DCS case manager] stated that Child shut down completely when asked about abuse and would not speak at all. Foster Mother then testified that after one of the forensic interviews, Child had an extreme episode in which she threw a bowl of cereal at Foster Mother and stated to Foster Mother, “you told those people my secrets.” Child then crawled under the table and threw more cereal at Foster Mother. Accordingly, the absence of an additional disclosure during a forensic interview is not dispositive. When taken as a whole, the foregoing events corroborate Child’s disclosures to Foster Mother.

We are likewise unpersuaded by Father’s argument that the circumstances cannot indicate trustworthiness because the disclosures were purportedly made to Foster Mother, who wishes to adopt Child. Father’s assertion is generic and without citation to specific evidence. Moreover, we have previously rejected the argument that, without more, the circumstances of an abuse disclosure lack trustworthiness when made to a custodian who wishes to keep the child.

Finding it was well within the trial court’s discretion to evaluate the circumstances of Child’s disclosure and allow Foster Mother’s testimony, the Court affirmed the trial court’s judgment terminating Father’s parental rights.

K.O.’s Comment: Hearsay evidence is not admissible because it is unreliable. There are exceptions for certain out-of-court statements likely to be reliable, e.g., statements made to a doctor for diagnosis and treatment, public records maintained by the government, business records maintained in the ordinary course of business, etc.

In a preliminary hearing in juvenile court, however, the rules allow “reliable hearsay” to be admitted into evidence without requiring an exception to the hearsay rule, i.e., unreliable hearsay is permitted (to be fair, these hearings often occur on very short notice, so it may be a practical necessity in many cases). But wait—isn’t hearsay inadmissible because it’s unreliable? Yes. So how is hearsay “reliable” if it doesn’t fit an exception to the hearsay rule? How does one assess the reliability of hearsay for which there is no exception?

Likewise, how can a witness’s hearsay be made “trustworthy” by corroborating hearsay from that same witness? That is largely what happened here.

In re Analesia Q. (Tennessee Court of Appeals, Eastern Section, May 10, 2022).

If you found this helpful, please share it using the buttons below.