Facts: The Department of Children’s Services (“DCS”) filed a dependency and neglect petition upon receiving a referral that Stepfather had sexually abused Mother’s seven-year-old daughter.

DCS arranged for a forensic interview, during which Child described several instances of sexual abuse by Stepfather.

Stepfather denied the allegations, and Mother informed DCS she did not believe Child’s statements.

Stepfather sought to have Child testify at the adjudicatory hearing, but the juvenile court denied that request.

After the hearing where Child did not testify, the juvenile court found clear and convincing evidence that Child was dependent and neglected and that Stepfather had committed severe child abuse.

Mother and Stepfather took a de novo appeal to the trial court.

Stepfather sought to take Child’s deposition, but the trial court prohibited that after Child’s therapist said the exposure to the stress of a deposition would not be in Child’s best interest and would pose a substantial risk of trauma to her.

Stepfather again asked to call the seven-year-old child as a witness during the trial to advance his theory that Child had been coached by Father to make the allegations of abuse and the forensic interviewer failed to ask questions about the possibility of coaching. The trial court denied Stepfather’s request after balancing the probative value of the child’s testimony with the potential emotional and psychological harm the child could suffer from testifying.

Like the juvenile court, the trial court found clear and convincing evidence of dependency and neglect and severe abuse.

Mother and Stepfather appealed.

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

A child suffering from abuse is a “dependent and neglected” child. A determination of dependency and neglect must be supported by clear and convincing evidence.

Under Tennessee Rule of Evidence 601, there is a rebuttable presumption that every person is competent to be a witness, including children. If a witness is competent, the court must hear their testimony, but there are circumstances where the court should tailor how the evidence is received to minimize any harmful effects on the witness.

Barring the operation of some other applicable rule, trial courts lack the discretion to preclude the testimony of a witness if the witness is competent.

Tennessee Rule of Evidence 403 provides that relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Neither the child’s best interest nor the threat of emotional harm to the child witness are included in the list of concerns a trial court may consider when balancing the probative value of the evidence sought to be admitted.

Tennessee Rule of Evidence 803(25) allows statements to third parties by children 12 or younger about abuse or neglect to be admissible if the circumstances indicate trustworthiness.

The Court found the trial court erred in applying a balancing test that does not exist in Tennessee’s evidentiary rules to exclude the testimony of this child witness:

DCS contends that inasmuch as [Rule 803(25)] requires that declarants 13 years of age or older testify in order for their hearsay statements to be admissible, the converse must also be true, namely, that “children aged 12 or under are not required to testify for their statements to be admissible.” While we understand DCS’s postulate, we nevertheless are unable to conclude that the absence of any like requirement for children under the age of 13 demonstrably indicates that trial courts have discretion to exclude their testimony based upon a balancing test not contained in Tennessee’s rules of evidence.

On this point, DCS asserts that if children under the age of 13 were “always required to testify when their out-of-court statements are admitted, this hearsay exception would be nullified.” Respectfully, in presenting this argument, DCS appears to conflate two separate questions: (1) whether in-court testimony is required for the admission of an out-of-court statement and (2) whether a trial court may exclude the testimony of a child who is otherwise competent. Rule 803(25) only addresses the first issue—the prerequisites for the admissibility of the hearsay statements of a child. That rule, however, provides little guidance in our consideration of the second query.

This Court’s conclusion that trial courts do not possess discretion to exclude a competent child’s testimony based upon potential emotional or psychological harm does not nullify the purpose or effect of Rule 803(25). Even if trial courts are not permitted to exclude child testimony based upon potential harm, trial courts may still exclude child testimony based upon a balancing of the considerations outlined in Rule 403. In the event a trial court properly excluded a child’s testimony predicated upon the Rule 403 balancing test, DCS would still be permitted to introduce the out-of-court statements of a child under the age of 13 even though the child could not be called as a witness. Moreover, as Stepfather points out, not every respondent subject to a dependency and neglect action wishes to call the child as a witness. In those situations, Rule 803(25) still serves the purpose of relieving DCS from calling the child as a witness in order for the child’s out-of-court statements to be admitted into evidence. Notwithstanding our holding, Rule 803(25) would permit DCS to introduce the out-of-court statements of a declarant under the age of 13 without first having to call the declarant as a witness. Our conclusion that trial courts may not exclude the testimony of a child otherwise competent based upon potential harm does not impede the purpose, operation, or effect of Rule 803(25).

The trial court’s judgment was reversed because the trial court excluded the child’s testimony based on a balancing test not found in Tennessee’s evidentiary rules. The case is remanded for the trial court to consider Child’s testimony provided Child is competent to testify and the trial court does not exclude the evidence utilizing the Rule 403 balancing test.

K.O.’s Comment: (1) Courts from other states have two approaches to this issue. Some state courts have held that trial courts lack the authority to preclude a child from testifying if the child is competent to testify. Other state courts have held that trial courts maintain the power to block a child from testifying if the probative value of the child’s testimony is substantially outweighed by the risk of severe emotional or psychological harm to the child from testifying.

The parties and the trial court believed this issue to be one of first impression in Tennessee. It isn’t. In State, Dep’t of Hum. Servs. v. Norton, 928 S.W.2d 445, 447 (Tenn. Ct. App. 1996), the Court of Appeals determined that trial courts lack the discretion to preclude the testimony of a witness if the witness is competent, expressly rejecting consideration of the child’s best interest or “the propriety of forcing the children to testify in court” in excluding potential testimony.

(2) The Court notes that this opinion does not limit the trial court’s discretion to use the accommodations found in Tennessee Rule of Juvenile Practice and Procedure 306 to minimize the potentially harmful effects of testifying. Those accommodations include excluding the parties from the courtroom, examining the child through written questions and answers, examining the child by the judge rather than by the parties or attorneys, allowing a comfort animal or toy, etc.

In re Kansas B. (Tennessee Court of Appeals, Middle Section, October 12, 2022).

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