Opinion
NO. 2012-CA-001041-ME
01-03-2014
M.L.W. APPELLANT v. B.C. APPELLEE
BRIEF FOR APPELLANT: Jennifer McVay Martin Lexington, Kentucky BRIEF FOR APPELLEE: James W. Baechtold Richmond, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MADISON FAMILY COURT
HONORABLE NORA J. SHEPHERD, JUDGE
ACTION NO. 10-CI-00805
OPINION
AFFIRMING IN PART,
REVERSING IN PART,
AND REMANDING
BEFORE: CAPERTON, MAZE, AND VANMETER, JUDGES. MAZE, JUDGE: M.L.W. appeals from an order by the Madison Family Court granting a motion to modify and restrict visitation with his then four-year-old daughter, A.C. The child's mother, B.C., brought the motion after A.C. made allegations of sexual abuse against her father to her therapist and social worker. M.L.W. argues that the trial court abused its discretion by finding that A.C. was competent to testify. M.L.W. further argues that the trial court abused its discretion by allowing the social worker to testify regarding prior inconsistent statements made by A.C., to give an opinion regarding the child's credibility, and to testify that the child's behavior was consistent with sexual abuse. We agree with M.L.W. that the trial court erred by considering the social worker's improper opinion testimony. However, we find that the trial court did not abuse its discretion by finding A.C. competent to testify or by allowing the social worker to testify substantively about A.C.'s prior inconsistent statements. Therefore, we affirm in part, reverse in part, and remand for new findings and an order based upon properly admitted evidence.
In accordance with this Court's policy and in the interest of protecting the child's privacy, we will refer to both parties and the child only by their initials.
M.L.W. and B.C. are the parents of A.C., who was born in February 2008. The parties were never married and paternity was established shortly after the birth of the child. In 2010, after the couple separated, M.L.W. brought a petition to establish custody and timesharing. In the course of this petition, the trial court entered an Agreed Custody and Timesharing Order on May 3, 2011. The parties agreed to share joint custody of A.C. The order did not explicitly designate a primary residential custodian, but A.C. primarily resided with B.C., and M.L.W. had visitation according to the standard schedule adopted in the circuit.
On September 26, 2011, B.C. sought an Emergency Protective Order (EPO), stating that A.C. had disclosed acts of sexual abuse by M.L.W. The EPO was later dismissed. B.C. then filed an ex parte motion for emergency custody on September 29 based upon the statements which A.C. made to her therapist, Melissa Neal, who is also a Licensed Clinical Social Worker (LCSW). The motion for emergency custody was granted and the matter was scheduled for a show cause hearing on October 24. At the hearing, the trial court appointed a guardian ad litem (GAL) for A.C., and passed the motion pending the outcome of an investigation by the Rockcastle County office of the Department for Community Based Services (DCBS).
At a status conference on November 28, B.C.'s counsel advised the trial court that the DCBS investigation had been closed as unsubstantiated. Counsel also advised the court that he would call A.C. as a witness at the final hearing. The trial court scheduled the matter for a competency hearing on March 22, 2012, and for a final hearing on March 27, 2012.
At the hearing on March 22, the trial court conducted an in camera interview with the child. A.C. denied that M.L.W. had hurt her or engaged in any sexual conduct. However, the child did confirm that M.L.W. had bathed with her. Following the hearing, the trial court concluded that A.C. was competent to testify. Based upon A.C.'s in camera testimony, the trial court further found that the child had given prior inconsistent statements, and that Neal's testimony about those statements was admissible under Kentucky Rules of Evidence (KRE) 613 and Jett v. Commonwealth, 436 S.W.2d 788 (Ky. 1969).
At the final hearing on March 27, B.C. called Neal to testify about the statements which A.C. had made to her during therapy and the behavior which she observed from A.C. The trial court summarized Neal's testimony as follows:
Ms. Neal testified that the minor child, [A.C.] has been a patient since September, 2011. Ms. Neal testified that she built rapport with [A.C.] by engaging in non-directive play using a sand tray, dollhouse, and stuffed animals. Ms. Neal testified that [A.C.] was familiar enough with her office to choose her own toys, etc, during her second session. Ms. Neal testified that [A.C.] informed her that her father, the Petitioner, "hurt her body" during the session on September 23, 2011. Ms. Neal testified that after [A.C.] made the disclosure regarding her father, that she had established a baseline for truth with [A.C.] by asking who was allowed to touch her private area. Ms. Neal testified that she was satisfied with [A.C.]'s responses and determined that she knew the difference between the truth and a lie. Ms. Neal testified regarding each of her therapy records with [A.C.] from September 2011 through March 2012 and counsel for the Respondent introduced said records into evidence. During her testimony regarding the sessions, Ms. Neal testified that [A.C.] has been consistent in her disclosures throughout her therapy that her father has touched her inappropriately. Ms. Neal testified about a session where [A.C.] was sitting on the floor on her feet and began to self-stimulate. Ms. Neal further testified that the minor child urinated in her pants during this session, which was abnormal due to the fact that she is potty-trained. Ms. Neal testified that during a session, that [A.C.] informed her that she had seen her father's penis and that she saw it in the shower. Ms. Neal testified that [A.C.]'s behavior when describing taking a shower was unusual. Ms. Neal testified regarding two (2) sessions when the Guardian Ad Litem attended. Ms. Neal testified that [A.C.] pointed between her legs while Ms. House was present and began
talking about a dance class that she attends where clothing is optional. Ms. Neal further testified that [A.C.] talked about showering with her father during the session again in the presence of Ms. House and also discussed defecating outside at the Petitioner's home. Ms. Neal testified during the second session that was observed by Ms. House, that [A.C.] had no hesitation demonstrating what her father did to her using a stuffed animal. Ms. Neal testified about a session on January 11, 2012, wherein the minor child used the "Daddy" and "little girl" figures in the dollhouse. Ms. Neal testified that [A.C.] put both figures in the dollhouse's bath tub. Ms. Neal testified that [A.C.] laid on her stomach and put her hand down her pants. Ms. Neal testified that [A.C.] said that she liked it when her dad did it "like when he does that-just not when he squeezes it". Ms. Neal testified that during [A.C.]'s session on February 22, 2012, [A.C.] informed Ms. Neal that she was "fine" with visiting her father, and that she "don't think he'll do this anymore Melissa-Daddy, silly". Ms. Neal testified that after that statement, that [A.C.] began being more quiet during her sessions and increasingly guarded. Ms. Neal testified that [A.C.] was "finished" talking about her father. Ms. Neal testified that she reported the disclosures made by [A.C.] to the Rockcastle County DCBS Office. Ms. Neal testified that she agreed with counsel for the Respondent that: physical indicators, behavioral indicators, sexual reactive behavior, and multiple referrals to the Department for Community Based Services from different sources are all indicators of sexual abuse. Ms. Neal testified that she believed all of the indicators are present with regard to [A.C.]. During counsel for the Petitioner's cross-examination of Ms. Neal, Ms. Neal testified that the minor child consistently stated that it was her father that hurt her. Ms. Neal testified during cross-examination that [A.C.] was overly focused on genitals and that her excessive self-stimulation as well as her consistent identification of her father as her abuser was indicative of child sexual abuse.
The trial court also considered the testimony of Kacye Storm-Hays, who investigated the abuse allegation for the DCBS. Storm-Hays testified that she had been unable to substantiate the allegations of sexual abuse by A.C. The trial court discounted that conclusion, however, noting that Storm-Hays only reviewed the medical and interview records but never met with the child or any of the parties. B.C. testified at length regarding her relationship with M.L.W. and some disturbing comments which M.L.W. made about the child. Lastly, M.L.W. testified and denied any inappropriate conduct.
After considering the evidence, the trial court found "reason to believe, by clear and convincing evidence, that the child's present environment may endanger seriously her physical, mental, moral or emotional health. See [Kentucky Revised Statutes (KRS)] 403.340(2)(a). That the Court, pursuant to KRS 403.340(4), hereby finds that the child was subjected to sexual abuse perpetrated by her father and this factor continues to endanger seriously the child's physical, mental, moral, and emotional health." Based upon this finding, the trial court found that M.L.W.'s visitation with A.C. should be restricted to supervised visitation of no more than two hours per week. The trial court further awarded sole custody of A.C. to B.C. M.L.W. now appeals from this order.
As an initial matter, we agree with M.L.W. that the trial court erred by permitting Neal to give an opinion concerning the credibility of A.C.'s allegations or that the child's statements and behavior were consistent with sexual abuse. It is well-established that a licensed clinical social worker is not qualified to express an opinion that the child exhibited signs of sexual abuse. Hellstrom v. Commonwealth, 825 S.W.2d 612, 614-15 (Ky. 1992). See also Brosnan v. Brosnan, 359 S.W.3d 480, 484-85 (Ky. App. 2012), and R.C. v. Commonwealth, 101 S.W.3d 897, 900 (Ky. App. 2002). It is equally well-established that no expert may vouch for the truth of the victim's out-of-court statements based on the victim's behavior alone. See Hoff v. Commonwealth, 394 S.W.3d 368, 376 (Ky. 2011); Bell v. Commonwealth, 245 S.W.3d 738, 744-45 (Ky. 2008), overruled on other grounds by Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008); Stringer v. Commonwealth, 956 S.W.2d 883, 888 (Ky. 1997); Hall v. Commonwealth, 862 S.W.2d 321, 322-23 (Ky. 1993); and Hellstrom, 825 S.W.2d at 614.
In this case, the trial court improperly allowed Neal to express an opinion on both of these matters. Moreover, the trial court specifically relied on these improper opinions in its findings of fact. Therefore, we must reverse the trial court's order and remand for new findings without consideration of this improper opinion testimony. Furthermore, Neal may testify about her observations of A.C.'s behavior only to the extent that they are relevant to the issues before the court and do not implicate inadmissible matters. Blount v. Commonwealth, 392 S.W.3d 393, 397-98 (Ky. 2013).
Since we are remanding this matter for new findings, we will also address the other evidentiary issues to the extent that they will again arise on rehearing. M.L.W. next argues that the trial court erred in finding the four-year-old, A.C., competent to testify. KRE 601(b) sets out the qualifications of competency as a witness as follows:
Minimal qualifications. A person is disqualified to testify as a witness if the trial court determines that he:
(1) Lacked the capacity to perceive accurately the matters about which he proposes to testify;
(2) Lacks the capacity to recollect facts;
(3) Lacks the capacity to express himself so as to be understood, either directly or through an interpreter; or
(4) Lacks the capacity to understand the obligation of a witness to tell the truth.
Age is not determinative of competency and there is no minimum age for testimonial capacity. Humphrey v. Commonwealth, 962 S.W.2d 870, 874 (Ky. 1998). When the competency of an infant to testify is properly raised it is then the duty of the trial court to carefully examine the witness to ascertain whether she (or he) is sufficiently intelligent to observe, recollect and narrate the facts and has a moral sense of obligation to speak the truth. Capps v. Commonwealth, 560 S.W.2d 559, 560 (Ky. 1977), citing Moore v. Commonwealth, 384 S.W.2d 498, 500 (Ky. 1964). The competency bar is low with a child's competency depending on her level of development and upon the subject matter at hand. Pendleton v. Commonwealth, 83 S.W.3d 522, 525 (Ky. 2002); Jarvis v. Commonwealth, 960 S.W.2d 466, 468 (Ky. 1998).
Competency is an ongoing determination for a trial court. B.B. v. Commonwealth, 226 S.W.3d 47, 49 (Ky. 2007). On appeal, this Court may consider a trial court's competency determination from a review of the entire record, including the evidence subsequently introduced at trial. Id. In so doing, however, the appellate court must recognize that the trial judge is in the unique position to observe witnesses and to determine their competency. Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky. 1978). Consequently, we review the trial court's determination regarding competency for abuse of discretion. Bart v. Commonwealth, 951 S.W.2d 576, 579 (Ky. 1997).
During the in camera interviews with the trial court and the GAL, A.C. was able to answer basic biographical questions about herself, such as her name, age and birthday. She could also identify true and false statements made by other people, and generally understood that lying was wrong. We agree with M.L.W. that some of A.C.'s particular responses were cause for concern. Most notably, A.C. was unable to recall even recent facts; did not clearly demonstrate an understanding regarding her own obligation to tell the truth; and, at one point, showed an inability to distinguish truth from imagination. However, we agree with the trial court that these lapses were primarily relevant to the weight and credibility of A.C.'s testimony, rather than her competency to testify. After considering the totality of the evidence, we cannot find that the trial court abused its discretion by finding that A.C. met the minimum requirements of competency to testify.
Once the trial court found that A.C. was competent to testify, the court also permitted Neal to testify to A.C.'s prior inconsistent statements, including the substantive allegations of abuse by M.L.W. In Kentucky, it is well-settled that a prior inconsistent statement may be used to assail the credibility of a witness and may also be received as substantive evidence. Jett v. Commonwealth, 436 S.W.2d 788 (Ky. 1969); KRE 801A(a)(1); see also Askew v. Commonwealth, 768 S.W.2d 51, 56 (Ky. 1989). In determining whether a statement is inconsistent, this Court has held that "[a] statement is inconsistent ... whether the witness presently contradicts or denies the prior statement, or whether he claims to be unable to remember it." Brock v. Commonwealth, 947 S.W.2d 24, 27 (Ky. 1997), citing Wise v. Commonwealth, 600 S.W.2d 470, 472 (Ky. App. 1978).
The trial court properly held an additional in camera interview with A.C. in order to lay a proper foundation under KRE 613(a) for the introduction of the child's prior statements. A.C. definitively stated that "daddy never hurt her," and stated that she could not remember making contrary statements to Neal. Since A.C. was competent to deny making the prior statements, the proper foundation was laid for admission of her prior inconsistent statements to Neal. Of course, on remand, the trial court must determine how much weight those statements should be given when making its revised findings of fact. Since this matter is solely within the discretion of the trial court, we need not address M.L.W.'s final argument regarding sufficiency of the evidence.
Accordingly, the findings of fact, conclusions of law and order of the Madison Family Court are affirmed in part and reversed in part, and this matter is remanded for entry of new findings and an order consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Jennifer McVay Martin
Lexington, Kentucky
BRIEF FOR APPELLEE: James W. Baechtold
Richmond, Kentucky