Shawn R. McCarver, Esquire
Judgment assuming jurisdiction for abuse/neglect under § 211.031 is reversed and remanded where petition was based on admissions of adoptive parents and trial court also relied on hearsay statements of child not alleged in the petition. Adoptive parents did not have notice and an opportunity to defend. Where a different outcome is reasonably probable, prejudice is presumed. In Interest of K.S.-W., No. 75753 (Mo. App. W.D., October 22, 2013), Gabbert, J.
After being sexually abused in his previous foster home, child, then age ten, was placed in the foster home of appellants’ (C.P.S. and D.B.W.). Appellants adopted child when he was thirteen years old. At age seventeen, child was placed in a sexual offender program where child made disclosures that he had both committed sexual abuse and been the victim of sexual abuse by C.P.S. A petition was filed alleging neglect based upon certain admissions by C.P.S. The admissions were that appellants admitted having “cuddle time” with child, that C.P.S. admitted his penis was erect during one of the “cuddle times,” and that C.P.S. slept naked with child during a biking trip. The petition also alleged that D.B.W. knew or should have known of the behaviors and failed to protect child. The court heard evidence over eight dates between May 2011 and April 2012. The court, in September 2012, sustained the petition.
Appellants allege that the trial court improperly relied upon irrelevant or hearsay evidence. D.B.W. testified that child stated that C.P.S.: (1) showed child how to masturbate; (2) attempted to help child to “self-suck”; (3) put his penis on child; (4) masturbated child; and, (5) put his arms around child while C.P.S. masturbated. Upon learning of these statements, child was no longer in the home and D.B.W. reported child’s statements. D.B.W. did all he could to protect child. The statements in question were relevant and permissible for inquiry to determine the extent of D.B.W.’s knowledge and possible failure to protect. The statements were not, however, admissible for their truthfulness as to the other allegations as the petition was specifically based upon C.P.S.’s admissions, not upon the child’s statements. Appellants were given no notice and opportunity to defend against child’s statements. As there is a reasonable probability that a different result would have been reached absent the evidence, prejudice is presumed.
Held: Reversed and remanded.
Sufficient evidence supports adjudication for statutory sodomy first degree, despite the fact that victim recanted the allegations at trial, where out-of-court statements provided sufficient indicia of reliability and where there was other evidence supporting the allegations. Corroboration is not required despite the fact that victim recanted at trial. In Interest of K.A.R., No. 76169 (Mo. App. W.D., October 29, 2013), Martin, J.
Mother’s boyfriend’s son (perpetrator) was adjudicated for statutory sodomy, first-degree committed against mother’s son (victim). Victim, then five years old, began exhibiting inappropriate sexual behavior at elementary school and at home. Victim was suspended from school. Mother and victim then moved out of the residence, where mother’s boyfriend and perpetrator resided. During counseling, among other allegations, victim disclosed that perpetrator showed victim pornography, and that perpetrator inserted his erect penis in victim’s mouth. At trial, victim recanted the allegations, however, a psychiatry resident and a psychiatrist each testified as to allegations made by the victim during interviews. During the interviews, victim also reported he was having nightmares and he was afraid of perpetrator.
Where a case is tried to the court, a formal hearing on the child’s reliability under § 491.075 is not required. A reliability ruling is implicit when the court admits the out-of-court statements and relies on the testimony in making its decision. The out-of-court statements were spontaneous despite the fact they were not made in previous counseling, where mother, although present, did not tell victim what to say, and where victim first disclosed the name of the perpetrator. The out-of-court statements were not inconsistent so as to suggest a lack of reliability. There is a fundamental difference between inconsistency and describing different details at different times. Therefore, the lack of disclosure of ejaculation in one of the interviews does not make the other interview inconsistent. The out-of-court statements were made within four months of the child being removed from the home of the boyfriend and his perpetrator son. The time period is not so long as to make the statements unreliable. Where there was no evidence the victim was even aware of a custody battle between his mother and perpetrator’s father (mother’s boyfriend), it cannot be said that the out-of-court statements were made under circumstances in which the victim would have a motive to fabricate. Therefore, admission of the out-of-court statements is proper.
Despite the fact that the victim recanted at trial, there was sufficient other evidence, including the out-of-court statements, proving the allegations. Corroboration is not required even where the victim recants the allegations at trial. In addition, there was sufficient other evidence including victim’s inappropriate behavior at school, perpetrator’s usage of computer pornography and the victim’s statement that he feared the perpetrator.