By Deanna Belknap
Assistant Criminal District Attorney in Tarrant County
In all the years I’ve been handling CPS cases, I have put only two children on the stand. It was during a contested adversarial hearing where their mother was challenging the removal. The children were 14- and 16-year-old sisters; the older was the biological child of the mother and her sister was one of three adopted children. I needed their testimony because their Snapchat videos proved my case, and they were the only witnesses who could authenticate these recordings. Fortunately, the girls wanted to testify about the abuse occurring in their home. In fact, they pretty much begged their attorney ad litem to make it happen. It was not my preference, but at least they were older children who felt empowered by their testimony.
But this is the exception. I haven’t met a child protection prosecutor yet who actually wants to put children on the stand to testify against their parents. We are always looking for ways to prove our cases without bringing children into the courtroom.
Why children shouldn’t testify
We are prosecutors, not child therapists, but I think it’s safe to assume we all understand that it’s traumatic for most children to testify, especially against their parents. If you handle Child Protective Services (CPS) cases, you are familiar with the emotional struggles children experience after removal. Many of these children have conflicting feelings toward their parents: They miss them even though the parents were the inflictors of their abuse, and they feel guilty for feeling safe or happy in the care of another adult. In most cases, the status of the parent-child relationship at removal is categorically unhealthy, and the child often feels responsible for the parents’ wellbeing instead of the other way around. I have heard from child abuse experts and child therapists that recalling the abuse in a court setting, especially in front of their abusers, can substantially set a child’s healing back, which of course is the last thing we want for children in care.
And because of these conflicting feelings, or because of being a trauma victim, there is a risk the child may not make the statement of abuse again on the stand. The child may forget what he or she had said, may have blocked out the abuse, or may not want to incriminate the parent. If this happens, the child’s credibility gets attacked, and we lose a critical piece of evidence against the abusers.
We can protect our children and our cases and still get this evidence in by knowing how to make §104.006 of the Family Code work for us.
§104.006. Hearsay Statement of Child Abuse Victim. In a suit affecting the parent-child relationship, a statement made by a child 12 years of age or younger that describes alleged abuse against the child, without regard to whether the statement is otherwise inadmissible as hearsay, is admissible as evidence if, in a hearing conducted outside the presence of the jury, the court finds that the time, content, and circumstances of the statement provide sufficient indications of the statement’s reliability and:
(1) the child testifies or is available to testify at the proceeding in court or in any other manner provided for by law; or
(2) the court determines that the use of the statement in lieu of the child’s testimony is necessary to protect the welfare of the child.
Age. If a child is 12 or younger, this statute applies. If a child is 13 or older, you cannot use the statement—right? Not necessarily. The wording of the statute says it applies at the time the original statement of abuse is made. In K.L., a 2002 appellate case out of Fort Worth, the court held that the “statute conditions the age of the child on when the statements were made, not on when the trial court later determines the admissibility of the child’s statements at trial.”[1]
So if you are preparing for final trial with a child who is 14, don’t automatically think, “Darn it! I’ve lost my outcry.” Do the math to figure out how old the victim was at the time of the statement of abuse—remember, some of these cases go on for a long time, so don’t assume the outcry statement is lost because the child is over 12 at the time of trial.
Alleged abuse. When looking at the outcry statement, you may question if it describes abuse contemplated by §104.006. If a child says, “I saw Daddy point a gun at Mommy,” or “Mama left me alone and I didn’t have any food,” are these statements of abuse?
Abuse is defined in Family Code §261.001(1), which lists 13 types of abuse. A few of the more commonly used definitions are:
• mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning;
• causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child’s growth, development, or psychological functioning;
• physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm;
• sexual conduct harmful to a child’s mental, emotional, or physical welfare, including conduct that constitutes the offense of continuous sexual abuse of young child or disabled individual under §21.02 of the Penal Code, indecency with a child under §21.11, sexual assault under §22.011, or aggravated sexual assault under §22.021; and
• the current use by a person of a controlled substance as defined by Chapter 481 of the Health and Safety Code, in a manner or to the extent that the use results in physical, mental, or emotional injury to a child.
In M.R., a 2007 case from Fort Worth, even though the father did not raise this issue on appeal, the appellate court nevertheless considered whether the child’s hearsay statements rose to the level of abuse to satisfy §104.006 of the Family Code. The child’s foster mom testified that the child told her about her mother’s use of a drug pipe and how she smoked it, how other people smoked with her mother in the home, how she had to care for her younger siblings when people would come over and go into a room to use drugs, how her family found food in dumpsters, how they drove around in the middle of the night trying to find a place to sleep, and how the children received spankings from belts. The court looked directly to §261.001(1) for the definition of abuse and determined that the child’s statements met that definition. The court did not scrutinize the effect the parent’s behaviors had on the child but simply concluded, “M.R.’s testimony falls within the Family Code’s definition of abuse for purposes of §104.006.”[2]
In E.M., a 2015 case from Waco, the intermediate court considered the definition of abuse in §261.001(1) to be a “non-exhaustive list of definitions of abuse,” but used it “as a guide” when considering whether a child’s statements about her parents’ continuous fighting, drug use, lack of providing food, and spanking and slapping the child, rose to abuse. Unlike in M.R., the opinion in this case did discuss the effect the parents’ behaviors had on the child. The court found that based on the child’s therapist’s opinion that the child suffered significant emotional difficulty due to her parents’ behaviors, the statements described abuse as contemplated by §261.001.[3]
The takeaway here is this: Protect the case on appeal by putting on evidence of the connection between what the child describes and the harm that behavior caused the child. First look to the hearsay statement witness to see if s/he can articulate this. For example, a foster parent may very well be able to testify about a child’s nightmares or recurring aggressive behaviors relating back to the child’s experiences with the parent. If this witness can’t cover it, talk with the child’s therapist, who will likely be able to make this connection for you.
Outside presence of jury. Section 104.006 of the Family Code requires the judge to hold a hearing outside the presence of a jury when seeking to enter statements under this hearsay exception. Almost all my cases are tried to the bench, and because a final trial to the bench is a hearing conducted outside the presence of the jury, I rarely need to seek a special hearing on this issue. I just go straight into a set of authentication questions with my witness during trial, deal with any objections, then have the witness testify to what the child told them. Just be mindful that if you have a jury trial, you need to request this hearing pretrial.
Sufficient indications of reliability. Section 104.006 also requires the court to find that the time, content, and circumstances of the hearsay statement provide sufficient indications of the statement’s reliability. In M.R., the court declared Family Code §104.006 as the “civil analogue” of Art. 38.072 of the Code of Criminal Procedure and determined that civil courts should use the same analysis used for Art. 38.072 when determining whether a child’s statement of abuse is reliable enough to qualify as a hearsay exception.
M.R. relied on a line of criminal cases that articulate 11 indicia of reliability based on time, content, and circumstances. This list includes, for example, “whether the child understands the need to tell the truth and has the ability to observe, recollect, and narrate”; “whether other evidence corroborates the statement”; and “whether the child made the statement spontaneously in his own terminology or whether evidence exists of prior prompting or manipulation by adults.”[4]
E.M. also looked to how criminal courts interpret reliability under Art. 38.072. In Broderick,[5] a 2002 criminal case from Houston, the appellate court noted that the focus for admissibility should be on the statement, not on the abuse, and held that a child’s outcry statement may be found to be reliable “even when it contains vague or inconsistent statements about the actual details of the sexual abuse.” Relying on Broderick, E.M. held the same to be true for a child’s statement of abuse under §104.006 of the Family Code.
If you need ideas on how to prove reliability using time, content, and circumstances, you will find quite a bit of caselaw on this prong of §104.006. The most common indicator of reliability in these child protection cases is children describing things they shouldn’t have any knowledge of at their age. Five-year-old children shouldn’t be able to describe how to put bullets in a gun, how to load a meth pipe, or what mommy’s face looks like after daddy beats her up. And when they do describe it—with their 5-year-old vocabulary—reliability is pretty easy to show.
Available to testify or necessary to protect the welfare of the child. Section 104.006 of the Family Code requires that the child be available to testify or that the hearsay statements are necessary in lieu of the child’s testimony to protect the child’s welfare. We need only one of these! So go with the one that’s easiest to prove for your case.
In S.B., a 2006 case from Fort Worth, the appellate court found that the record reflected that:
1) the trial court heard and considered arguments from both parties regarding the admissibility of the child’s statements under §104.006;
2) no party indicated that the child was unavailable to testify; and
3) the trial court could have concluded that the child was available to testify.
Having made these findings, the appellate court held that the trial court was not required to make a finding that the hearsay statement in lieu of the child’s testimony was necessary to protect the child’s welfare.[6]
In R.H.W., III, a 2018 case out of Houston, the appellate court found that the record did not reflect the children were unavailable to testify; the case was tried to the court; and the trial court impliedly found that the children were available to testify by admitting the statements as a hearsay exception under §104.006. Therefore, additional evidence was not required to prove the hearsay statements were necessary in lieu of the child’s testimony to protect the welfare of the child.[7]
Interestingly, in both S.B. and R.H.W., III, there was no express testimony that the child was available to testify; however, the courts found availability based on the parties’ failure to indicate otherwise. Regardless, and if you want cover all your bases, it’s not hard to put on testimony through the hearsay witness or caseworker that the child is available to testify. For example, ask the question: “If the court were to require John-John Johnson to be here today to testify, could the Department make him available to the Court?” Answer: “Yes.”
Of course, make sure this is true, so prep the witness for this question and know where the child is before you ask.
What if the child is not available to testify? Then argue the hearsay statement is needed in lieu of the child’s testimony because it’s necessary to protect the welfare of the child. See “Why children shouldn’t testify” above.
I object
Most of the objections to this evidence are from attorneys who also practice criminal law. Their objections might be appropriate challenges to Art. 38.072 of the Code of Criminal Procedure but not to §104.006 of the Family Code. Be ready to distinguish these two statutes for the judge because you will inevitably get this objection if you offer this hearsay evidence frequently enough.
The most common objection I hear is that my witness is not the first witness to whom the child made outcry, which is a requirement of Art. 38.072 but not §104.006. Article 38.072 also requires the State to provide the defense with at least 14 days’ notice of its intent to use the outcry, the name of the outcry witness, and a written summary of the statement. None of this is required by §104.006 of the Family Code.
I’ve also gotten a few Confrontation Clause objections.[8] I admit that the first time I got this objection it threw me for a second; I had been a criminal prosecutor before and had to remember which courthouse I was in! Don’t be a deer in the headlights on this one: Remember, the confrontation clause applies only to criminal cases.
Other tips
The witness to a child’s statement of abuse can be anybody. I’ve used investigators with Child Protective Investigations (CPI), forensic interviewers, conservatorship workers, teachers, coun- selors, police officers, and foster parents. At times I have used two witnesses to get in one statement of abuse. For example, a police officer may not be able to articulate why it would be emotionally harmful for the child to testify or whether the child is available to testify, but the caseworker can, so have the caseworker cover the authentication questions first, and the police officer can testify to the actual statement of abuse.
Of course, we don’t always need to rely on §104.006 of the Family Code to enter a child’s statements of abuse. Sometimes they are admissible as excited utterances or statements made for the purposes of medical diagnoses or treatment. When assessing evidence, run through all the possibilities for admission. And remember, if the statement of abuse is deemed inadmissible, make an offer of proof as to what the hearsay witness would have said during his or her testimony to properly preserve the issue for appeal.
Conclusion
Children’s words are so powerful in court. When you are preparing for trial, don’t forget about this helpful little statute in the Family Code that allows us to get in some of the most damning evidence available without putting the child on the stand. I recently had a foster father testify to sibling outcries of abuse by their mother. I had already put mom on the stand, who presented herself in a positive light and made a plea for the court not to terminate her parental rights. Foster dad was my last witness; he testified that the 7-year-old told him she had seen her dad put a gun to her mom’s head, and the 4-year-old told him that he wanted the foster parents to hurt him because that’s what parents are supposed to do. The atmosphere fell silent as the power of the words of these two abused children settled on everyone in the courtroom. Fortunately, and thanks to §104.006, this critical perspective was presented without having to further traumatize the children by bringing them into the courtroom.
[1] In re K.L., 91 S.W.3d 1, 15 (Tex. App.—Fort Worth 2002, no pet.).
[2] In re M.R., 243 S.W.3d 807, 812 (Tex. App.—Fort Worth 2007, no pet.).
[3] In Int. of E.M., 494 S.W.3d 209 (Tex. App.—Waco 2015, no pet.).
[4] See Torres v. State, 424 S.W.3d 245, 257 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).
[5] Broderick v. State, 89 S.W.3d 696 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
[6] In re S.B., 207 S.W.3d 877, 883 (Tex. App.—Fort Worth 2006, no pet.).
[7] In Int. of R.H.W. III, 542 S.W.3d 724, 740 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
[8] If you’re not familiar with the Confrontation Clause, the Sixth Amendment of the U.S. Constitution says that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him. …” The 14th Amendment makes this right applicable to the states.