D.A.H. v. G.A.H.

371 N.W.2d 1
Court of Appeals of Minnesota·Decided July 2, 1985·No. Nos. C6-84-1811, C7-84-2093·Published·Cited by 22 cases

Opinion

OPINION

LANSING, Judge.

G.H. appeals from an order denying his motion to amend the parties’ dissolution decree to allow him visitation with the parties’ child. We affirm.

FACTS

In February 1982, while the parties’ dissolution proceedings were pending, the mother, D.H., obtained temporary custody of the parties’ 114-year-old daughter. Several months later, during weekend visitation, the father, G.H., took the child with him to Europe without the mother’s permission and stayed for approximately one year. During that year the mother obtained a dissolution decree granting her permanent custody and denying the father any visitation rights.

In 1983 the father returned to Minnesota, and the child was returned to the mother. The father later moved to reopen and modify the provision in the dissolution decree which denied him visitation. After three hearings, the court denied his motion, based upon evidence that while the father was in Europe he had sexually molested the daughter. The court heard testimony by several experts and the parties themselves. The experts’ testimony included out-of-court statements by the child regarding sexual abuse.

The father appealed from the amended judgment, which continued to deny him visitation and stated that modification would not be considered until the father had undergone intensive psychotherapy. The father alleges that the trial court erroneously considered the child’s hearsay statements to experts. He also argues that the court abused its discretion by requiring him to “successfully complete” intensive rehabilitation before it would consider any further requests for resumption of visitation.

ISSUES

1. Were the child’s statements to experts about sexual abuse inadmissible hearsay?

2. Did the trial court abuse its discretion by requiring the father to undergo intensive psychotherapy before the court would consider allowing visitation?

ANALYSIS

I

The father objects to the admission of a psychologist’s testimony concerning statements the daughter made in a session with the psychologist using anatomically correct dolls and to the psychologist’s testimony based upon an abuse counselor’s report. That report contained statements by the daughter made in several sessions while playing with anatomically correct dolls. The father also objects to testimony by a pediatrician and an abuse center counselor of the daughter’s out-of-court statements concerning sexual abuse. During the physical examination by the pediatrician, the child indicated that her daddy had touched her genitals, hurt her rectum, digitally penetrated her, hurt her in the mouth, stuck his tongue in her rectum, and ejaculated in her mouth. In one session with the counselor the child named the female doll with her name and the male doll “Daddy,” unzipped the “Daddy” doll’s pants, and began sucking on his penis, which she stated she had learned from her father. On another occasion the child indicated through the use of the dolls that she had rubbed her father’s penis and gotten wet as a result.

The mother argues that the hearsay was admissible under Rule 803(4) of the Minnesota Rules of Evidence, which excludes from the definition of hearsay statements made for purposes of medical diagnosis or treatment. We do not address this argument because we find the disputed testimo[3]*3ny admissible under Rule 803(24), which excepts from the hearsay rule:

A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Minn.R.Evid. 803(24).

This rule has been referred to as the “catch-all” exception- to the hearsay rule. 11 P. Thompson, Minnesota Practice: Evidence § 803.19, at 392 (1979). Despite this characterization, however, when evaluating testimony in the context of this rule, the court must still keep in mind “[t]he same careful balancing of probative value, trustworthiness, and necessity that formed the basis for the traditional common law exceptions to the hearsay rule.” Id.

In In re M.N.D. v. B.M.D., 356 N.W.2d 813 (Minn.Ct.App.1984), our court applied this rule in similar circumstances, holding that

a child’s hearsay statements may be admitted under this rule if they have “equivalent circumstantial guarantees of trustworthiness,” * * * demonstrated by analyzing the time, content, and circumstances under which they were made * ⅜. In addition, the court must determine that the statements (1) are offered as evidence of a material fact, (2) are more probative than other evidence reasonably available, and (3) are consistent with the general purposes of the rules and the interests of justice. Minn.R.Evid. 803(24).

Id. at 818.

This holding was supported by legislation effective shortly after the hearing in M.N.D. The court noted:

Our decision to allow hearsay under these circumstances is influenced by an amendment to Minn.Stat. § 595.02 (1982). That statute, as amended, provides that the out-of-court statements of children under the age of ten regarding any act of sexual contact or penetration not otherwise admissible by statute or rule of evidence are admissible. The trial court must determine, inter alia, that the time, content, and circumstances of the statement and the reliability of the person to whom it is made provide sufficient indicia of reliability. 1984 Minn.Laws ch. 588, § 4.

Id. Here, as in M.N.D., the statute did not become effective until after the hearings, but again it influences our review. The father received copies of the reports in advance of the hearings, as required by Rule 803(24), and did not raise or dispute the issue of prior notice of the hearsay testimony. He argues that the statements are not reliable or trustworthy in view of the lack of opportunity to cross-examine the child.

We find there are “equivalent guarantees of trustworthiness” and that the disputed testimony comports with the other requirements of the rule. There can be no question that the child’s statements concerned a “material issue.” In addition, the child’s statements were clearly more probative on the point for which they were offered than other evidence.

The reliability of the child’s statements is circumstantially guaranteed by the fact that fabrication of such a story is very unlikely. Many of her statements were spontaneous, and they were consistent. Three experts — a medical doctor, a psychologist obtained by the mother, and a psychologist obtained by the father — believed that the child had not fabricated her story. See Peterson v. Richfield Plaza, Inc., 252 Minn. 215, 225, 89 N.W.2d 712, 720 (1958) (possibility that a four-year-old child would fabricate the symptoms of a head injury was “extremely remote”).

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D.A.H. v. G.A.H., 371 N.W.2d 1 (Mich. Ct. App. 1985).

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