In re J.B.

2008 SD 80, 755 N.W.2d 496, 2008 S.D. LEXIS 120, 2008 WL 3128481
CourtSouth Dakota Supreme Court
DecidedAugust 6, 2008
DocketNos. 24659, 24664
StatusPublished
Cited by4 cases

This text of 2008 SD 80 (In re J.B.) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re J.B., 2008 SD 80, 755 N.W.2d 496, 2008 S.D. LEXIS 120, 2008 WL 3128481 (S.D. 2008).

Opinion

PER CURIAM.

[¶ 1.] A.B. (father) and N.B. (mother) appeal the termination of their parental rights to their minor child, J.B. (child). We affirm.

FACTS

[¶ 2.] Child was born on May 29, 1997. During this time father and mother were in the process of having their parental rights terminated to five other children as the result of physical and emotional abuse. There were also concerns of sexual abuse by the parents in that case, although they were not substantiated. On June 9, 2006, while at the dentist’s office, a hygienist asked about a bruise on child’s face. Child told the hygienist that his mother got mad at him while cutting his fingernails and slapped him three to four times, giving him a bloody nose. He confirmed the account of the injury to the dentist and the incident was reported to the Department of Social Services.

[¶ 3.] Law enforcement visited with mother and father. Mother maintained it was an accidental blow with mother’s elbow while she trimmed his nails. Child indicated mother hit him because she was angry and had done it before. Child was taken into protective custody. Child was later admitted for residential treatment. He suffered from ADHD, encopresis,1 mild mental retardation and lacked social skills. Child provided the same account of physical abuse to his care providers. Eventually, child disclosed further instances of physical abuse, fighting between his parents and incidents of sexual abuse committed by father.

[¶ 4.] Child indicated mother was aware of the sexual abuse and when it occurred he was allowed special treats to make up for it. Child’s encopresis was also a sign of sexual abuse. The care providers noticed that child was afraid of father; he had recurring nightmares and [498]*498had repressed memories out of fear. Child also drew pictures depicting sexual abuse by his father. Revelations by the parents’ other children concerning their extent of sexual abuse by both mother and father were also introduced at the disposi-tional hearing. As a result of these sexual abuse disclosures visits were discontinued. Child went sixteen days without soiling himself. Prior to that time he soiled himself on multiple occasions per day and again began soiling himself when visits resumed.

[¶ 5.] Psychological testing conducted on both parents appeared invalid because they “faked good.” Mother’s result were offset by a high abuse score and father appeared to be covering up, denying and minimizing in his responses. Mother and father denied any incidents of abuse, whether physical or sexual. The parents only made “minimal” progress in family therapy sessions. The testimony indicated that child would benefit from a stable and safe environment where he could work through the trauma he experienced without fear of repercussion from his parents. The trial court terminated mother and father’s parental rights.

ANALYSIS

ISSUE ONE

[¶ 6.] Whether the trial court erred in allowing hearsay statements during the adjudicatory and disposi-tional hearings.

[¶ 7.] Mother and father claim that the trial court erred in allowing hearsay statements from child concerning abuse during both phases of the termination proceeding.

Adjudicatory phase

[¶ 8.] During the adjudicatory phase child’s revelations of sexual abuse had not yet surfaced; although there was concern based on prior indications of sexual abuse and child’s encopresis. The parents’ challenge to hearsay testimony at this phase related to child’s statements concerning the incident where mother slapped him. In that regard, objection was made to the dental hygienist’s testimony concerning what child had told her happened to cause the bruising. However, no objection was made to the same statements as offered from the investigating officer, DSS caseworker or a Children’s Home Society therapist.

[¶ 9.] The State concedes that the statements were not admissible under SDCL 19-16-38 (statement of sex crime, physical abuse, or neglect by victim under age ten) but argues the statements were admissible under SDCL 19-16-39 (statements alleging child abuse or neglect). That statute provides:

An out-of-court statement not otherwise admissible by statute or rule of evidence is admissible in evidence in any civil proceeding alleging child abuse or neglect or any proceeding for termination of parental rights if:
(1) The statement was made by a child under the age of ten years or by a child ten years of age or older who is developmentally disabled, as defined in § 27B-1-3; and
(2) The statement alleges, explains, denies or describes:
⅜ * *
(c) Any act of physical abuse or neglect of the child by another ... and
(3) The court finds that the time, content and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability; and
(4) The proponent of the statement ■ notifies other parties of an intent to [499]*499offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence, to provide the parties with a fair opportunity to meet the statement.

The trial court ensured that notice of the statement had been provided but did not conduct an on-the-record discussion concerning “sufficient indicia of reliability” before allowing the statement into evidence. Although this finding should have been made by the trial court, a review of the record demonstrates the reliability of the statement based on testimony concerning child’s understanding of truthfulness, his age, the particulars of the statement, the timing of the statement, the repetition of the statement and the fact the injury and how it was caused were consistent with the events where mother states she “accidentally” hit the child causing the bruising and bloody nose while trimming his fingernails.2 Further, given the fact the same accounts were relayed through other witnesses without objection, any error would be harmless. See Interests of J.G.R., 2004 SD 131, ¶ 19, 691 N.W.2d 586, 592 (applying harmless error analysis to an adjudicatory hearing).

Dispositional phase

[¶ 10.] Parents also objected to hearsay statements concerning abuse offered at the dispositional phase. Although it has been well-settled law that the rules of evidence do not apply at the dispositional phase, the parents contend that SDCL 19-16-39, as set forth above, applies to dispositional hearings based on the phrase “any proceeding for termination of parental rights” contained in its introductory paragraph. However, this argument overlooks the statutory structure and purpose of the dispositional phase along with the prefatory phrase contained in SDCL 19-16-39 that this section only applies to statements “not otherwise admissible by statute or rule of evidence.”

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Cite This Page — Counsel Stack

Bluebook (online)
2008 SD 80, 755 N.W.2d 496, 2008 S.D. LEXIS 120, 2008 WL 3128481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jb-sd-2008.