L.S. v. Department of Children & Family Services

989 So. 2d 1282, 2008 Fla. App. LEXIS 13980
District Court of Appeal of Florida·Decided September 12, 2008·No. Nos. 2D07-3938, 2D07-4269·Published·Cited by 2 cases

Opinion

SILBERMAN, Judge.

In these consolidated eases, L.S., the mother, appeals an order adjudicating her [1283]*1283daughter, G.S., dependent as to the mother and placing the child in State custody based on the mother’s failure to protect G.S. from the alleged sexual abuse of the father. O.S., the father, appeals the same order that also adjudicates G.S. dependent as to him based on his alleged sexual abuse of G.S. Because the competency inquiry for G.S. as a child witness was inadequate and the trial court’s findings regarding competency are not supported by competent, substantial evidence, we reverse and remand for further proceedings. In light of our disposition, we do not address the other issues raised on appeal except, for purposes of remand, we address the issue the mother raises regarding the limitations the trial court placed on the manner of the child’s testimony.

Following nonevidentiary hearings, over the parents’ objections, the trial court ruled that seven-year-old G.S. would be examined at the adjudicatory hearing in camera by a trained forensic examiner. The trial court conducted the adjudicatory hearing on June 27, June 28, and July 27, 2007. The father objected before the child’s interview with the forensic examiner that the child’s competency had never been determined. The mother’s counsel joined in the objection. The trial court stated that questions regarding the child’s competency would be asked during the forensic interview, that after viewing the interview the court would then make a competency determination, and that if the interview did not establish the child’s competency, then the court would strike her testimony. After the interview, the court found the seven-year-old child competent to testify and stated that the questioning demonstrated that the child “could perceive facts and relate them correctly, and understand the nature and obligation of an oath, and the obligation to be truthful.” The court stated that “when a child has knowledge of what is a lie and agrees not to do so, the competency obligation is met.” The court stated that whether the child testified with veracity went to the weight of the testimony and not its admissibility. In its written order,. the trial court recognized that the child was extremely bright and precocious; however, the court also • recognized that she was emotionally needy and that she had made many incredible statements.

Section 90.605(2), Florida Statutes (2006), provides that, as a matter of trial court discretion, “a child may testify without taking the oath if the court determines the child understands the duty to tell the truth or the duty not to lie.” In determining whether a child is competent to testify, “the trial court should consider (1) whether the child is capable of observing and recollecting facts, (2) whether the child is capable of narrating those facts to the court or to a jury, and (3) whether the child has a moral sense of the obligation to tell the truth.” Griffin v. State, 526 So.2d 752, 753 (Fla. 1st DCA 1988) (citing Lloyd v. State, 524 So.2d 396, 400 (Fla.1988)); see also Z.P. v. State, 651 So.2d 213, 213-14 (Fla. 2d DCA 1995) (“When a child’s competency is at issue, the court must determine whether the child is capable of observing, recollecting, and narrating facts in addition .to whether the child has a moral sense of the duty to tell the truth.”). A trial court’s determination of whether a child “has sufficient mental capacity and sense of moral obligation to be competent as a witness” is subject to an abuse of discretion standard of review. Lloyd, 524 So.2d at 400.

Here, it was apparent during the interview that the child was very bright and talkative, and she described the members of her extended family in great detail. However, many portions of her testimony were incredible. In fact, the Department [1284]*1284recognizes' in its briefing that the child “made some fanciful statements.” The mother’s counsel accurately describes the interview as “rife with the obviously rich imaginative world in which the child lived.”

During the interview, the forensic interviewer conducted a “de minimis competency examination” of the child. Griffin, 526 So.2d at 755. The questioning made clear that the child knew the difference between a truth and a lie. The interviewer then stated that it was very important that they “both agree to talk about what’s true and stuff that really happened.” The child responded, “Okay.” The interviewer then asked, “Do you agree to talk about what’s true?” The child answered, “Yes.” However, the interviewer did not question the child regarding her understanding of the duty to tell the truth, and they had no discussion regarding the consequences of lying.

Questioning that demonstrates a child knows the difference between the truth and a lie does not necessarily establish that a child has “a moral obligation to tell the truth.” Z.P., 651 So.2d at 214 (citing Wade v. State, 586 So.2d 1200 (Fla. 1st DCA 1991)). In Z.P., this court reversed and remanded for a new adjudicatory hearing when there was an inadequate inquiry and the trial court failed to make competency findings. Id. This court determined that the error could not be deemed harmless because the nine-year-old boy was the only eyewitness to the grand theft. Id.

Factors for an appellate court to consider in reviewing a competency determination include the entire context of the child’s testimony and whether other evidence corroborates the child’s testimony. Bennett v. State, 971 So.2d 196, 201 (Fla. 1st DCA 2007). In affirming the trial court’s finding that the child victim, N.D.D., was competent to testify, the Bennett court distinguished Griffin, noting that significant testimony corroborated N.D.D.’s testimony of sexual abuse, including the defendant’s admission that he touched N.D.D.’s vagina. Id. In addition, the court pointed out that, unlike the child in Griffin, N.D.D. could separate fact from fantasy and knew it was bad to lie. Id.

In Griffin, the court noted that although the four-year-old witness was “relatively articulate and intelligent, she was not unequivocally capable of separating fact from fantasy.” 526 So.2d at 755. The court also noted the lack of corroborative evidence and stated as follows:

While such corroborative evidence is not essential to a determination that the child was competent to testify as a witness, in this case the child’s testimony so blends fantasy and reality, that corroborative evidence would serve as a benchmark for assessing the extent of the fantasy in her testimony, and concomitantly, for assessing the child’s ability to observe and to narrate accurately.

Id. at 756. The Griffin court reversed the trial court’s competency determination that was based on a “de minimis” inquiry regarding the child’s competency. Id. at 755-56. The court noted that a trial court may base its competency determination on its own examination of the child or on the attorneys’ examination of the child; the court may also consider expert testimony and reports in fulfilling its duty to determine competency. Id. at 755.

Here, the child was not questioned regarding her understanding of the moral sense of duty to tell the truth. Coupled with the fantastic nature of her later testimony and the lack of corroborating evidence of the actual abuse, this is particularly troubling.

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L.S. v. Department of Children & Family Services, 989 So. 2d 1282, 2008 Fla. App. LEXIS 13980 (Fla. Ct. App. 2008).

989 So. 2d 1282 (L.S. v. Department of Children & Family Services) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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