State Ex Rel. Department of Human Services v. Patrick R.

729 P.2d 1387, 105 N.M. 133
CourtNew Mexico Court of Appeals
DecidedNovember 13, 1986
Docket9304
StatusPublished
Cited by7 cases

This text of 729 P.2d 1387 (State Ex Rel. Department of Human Services v. Patrick R.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Department of Human Services v. Patrick R., 729 P.2d 1387, 105 N.M. 133 (N.M. Ct. App. 1986).

Opinion

OPINION

MINZNER, Judge.

The Human Services Department (HSD) appeals from a judgment entered by the children’s court in an abuse and neglect proceeding. The children’s court found that HSD had not proved, as alleged in the petition, that Angela R. had been sexually abused by her father. The court also found that the child was in need of therapy, ordered HSD to provide it, and made interim arrangements for custody. The appeal raises two issues: (1) whether the court erred in refusing to admit evidence of the child’s statements made to two social workers concerning the alleged sexual abuse; and (2) whether the court exceeded its jurisdiction by ordering therapy, although it found that the child was neither abused nor neglected. Other issues listed in the docketing statement but not briefed are deemed abandoned. State v. Romero, 103 N.M. 532, 710 P.2d 99 (Ct.App.1985). We affirm.

BACKGROUND.

The three and one-half-year-old girl’s parents were divorced. The father had custody, and the mother had liberal visitation. When the father’s business took him out of town for a month, he arranged for the mother to care for the child. At the end of the month, the mother told the child that her father would be coming to pick her up. At this point, the child began crying. She initially said that she did not want to go back with her father because he spanked her, and her mother explained that spankings were necessary sometimes. The child then told her mother that the father “made her play with his wee-wee.”

Because of this allegation, the child was not returned to the father. The child was taken to a social worker, Pat Dancer, who interviewed the child using anatomically correct dolls. Next, the child was taken to a medical doctor; he found no physical evidence of sexual abuse. The child then was taken to a psychologist, who had no opinion as to whether the alleged abuse had occurred. Finally, the child was taken to another social worker, Georgia Sanchez. The mother was present during Ms. Sanchez’s interview with the child. The mother testified that the child told Ms. Sanchez that her father would sit the child on his lap and make her jump and jump. The child also demonstrated to Ms. Sanchez, with anatomically correct dolls, that her father would put his penis between the child’s legs.

The child also saw Dr. Sosa, Dr. Rodriguez, and Dr. Salazar, all clinical psychologists. They related what the child told them her father had done. Drs. Sosa and Rodriguez could not definitely say whether the child had been sexually abused. However, they indicated that a child would be very unlikely to make up a story with so much detail. Dr. Salazar was of the opinion that the father had not abused the child, because the child did not demonstrate any signs of being abused, such as disturbed sleeping or eating patterns, and because the father did not have pedophilic attributes. However, Dr. Salazar agreed with the other doctors that it would be unlikely for a child to have made up such a story.

All doctors testified that the child was in need of therapy because of what had happened to her between the time of the mother’s first report of the alleged abuse and the time of trial. The record supports an inference that the investigation itself had caused severe emotional distress.

First, as one doctor put it, the child had been interviewed “to death.” This doctor recommends that a child suspected of being sexually abused be interviewed with anatomically correct dolls only once, while being videotaped. Angela R. had been exposed to the dolls and had been requested to explain what happened in excess of three times. By the time the second psychologist gave her the dolls, she pushed them away, expressing that she knew all about these dolls and was not interested in talking about it anymore.

Second, the doctors were concerned that the child felt she was being forced to choose between her parents during the investigation. The child exhibited signs of insecurity. She seemed afraid of losing her parents and felt conflict about what she should say.

In addition to the evidence of the child’s statements that the children’s court admitted, there was other testimony. The mother testified that the father had played with a daughter of hers by a previous marriage in a manner similar to that related by Angela; he had bounced the older daughter on his lap until he became sexually aroused. At that time, the mother told him to stop and he did stop. The mother also testified that he apologized to her for doing the same thing to Angela. The father denied any abuse. His sister, who ordinarily provided child care for Angela, testified that the child told her nothing had happened.

CHILD HEARSAY.

The children’s court allowed the mother and the psychologists to relate what the child told them. The court exercised its discretion in allowing this testimony in reliance on State v. Taylor, 103 N.M. 189, 704 P.2d 443 (Ct.App.1985). The court would not allow the social workers to testify as to what the child told them. HSD claims error in this ruling.

At different points in the transcript, the children’s court appeared to give different reasons for its ruling on why the social workers would not be allowed to testify. Sometimes the court appeared to be of the opinion that only parents and medical or psychological experts would be competent to relate the child’s statements. At other times, the court appeared to be of the opinion that, because the mother and the psychologists were testifying, any testimony by the social workers would be cumulative.

We wish to emphasize that State v. Taylor is not limited to parents or medical experts; in appropriate cases, others may be allowed to repeat children’s allegations of sexual abuse. We agree with HSD that a social worker’s testimony might be particularly significant, because he or she might be the first one to whom an allegation is made. Nevertheless, the children’s court had discretion to exclude cumulative testimony. See State v. Lovato, 91 N.M. 712, 580 P.2d 138 (Ct.App.1978). The admission or exclusion of evidence rests in the sound discretion of the trial court, and absent a showing of an abuse of discretion, the ruling of the trial court will not be set aside on appeal. State v. McGhee, 103 N.M. 100, 703 P.2d 877 (1985); State v. Worley, 100 N.M. 720, 676 P.2d 247 (1984).

On appeal, HSD concentrates on the court’s refusal to allow Ms. Dancer to relate the child’s statements and actions when she first played with the dolls. HSD asserts that Ms. Dancer would have testified as to the details of what the child did with the dolls; they argue that details concerning the movements of the dolls and the movements of the dolls’ intimate parts were not otherwise in evidence. We must reject HSD’s appellate claim for two reasons.

First, HSD never tendered to the court the actual testimony proffered.

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Bluebook (online)
729 P.2d 1387, 105 N.M. 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-department-of-human-services-v-patrick-r-nmctapp-1986.