In re Emilee K. In re Jennifer K, 153 A.3d 487

Background

In Sept. 2011, preschool staff reported that four-year-old Jennifer made graphic disclosures of sexual activity involving her father, respondent Joseph K.; disclosures included descriptions of nudity, being urinated on, and oral/genital contact.
DCYF investigated; interviews by a DCYF investigator (Dunn) and a teacher (Grinnell) recorded consistent spontaneous statements by Jennifer; medical exam showed no physical injury.
The girls were placed in foster care; an interim caregiver (respondent’s cousin) improperly coached and recorded Jennifer and gave recordings to respondent.
An evaluator, Boutin‑Gammon, conducted counseling sessions with Jennifer that included both disclosures and recantations; the Family Court found aspects of that evaluation flawed but still admitted portions under hearsay exceptions.
Family Court found by clear and convincing evidence that respondent abused and neglected Jennifer and that evidence of harm to Jennifer justified finding risk/harm to sister Emilee; children were committed to DCYF.
Respondent appealed, challenging evidentiary rulings (admission of counselor testimony and hearsay exceptions), denial of discovery (videotaped deposition), and sufficiency of the evidence; the Supreme Court affirmed.

Issues

Issue	DCYF / Petitioner Argument	Respondent Argument	Held
Admissibility of counselor (Boutin‑Gammon) testimony	Lay testimony about observations and statements is admissible under Rule 701 and 803(4) when helpful to diagnosis/treatment	Boutin‑Gammon was a nonexpert and her testimony should be excluded under Rules 701 and hearsay limits	Admitted; trial justice did not abuse discretion and gave her testimony little weight; statements admissible under medical‑diagnosis exception
Use of child out‑of‑court statements under §14‑1‑69	Child’s spontaneous statements to trusted adults are admissible	Some layers (e.g., hearsay‑within‑hearsay) and statements about motive should be excluded	Court limited §14‑1‑69 to statements about abuse to trusted adults; excluded Emilee→O’Loughlin statements about motive as hearsay within hearsay; exclusion harmless because same content came in via other testimony
Denial of midtrial videotaped deposition of out‑of‑state expert	DCYF opposed late, undeclared discovery; trial testimony preferred	Respondent sought to pause trial for videotaped deposition and present it in lieu of live testimony	Denial upheld; trial court did not abuse discretion given untimely request and benefits of live in‑court testimony
Sufficiency of evidence to find abuse and neglect (clear and convincing)	Jennifer’s consistent, spontaneous disclosures to trusted adults (Grinnell, Dunn) were reliable; corroboration and the totality of record support findings; harm to one child can justify prevention for sibling	Evidence was contradictory (recantations, coaching, possible exposure to porn at mother’s home); insufficient to meet clear and convincing standard	Affirmed: Family Court’s credibility determinations sustained; Grinnell’s disclosures alone were sufficient; evidence of abuse to Jennifer supported finding of risk to Emilee

Key Cases Cited

In re Adner G., 925 A.2d 951 (discussing appellate review of Family Court findings)
In re Veronica T., 700 A.2d 1366 (clear‑and‑convincing standard in child abuse findings)
In re Jessica C., 690 A.2d 1357 (child statements made in counseling admissible under medical‑diagnosis hearsay exception)
In re Alexis L., 972 A.2d 159 (requirements for reliability under statutory hearsay exception for child statements)
In re Luz J., 447 A.2d 1148 (harm to one child relevant to risk to sibling)
In re Nicole B., 703 A.2d 612 (parental breach of responsibility and gravity of sexual abuse)
State v. LaPointe, 525 A.2d 913 (a single credible witness’s precise testimony can sustain a finding)