In re: J.J. and T.S., 150 A.3d 898

Background

J.J. (born 2006) and D.J. (born 2011) were removed from parents’ custody after J.J. reported sexual abuse by her father, Mr. J., in August 2015; a SAFE exam showed possible physical indication.
Family had long history with Wicomico DSS: prior neglect findings, domestic violence, a sibling’s drowning in 2012, and previous sexual-abuse allegations (including a prior investigation involving J.J. and an indicated finding against a cousin).
Children placed in shelter care by agreement on Sept. 2, 2015; adjudication hearings were postponed multiple times with parental consent and court findings of extraordinary cause.
The juvenile court held a CP § 11-304 hearing (statutory “tender years” analysis) on admissibility of J.J.’s out-of-court forensic interview to social worker Tiffany Gattis, then admitted the audiotape after expressly applying the 13 statutory trustworthiness factors.
At adjudication the court found J.J.’s statements credible, sustained sexual-abuse and related neglect allegations, adjudicated the children CINA, committed them to DSS, suspended father’s contact with J.J., and ordered supervised visitation for mother subject to conditions.

Issues

Issue	Father’s Argument	Mother’s Argument	Held
Admissibility under CP § 11-304 of J.J.’s out-of-court statement	Interview lacked proof of competency, prior inconsistent statements and motive to fabricate made it untrustworthy	DSS failed to meet procedural and trustworthiness requirements; court improperly limited cross-examination	Court properly applied CP § 11-304 factors, did not require pre-admission competency finding, and admitted the audiotape (findings not clearly erroneous)
Notice under CP § 11-304(d)(3)	(Father tacit) — not argued separately	Department failed to serve notice directly on mother within a reasonable time; prejudice claimed	Any procedural defect was harmless; mother had transcript/audio and no prejudice shown; objection denied
DNA and subpoena for Trooper Hale	Wanted subpoenaed Trooper Hale to address DNA status; claimed denial prejudiced CP § 11-304 hearing	Same — sought DNA discovery before admissibility ruling	Court correctly held DNA was not material to admissibility factors and quashed subpoena as unnecessary to CP § 11-304 analysis
CINA adjudication and visitation suspension	Father: total denial of contact was overbroad, at least supervised contact with D.J. should be allowed	Mother: removal and commitment were unnecessary; she could provide proper care	Court’s factual findings (father sexually abused J.J.; parents’ prior history) supported CINA adjudication; denial of father’s contact with J.J. was within discretion and permitted under FL § 9-101 to protect child’s welfare

Key Cases Cited

Myer v. State, 403 Md. 463 (Md. 2008) (discusses tender years statutory exception and considerations for child hearsay)
Montgomery Cty. Dep’t of Health & Human Servs. v. P.F., 137 Md. App. 243 (Md. Ct. Spec. App. 2001) (CP § 11-304 is the legislative method for admitting child out-of-court statements)
Prince v. State, 131 Md. App. 296 (Md. Ct. Spec. App. 2000) (court must assess totality of circumstances/trustworthiness under statutory factors)
Jones v. State, 410 Md. 681 (Md. 2009) (standard of review for factual findings)
Reece v. State, 220 Md. App. 309 (Md. Ct. Spec. App. 2014) (clearly erroneous standard for § 11-304 findings)
Commonwealth v. Walter, 93 A.3d 442 (Pa. 2014) (competency to testify is not prerequisite to admissibility under tender-years statute)
State v. Silverman, 906 N.E.2d 427 (Ohio 2009) (same principle regarding child-hearsay exception)
State v. C.J., 63 P.3d 765 (Wash. 2003) (statutory child-hearsay exception does not require declarant competency)
In re Yve S., 373 Md. 551 (Md. 2003) (standards for reviewing child protection adjudications and best-interests/visitation analysis)
In re Billy W., 387 Md. 405 (Md. 2005) (FL § 9-101 requires courts to deny or condition visitation when further abuse is likely)
In re Nathaniel A., 160 Md. App. 581 (Md. Ct. Spec. App. 2005) (CINA petitions proved by preponderance of the evidence)
In re Dustin T., 93 Md. App. 726 (Md. Ct. Spec. App. 1992) (court may consider parental track record in predicting future care)
William B. v. State, 73 Md. App. 68 (Md. Ct. Spec. App. 1987) (parents’ treatment of one child probative of ability to care for other children)