In re: J.J. and T.S. , 456 Md. 428 ( 2017 )

In re: J.J. and T.S., No. 5, September Term, 2017
APPELLATE REVIEW — PRESERVATION — MD. RULE 8-131 — EXERCISE
OF APPELLATE COURT’S DISCRETION TO ADDRESS CLAIMS NOT
PROPERLY PRESERVED FOR APPELLATE REVIEW — Petitioner Mr. J. did not
preserve for appellate review the question of whether a juvenile court must make a
preliminary competency determination prior to ruling on the admissibility for the truth of
the matter asserted of a non-testifying child declarant’s out-of-court statement. The Court
of Appeals exercised its discretion to consider the unpreserved question.
FAMILY LAW — COMPETENCY — The plain language and legislative history of
Maryland Code Annotated, Criminal Procedure § 11-304 does not require a juvenile court
to make a preliminary competency determination prior to ruling on the admissibility for
the truth of the matter asserted of a non-testifying child declarant’s out-of-court statement.
Such a determination is also irrelevant to a juvenile court’s ruling on whether the statement
contains “particularized guarantees of trustworthiness” to be admissible under the statute.
FAMILY LAW –– ADMISSIBILITY UNDER CRIMINAL PROCEDURE § 11-304,
THE “TENDER YEARS EXCEPTION” — The juvenile court did not err in concluding
that the child declarant’s out-of-court statement was admissible for the truth of the matter
asserted in a juvenile court proceeding because the statement contained “particularized
guarantees of trustworthiness” as required under Maryland Code Annotated, Criminal
Procedure § 11-304.
Circuit Court for Wicomico County
Case Nos. 22-I-15-000008; 22-I-15-000009
Argued: September 7, 2017
IN THE COURT OF APPEALS
OF MARYLAND
No. 5
September Term, 2017
IN RE: J.J. AND T.S.
Barbera, C.J.,
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
Opinion by Barbera, C.J.
Filed: November 28, 2017
Out-of-court statements offered for the truth of the matter asserted are generally
inadmissible as hearsay unless otherwise permitted by statute or rule. One such statutory
exception, known as the “tender years exception,” is found at § 11-304 of the Criminal
Procedure (“CP”) Article of the Maryland Code. Section 11-304 applies to criminal cases
and juvenile court proceedings, including child in need of assistance (“CINA”)
proceedings.1 That section further provides that a child’s out-of-court statement is
admissible to prove the matter asserted “only if” the statement has “particularized
guarantees of trustworthiness.” CP § 11-304(e)(1). In making that determination, the court
“shall consider, but is not limited to” thirteen factors listed in the statute.
CP § 11-304(e)(2).
We address in the present case the admissibility at a CINA proceeding of the out-
of-court statement of J.J., the then-nine-year-old daughter of Petitioner James J. (“Mr. J.”),
alleging that Mr. J. had sexually abused her. The Wicomico County Department of Social
Services sought to introduce J.J.’s statement to prove the truth of the matter asserted at the
CINA adjudication and disposition hearings involving J.J. and her brother, T.S. The
Circuit Court for Wicomico County, sitting as a juvenile court, determined that J.J.’s
statement would be admissible to prove the truth of the matter asserted because the
statement possessed the requisite particularized guarantees of trustworthiness.
The Court of Special Appeals affirmed the judgment of the juvenile court. In re:
1
A “child in need of assistance” (“CINA”) is a child who requires court intervention
because the child has been neglected or abused and whose parents or guardians are “unable
or unwilling to give proper care and attention to the child and the child’s needs.” Md. Code
Ann., Courts & Judicial Proceedings, § 3-801(f).
J.J. and T.S., 231 Md. App. 304, 311 (2016). In an apparent exercise of its discretion, the
intermediate appellate court first addressed Mr. J.’s argument, raised for the first time on
appeal, that the juvenile court should have ruled on J.J.’s competence to distinguish
between truth and falsehood before determining whether her out-of-court statement was
admissible under CP § 11-304. Id. at 327–31. The intermediate appellate court concluded
that CP § 11-304 does not require a juvenile court to determine a child’s truth competency
when ruling on the admissibility of the child’s out-of-court statement. Id. at 331. The court
then held that the juvenile court complied with the requirements of CP § 11-304 in
concluding that J.J.’s statement possessed particularized guarantees of trustworthiness. Id.
at 335.
We similarly exercise our discretion to address the unpreserved competency issue,
and, like the Court of Special Appeals, hold that competency is not a prerequisite to
admission of a child’s out-of-court statement for the truth of the matter asserted under
CP § 11-304. We also agree with the Court of Special Appeals that the juvenile court did
not err in finding that J.J.’s out-of-court statement possessed the requisite particularized
guarantees of trustworthiness required for admissibility under that section. Accordingly,
we affirm the judgment of the Court of Special Appeals.
I.
The Statute
We begin with a more detailed overview of CP § 11-304. That section prescribes
the conditions under which a child’s out-of-court statement is admissible to prove the truth
of the matter asserted in a juvenile court proceeding. As a threshold matter, the statement
2
must be made by a child victim who is under thirteen years old and “is the alleged victim
or the child alleged to need assistance in the case before the court concerning . . . a juvenile
court proceeding[.]” CP § 11-304(b). Next, the statement must be “made to” and “offered
by a person [who is] acting lawfully in the course of” certain professions, including, as
relevant here, a social worker, when the statement was made. CP § 11-304(c).
The statement may be admitted in a CINA proceeding pursuant to the statute “if the
statement is not admissible under any other hearsay exception” and “regardless of whether
the child victim testifies.” CP § 11-304(d)(2)(i). If the child victim does not testify, the
statement “will be admissible only if there is corroborative evidence that the alleged
offender had the opportunity to commit the alleged abuse or neglect.”
CP § 11-304(d)(2)(ii).
As noted above, to be admissible, the statement must also have “particularized
guarantees of trustworthiness.” CP § 11-304(e)(1). When determining whether the
statement has such guarantees, the juvenile court “shall consider, but is not limited to,” the
following thirteen factors:
(i) the child victim’s personal knowledge of the event;
(ii) the certainty that the statement was made;
(iii) any apparent motive to fabricate or exhibit partiality by
the child victim, including interest, bias, corruption, or
coercion;
(iv) whether the statement was spontaneous or directly
responsive to questions;
(v) the timing of the statement;
3
(vi) whether the child victim’s young age makes it unlikely
that the child victim fabricated the statement that represents a
graphic, detailed account beyond the child victim’s expected
knowledge and experience;
(vii) the appropriateness of the terminology of the statement
to the child victim’s age;
(viii) the nature and duration of the abuse or neglect;
(ix) the inner consistency and coherence of the statement;
(x) whether the child victim was suffering pain or distress
when making the statement;
(xi) whether extrinsic evidence exists to show the defendant
or child respondent had an opportunity to commit the act
complained of in the child victim’s statement;
(xii) whether the statement was suggested by the use of leading
questions; and
(xiii) the credibility of the person testifying about the
statement.
CP § 11-304(e)(2).
Prior to the hearing at which the out-of-court statement is to be introduced, the court
conducts a hearing at which the court must “make a finding on the record as to the specific
guarantees of trustworthiness that are in the statement” and “determine the admissibility of
the statement.” CP § 11-304(f). Section 11-304(g)(1) directs the court to examine the
child as part of its determination unless “the court determines that an audio or visual
recording of the child victim’s statement makes an examination of the child victim
unnecessary.”
We have said that a judge who is called upon to determine “the admissibility of a
4
tape recorded interview offered into evidence pursuant to [CP] § 11-304 . . . must comply
with the foundational requirements of that statute, including the requirement that the court
‘make a finding on the record as to the specific guarantees of trustworthiness that are in the
statement[.]’” Jones v. State, 410 Md. 681, 699–700 (2009) (quoting CP § 11-304(f)(1)).
The hearing at which that determination is made is generally referred to as the Ҥ 11-304
hearing.” We shall employ that description here.
II.
The Present Case
A. Factual Background
The underlying facts relevant to this appeal are not extensive. J.J. was born in April
2006 and, as mentioned, was nine years old when she made the allegation of sexual abuse
against her father, Mr. J. Her brother, T.S., born in December 2011, was three years old at
the time of the allegation. J.J. and T.S. are the children of Petitioners, Mr. J. and Ms. B.
The children were living alone with Mr. J. in August 2015 because Ms. B. was incarcerated.
On August 30, 2015, during a visit with her maternal grandmother, J.J. told her
grandmother that Mr. J. had sexually abused her twice in the prior week. Someone—the
record does not disclose who—contacted the Fruitland Police Department on August 30,
2015, to report J.J.’s allegation that Mr. J. had sexually assaulted her. That same day, the
Fruitland Police Department contacted Trooper Donna Hale of the Wicomico County
Sheriff’s Office about J.J.’s allegations. Sometime between 5:00 p.m. and 6:00 p.m. that
afternoon, Tiffany Gattis, a licensed clinical social worker with the Child Advocacy Center,
received a report of the allegation.
5
At 7:09 p.m. on August 30, Ms. Gattis conducted an audio-recorded forensic
interview of J.J. in a treatment room at the Peninsula Regional Medical Center. The
interview was audio-recorded because visual recording was unavailable due to the location
of the interview. Trooper Hale was present when the interview was conducted. Ms. Gattis
interviewed J.J. using a forensic interview method known as RATAC, an acronym for
Rapport, Anatomy, Touch, Abuse, and Closure. RATAC is a guided, non-leading,
standardized approach for interviewing children about alleged abuse. The interview lasted
approximately twenty-one minutes and ended when J.J. asked to stop the interview.
Later on the evening of August 30, Ms. Gattis spoke with Mr. J. and T.S. at the
police department. Mr. J. told Ms. Gattis that J.J. and T.S. had gone to visit their maternal
family on Wednesday, August 25, and returned to his care on the evening of Saturday,
August 29. Mr. J. denied abusing J.J., stating that “he would not consider fighting for his
children because it was becoming an old and tiring process to be accused of sexual abuse.”
Mr. J. also told Ms. Gattis that J.J. was “starting [a] mess, again” and that “he should have
never allowed her to visit . . . her family because they were filling her head with nonsense.”
Ms. Gattis also spoke with T.S., who was three years old at the time. No useful information
was gathered because the information sought was beyond the scope of his age.
That same evening, a doctor at the Peninsula Regional Medical Center performed a
Sexual Assault Forensic Exam (“SAFE”) on J.J., but J.J. had brushed her teeth, showered,
urinated, and defecated prior to the exam. The SAFE report documented that J.J. was
observed to have a “notch” on her hymen and that she was “tender.” The report also noted
that “[J.J.] pointed to [a] penis sketch to say ‘it went in me.’”
6
On August 31, 2015, the Department of Social Services (“Department”) removed
J.J. and T.S. from their home and placed them in shelter care. That day, after the children
had been removed from their home, the Department filed a Petition for CINA. At the
shelter care hearing on September 2, 2015, both parents agreed to shelter care, and an
adjudication was scheduled. On September 3, 2015, a medical doctor conducted a Child
Abuse Medical Providers (“CHAMP”) exam and produced a report. The CHAMP report
documented that J.J. stated, “[D]ad put his finger in me and made me suck his private part.”
Though the physical CHAMP exam “show[ed] no lacerations, scars, bruises, [and] no
evidence of acute trauma,” the examiner found that this “exam CAN be consistent with
disclosure.” (emphasis in original).
The Department filed an Amended CINA Petition on September 22, 2015,
supplementing the Petition with allegations of neglect dating back to 2012.
B. The Proceedings
1. The § 11-304 Hearing
Pursuant to CP § 11-304(d)(3), the Department filed a notice of intent to introduce
J.J.’s audio-recorded out-of-court statement to Ms. Gattis and, on November 30, 2015, the
juvenile court conducted a hearing on its admissibility. Both parents were present and
represented by counsel. J.J. and T.S., though not present at the hearing, were also
represented by counsel. The court heard testimony from Ms. Gattis and Christine
Whitworth, a Department in-home case worker assigned to Petitioners’ family from
December 2014 through and including August 2015. Mr. J. also testified.
Ms. Whitworth testified that Mr. J. lived alone with J.J. and T.S. on the days
7
immediately preceding the alleged sexual abuse. Although she could not confirm that
Mr. J. remained alone with the children on the exact days of the alleged abuse, she saw no
reason that Mr. J. would have discontinued his role as the sole caregiver.
Ms. Gattis’s testimony focused on her interview of J.J. At the time of trial,
Ms. Gattis had eight years of experience with the Department and had interviewed
approximately 3500 children in her work with the Child Advocacy Center, though not
exclusively for sexual abuse. She described J.J.’s demeanor during the interview. She
stated that J.J. was initially “very pleasant,” showing no signs of physical distress in the
interview. When, however, the conversation turned to anatomy and abuse, J.J. became
more “quiet and reserved,” her “shoulders would cave in and her head dropped down,” and
“she withdrew from conversation.” Ms. Gattis interpreted such changes as a “sign of
distress.” Ms. Gattis described J.J.’s allegations of sexual abuse by her father:
[J.J.] was very specific during the forensic interview. She
identified that her father forced her, and she identified as wee
wee, adult or others would say penis. She identified that her
father forced her to suck his wee wee. She also identified that
her father rubbed his wee wee on her vagina at some point in
time. . . . She was very specific to say that it occurred in the
living room of their current home[.] . . . When asking about
dates, [J.J.] referred to the incidents as occurring, she stated last
night [August 29] and Tuesday [August 24]. . . . [J.J.]
identified that it was herself, her father and her brother in the
household.[2]
2
Addressing the days of the week on which J.J. alleged the abuse to have occurred,
Ms. Gattis stated:
[J.J.] was able to say the night before and Tuesday. She has a
concept of what days of the week. However, because of her
age, and because it’s a traumatic event, I would not hold her
steadfast to saying Tuesday, Wednesday, Thursday, whatever
8
Ms. Gattis added that “[J.J.] made a very spontaneous comment regarding her brother.
During the abuse scenario, [she] referred to her brother as upstairs in the bathtub making a
whole bunch of noise. . . . Her brother was not around when the abuse occurred.”
During Ms. Gattis’s testimony, the audio recording of J.J.’s statement was played
for the court. In the audio recording, J.J. described Mr. J. as getting “fully naked,” after
which he “pulled [her] pants off and pulled [her] shirt off,” “got on top,” “rubbed his wee
wee” on her unclothed “private part,” and made her “suck his wee wee.” J.J. said that when
the oral sex was over, she “threw up.”
Ms. Gattis testified that, during the interview, J.J. used her hands to demonstrate to
Ms. Gattis the size of Mr. J.’s penis, of which J.J. drew a picture that was consistent with
what she demonstrated to Ms. Gattis. When Ms. Gattis asked J.J. if this had ever happened
before, J.J. said, “Yeah, the last time I talked to you.”3
day it may have been. However, she was able to be cognizant
last night. She was able to say last night which doesn’t require
a day of the week.
3
J.J. had alleged in January 2013 and again in October 2014 that Mr. J. had sexually
abused her. Ms. Gattis met J.J. after the alleged October 2014 incident. The Department
of Social Services investigated both of those allegations. Neither allegation was “ruled
out”; however, both were determined to have been “unsubstantiated.” See Md. Code Ann.,
Fam. Law § 5-701(m), (w), (aa) (providing three findings concerning alleged abuse and
neglect: “indicated,” “ruled out,” and “unsubstantiated”). A finding of “unsubstantiated”
means “a finding that there is an insufficient amount of evidence to support a finding of
indicated or ruled out.” § 5-701(aa).
J.J. made a separate allegation of sexual abuse by her maternal cousin in January
2013. Following that investigation, the local Department of Social Services found the
cousin’s sexual assault to have been “indicated,” which is defined as “a finding that there
is credible evidence, which has not been satisfactorily refuted, that abuse, neglect, or sexual
abuse did occur.” § 5-701(m). Her cousin was ultimately criminally charged and
9
Ms. Gattis testified that J.J. demonstrated with a pen the act of “sucking a wee wee.”
Ms. Gattis added that this was “sexual knowledge” a nine-year-old should not have and
that it was “grotesque . . . to see a child who is 9 years old perform what she is telling you.”
Ms. Gattis also described her August 30 interview with Mr. J., who told her that J.J. and
T.S. “[l]eft his house and care on Wednesday” and “were with maternal family from
Wednesday until Saturday morning.”
On cross-examination by counsel for Mr. J., Ms. Gattis admitted to using leading
questions inadvertently––for example, Ms. Gattis used the word “penis” in a sentence,
instead of referring to it as a “little wee wee,” as J.J. had done. Ms. Gattis acknowledged
that she did not discuss “truthfulness” with J.J. during the interview because it is “not part
of the RATAC protocol.” Ms. B.’s counsel questioned Ms. Gattis on inconsistencies in
J.J.’s audio-recorded statement: J.J. made conflicting statements to Ms. Gattis whether Mr.
J.’s penis “rubbed” or was “in” J.J.; and whether J.J. was partially or fully nude. Ms. B.’s
counsel noted the inconsistencies between J.J.’s statement to Ms. Gattis and those she gave
to the SAFE and CHAMP examiners. Ms. B.’s counsel also highlighted, as a possible
motive for alleging that Mr. J. sexually abused her, J.J.’s statement to Ms. Gattis that she
was “trying to stay the night with my grandmom.” Ms. Gattis conceded that “[t]here is no
document that says from another individual that he had the opportunity” to commit the
abuse.
After hearing the above testimony, the court concluded that it would not examine
convicted.
10
J.J. as part of its determination of the particularized guarantees of trustworthiness and
admissibility of her statement. Section 11-304(g)(1) directs the court to examine the child
victim when making these findings unless “the court determines that an audio or visual
recording of the child victim’s statement makes an examination of the child victim
unnecessary.” The court concluded that “the audio recording of the child makes an
examination of the child victim unnecessary in this case.” The court further stated, “I don’t
think it would add to my ability to determine whether that statement made back [in August]
in light of the questioning had particularized guarantees of trustworthiness. So I’m not
going to interview the child.”
The juvenile court next addressed whether J.J.’s statement would be admissible for
the truth of the matter asserted if she did not testify at the adjudication hearing. Pursuant
to CP § 11-304(d)(2)(ii), a child victim’s out-of-court statement is admissible when the
child does not testify “only if there is corroborative evidence that the alleged offender had
the opportunity to commit the alleged abuse or neglect.” The Department argued that such
corroborative evidence could be found in Mr. J.’s statement to Ms. Gattis that he was the
sole caregiver of the children on the nights of the alleged abuse, which was consistent with
J.J.’s statement and Ms. Whitworth’s testimony. Ms. B.’s counsel argued that the
Department had not met its burden to show that such corroborative evidence existed. The
juvenile court disagreed, finding corroborative evidence that Mr. J. had the opportunity to
sexually abuse J.J., given his pre-hearing statement against interest to Ms. Gattis that he
was alone with the children on the dates of the alleged abuse and “the existence that they
were all living there.”
11
The juvenile court then heard from Petitioners and the Department regarding the
thirteen factors set forth in CP § 11-304 for determining the admissibility of J.J.’s out-of-
court statement at the subsequent adjudicatory hearing. The juvenile court then made on-
the-record findings concerning each statutory factor:4
[(i) the child victim’s personal knowledge of the event]
The child has great personal knowledge of the event.
She talks about it in detail about—there is no confusion about
what happened in the statement.
[(ii) the certainty that the statement was made]
It was clearly made. It was tape-recorded. We all heard
it.
[(iii) any apparent motive to fabricate or exhibit partiality
by the child victim, including interest, bias, corruption, or
coercion]
[S]he, in 2013, I think a little more than a year and a half
before this incident made the statements about her father and
wanted to get the gun and shoot him.
And in addition, there was testimony that the recurrence
of this occurs that she may [have been] coerce[d] somewhat by
her maternal relatives. So there does exist an apparent motive
to exhibit partiality by the child, and there was some testimony
about [the] possibility [of] coercion, although nothing specific
under that factor.
[(iv) whether the statement was spontaneous or directly
responsive to questions]
There was some spontaneity in the answers. Most of
them were directly responsive to questions.
[(v) the timing of the statement]
4
For convenience, we have separated by statutory factors the juvenile court’s findings.
12
The timing of the statement is very proximate to the
most recent abuse which was the night before. So at least with
regard to that, it’s very proximate. And then if you go back to
Tuesday and Thursday, it was close in time to those, also.
[(vi) whether the child victim’s young age makes it unlikely
that the child victim fabricated the statement that
represents a graphic, detailed account beyond the child
victim’s expected knowledge and experience]
Well, she is 9 years old now, right? Am I right?
And what she described would be beyond the child
victim’s expected knowledge and experience except for,
unfortunately, for this child victim, she is a prior victim of sex
abuse. So she may have and in all likelihood does have much
more knowledge and experience. So it was an age appropriate
statement for a 9-year-old in the sense of, I mean, it was a
believable statement in the sense that she wouldn’t have that
knowledge. We don’t know how much knowledge she has if
any as a result of having been sexually abused before.
Now, I will talk more about how I’m evaluating that
factor when I make my final ruling.[5]
[(vii) the appropriateness of the terminology of the
statement to the child victim’s age]
It was completely appropriate using the terms of wee
wee and private parts[.]
[(viii) the nature and duration of the abuse or neglect]
She talked about the three specific days that she said.
And then she said Tuesday and last night, but also that it
started, I think, it was three weeks after she went to see Miss
Christine I think we figured out.
[(ix) the inner consistency and coherence of the statement]
5
The court made no further mention of this factor. Yet, we can presume that the judge
took it into consideration when ruling on the admissibility of J.J.’s statement. See Aventis
Pasteur, Inc. v. Skevofilax, 396 Md. 405, 426 (2007) (stating that judges are presumed to
know the law and apply it, even absent express consideration).
13
There are things that are inconsistent in this statement.
First, there’s no clothes on. Then there’s clothes on. Where
she is during this? But when I look at, and then what
happened? . . .
She is not being led in that part, and she is giving it
graphically. Then she draws a picture—I mean, she writes a
note about the suck. And uses her finger to go in and out of
her mouth, I believe, later on when we get through here.
So there is nothing about that that is inconsistent or
incoherent. And those are the two—the discussion of the
actual events or whatever—the meat of the statement.
[(x) whether the child victim was suffering pain or distress
when making the statement]
She was, obviously—according to the testimony of Ms.
Gattis in some distress, the stress not inconsistent with a 9-
year-old making those statements.
[(xi) whether extrinsic evidence exists to show the
defendant or child respondent had an opportunity to
commit the act complained of in the child victim’s
statement]
In the child victim’s statement, there is extrinsic
evidence. How convinced the trier of fact will be in light of
other evidence does [not] [sic] negate the fact that there is
extrinsic evidence, and that is his statement against interest to
[the Department] and/or the law enforcement officer. I don’t
know who he made that to exactly, the fact that they all live
together in that house. And I don’t know what other evidence
will come in at trial. But there is extrinsic evidence.
[(xii) whether the statement was suggested by the use of
leading questions]
There were a lot of leading questions in here. I’m not
sure with the social work background that Ms. Gattis has the
same understanding of what a leading question is as people
with a legal background. But as I was just reading through that
part, which I call the meat of the statement, those weren’t
leading.
And then what happened? And then what? Tell me
14
what you remember. This is what she says about the oral sex.
Tell me what you remember. . . .
These are not leading questions, at least as to the meat
of anything or the central issues. . . .
[Y]es, there are leading questions. I do not find that the
salient parts of this statement were suggestive by the use of
leading questions.
[(xiii) the credibility of the person testifying about the
statement]
Ms. Gattis was a credible witness. I didn’t—I mean, it
looked to me—I mean, from my evaluation, she was trying just
to evaluate this statement. She did know in the back of her
mind that there had been earlier allegations. But I don’t find
that that influenced the way she conducted the interview.
Now, whether that had any influence with their finding
of indicated or—I don’t know. But that’s not for me to decide
here and now.
Based on its findings concerning each of the above factors, the court, pursuant to
the statute, found that J.J.’s out-of-court statement was admissible pursuant to CP § 11-304:
So I find that there are particularized guarantees of
trustworthiness, and so I will determine that the statement is
admissible as far as the Statute goes. But, again, I think it’s
unclear to me whether at trial, additional evidence on the issue
of opportunity might become relevant, but at this point I find it
to be admissible.
Of note, neither Mr. J. nor Ms. B. argued at any point during the § 11-304 hearing
that J.J. was incompetent to be a witness or asked the court to examine J.J. to determine
her competency.
2. Adjudication, Disposition, and Appeal
J.J.’s statement was introduced and played at the adjudicatory hearing on December
16, 2015. At the conclusion of the evidence, the juvenile court found J.J.’s interview and
15
her statements “to be entirely credible.” The court sustained the allegations of Mr. J.’s
sexual abuse of J.J., stating that “[n]othing has refuted those statements.” Mr. J. and Ms. B.
noted their exceptions on the record. At the disposition hearing on January 26, 2016, the
juvenile court declared both children CINA and committed them to the care and custody
of the Department for appropriate placement.
Petitioners each noted an appeal to the Court of Special Appeals. Among other
contentions, Mr. J. contended that the juvenile court erred in failing to consider J.J.’s
competency as a witness, even though he had not raised that concern before the juvenile
court. The Court of Special Appeals, evidently exercising its discretion to address the
issue, concluded that J.J’s competency to testify as a witness “was not relevant to the
admissibility of her statement to Ms. Gattis.” In re: J.J., 231 Md. App. at 329. The
intermediate appellate court looked to the plain language of the statute, as well as decisions
from sister states, and held that CP § 11-304 does not impose a threshold finding of
competency prior to admitting a child victim’s out-of-court statement. Id. at 329–31.
The Court of Special Appeals further held that the juvenile court properly deemed
J.J.’s out-of-court-statement to Ms. Gattis admissible at the adjudicatory hearing. The
Court of Special Appeals detected no error attendant to the juvenile court’s handling of the
requirements of CP § 11-304. The intermediate appellate court likewise concluded that the
juvenile court did not err, much less clearly err, when, upon addressing each of the statutory
factors, the court determined that J.J.’s statement had “particularized guarantees of
trustworthiness.” Id. at 331–35.
We granted both Petitioners’ petitions for writ of certiorari to answer three questions:
16
I. Under Maryland Code Annotated, Criminal Procedure
§ 11-304, where a child victim does not testify and the juvenile
court declines to examine the child in chambers, must the court
first find that the child is competent before admitting her
statement into evidence at a CINA adjudication hearing for the
truth of the matter asserted?
II. Did the facts in this case establish that J.J. was competent
where she did not testify in court and the court did not examine
her because it found that her audio-recorded statement made an
examination of her unnecessary?
III. Did J.J’s hearsay statement have particularized guarantees
of trustworthiness to be allowed into evidence?
III.
Discussion
A. Competency
1. Preservation
Mr. J. argues that a juvenile court, before admitting a child victim’s out-of-court
statement for the truth of the matter asserted, must first find that the child is “truth
competent,” meaning that the child understands the distinction between truth and
falsehood. As noted above, Mr. J. did not raise that contention before the juvenile court at
any time before or during the § 11-304 hearing; neither, for that matter, did he or Ms. B.
attempt to raise the contention at any other juncture during the proceedings before the
juvenile court.
Maryland Rule 8-131(a) states that “[o]rdinarily, the appellate court will not decide
any other issue unless it plainly appears by the record to have been raised in or decided by
the trial court, but the Court may decide such an issue if necessary or desirable to guide the
17
trial court or to avoid the expense and delay of another appeal.” This Court has not been
deterred from addressing and deciding, in the appropriate case, a matter that was not timely
raised before the trial court. To the contrary, “[w]e have explained time and again that
Rule 8-131(a) grants an appellate court discretion to consider issues deemed to have been
waived for failure to make a contemporaneous objection.” Abdul-Maleek v. State, 426 Md.
59, 69 (2012) (citing Bible v. State, 411 Md. 138, 148 (2009)). We have exercised such
discretion when, for example, doing so “will promote the orderly administration of justice.”
See id. at 70 (quoting Bible, 411 Md. at 152). Notwithstanding Mr. J.’s failure to raise the
issue before the juvenile court, we shall exercise our discretion under Maryland Rule 8-131
to address the contention, as it is likely to be raised in future cases.6
2. The Parties’ Contentions
Mr. J. argues that a juvenile court must find that a non-testifying child is truth
competent before admitting his or her out-of-court statement into evidence for the truth of
the matter asserted. He argues that the juvenile court erred by admitting J.J.’s statement
because, “absent any indication that J.J. was capable of distinguishing between the truth
and a lie and fantasy and reality, her statement was unreliable” and therefore inadmissible.
He admits that the plain language of the statute is “silent with regard to whether the court
must make a preliminary determination of the competency of a non-testifying child
6
Mr. J. raises an additional contention that was not presented to the juvenile court or raised
or decided by the Court of Special Appeals. He argues in this Court, for the first time, that
due process requires a juvenile court to determine the competency of a non-testifying child
before admitting the child’s out-of-court statement under CP § 11-304. We decline to
address that unpreserved argument.
18
declarant.” Nevertheless, he argues that the legislative history suggests that the General
Assembly did not intend to admit statements made by a “truth-incompetent declarant.”
The Department disagrees, arguing that the plain language and legislative history of
CP § 11-304 confirm that the juvenile court was not required to make a threshold
competency determination of J.J. prior to admitting her out-of-court statement. The
Department looks to the plain language of CP § 11-304, which has no such requirement,
and argues that this Court should decline to read a competency requirement into
CP § 11-304.
3. Analysis
Our analysis begins with the statute itself. In Phillips v. State, we summarized the
rules of statutory interpretation, noting that we “focus[] primarily on the language of the
statute to determine the purpose and intent of the General Assembly.” 451 Md. 180, 196
(2017). To effectuate that intent, “[w]e begin our analysis by first looking to the normal,
plain meaning of the language of the statute[.]” Id. (quoting Douglas v. State, 423 Md.
156, 178 (2011)). To ascertain the plain meaning of the language, “[w]e view the plain
language of a statute in the context of the statutory scheme to which it belongs.” See Brown
v. State, 454 Md. 546, 551 (2017). “We neither add nor delete language so as to reflect an
intent not evidenced in the plain and unambiguous language of the statute, and we do not
construe a statute with ‘forced or subtle interpretations’ that limit or extend its application.”
State v. Bey, 452 Md. 255, 265 (2017) (quoting State v. Johnson, 415 Md. 413, 421 (2010));
see also State v. Adams-Bey, 449 Md. 690, 702 (2016) (declaring that this Court will not
read words into a statute “to extend or limit the statute’s meaning”). Where statutory
19
language is “clear and unambiguous, we need not look beyond the statute’s provisions and
our analysis ends.” Phillips, 451 Md. at 197.
The Department observes, correctly, that CP § 11-304 is silent on whether a juvenile
court must make a truth-competency determination prior to ruling on the admissibility of a
child’s out-of-court statement. Silence, though, is not necessarily dispositive of legislative
intent. Rather, “when a statute is silent as to a particular issue, it is appropriate for the
Court to consider legislative history.” Nesbit v. Gov’t Emps. Ins. Co., 382 Md. 65, 77
(2004). We therefore look for guidance to the legislative history of CP § 11-304.
The legislative history confirms that the General Assembly did not intend to impose
a requirement upon a juvenile court to determine a child victim’s truth competency. In
1988, the General Assembly enacted the tender years statute without any competency
requirement. 1988 Md. Laws 3646 (Vol. VI, Ch. 548, S.B. 66); 1988 Md. Laws 3650 (Vol.
VI, Ch. 549, H.B. 1018).7 In 1998, Senate Bill 688 was introduced and proposed, inter
alia, adding as a statutory factor “[t]he child’s ability to distinguish truth from falsehood.”
S.B. 688, 1998 Leg., Reg. Sess. (Md. 1998). This language would have replaced the
existing factor that examined “[w]hether extrinsic evidence exists to show the defendant’s
opportunity to commit the act complained of in the child’s statement.” Id. By the third
reading of the bill, this proposed change had been stricken, and the bill was later signed by
the governor without this change. 1998 Md. Laws 3100, 3104 (Vol. V, Ch. 638, S.B. 688).
Our research discloses that there was no other legislative attempt to add a competency
7
The tender years exception was first codified at § 9-103.1 in the 1988 Supplement to
the Courts and Judicial Proceedings Article.
20
requirement to the tender years statute since its enactment in 1988.8
Accordingly, we reach the same conclusion as did the Court of Special Appeals.
Section 11-304 contains no ambiguity. The plain language of that section does not require
a juvenile court to find that a child is truth competent before admitting that child’s
statement under the statute, nor does its legislative history suggest a contrary interpretation.
We also agree with the Court of Special Appeals that a preliminary competency
determination is irrelevant to a juvenile court’s admissibility determination. There has
been no showing, nor do we conclude, that the statute’s existing thirteen-factor
trustworthiness test would be enhanced by requiring examination of a non-testifying child’s
competency. Rather, CP § 11-304 imposes multiple conditions that must be satisfied prior
to a juvenile court’s determination that the statement is admissible: the court must make a
finding as to whether (1) it is unnecessary to examine the child; (2) there is corroborative
evidence that the alleged abuser had an opportunity to commit the abuse; and (3) the child’s
statement contains “particularized guarantees of trustworthiness.” No additional findings
are (or should be) necessary for a statement to be admissible under the statute when the
8
Although bills were introduced, but never enacted, to admit a child’s statement where
the child is unavailable to testify at the proceeding due to “incompetence,” see, e.g., S.B.
498, 1993 Leg., Reg. Sess. (Md. 1993); S.B. 482, 1992 Leg., Reg. Sess. (Md. 1992); H.B.
548, 1988 Leg., Reg. Sess. (Md. 1988); S.B. 24, 1988 Leg., Reg. Sess. (Md. 1988); see
also, e.g., S.B. 340, 1994 Leg., Reg. Sess. (Md. 1994) (introducing an amendment to admit
a child’s statement when the child is unavailable due to the child’s “[l]evel of cognitive
development, including ability to understand abstract concepts”), such proposals cannot be
read to have imposed a competency determination. To the contrary, under these proposed
amendments, any competency determination would have been unnecessary because the
juvenile court could admit the child’s out-of-court statement notwithstanding a finding of
incompetence.
21
trial judge “compl[ies] with the foundational requirements of that statute.” Jones, 410 Md.
at 700. Accordingly, we agree with the Court of Special Appeals that, “[g]iven the plain
language of CP § 11-304, as well as the different concerns regarding the competency of a
child witness to testify and the admissibility of a prior out-of-court statement by an abused
child, . . . a court need not make a competency determination prior to admitting a prior
statement pursuant to CP § 11-304.” 231 Md. App. at 331.
Our conclusion is consistent with that of our sister states. See Commonwealth v.
Walter, 93 A.3d 442, 453 (Pa. 2014) (“[B]ased on the plain language of the [state’s tender
years statute], . . . we hold that a child need not be deemed competent to testify as a witness
in order for the trial court to admit the child’s out-of-court statements into evidence
pursuant to the [statute].”); State v. Silverman, 906 N.E.2d 427, 434 (Ohio 2009) (holding
“that a hearsay statement of a child declarant can be admitted under [the state’s tender years
rule of evidence] without a determination of the child’s competence to testify”); State v.
C.J., 63 P.3d 765, 770 (Wash. 2003) (en banc) (“The statute’s prerequisites to the
admissibility of a child victim’s hearsay statements do not include any requirement that a
declarant must be shown to have . . . the ability to distinguish the difference between
truthful and false statements and an understanding of an obligation to tell the truth.”);
People v. Dist. Court of El Paso Cty., 776 P.2d 1083, 1088 (Colo. 1989) (en banc) (“[W]e
reject the logically flawed assumption that a determination of incompetency at the time of
the hearing invariably establishes that the child’s statement was not reliable.”).
In summary, nowhere in CP § 11-304 or the legislative history is there support for
Mr. J.’s argument that truth competency is a prerequisite or relevant to the admission of a
22
child victim’s out-of-court statement for the truth of the matter asserted. We therefore hold
that CP § 11-304 imposes no duty on the part of the juvenile court, beyond those duties set
forth in the statute, to determine a child’s truth competency. Accordingly, we have no need
to address the second question presented by Mr. J. concerning whether J.J. herself was
competent.
B. Trustworthiness
1. The Standard of Review
We turn now to the admissibility under CP § 11-304 of J.J.’s out-of-court statement
to Ms. Gattis. This Court applies the clearly erroneous standard of review to the juvenile
court’s factual findings made under CP § 11-304. See Jones, 410 Md. at 700 (“The ‘clearly
erroneous’ standard of review is applicable to the factual findings required by this
statute.”); Md. Rule 8-131(c). A decision is not clearly erroneous “‘if the record shows
that there is legally sufficient evidence to support it.’” Kusi v. State, 438 Md. 362, 380
(2014) (quoting Biglari v. State, 156 Md. App. 657, 668 (2004)).
2. The Parties’ Contentions
Ms. B. argues that the juvenile court clearly erred by admitting J.J.’s statement
because her statement did not possess particularized guarantees of trustworthiness. First,
though not a statutory factor under CP § 11-304, Ms. B. argues that J.J.’s statement did not
possess particularized guarantees of trustworthiness because it was not “consistently
repeated.” She points to J.J.’s inconsistent statements to Ms. Gattis and the SAFE and
CHAMP examiners about the extent and dates of the abuse. In support of this argument,
Ms. B. relies on Idaho v. Wright, 497 U.S. 805 (1990), which provides that, in
23
Confrontation Clause cases, “consistent repetition” is a factor to determine reliability in
child hearsay statements, id. at 821–22. Next, Ms. B. argues that there was insufficient
corroborative evidence of Mr. J.’s opportunity to commit the abuse. In Ms. B.’s view, it
was not enough that the court found corroborating evidence in Mr. J.’s statement against
interest that “they were all living there”; Ms. Whitworth had no information concerning
whether J.J. or T.S. were in fact residing with Mr. J. on the alleged dates of the abuse.
Ms. B. further argues that J.J. was motivated to fabricate her statement based on
J.J.’s previous “false” allegations of sexual abuse by her father, her “homicidal ideations
towards her father,” and her past “influenc[e] by others.” Though the juvenile court
acknowledged that “there does exist an apparent motive to exhibit partiality by the child,”
Ms. B. highlights that the court failed to discuss how motive weighed in its trustworthiness
finding. Ms. B. also claims that the juvenile court erred when it considered the degree to
which J.J.’s answers were either directly responsive to questions or spontaneous. In
particular, while the court noted “some spontaneity” in J.J.’s answers, Ms. B. contends that
the court should have considered not only J.J.’s spontaneity, but also what Ms. B.
characterizes as J.J.’s past manipulation by maternal relatives to fabricate sexual abuse and
J.J.’s motive to fabricate. Ms. B. also contends that the juvenile court erred by admitting
J.J.’s statement due to the number of leading questions in the interview. She suggests that,
because a significant number of the questions were leading, the entire interview was
tainted.
Finally, Ms. B. argues that the court erred when it gave insufficient weight to J.J.’s
prior victimization by her cousin when it considered whether J.J.’s described events were
24
beyond her expected knowledge and experience. To illustrate this point, Ms. B. highlights
the court’s remarks on the subject: “I don’t know how the fact that there were prior
investigations or prior incidents of abuse might contribute to the child’s knowledge and go
to what she would be able or not able to say.”
The Department responds that the juvenile court fully complied “with the
foundational requirements of that statute, including the requirement that the court ‘make a
finding on the record as to the specific guarantees of trustworthiness that are in the
statement[.]’” Jones, 410 Md. at 700–01 (quoting CP § 11-304(f)(1)). The Department
argues that the evidence at the § 11-304 hearing was sufficient for the juvenile court to
make its findings. The Department reiterates the juvenile court’s analysis that J.J. showed
she had “great personal knowledge of the event” and contends that she could provide
sensory details of the abuse and describe in detail where and how the abuse occurred,
including through illustrations and demonstrations. The Department argues that any
inconsistencies between J.J.’s forensic interview and statements that she gave to others go
to weight and not admissibility under the statute, which requires the court to consider only
a statement’s internal consistencies. CP § 11-304(e)(2)(ix). The Department adds that the
court correctly found that corroborative evidence showed Mr. J. had the opportunity to
commit the abuse.
3. Analysis
We are persuaded, for the reasons that follow, that the juvenile court did not err,
much less clearly so, in concluding that J.J.’s out-of-court statement possessed
“particularized guarantees of trustworthiness” as required by CP § 11-304. At the § 11-304
25
hearing, the juvenile court fully “compl[ied] with the foundational requirements of that
statute, including the requirement that the court ‘make a finding on the record as to the
specific guarantees of trustworthiness that are in the statement.’” Jones, 410 Md. at 700(quoting CP § 11-304(f)(1)). The court played the audiotape of J.J.’s out-of-court
statement, heard testimony and argument, and considered the evidence. Pursuant to
CP § 11-304(f)(1), the court made on-the-record findings as to the requisite guarantees of
trustworthiness of J.J.’s statement. The court addressed each of the thirteen statutory
factors and deemed J.J.’s statement to be admissible under CP § 11-304.
We reject Ms. B.’s argument that the juvenile court was required to consider as a
factor whether J.J.’s statement was “consistently repeated” pursuant to Idaho v. Wright.
Wright was replaced by Crawford v. Washington, 541 U.S. 36 (2004), as the seminal case
on confrontation, and Wright only spoke of the need for this finding in a criminal context,
where the right to confrontation attaches. In contrast, Maryland courts have found that the
right to confrontation does not apply in civil, let alone CINA, proceedings. Tyler v. State,
342 Md. 766, 774 n.4 (1996) (“In a civil case, there is no need to protect the defendant’s
right of confrontation.”); In re Colin R., 63 Md. App. 684, 693–94 (1985) (“[T]he right of
confrontation . . . is not available to the parents of an alleged C.I.N.A.”).
We further note that consistent repetition is not an enumerated factor of
CP § 11-304 that the juvenile court “shall consider” when determining admissibility.
Instead, the juvenile court need only consider “the inner consistency and coherence of the
statement.” CP § 11-304(e)(2)(ix). Although the court “is not limited to” the enumerated
factors, CP § 11-304(e)(2), we agree with the Department that any inconsistencies between
26
J.J.’s statement to Ms. Gattis and statements she gave to others go to weight and not
admissibility.
Our review of the record reflects that the juvenile court’s treatment of the requisite
statutory factors was exacting and fully considered, and that it “compl[ied] with the
foundational requirements” of CP § 11-304. Jones, 410 Md. at 700. We likewise reject
Ms. B.’s arguments that the juvenile court improperly weighed the factors in its analysis.
It is for the juvenile court, and not us, to weigh the evidence and make factual findings in
accordance with that evidence. See Md. Rule 8-131(c).
We hold that, because there was legally sufficient evidence to support the juvenile
court’s findings, we find no error in the court’s conclusion that J.J.’s statement had
particularized guarantees of trustworthiness to be admissible for the truth of the matter
asserted under CP § 11-304.
IV.
Conclusion
We hold that the CP § 11-304 does not require a juvenile court to make a
competency determination prior to ruling on the admissibility of a child declarant’s out-of-
court statement for the truth of the matter asserted. Such a preliminary competency
determination is likewise irrelevant when determining whether a child victim’s statement
contains “particularized guarantees of trustworthiness” to be admissible under CP
§ 11-304. We further hold that the juvenile court did not err in concluding that J.J.’s out-
of-court statement was admissible in her juvenile court proceeding because her statement
contains the requisite “particularized guarantees of trustworthiness” for admission pursuant
27
to CP § 11-304. We therefore affirm the judgment of the Court of Special Appeals, which
came to the same conclusions.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED;
COSTS TO BE PAID 50% BY
PETITIONER FATHER AND 50%
BY PETITIONER MOTHER.
28