In Re Kansas B. ( 2022 )

10/12/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 2, 2022 Session
IN RE KANSAS B. ET AL.
Appeal from the Circuit Court for Williamson County
No. 2021-38 James G. Martin, III, Judge
___________________________________
No. M2021-00827-COA-R3-JV
___________________________________
The Tennessee Department of Children’s Services (“DCS”) filed a dependency and neglect
petition with respect to four children, two of whom are the eldest children of the mother
and her first husband and two of whom are the youngest children of the mother and her
current husband. DCS filed the petition upon receiving a referral that the mother’s seven-
year-old daughter from her first marriage had been sexually abused by her stepfather, the
mother’s current husband. The stepfather sought to call the seven-year-old child as a
witness during the trial, but the trial court denied his request upon balancing the probative
value of the child’s testimony with the potential emotional and psychological harm the
child could suffer from testifying. The mother and stepfather have appealed. Upon
thorough review, we conclude that the trial court erred in utilizing this balancing test and
precluding the stepfather from calling the child as a witness. We therefore vacate the trial
court’s final judgment adjudicating the children dependent and neglected and remand the
case so that the trial court may hear the child’s testimony, provided that the child is
competent to testify and that the court does not exclude the testimony pursuant to
Tennessee Rule of Evidence 403. If the child is allowed to testify, the trial court should
consider utilizing the accommodations set forth in Tennessee Rule of Juvenile Practice and
Procedure 306 to ameliorate any potential harm that testifying may cause the child.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Vacated; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.
Benjamin K. Raybin, Nashville, Tennessee, for the appellant, Jonathan C.
Matthew R. Muenzen, Franklin, Tennessee, for the appellant, Amy W.
Michelle Lipford, Brentwood, Tennessee, Guardian Ad Litem.
Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor
General; and Amber L. Barker, Assistant Attorney General, for the appellee, Tennessee
Department of Children’s Services.
OPINION
I. Factual and Procedural Background
On June 8, 2020, DCS filed a “Petition for Dependency/Neglect and Severe Abuse,
for Restraining Order and for Ex Parte Order” in the Williamson County Juvenile Court
(“juvenile court”). Therein, DCS requested that the juvenile court adjudicate Kansas B.;
Elijah B.; Isaiah C.; and Jonathan C., II (collectively, “the Children”), dependent and
neglected. Kansas and Elijah were born of the marriage between Amy W. (“Mother”) and
Brian B. (“Father”), who were divorced in 2017 as a result of Mother’s affair with Jonathan
C. (“Stepfather”). Mother and Stepfather subsequently married and had Isaiah and
Jonathan.
DCS’s involvement with this family started on June 3, 2020, upon receiving a
referral from Father, who alleged that Stepfather had sexually abused Kansas. Father
reported the alleged abuse upon discovering Kansas, who was then seven years old, and
her brother, Elijah, who was then five years of age, in an inappropriate, sexual position on
that date. Father reported to DCS that Kansas had informed him that she learned the
behavior from Stepfather, whom she claimed showed her pornographic videos. As a result,
DCS arranged a forensic interview with Kansas and Elijah on June 4, 2020, at the Davis
House Child Advocacy Center. While Elijah did not reveal any instances of sexual abuse,
Kansas described in detail several instances of sexual abuse by Stepfather. Stepfather
denied the allegations, and Mother informed DCS that she did not believe the veracity
Kansas’s statements. Furthermore, Mother would not agree to refrain from discussing the
allegations with Kansas.
On June 8, 2020, the juvenile court entered an ex parte restraining order providing
that: (1) Kansas and Elijah would remain in the care of Father, (2) Stepfather would have
no contact with Kansas and Elijah, (3) Mother would have no unsupervised contact with
Kansas and Elijah, (4) Isaiah and Jonathan would remain in Mother’s care, (5) Stepfather
would have no unsupervised contact with Isaiah and Jonathan, (6) Mother would not allow
Stepfather to have unsupervised contact with Isaiah and Jonathan, and (7) none of the
respondent parents would discuss the allegations with the Children. On June 10, 2020, the
juvenile court appointed a guardian ad litem (“GAL”) to represent the Children.
The juvenile court conducted a preliminary hearing on June 24, 2020. The juvenile
court’s preliminary hearing order reflected that Brittany Potts, an investigator for Child
Protective Services with DCS, testified concerning the allegations and the forensic
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interview with Kansas. DCS played the forensic interview in its entirety during the
hearing. By reason of the testimony and forensic interview, the juvenile court found
probable cause that the allegations in the petition had occurred. The juvenile court further
found that the forensic interview was “deeply disturbing and credible.” The juvenile
court’s order provided that the restraining order would remain in place.
On September 11, 2020, Stepfather filed a “Request for Order Compelling
Testimony of Minor Witness,” in which he requested that the juvenile court compel Kansas
to testify at the adjudicatory hearing, then scheduled for October 19 and 23, 2020. The
juvenile court took the motion under advisement pending receipt of additional authority to
be provided by either party.
The juvenile court conducted an adjudicatory hearing on October 19 and 23, 2020,
during which Kansas did not testify. In an adjudicatory order entered on November 2,
2020, the juvenile court made extensive findings of fact based on the testimony and
evidence presented. The juvenile court found clear and convincing evidence that the
Children were dependent and neglected, pursuant to Tennessee Code Annotated § 37-1-
102(b)(13)(F) and (G) (Supp. 2021), based upon the sexual abuse of Kansas perpetrated by
Stepfather. The juvenile court further found that Stepfather had committed severe child
abuse, pursuant to Tennessee Code Annotated § 37-1-102(b)(27)(C) (Supp. 2021), based
on its finding that he committed aggravated sexual battery pursuant to Tennessee Code
Annotated § 39-13-504 (2018). The juvenile court did not make similar findings against
Mother or Father. The juvenile court ordered that Father would maintain custody of Kansas
and Elijah and that Mother’s visitation with the two children would continue to be
supervised until she could participate in individual counseling and family counseling with
Kansas. Also, Stepfather was ordered to submit to a psychological evaluation and
psychosexual evaluation.
On January 25, 2021, the juvenile court entered a “Dispositional Order,” finding
that Mother had made progress relative to the Non-Custodial Permanency Plan. Mother
had testified that she was in the process of divorcing Stepfather. The juvenile court
requested that the Davis House Child Advocacy Center therapist involve Mother in family
counseling with Kansas as soon as possible so as to provide the court with a
recommendation for safely increasing Mother’s contact with Kansas and Elijah.
Additionally, the juvenile court ordered DCS to provide funding to Stepfather for a
psychosexual evaluation and permitted DCS to close its case upon completion of
Stepfather’s evaluation and Mother’s counseling services.
Stepfather and Mother filed separate notices of appeal to the Williamson County
Circuit Court (“trial court”), appealing both the November 2, 2020 order and the January
25, 2021 order. On February 22, 2021, Stepfather filed a motion in limine, objecting to
any use of Kansas’s forensic interview as substantive evidence. In support, Stepfather
urged that Father had coached Kansas and that “his actions and the actions of the forensic
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interviewer tainted the forensic interview to the extent that the forensic interview is not
reliable.” Stepfather also filed a notice that he would be taking the deposition of Kansas
on March 15, 2021.
In response, the GAL filed a motion to quash the deposition of Kansas. According
to the GAL, Kansas’s therapist advised that exposure to the stress of a deposition would
not be in Kansas’s best interest and that it would impose a substantial risk of trauma to her.
Father filed a response to Stepfather’s motion in limine and joined in the GAL’s motion to
excuse Kansas from participating in the deposition. Moreover, Detective Kendylle Cobb
filed an affidavit in which she stated that the criminal investigation into the sexual abuse
of Kansas was ongoing and that any deposition of Kansas could compromise the
investigative process.
The trial court conducted a hearing regarding the various motions on March 5, 2021,
and entered an order on March 9, 2021. The court granted the GAL’s motion to quash the
deposition of Kansas but did not preclude the possibility that Kansas could be called to
testify at trial. The court reserved ruling on that issue until it heard some or all of the proof
at trial. The trial was conducted on March 24, March 25, April 1, and April 16, 2021.
On April 6, 2021, prior to the close of trial, the trial court entered an “Order
Addressing Issues for Determination.” Therein, the court acknowledged that DCS sought
to introduce out-of-court statements made by Kansas to Father and the forensic interviewer.
After making extensive findings of fact, the court determined that the statements made by
Kansas to Father and the forensic interviewer were trustworthy, as required by Tennessee
Rule of Evidence 803(25), and therefore were admissible pursuant to the respective hearsay
exception.
With respect to the issue of calling Kansas as a witness, Stepfather asserted his
theory that Father had “intentionally or unintentionally coached the child” and that the
forensic interviewer had failed to ask questions concerning the possibility of “coaching.”
Thus, Stepfather asserted that he should be given the opportunity to support his theory by
calling Kansas as a witness. After the parties submitted briefs and presented arguments on
April 16, 2021, the trial court denied Stepfather’s request to call Kansas as a witness. In
doing so, the court weighed the probable harm to Kansas caused by forcing her to testify
against Stepfather’s need to call Kansas as a witness. The court stated: “To subject Kansas
to examination by [Stepfather’s] counsel creates a threat of psychological harm to the child
which cannot be warranted by the facts and circumstances of this case.” The court included
that Carey Lariscy, Kansas’s therapist, testified as to her concern that examining Kansas
as a witness may cause “re-traumatization.” The court further found that the evidence
presented against Stepfather was overwhelming, “certainly to a clear and convincing
standard, if not beyond reasonable doubt.” Accordingly, in the court’s estimation, there
was no probative value in permitting Kansas’s testimony. The court also held that denying
Stepfather’s request to call Kansas as a witness did not violate his right to due process.
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The trial court entered its final order on July 8, 2021, finding clear and convincing
evidence that Kansas was dependent and neglected based upon sexual abuse perpetrated
by Stepfather. The court specifically determined that Kansas was the victim of severe child
abuse pursuant to Tennessee Code Annotated § 37-1-102(b)(27)(C) and that Stepfather was
the perpetrator. This determination was predicated on the court’s finding that Stepfather
committed aggravated sexual battery pursuant to Tennessee Code Annotated § 39-13-504.
As a consequence of the sexual abuse of Kansas, the court also found that all of the Children
were dependent and neglected pursuant to Tennessee Code Annotated § 37-1-
102(b)(13)(B) and (F). With respect to Mother, the court found the Children dependent
and neglected due to her failure to believe Kansas’s allegations of abuse. Moreover, the
court noted that Mother had continued her relationship with Stepfather and allowed him to
remain in her home after the allegations of abuse surfaced. Consequently, the court ordered
that Stepfather maintain no contact with Kansas and Elijah and exercise only supervised
contact with Isaiah and Jonathan. Mother’s supervised visitation with Kansas and Elijah
was kept in place, and the parents were ordered not to discuss the court proceedings with
the Children “outside of a therapeutic setting with licensed counselors.” Mother and
Stepfather timely appealed to this Court.
II. Issues Presented
Stepfather raises the following issues for this Court’s review, which we have
reordered and restated slightly as follows:
1. Whether the trial court erred in denying Stepfather’s request to call
Kansas as a witness during trial.
2. Whether the trial court erred by finding clear and convincing evidence
that Kansas was dependent and neglected.
3. Whether the trial court erred by finding clear and convincing evidence
that the remaining three children were dependent and neglected.
4. Whether a different trial court judge should be assigned if this Court
remands for the trial court to consider Kansas’s testimony.
Mother has presented the following additional issue, which we have restated slightly
as follows:
5. Whether the trial court erred by finding clear and convincing evidence
that Mother also bore responsibility for the Children’s adjudication as
dependent and neglected.
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III. Standard of Review
Concerning the standard of review in dependency and neglect cases involving
severe child abuse, this Court has previously elucidated:
A child who is suffering from abuse is a dependent and neglected
child. See Tenn. Code Ann. § 37-1-102(12)(G).[1] A determination that a
child is dependent and neglected must be supported by clear and convincing
evidence. See Tenn. Code Ann. § 37-1-129(a)(1) & (c). Severe child abuse
in a dependency and neglect proceeding must also be established by clear
and convincing evidence. In re S.J., 387 S.W.3d 576, 591 (Tenn. Ct. App.
2012).
The “clear and convincing evidence standard” is more exacting than
the “preponderance of the evidence” standard, although it does not demand
the certainty required by the “beyond a reasonable doubt” standard. In re
C.W.W., 37 S.W.3d 467, 474 (Tenn. Ct. App. 2000). The clear and
convincing evidence standard defies precise definition. Majors v. Smith, 776
S.W.2d 538, 540 (Tenn. Ct. App. 1989). Evidence satisfying this high
standard produces a firm belief or conviction regarding the truth of facts
sought to be established. In re C.W.W., 37 S.W.3d at 474. Clear and
convincing evidence eliminates any serious or substantial doubt concerning
the correctness of the conclusions to be drawn from the evidence. Hodges v.
S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992).
Our review of the trial court’s determinations on questions of fact is
de novo with a presumption of correctness, unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d). Whether a child has been
proven dependent and neglected by clear and convincing evidence is a
question of law which we review de novo without a presumption of
correctness. In re H.L.F., 297 S.W.3d 223, 233 (Tenn. Ct. App. 2009). To
the extent the trial court’s determinations rest upon an assessment of the
credibility of witnesses, the determinations will not be overturned absent
clear and convincing evidence to the contrary. Wells v. Tennessee Bd. of
Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
In re M.D., No. M2015-01023-COA-R3-JV, 2016 WL 5723954, at *3-4 (Tenn. Ct. App.
Sept. 30, 2016) (quoting In re Kaitlynne D., No. M2013-00546-COA-R3-JV, 2014 WL
2168515, at *1-2 (Tenn. Ct. App. May 21, 2014)).
1
The statutory definition of dependency and neglect is now codified at Tennessee Code Annotated § 37-1-
102(13) (Supp. 2021).
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IV. Trial Court’s Exclusion of Child’s Testimony
We first address the threshold issues of whether the trial court erred in denying
Stepfather’s request to call Kansas as a witness and, if so, whether this error requires this
Court to vacate and remand the case to the trial court to hear Kansas’s testimony.
Stepfather raises three arguments: (1) the trial court had no authority to deny his request
to call Kansas as a witness under the evidentiary rules of Tennessee; (2) the trial court
violated his “due process right to cross-examine the sole accuser against him in a case
affecting his fundamental parental rights;” and (3) even if the trial court maintained the
discretion to preclude Kansas as a witness by adopting and applying a balancing test
utilized in other jurisdictions, the court abused its discretion by determining that the risk of
harm to Kansas substantially outweighed the probative value of Kansas’s testimony. Upon
thoroughly reviewing the record and applicable authorities, we agree with Stepfather that
the trial court lacked the discretionary authority under the evidentiary rules of Tennessee
to exclude Kansas as a witness, if competent to testify, based upon a potential threat of
emotional or psychological harm to her.
In its order denying Stepfather’s request to call Kansas as a witness during trial, the
trial court referenced two different approaches adopted by various appellate courts from
other jurisdictions. Under the first approach, some appellate courts have held that trial
courts lack the authority to preclude a child from testifying so long as the child is competent
to testify. See, e.g., Bebee v. Hargrove, 607 So. 2d 1270, 1272 (Ala. Civ. App. 1992) (“The
court has no authority to exclude the testimony of children of tender years if they are
otherwise competent.”). Under the second approach, certain appellate courts have held
that trial courts maintain the authority to preclude a child from testifying if the probative
value of the child’s testimony is “substantially outweighed by the risk of severe emotional
or psychological harm to the child from testifying.” See State ex rel. Juv. Dep’t of
Tillamook Cnty. v. Beasley, 840 P.2d 78, 84 (Or. 1992). The trial court adopted the latter
approach, concluding that the risk of harm to Kansas from testifying outweighed any
probative value that Kansas’s testimony might have had, further finding no merit to
Stepfather’s “coaching” theory. Stepfather requests that this Court adopt the former
approach and hold that “in a case regarding parental rights, a trial court lacks authority to
deny a parent from calling an otherwise competent witness to testify at a deposition or
adjudicatory hearing.”
Although the parties cite as persuasive authority cases from other jurisdictions and
apparently frame this issue as one of first impression in Tennessee, this Court has
previously addressed this issue in State, Dep’t of Hum. Servs. v. Norton, 928 S.W.2d 445,
447 (Tenn. Ct. App. 1996). In Norton, this Court considered whether the trial court had
erred in precluding children, ages six and seven, from testifying during a termination of
parental rights trial. Id. During trial, the State presented the testimony of an expert witness
who “opined that requiring the children to testify would not be in their best interest.” Id.-7-
According to the State’s expert, “[b]oth children shut down in therapy” and were reluctant
to discuss “the issues because of the emotional pain associated with the issues and the
blame they put on themselves.” Id.On appeal in Norton, this Court determined that the trial court had erred in
precluding the children’s testimony, explaining:
Under Rule 601 of the Tennessee Rules of Evidence “[e]very person is
presumed competent to be a witness except as otherwise provided in these
Rules or by statute”. According to the comment, children are included, but
the presumption is rebuttable.
***
The evidence offered does not rebut the presumption of competency,
but goes to the propriety of forcing the children to testify in court. If a
witness is competent, the Court is required to accept his or her testimony, but
there are circumstances where the Court should tailor the manner in which
the evidence is received so as to minimize any harmful effects on the witness.
Id. at 447-48 (emphasis added). Thus, this Court has previously held that barring operation
of some other applicable rule, trial courts lack the discretion to preclude the testimony of a
witness so long as that witness is competent. In so concluding, this Court explicitly rejected
consideration of the child’s best interest or “the propriety of forcing the children to testify
in court” in excluding potential testimony. Id.In the instant case, DCS proffered testimony similar to that which the State’s witness
presented in Norton, namely, that forcing the child to testify would potentially cause her to
suffer what Kansas’s therapist called “re-traumatization.” Neither DCS nor the GAL
presented evidence concerning whether Kansas was a competent witness, instead
emphasizing the emotional and psychological harm that requiring her to testify during trial
could potentially cause. The trial court’s analysis likewise addressed the potential harm to
Kansas rather than her competency to testify.
We recognize that Tennessee Rule of Evidence 403 offers a similar balancing test
to the one utilized by the trial court in this case. Rule 403 provides:
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
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Significantly, neither the child’s best interest nor the threat of emotional or psychological
harm to the minor witness are included in the list of concerns that a trial court may consider
to balance against the probative value of the evidence sought to be admitted.
This Court has previously upheld a trial court’s exclusion of a child’s testimony
based upon the Rule 403 balancing test in the context of a post-divorce custody dispute.
See Howe v. Howe, No. E2016-01212-COA-R3-CV, 2017 WL 1324177, at *4 (Tenn. Ct.
App. Apr. 10, 2017). In affirming the trial court’s exclusion of evidence, this Court
explained:
The trial court is best situated to conduct the Rule 403 balancing test.
Here, the proffered testimony concerned the Child’s desire to live with
Mother and her corroboration of Mother’s factual allegations contained in
the petition. Assuming, without deciding, that the Child’s testimony was
relevant, her corroboration of Mother’s factual allegations was of minimal
probative value when the record reflects that Father admitted to the majority
of the allegations. Additionally, the Guardian advised the court of the
Child’s desire to spend more time with Mother. In deference to the trial
court’s discretion in such matters, we affirm the court’s ruling.
Id. In Howe, the trial court properly utilized its discretion in excluding the child’s
testimony based upon its minimal probative value and the fact that the child’s testimony
would be cumulative. Id. The balancing test addressed in Rule 403 would have been the
proper test for the trial court to utilize in the case at bar.
DCS posits that trial courts maintain discretion to permit or preclude child testimony
predicated on the hearsay exception detailed in Tennessee Rule of Evidence 803(25). Rule
803(25) delineates the following exception to the hearsay rule provided in Tennessee Rule
of Evidence 802:
(25) Children’s Statements. Provided that the circumstances indicate
trustworthiness, statements about abuse or neglect made by a child alleged to
be the victim of physical, sexual, or psychological abuse or neglect, offered
in a civil action concerning issues of dependency and neglect pursuant to
Tenn. Code Ann. § 37-1-102(b)(12), issues concerning severe child abuse
pursuant to Tenn. Code Ann. § 37-1-102(b)(21),[2] or issues concerning
termination of parental rights pursuant to Tenn. Code Ann. § 37-1-147 and
Tenn. Code Ann. § 36-1-113, and statements about abuse or neglect made by
a child alleged to be the victim of physical, sexual, or psychological abuse
offered in a civil trial relating to custody, shared parenting, or visitation.
2
The statutory definition of severe child abuse is now codified at Tennessee Code Annotated § 37-1-
102(b)(27) (Supp. 2021).
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Declarants of age thirteen or older at the time of the hearing must testify
unless unavailable as defined by Rule 804(a); otherwise this exception is
inapplicable to their extrajudicial statements.
Tenn. R. Evid. 803(25). DCS contends that inasmuch as the rule requires that declarants
who are thirteen years of age or older testify in order for their hearsay statements to be
admissible, the converse must also be true, namely, that “children age twelve and under are
not required to testify for their statements to be admissible.” While we understand DCS’s
postulate, we nevertheless are unable to conclude that the absence of any like requirement
for children under the age of thirteen demonstrably indicates that trial courts have
discretion to exclude their testimony based upon a balancing test not contained in
Tennessee’s rules of evidence.
On this point, DCS asserts that if children under the age of thirteen were “always
required to testify when their out-of-court statements are admitted, this hearsay exception
would be nullified.” Respectfully, in presenting this argument, DCS appears to conflate
two separate questions: (1) whether in-court testimony is required for the admission of an
out-of-court statement and (2) whether a trial court may exclude the testimony of a child
who is otherwise competent. Rule 803(25) only addresses the first issue—the prerequisites
for the admissibility of the hearsay statements of a child. That rule, however, provides
little guidance in our consideration of the second query.
This Court’s conclusion that trial courts do not possess discretion to exclude a
competent child’s testimony based upon potential emotional or psychological harm does
not nullify the purpose or effect of Rule 803(25). Even if trial courts are not permitted to
exclude child testimony based upon potential harm, trial courts may still exclude child
testimony based upon a balancing of the considerations outlined in Rule 403. In the event
a trial court properly excluded a child’s testimony predicated upon the Rule 403 balancing
test, DCS would still be permitted to introduce the out-of-court statements of a child under
the age of thirteen even though the child could not be called as a witness. Moreover, as
Stepfather points out, not every respondent subject to a dependency and neglect action
wishes to call the child as a witness. In those situations, Rule 803(25) still serves the
purpose of relieving DCS from calling the child as a witness in order for the child’s out-
of-court statements to be admitted into evidence. Notwithstanding our holding, Rule
803(25) would permit DCS to introduce the out-of-court statements of a declarant under
the age of thirteen without first having to call the declarant as a witness. Our conclusion
that trial courts may not exclude the testimony of a child otherwise competent based upon
potential harm does not impede the purpose, operation, or effect of Rule 803(25). Ergo,
DCS’s reliance on the referenced hearsay exception is unavailing.
Although we laud the trial court’s thorough analysis and apparent grappling with
this difficult issue, as well as the court’s concern for the child’s best interest and emotional
and psychological well-being, we are constrained to determine that the court erred in
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precluding Stepfather from calling Kansas as a witness based on a balancing test that does
not lie in Tennessee’s evidentiary rules. We must now consider the effect that the court’s
error had on the outcome of the trial. See Tenn. R. App. P. 36(b) (“A final judgment from
which relief is available and otherwise appropriate shall not be set aside unless, considering
the whole record, error involving a substantial right more probably than not affected the
judgment or would result in prejudice to the judicial process.”); In re Melanie T., 352
S.W.3d 687, 698 (Tenn. Ct. App. 2011) (“If the appellate court concludes that a trial court
improperly excluded otherwise admissible evidence, ‘[t]he erroneous exclusion of
evidence will not require reversal of the judgment if the evidence would not have affected
the outcome of the trial even if it had been admitted.’”) (internal citations omitted); see
also Norton, 928 S.W.2d at 448 (concluding that the trial court’s error in excluding the
child’s testimony “more probably than not . . . did not affect the judgment, due to the
substantial, clear and convincing evidence on the issue of termination.”).
DCS argues that any error was harmless due to the trial court’s conclusion that it
would still find by clear and convincing evidence that Stepfather had sexually abused
Kansas even if Kansas were to testify that she did not recall the abuse. In its order denying
Stepfather’s request to call and question Kansas as a witness, the trial court explained:
Whatever her memory, or lack of memory, this Court cannot be persuaded
that Kansas’s disclosures at the time they were made to her father and to the
forensic interviewer were not trustworthy, accurate and credible. This is not
a close case. If Kansas remembered nothing during the course of her
examination in these proceedings or remembered facts that were contrary to
the facts that she disclosed to her father and the forensic interviewer, it would
not alter this Court’s opinion.
Accordingly, DCS contends that Kansas’s testimony would not have affected the outcome
of the trial.
Notably, Stepfather did not request to call Kansas as a witness to challenge her
memory but rather to elicit whether Father had coached Kansas to fabricate the sexual
abuse allegations.3 In the event that Kansas had been permitted to testify and did, in fact,
articulate that she had been coached by Father to fabricate the claims, then such testimony
certainly could have affected the outcome of the trial. Whether Kansas would have testified
that Father had coached her or suggested to her that she fabricate the allegations against
Stepfather is unknown considering that Kansas was not permitted to testify and the forensic
interviewer did not ask questions to gauge whether she had been coached. Nevertheless,
3
Although Stepfather did not make an explicit offer of proof in compliance with Tennessee Rule of
Evidence 103(a)(2), the substance of the evidence he hoped to elicit from Kansas was apparent from the
context of the briefs filed and arguments presented before the trial court.
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inasmuch as DCS’s dependency and neglect action against Stepfather relies almost entirely
on Kansas’s out-of-court statements to Father and the forensic interviewer, it is impossible
for this Court to know whether the excluded evidence would not have affected the outcome
of the trial had it been admitted. See Roberts v. Roberts, No. W2016-01810-COA-R3-CV,
2017 WL 5634247, at *6 (Tenn. Ct. App. Nov. 22, 2017) (denying the mother’s argument
that the trial court’s erroneous exclusion of the child’s testimony amounted to harmless
error when it was “simply impossible for this Court to know whether the exclusion of the
Child’s preference affected the outcome of the case”).
For the foregoing reasons, we must remand the case for the trial court to consider
testimony from Kansas, provided that she is competent to testify and the court does not
otherwise exclude the evidence utilizing the Rule 403 balancing test.4 See Howe, 2017 WL
1324177, at *4 (“The trial court is best situated to conduct the Rule 403 balancing test.”).
With respect to the trial court’s role in determining Kansas’s competency, we note that the
“pivotal issue in the court’s determination is the child-victim’s ability to understand the
necessity of telling the truth while testifying during the course of the trial” and that “[o]nce
the trial court has ruled the child-victim is competent to testify, the [opposing party] has
the burden of illustrating why the child [is] not competent.” See State v. Griffis, 964
S.W.2d 577, 592 (Tenn. Crim. App. 1997). We emphasize that nothing in our Opinion
should be interpreted as granting Stepfather’s counsel the right to directly examine or cross-
examine Kansas face-to-face in the courtroom and that the trial court maintains discretion
to consider and implement the accommodations outlined in Tennessee Rule of Juvenile
Practice and Procedure 306 to minimize the potentially harmful effects of testifying. The
issues with respect to the merits of the trial court’s conclusion that the Children were
dependent and neglected, as well as Stepfather’s due process claim, are pretermitted as
moot.
V. Conclusion
For the foregoing reasons, the trial court’s judgment adjudicating the Children
dependent and neglected is vacated. This case is remanded to the trial court for the court
to permit Stepfather to call Kansas as a witness and for the court to hear and consider such
testimony, provided that the court determines Kansas competent to testify and does not
exclude the evidence pursuant to Tennessee Rule of Evidence 403. The trial court should,
in its discretion, consider and implement any accommodations delineated in Tennessee
Rule of Juvenile Practice and Procedure 306 if Kansas is permitted to testify. Pending
adjudication of the dependency and neglect issue following remand from this Court, all of
the trial court’s safeguards and restraints concerning Mother’s and Stepfather’s contact
4
We note that Stepfather has also requested that this Court assign a different trial court judge on remand
due to his concern that he would not have “a fair opportunity to change the Trial Court’s decision on the
merits of the case.” We have determined that Stepfather’s request is moot inasmuch as the trial court judge
who heard and adjudicated the case has since retired from the bench.
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with the Children as delineated in its final order will remain in effect unless and until the
trial court rules otherwise. These safeguards include: (1) maintaining custody of Kansas
and Elijah with Father; (2) restricting Mother to supervised visitation with Kansas and
Elijah, to be supervised by Father; (3) prohibiting Stepfather from maintaining any contact
whatsoever with Kansas and Elijah; (4) restricting Stepfather to supervised visitation with
Isaiah and Jonathan; and (5) prohibiting any of the parents from discussing the court
proceedings with the Children outside of a therapeutic setting with licensed counselors.
We reiterate that the trial court retains the authority to maintain the status quo or to modify
these restrictions as it deems appropriate. Costs on appeal are taxed to the appellee, the
Tennessee Department of Children’s Services.
s/ Thomas R. Frierson, II _____________
THOMAS R. FRIERSON, II, JUDGE
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