Father [F] and Mother [M] were married and had two children, a son [S]
age five, and a daughter [D] age three.
In the summer of 2012, an eight-year-old boy [B] from the neighborhood
came over to play with S and D. M noticed that the children were playing
the S’s room and the door was closed. She went to check on the children.
She noticed that they were on the bed and that a blanket had been thrown
over them. She asked the kids, “What’s going on?” and
D replied, “Oh nothing, we’re just kissing.” M asked
S what was going on and he told M that B was on top of D, kissing her
and told D, “We’re going to f***.” S also told M that
B told S to look away, but S saw B try to put a wooden train in D’s vagina.
M told B to leave and that she was going to call his mother. Next, she
called a local hospital for advice and was told to call the police. The
police arrived and took a report and had D examined by a doctor. The results
were inconclusive. A report was also filed with Child Protective Services
[CPS]. The CPS report was inconclusive as well.
About two months later during a family discussion, D blurted out to M “Daddy
put his penis on me.” After numerous attempts at clarification,
D insisted that her father had put his penis on her. Later that day, a
child welfare worker made an unannounced visit to D’s day care center.
Again, D stated that F had touched her vagina with his penis. (A second
medical exam proved inconclusive.) According to CPS records when questioned
again, D stated, “I told daddy put penis on me,” adding, “then
he put a train on me and he put a flower on me yesterday.” Pointing
to the mat next to her, she said, “In this bed,” but then
said they were on S’s bed. D climbed on the mat, lay down and opened
her legs and, gesturing towards her groin area, said “he do this
to my vagina.” When asked again what F had done, D repeated: “Put
a penis and then a flower and then the train.”
S and D were removed from the family home and placed in foster care. At
their first hearing, the children were returned to M, but ordered F removed
from the family home.
At trial, the juvenile court stated: “This is a very difficult case
because the evidence comes from a three-year-old child who, at times,
was very clear in her statements about what happened, and at other times
was very unclear, and at times very confusing about the statements that
she makes concerning what she alleges [F] did to her. Essentially, all
the court has to go on in this case is the hearsay statements of a three-year-old
minor.” But in interest of child safety, and by a preponderance
of the evidence, the court found F molested his child.
F appealed and the Appellate Court agreed with the juvenile court, so F
took his case to the California Supreme Court.
The California Supreme Court agreed with F. There are times when the hearsay
evidence of a three year may be necessary for the prevention of harm to
a child. However, when the statements made and other evidence are inconclusive,
then the child’s statements are not reliable.
reliability requirement is an important procedural safeguard against the risk of erroneous determinations
based solely on hearsay statements in an area in which the truth of a
hearsay statement [is] particularly open to question, and in which the
cost of error may be to needlessly separate families from one another,
at substantial cost to parents and children alike.
There were many times D made statements to social workers and other investigators
that were completely untrue (such as going to the movies with her mother
when in fact D was at her day care center). These statements were woven
into her statements of sexual molestation, and could not be relied upon