Acceptable Testimony from a Three-Year-Old

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.

“The 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 as evidence.

Categories: Family Law
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