Florida Statutes § 90.803(23) provides a hearsay exception for statements of children with a mental, developmental, or emotional level of 11 or less describing any act of child abuse or neglect. This includes, any act of sexual abuse against a child, the offense of aggravated child abuse, the offense of child abuse, or any offense involving the unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, or on the declarant child. These statements are admissible in both criminal and civil proceedings, including dissolution of marriage proceedings and civil injunction hearings (Domestic Violence, Dating Violence, Repeat Violence, and Sexual Violence Injunctions). F.S. § 90.803(23)(a). With emotions running high and contested time sharing issues involving children, the family law practitioner should be well aware of this hearsay exception. The purpose of this article is to review the basic requirements for admission of such statements.
In order for a statement regarding child abuse to be admissible under Florida Statutes § 90.803(23), multiple requirements must be met. First, a trial court must determine in a hearing, outside the presence of the jury, that: (1) the source of the information through which the statement was reported must indicate trustworthiness; and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability. State v. Townsend, 635 So.2d 949, 954 (Fla., 1994); F.S. § 90.803(23)(a)(1). The court should consider the following factors in making this determination: the reliability of the child, the nature and duration of the abuse or offense, the relationship of the child to the person who is alleged to have committed the abuse, the physical and mental age and maturity of the child, the reliability of the assertion, and any other factor that the trial court deems relevant. F.S. § 90.803(23)(a)(1). Second, the child must either testify or, if unavailable to testify, the court must find there is other evidence of abuse that corroborates the statement(s). F.S § 90.803(23)(a)(2). If the child is unavailable, the court must determine that the child’s participation in the hearing would cause a “substantial likelihood of severe emotional or mental harm,” along with findings pursuant to in Florida Statutes § 90.804(1), which defines unavailability as a witness. Third, the child must be 11 years old or younger, or have a mental, emotional, or developmental level of an 11 year old or younger. F.S. § 90.803(23)(a).
It is reversible error to admit hearsay statements related to child abuse in both the civil or criminal context when proper foundational requirements have not been established by the proponent of the evidence. Zmijewski v. B’Nai Torah Congregation of Boca Raton, Inc., 639 So.2d 1022, 1024 (Fla. 4th DCA 1994); Feller v. State, 637 So.2d 911, 915 (Fla. 1994).The trial court is required to make definitive findings of fact on the record before the statement can be admitted. F.S. § 90.803(23)(c). This hearsay exception only applies to statements of the child victim, and not to statements of children who are witnesses to the child victim’s abuse. Allison v. State, 661 So.2d 889, 893 (Fla. 2d DCA 1995). The statute does not list a notice requirement prior to the introduction of these statements for civil cases as it does in criminal (10 days notice required). However, the language of the statute states that there must be a hearing to determine the admissibility of the statements “outside the presence of the jury.” The best practice would to file the appropriate pretrial motion or notice to apprise the trial judge in advance.
Florida appellate courts have indentified the following factors that a trial court should look for when determining whether a statement describing child abuse is admissible:
• The child made a spontaneous statement and in response to questioning. Townsend, 635 So.2d at 954.
• The child was emotionally affected by the incident when the child makes the statement. Distefano v. State, 526 So.2d 110,115 (Fla. 1st DCA 1988)
• The child uses unexpected terms of his or her age when describing the abuse. Idaho v. Wright, 497 U.S. 805 (1990).
• The statement was made very close in time to the abuse. Perez v. State, 536 So.2d 206, 211 (Fla. 1988).
• The child makes the statement to numerous people. Id.
• The child’s statement is not detailed and contradictory. State v. Romanez, 543 So.2d 323, 324 (Fla. 3d DCA 1989)
• The possibility of an improper influence, e.g. a custody determination. Townsend, 635 So.2d at 954.
• The competency of the child. Id.
Family law attorneys should insure that all of the requirements are met prior to introducing a hearsay statement involving child abuse to avoid reversible error. In N.W. v. M.W., 41 So.3d 383 (Fla. 2d DCA 2010), a father moved to have unsupervised visitation with his daughter, whom he was accused of sexually molesting, during the pendency of dissolution proceedings. The appellate court held:
The trial court must make findings that satisfy two criteria: “(1) the source of the information through which the statement was reported must indicate trustworthiness; and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability.” Id.
The mother relied on statements from the child to her, her grandmother, a therapist, and to a family friend. Id. The trial judge here failed to make “findings with regard to any of these sources and failed to address the individual statements and the circumstances under which they were made.” Id.
The Fourth District Court of Appeal encountered an extreme case during an appeal from a post-dissolution order modifying the final judgment. In Pallay v. Pallay, 605 So.2d 582, 583 (Fla. 4th DCA 1992), the parties had three (3) minor children. Over ten (10) days of testimony, the mother called numerous witnesses, including all three (3) children, who asserted that the father sexually abused them. Id. The father countered with additional witnesses that the mother was emotionally abusing the children and coaching them to lie to various people concerning the alleged abuse. Id. H.R.S., the Child Protection Team, the Sheriff’s Office, the State Attorney’s Office, and the Guardian At Litem all concluded that the abuse was “highly unlikely.” Id. at 584. The appellate court affirmed the trial court’s rulings on both issues. Id. at 585. It reasoned that the trial court’s conclusions of fact that the mother had alienated the children from the father and used any means to prevent meaningful visitation, were supported by the record to uphold a substantial change in circumstances to warrant a custody modification. Id.
Attorneys practicing family law will encounter testimony involving child abuse hearsay during their career. A thorough understanding of the practical application of Florida Statutes § 90.803(23) will be extremely beneficial for advocating for their client’s position. If a party seeks to admit or exclude the testimony, he or she should pay careful attention to the factors above, identify witnesses who can corroborate or disprove the allegations, and make sure those witnesses testify at a pretrial reliability hearing. These witnesses could include family members, social workers, and members of law enforcement. However, a practitioner should use care when subpoenaing law enforcement officers if there is an ongoing investigation and make sure to obtain the proper permission from the trial court via motion when seeking to admit this testimony or records (Law enforcement or child abuse investigators/DCF) as it is usually privileged by statute absent a court order. An Assistant State Attorney ordinarily cannot and should not be subpoenaed to testify even if charges are dismissed or never pursued as their investigation is considered work product. State v. Rabin, 495 So.2d 257, 260-261(Fla. 3d DCA 1986); Eagan v. DeManio, 294 So.2d 639, 640 (Fla. 1974). If a proper predicate and a prehearing determination of reliability have not been made, an objection should be made stating the specific grounds to preclude this damaging testimony.
J. Andrew Crawford, Esquire is an AV-rated criminal defense attorney who practices in Pinellas, Hillsborough, Manatee, and Sarasota Counties. Mr. Crawford’s practice focuses on criminal defense, criminal appeals, and civil appeals. Mr. Crawford also handles Domestic Violence, Repeat Violence, Sexual Violence, and Dating Violence Injunction hearings and appeals. He can be reached via email at andrew@crawforddefense.com.