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D.W. v. State of Alaska in the Matter of A.S.W. and E.W. (5/29/92), 834 P 2d 801
Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical or
other formal errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, in order that corrections may be
made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of )
) Supreme Court File No. S-4181
A.S.W. and E.W., ) Superior Court File No.
) 3AN-89-45/46A Civil
Minors Under the Age of )
Eighteen (18) Years, ) O P I N I O N
STATE OF ALASKA, )
Appellee. ) [No. 3847 - May 29, 1992]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Keenan Powell, Anchorage,
for Appellant. Lisa B. Nelson, Assistant
Attorney General, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
D.W. appeals the superior court's determination that
his two daughters, A.S.W. and E.W., are "children in need of
aid." He maintains that the superior court erred in admitting a
videotaped interview with A.S.W. under the "catch-all" exception
to the hearsay rule because the videotape lacks the necessary
guarantees of trustworthiness. He also contends that his
daughter's videotaped statement unreasonably curtailed his
constitutional right to confront his accuser. Because we
conclude that the superior court properly admitted A.S.W.'s
videotaped interview, we affirm the court's assumption of
jurisdiction over the children.
D.W. and J.H. have two daughters, A.S.W. and E.W. J.H.
first suspected that her husband might have abused A.S.W. in
November 1988, shortly after she and her husband separated. When
she told four-year-old A.S.W. that her father would not be living
with them for a while, A.S.W. asked her whether this meant that
A.S.W.'s father would not hurt her any more. This question
prompted J.H. to speak further with A.S.W. and, over the next few
days, A.S.W. described how her father had sexually abused her.
J.H. reported the alleged abuse to the Alaska State
Troopers.1 On January 13, 1989, A.S.W. was interviewed by
Trooper Theresa Stewart and social worker Sandy Csaszar. Prior
to the videotaped interview, J.H. introduced A.S.W. to the
officers and provided them with some basic biographical
information. J.H. was not present during the actual interview.
The videotape lasts approximately one hour. In the
interview, A.S.W describes when, where and how her father abused
her. In child-like terms she describes how her father attempted
penile penetration, performed cunnilingus, ejaculated on her, and
put his finger and other objects in her anus. She describes the
places in her house where these incidents took place. She
connects incidents of abuse to other events in her life: her
third birthday; the time she had a rash in her vaginal area which
required medication; the birth of her little sister; and when she
got her "new"bed. These incidents apparently took place during
the summer of 1987 when A.S.W. was three. Although A.S.W. is
confused at times as to how old she was when some of the alleged
abuse occurred, she states clearly that the incidents with her
father occurred after the incidents with the teenage boys and
that the abuse did not continue after she turned four. The
interviewers asked her questions in an open-ended, non-leading
manner. However, there was no element of cross-examination. The
interviewers did not challenge A.S.W.'s statements or ask whether
she had been coached.
In January 1989, the state filed a Petition for
Adjudication of Child in Need of Aid. Before the adjudication
hearing, the guardian ad litem moved for a protective order
precluding the use of A.S.W. as a witness at the hearing. In
granting the motion, the court found that A.S.W. was
"unavailable"as a witness because she suffered from arrhythmia.
The court was concerned that the trauma of testifying would
aggravate that condition.
The State moved to admit A.S.W.'s videotaped statement
under a variety of theories. Both parties briefed this issue
before the adjudication hearing. At the hearing, the discussion
focused on whether the videotaped statement exhibited the
"circumstantial guarantees of trustworthiness" required under
Alaska Rule of Evidence 804(b)(5). The State suggested that the
court view the tape itself to determine whether the appropriate
guarantees were present. All parties agreed to this procedure.
After viewing the tape, the court admitted the
statement. The trial judge specifically stated that he believed
that the child was actually relating her own experiences and that
she had not been coached. In addition to the videotape, the
State presented testimony from J.H., A.S.W's pediatricians and
A.S.W.'s therapist. J.H. testified that she had not coached
A.S.W. in any way.
D.W. denied that he had ever sexually abused his
daughter. He testified that he and J.H. were in the midst of an
acrimonious divorce. He stated his belief that J.H. had coached
A.S.W. to tell this story so that J.H. would have grounds for
divorce consistent with her religious beliefs. He stated that
J.H. had manufactured these charges after he refused to sign
At the conclusion of the adjudication hearing, the
court ruled that A.S.W. and her sister E.W. were "children in
need of aid." The trial judge based his decision on his finding
that A.S.W. had been sexually abused by D.W. and that E.W. was at
substantial risk of being sexually abused. Consequently, the
court assumed jurisdiction over the two girls pursuant to AS
A dispositional hearing was held in December 1989. The
court gave the Department of Health and Human Services temporary
custody of the children and returned them to their mother's care.
The court directed D.W. to have no contact with the children
except through arrangements with the Department.
D.W. claims that the superior court abused its
discretion in admitting the videotaped interview with his
daughter under Alaska Rule of Evidence 804(b)(5). Although D.W.
does not challenge the basis of the trial court's finding that
A.S.W. was "unavailable"to testify at trial, he argues that the
videotape does not provide the circumstantial guarantees of
trustworthiness which would justify admitting it into evidence.3
The residual exceptions to the hearsay rules, embodied
in Alaska Rule of Evidence 803(23) and Alaska Rule of Evidence
804(b)(5), permit the trial judge to admit hearsay statements
which do not fall within one of the traditional exceptions.4
Generally, the residual exceptions are to be used only on rare
occasions where the court finds the evidence "to have guarantees
of trustworthiness equivalent to or exceeding the guarantees
reflected by the presently limited exceptions, and to have a high
degree of probativeness and necessity."Alaska R. Evid. 803(23)
Commentary; see also Brandon v. State, 778 P.2d 221, 227 (Alaska
App. 1989) (holding that the residual exceptions to the hearsay
rule are to be used rarely).
The rule against the admission of hearsay stems from
the long established belief that cross-examination is the best
vehicle for discovering the truth. 5 Wigmore, Evidence 1362
(Chadbourn rev. 1974); Ohio v. Roberts, 448 U.S. 56, 64-65
(1980). The traditional exceptions to the hearsay rule form two
general classes: (1) those statements which are so inherently
reliable that cross-examination is thought unnecessary (Rule
803); and (2) those statements which are sufficiently reliable to
be admitted in light of their great evidentiary value when the
declarant is unavailable (Rule 804).
The out-of-court statements of a child in proceedings
where abuse is alleged are often quite necessary to the
administration of justice.5 Therefore, if the child is
unavailable to testify,6 the courts should admit the statements
if the statements are sufficiently reliable.
We recently held that a child's out-of-court
identification of her alleged abuser was admissible under
Evidence Rule 803(23) for the purpose of defeating a summary
judgment motion. Broderick v. King's Way Assembly of God Church,
808 P.2d 1211 (Alaska 1991). In King's Way, a child told her
mother that a church day-care worker had sexually abused her.
The mother and her boyfriend took the child to the church nursery
where the child identified the defendant. Id. at 1213-14. The
child's identification was the only evidence linking the
defendant to the abuse. The trial court ruled that the mother's
deposition and affidavit testimony of her daughter's declaration
of abuse were inadmissible as hearsay and granted the defendants'
motion for summary judgment in the subsequent civil damages
action. Id. We reversed.
In determining that the child's statement exhibited
sufficient guarantees of trustworthiness, we relied on the
following factors: (1) the spontaneity of the child's statements;
(2) the age of the child; (3) the use of "childish"terminology;
and (4) the consistency of statements. Id. at 1219-20. However,
we emphasized that these factors were not all inclusive nor
should they be applied mechanically. Id. at 1219 n.18 (quoting
Idaho v. Wright, 493 U.S. 1041 (1990)).7 We instructed the trial
court to conduct a searching review of the facts in each
individual case before admitting out-of-court statements under
either Evidence Rule 803(23) or Evidence Rule 804(b)(5).8 Id. at
In the present case, we agree with the trial court's
determination that A.S.W.'s videotaped interview exhibits
sufficient guarantees of trustworthiness.9 The four-year-old's
statements on the videotape are spontaneous and natural. She
used child-like terminology to describe graphic sexual behavior
and tied these incidents to events that would be prominent in the
mind of a small child. She distinguished between the earlier
abuse by the teenage boys and the abuse by her father.
Furthermore, the interviewers conducted themselves in a neutral
fashion and did not extract her statements.
The remainder of the requirements for Evidence Rule
804(b)(5) are easily satisfied in this case and D.W. does not
attempt to contest them. We conclude, therefore, that A.S.W.'s
statements are admissible under Evidence Rule 804(b)(5).
D.W. next asserts that the opportunity to cross-
examine and confront his accuser, in this case a four-year-old
child, was essential to afford him due process of law.
The Confrontation Clause of the Sixth Amendment of the
United States Constitution provides: "In all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him. . . ." The Alaska
Constitution art. I, 11, also secures the right of
confrontation for criminal defendants. Alaska Const. art. I,
11. Neither provision specifically applies to civil proceedings.
A civil litigant's right to confront witnesses is instead founded
upon notions of procedural due process. Thorne v. State, Dep't
of Public Safety, 774 P.2d 1326, 1332 (Alaska 1989). Therefore
the question is not whether D.W. is guaranteed a constitutional
right to confront adverse witnesses, but whether due process, in
this case, necessitates that D.W. be afforded the right to cross-
examine his daughter.
Child in Need of Aid Rule 1(f) provides in part that:
Where no specific procedure is
prescribed by these rules, the court may
proceed in any lawful manner, including
application of the Civil Rules, applicable
statutes, the Alaska and United States
Constitutions or the common law. Such a
procedure may not be inconsistent with these
rules and may not unduly delay or otherwise
interfere with the unique character and
purpose of child in need of aid proceedings.
CINA Rule 1(f). Child in Need of Aid ("CINA") proceedings are
designed to protect children from injury or mistreatment and to
help safeguard their physical, mental and emotional well-being.
AS 47.05.060; In re J.R.B. and T.W.G., 715 P.2d 1170, 1173
(Alaska 1986). These confidential proceedings are not concerned
with imposing either criminal penalties or civil liability on the
alleged abuser. The focus of a CINA proceeding is not whether
conduct constituting child abuse occurred, but whether the
child's well-being is imperiled.
In addition, CINA proceedings are tried before a judge,
not a jury. While, in a jury trial, the admission of improper
evidence may pose a threat to the accuracy of the outcome, in a
CINA proceeding, the judge is more capable of attributing the
proper weight to the evidence presented by the parties.
We have previously noted that "[d]ue process is
flexible, and the concept should be applied in a manner which is
appropriate in terms of the nature of the proceeding." In re
C.L.T., 597 P.2d 518, 523 (Alaska 1979) (quoting Otton v.
Zaborac, 525 P.2d 537, 539 (Alaska 1974)). In CINA proceedings,
the balance between children's rights and parents' rights must be
weighted in favor of protecting the child. Accordingly, we hold
that, in the adjudicatory phase of a CINA proceeding, the alleged
abuser's due process right to cross-examine the child is
adequately protected by the unavailability and reliability
requirements of Evidence Rule 804.10
We are mindful that proceedings to terminate parental
rights implicate fundamental interests comparable with those at
stake in a criminal prosecution. See J.R.B., 715 P.2d at 1173-
74; Santosky v. Kramer, 455 U.S. 745 (1982). In J.R.B., we held
that the discretionary use of hearsay evidence in the dispositive
phase of a termination proceeding does not violate the
fundamental liberty interest of the parent. J.R.B., 715 P.2d at
1174; CINA Rule 17(e). Similarly, we do not believe that the
admission of hearsay evidence under Evidence Rule 804 in the
adjudicative phase of termination proceedings is inconsistent
with fundamental fairness. Before the court may terminate
parental rights, the department must prove "by clear and
convincing evidence that . . . the parental conduct that caused
the minor to be adjudicated a child in need of aid is likely to
continue unless parental rights are terminated . . . ."CINA Rule
18(c)(1). Completely uncorroborated hearsay evidence will not
satisfy this high evidentiary standard. Therefore we conclude
that a parent's constitutional right to due process is adequately
protected by our holding even if termination proceedings are the
eventual outcome. See In re E.P., 521 N.E.2d 603, 607-08 (Ill.
App. 1988) (holding that the admission of hearsay evidence in
termination proceedings does not deprive a parent of his or her
due process right to confrontation when the out-of-court
statements are sufficiently corroborated by other evidence).
A trial court's finding that "a child is in need of
aid"under AS 47.10.010 may only be overturned if "this court _is
left with the definite and firm conviction that a mistake has
been made.'" A.H. v. State, 779 P.2d 1229, 1231 (Alaska 1989)
(quoting E.J.S. v. State, Dep't of Health & Social Serv., 754
P.2d 749, 750 n.2 (Alaska 1988)); W.M.F. v. State, 723 P.2d
1298, 1304 (Alaska App. 1986). In this case, the superior court
found that A.S.W. had been sexually abused by her father and that
E.W. was at substantial risk of being sexually abused. It based
this finding on A.S.W.'s videotaped statement and J.H.'s
testimony. Since we believe the trial court properly admitted
the videotaped statement, we find that the court's determination
that A.S.W. and E.W. are "children in need of aid"is not clearly
erroneous and is supported by sufficient evidence.
1. A.S.W. had previously been molested by two teenage
boys, D.C. and D.R. This abuse was also reported to the Alaska
State Troopers. D.C. confessed to the abuse, but D.R. denied
that he sexually abused A.S.W.
2. Alaska Statute 47.10.010 provides, in pertinent part:
Jurisdiction. (a) Proceedings relating to a minor under
18 years of age residing or found in the state are
governed by this chapter . . . when the court finds the
. . .
(2) to be a child in need of aid as a
. . .
(C) the child having
suffered substantial physical harm
or if there is an imminent and
substantial risk that the child
will suffer such harm as a result
of the actions done by or
conditions created by the child's
parent, guardian, or custodian or
the failure of the parent,
guardian, or custodian adequately
to supervise the child;
(D) the child having
been, or being in imminent and
substantial danger of being,
sexually abused either by the
child's parent, guardian, or
custodian, or as a result of
conditions created by the child's
parent, guardian or custodian, or
by the failure of the parent,
guardian, or custodian adequately
to supervise the child;
. . . .
3. The admission of evidence is committed to the trial
court's discretion and its rulings will not be overturned on
appeal in the absence of an abuse of discretion. Hawley v.
State, 614 P.2d 1349, 1361 (Alaska 1980).
4. Evidence Rule 804(b)(5) (declarant unavailability
required) provides, in part, that an out-of-court statement is
admissible if it is:
A statement not specifically covered by
any of the foregoing exceptions but having
equivalent circumstantial guarantees of
trustworthiness, if the court determines that
(A) the statement is offered as evidence of a
material fact; (B) the statement is more
probative on the point for which it is
offered than any other evidence which the
proponent can procure through reasonable
efforts; and (C) the general purposes of
these rules and the interests of justice will
best be served by admission of the statement
into evidence. However, a statement may not
be admitted under this exception unless the
proponent of it makes known to the adverse
party sufficiently in advance of the trial or
hearing to provide the adverse party with a
fair opportunity to prepare to meet it, his
intention to offer the statement and the
particulars of it, including the name and
address of the declarant.
Evidence Rule 803(23) (availability of declarant immaterial)
contains the identical wording.
5. As one commentator observes:
The unusually compelling need for
children's hearsay statements in sex abuse
cases is demonstrated primarily by the fact
that the statements often constitute the only
proof of the crime. Physical corroboration
is rare, for the crimes committed are
predominantly nonviolent in nature. Most
crimes consist of petting, exhibitionism,
fondling, and oral copulation, activities
that do not involve forceful physical
contact. The lack of physical corroboration
can also be attributed to the fact that most
children, for a variety of reasons, do not
resist their attackers and succumb easily.
Note, A Comprehensive Approach to Child Hearsay Statements in Sex
Abuse Cases, 83 Colum. L. Rev. 1745, 1749-50 (1983) (footnote
6. A witness is "unavailable"as defined in Evidence Rule
804(a) when the witness:
(1) is exempted by ruling of the court on the
ground of privilege from testifying concerning the
subject matter of the statement; or
(2) persists in refusing to testify concerning the
subject matter of the statement despite an order of the
court to do so; or
(3) establishes a lack of memory of the subject
matter of his statement; or
(4) is unable to be present or to testify at the
hearing because of death or then existing physical or
mental illness or infirmity; or
(5) is absent from the hearing and the proponent
of the statement has been unable to procure his
attendance (or in the case of a hearsay exception under
subdivision (b)(2), (3), (4), or (5), of this rule, his
attendance or testimony) by reasonable means including
In this case, the court found A.S.W. "unavailable" under
7. In Wright, the United States Supreme Court cited a
number of factors which relate to whether hearsay statements made
by a child witness in criminal sexual abuse cases are reliable:
spontaneity and consistent repetition; mental state of the
declarant; use of terminology unexpected of a child of similar
age; and lack of motive to fabricate. See also Murray v. State,
770 P.2d 1131, 1136-37 (Alaska App. 1989). In Wright, the
Supreme Court observed that "the unifying principle is that these
factors relate to whether the child declarant was particularly
likely to be telling the truth when the statement was made."
Wright, 493 U.S. at 1052.
8. We observed in King's Way that the language and purpose
of Evidence Rule 803(23) and Evidence Rule 804(b)(5) are
"identical." King's Way, 808 P.2d at 1218 n.17. However, we
wish to clarify that if the declarant is available but does not
testify, hearsay evidence should be admitted under Evidence Rule
803(23) only when the guarantees of trustworthiness are high or
when the reliability of the evidence cannot be tested by cross-
examination at that stage in the proceedings.
In King's Way, the trial court granted the defendants'
summary judgment motion after ruling that the hearsay
identification was inadmissible. The court was required to draw
all inferences in favor of the plaintiff and to disregard all
countervailing evidence, including cross-examination. Since
cross-examination was thus not a consideration, the court should
have admitted the out-of-court statement under Evidence Rule
803(23) for the limited purpose of deciding whether to grant or
deny the summary judgment motion. However, we emphasize that the
child's out-of-court identification would not have been
admissible at trial under Evidence Rule 803(23) because it is not
so inherently reliable that cross-examination is unnecessary.
The identification would only be admissible at trial if the child
declarant were found to be "unavailable" under Evidence Rule
804(a). Alaska R. Evid. 804(b)(5).
9. Although D.W. maintains that the circumstances
surrounding the making of the videotape are suspect, his
arguments are unconvincing. He claims that J.H. coached A.S.W.
to accuse him of sexual abuse. However, he offers no evidence of
coaching beyond the fact that he and J.H. were involved in an
acrimonious divorce. He also maintains that A.S.W.'s videotaped
statement was made after a "pre-videotape interview" where the
mother was present and encouraged A.S.W. to tell the "coached"
story to the interviewers. However, D.W. failed to elicit any
evidence supporting this theory during his cross-examination of
the trooper who conducted the interview. Furthermore, D.W.
elected neither to depose the social worker who was present at
the interview nor to call her for trial. The trial judge weighed
all the evidence presented at trial and concluded that A.S.W. had
not been coached.
10. In the dispositional phase of CINA proceedings, CINA
Rule 17(e) authorizes the use of hearsay evidence without a
showing of unavailability.
Hearsay which is not otherwise
admissible under a recognized exception to
the hearsay rule may be admissible at the
disposition hearing and in review of a
disposition order if the hearsay is probative
of a material fact, has circumstantial
guarantees of trustworthiness, and the
appearing parties are given a fair
opportunity to meet it.
CINA Rule 17(e).