Posted by Nydia Streets of Streets Law in Florida Domestic Violence

When a parent is accused of child abuse, the child’s statements regarding the abuse may not be considered by the court unless they meet what is know as a hearsay exception. In the case Perrault v. Engle, 4D18-3458 (Fla. 4th DCA April 15, 2020), an unfortunate scenario arose in which a father was accused of sexually abusing his three year old son and an injunction was entered as a result.

The history of the case indicated a fractured relationship between the mother and father of the child. Over the years, the mother called the police on the father repeatedly as they alternated time-sharing with the child. None of the calls resulted in any prosecution against the father. Then, the mother filed a petition for protection against domestic violence on behalf of the child against the father, accusing the father of sexual abuse. After a child hearsay hearing, the court admitted the child’s alleged statements about the alleged abuse and granted the petition.

The mother testified that she saw the child touching his private parts while watching TV. She was not alarmed and continued to prepare dinner. She thereafter questioned the child about what he was doing when the child allegedly responded that he was playing a game he and his father would play wherein the father would place his private parts in the child’s mouth. After prompting, the child allegedly repeated these statements to his maternal grandparents. A counselor at a child sexual assault crisis center questioned the child, and the child initially denied anything happened. After repeated questioning, however, the child eventually repeated the story he told his mother. The counselor’s interviewing technique was later criticized by experts in the field. The trial court admitted the hearsay evidence, and based on the child’s statements, entered the injunction and the father appealed.

The appellate court found there was no corroborating evidence to support the hearsay statements as required by the law. The court held “To the extent it could be found that there were sufficient indicia of reliability (which is questionable), we can easily find that the child's hearsay statements were not corroborated, as required prior to admission at the final hearing. First, the trial court relied on the testimony that the child was touching himself while watching television. The testimony indicated that the mother observed the behavior and was not alarmed, and that such behavior is normal. While highly sexualized behavior by a child can constitute corroborating evidence, this testimony fell short of establishing as much. [. . .] The trial court also relied on the child's pantomime of the alleged abuse. But according to the mother, the child's pantomime was done in response to her direction to the child to show her what happened. As such, it was hearsay. See § 90.801(1)(a), Fla. Stat. (defining ‘statement,’ for purposes of the hearsay definition, as including ‘[n]onverbal conduct of a person if it is intended by the person as an assertion’); [. . .] . A ‘child declarant's hearsay statements cannot be 'other' corroborating evidence within the meaning of section 90.803(23)[.]’ [. . . ] Finally, the trial court relied on the interviewer's testimony that she found the child reliable and trustworthy. This is not corroborating evidence.”

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