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American Bar Association

ABA Section of Litigation
Children's Rights Litigation
 

Case Notes

 

In re Pamela A.G.

139 N.M. 459, 134 P.3d 746 (2006)


After the four (4) year old child made statements describing sexual abuse to her foster parents, a state social worker, a trained forensic interviewer, and her therapist, the state amended its abuse and neglect petition to include allegations of sexual abuse. At the adjudicatory hearing, the lower court allowed the child’s out-of-court statements into evidence under New Mexico’s catch-all hearsay exception permitting hearsay when "equivalent circumstances of trustworthiness" exist.


Rejecting the adoptive father’s due process and confrontation arguments, the New Mexico Supreme Court affirmed the lower court. Noting the parents’ fundamental liberty interests, the court also noted that the constitutional right to confront witnesses does not apply to civil, child welfare proceedings. The court also held that the record established that the requirements of due process were met. The lower court followed the controlling rule for assuring reliability of the hearsay, the adoptive parents’ had the opportunity to cross-examine the hearsay witnesses and to challenge the reliability methods of the forensic interview, and the parents had advance notice of the state’s intent to use the child’s statements. The adoptive parents did not attempt to call the child as a witness or request permission to question the child themselves. Given that the child’s statements were consistent and spontaneous and that the child exhibited sexualized behavior and language not common in children her age, the court found that the procedures used did not increase the risk of the parents erroneously losing their fundamental rights.


Significantly, the court provided further guidance to both trial court judges and attorneys for the state. With regard to judges, the court cautioned, “...the trial judge should probe for an explanation as to why a child will not testify, such as the explanation offered here by the Child’s therapist. Even in civil cases, in-court confrontation is preferred. We emphasize that trial judges should explore alternatives for the questioning of a child in order to help the fact-finder test the reliability of the child’s statements while also protecting the child’s emotional state. Alternative procedures such as videotaped depositions or testimony in camera have been used to prevent possible psychological trauma to the child.” And as for attorneys prosecuting abuse and neglect petitions, the court warned, “‘[w]hile we do not expect CYFD to act as [parent’s] counsel, we remind counsel that their role as an attorney for CYFD is analogous to the role of prosecuting attorneys. The prosecutor’s obligation is to protect not only the public interest but also the rights of the accused. Similarly, CYFD must seek not only to protect the children involved; they must see to it also that the parents are dealt with in scrupulous fairness.’”


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