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6 ABA Juv. & Child Welfare L. Rep. 1 (1987-1988)

handle is hein.journals/chilawpt6 and id is 1 raw text is: ABA . 11 JVENILE & CHILD WELFARE fI.w(Reporter VOL. 6, No. 1 March 1987 CHILD WELFARE Abuse, Competency Failure To Order Psychiatric Examina- tion Of Three And One-Half-Year-Old Witness In Criminal Child Abuse Pro- secution, Based Solely On Age, Was Not An Abuse Of Discretion State v. R.W., 104 N.J. 14, 514 A.2d 1287 (1986). After marital discord had developed be- tween the parents of a three-year-old child, the couple separated and arranged for shared custody of their daughter. Some three months later, the mother became suspicious that the father may have been sexually molesting the child during his periods of custody. This suspicion was based upon statements made by the child to the mother. The child also described the incidents of abuse through the use of anatomically cor- rect dolls. No physical evidence of intercourse was discovered, however. Based upon the statements of the child, the father was charged with sexual assault, ag- gravated sexual assault and endangering the welfare of a child. Prior to trial, the father moved to have his daughter examined by a psychiatrist in order to show that she would be incompetent as a witness. The court queried whether the child had any mental diaorder or learning disability and was in- formed that she did not. Prior to allowing the child to testify, the court also questioned her regarding her knowledge of the difference be- tween truthfulness and lying and the conse- quences of telling lies. The court was satisfied as to the witness's competence and, over the father's objections, allowed her to testify. The father was thereafter found guilty, and he ap- pealed. The New Jersey Supreme Court held that no error had been made by the trial court. Determinations of witness competence lie within the discretion of the trial court and exercise of this discretion did not change merely because of the youthfulness of the witness. The state supreme court had previously ruled that age, standing alone, could not render a witness incompetent. When faced with a motion calling a witness's competence into question, the movant must demonstrate a substantial need for the re- quested examination, based upon a demonstrated defect or deviation in the witness's physical or mental state which might arguably affect her competence. As ,ge alone could not suffice to disqualify the witness, the father would have had to demonstrate some problem of his daughter which could affect her credibility. Since no such evidence had been presented, the trial court did not abuse its discretion in denying the motion. Abuse, Prenatal Injury Child Born Addicted Due To Mother's Heroin Use During Pregnancy May Be Adjudicated An Abused Child. In re Ruiz, 27 Ohio Misc.2d 31 (Common Pleas 1986). An infant was born addicted to heroin as a result of his mother's admitted use of the drug during her pregnancy. Two weeks after his birth, the child was taken into custody by the county child welfare agency and an abuse petition was filed. The mother ap- parently moved to dismiss the petition on the basis that while she was using heroin, and transmitting her addiction to her son, the un- born fe:us was not a child for the purposes of the Ohio child abuse statute. Once the child had been born, the mother no longer was acting so as to create a substantial risk to the health or safety of the child, by violating a duty of care, protection or sup- port as required for a finding of abuse under O.R.C. §2919.22(A). The Ohio Court of Common Pleas rejected this argument and held that the child could be judicially determined to have been abus- ed. The court ruled that a fetus' viability con- ferred the status ofchild, and that actions such as those taken by the mother during this period of prebirth viability were covered by the abuse statute. The court looked to previous rulings in the areas of abortion, per- sonal injury, wrongful death, and criminal prosecution for murder regarding fetal rights in support of its decision, as well as the holdings of two other states on the issue which the court faced. Once a fetus becomes viable, the court wrote, the state possessed a legitimate interest in protecting its healthy physical and mental development. Thus, in this case, a finding of abuse was warranted. Abuse, Disposition Court Need Not Base Adjudication Of Neglect Upon Finding Of Sexual Abuse In Order To Validly Require Father To Complete Sexual Offender Program Prior To Unsupervised Visitation. In re Welfare of G.C., 394 N.W.2d 830 (Minn. App. 1986). A petition was filed alleging that an eight- month-old female child was neglected and dependent. The bases for the complaint was the poor physical condition of the parents' household, the lack of parenting skills and continued on next page HIGHLIGHTS Child Welfare 1 Juvenile Justice 4 Child Welfare 7 Other Cases of Interest 9 Supreme Court News 10 Child Abuse Record Confidentiality Laws Legislative Report 11 Federal Child Abuse Regulations American Bar Association

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