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

handle is hein.journals/chilawpt6 and id is 1 raw text is: ABA
VOL. 6, No. 1                March 1987

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-
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
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
American Bar Association

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