8 ABA Juv. & Child Welfare L. Rep. 1 (1989-1990)

handle is hein.journals/chilawpt8 and id is 1 raw text is: ABA
JUENIL &CHILD WELFARE
J.w(Rkeporter

VOL. 8, No. 1

March 1989

CHILD WELFARE
Abuse, Appeal
Dismissal Of Abuse Petition Due To In-
sufficient Evidence Is Not A Final
Dispositional Order For The Purpose Of
An Appeal.
In re Jessica J.,
--N.H.-, 546 A.2d 1056 (1988).
An abuse petition was filed regarding a five-
year-old child. At the conclusion of the
adjudicatory hearing, the trial court dismissed
the petition due to the state's failure to sus-
tain its burden of proof. The state sought to
appeal the matter. The court ruled, however,
that there could be no such appeal because
the dismissal was not a final dispositional
prder. The state again appealed.
/ The New Hampshire Supreme Court
affirmed. Under the state's abuse/neglect
statutory scheme, there could be only two
possible results in an adjudicatory hearing;
the petition would be dismissed if the
evidence was deficient, or the petition would
be sustained. If sustained, the court would
order the child welfare agency to submit a
social report prior to the final disposition
of the case. The court would then be
required to hold a hearing on final disposi-
tion within 30 days after a finding of abuse
or neglect (emphasis in original). Any
appeal would lie within 30 days of the entry
ofthe final dispositional order. In light of
this statutory language, the court held that
a finding of abuse or neglect was the pre-
requisite to an entry of a final dispositional
order. The state would therefore not be
allowed to appeal the dismissal of the abuse
petition.
On December 19, the Court of
Appeals for the Fifth Circuit
granted a rehearing en banc in Del
A. v. Edwards, 856 F. 2d 1148, 7
ABA Juv. & Ch. We'f L. Rptr.
168, reh'g granted, 862 F. 2d 1107.

* Abuse, Confrontation
Defendants' Right To Face-To-Face
Confrontation Of Child Abuse Victims
Was Not Violated By Video Deposition
Testimony In Light Of Particularized
Findings That Live Testimony At Trial
Would Traumatize Children.
State v. Tafoya,
No. 9004 (N.M. App. Sept. 22, 1988)
(earlier decision reported at 6 ABA Juv. &
Ch. Wel'f L. Rptr. 26 (1988).
and
Glendering v. State,
No. 70,346 (Fla. Dec. 1, 1988).
The defendants in each of these cases had
been convicted of various sex crimes
perpetrated against children. Part of the
states' proof consisted of the victims'
videotaped deposition testimony. The
statutory prerequisites for the taking of such
testimony were findings that the individual
child would be unable to testify before the
court without suffering some degree of mental
or emotional harm. The trial courts in each
case made the appropriate findings under
their states' statutes, and the videotaped
depositions were taken. While the defendants
were not allowed to view each witness on a
face-to-face basis during the deposition, they
were able to see and hear the testimony and
to communicate with their attorney via a two
way mirror in one case and via an audio-
visual link-up in the other. The defendants'
appeals were grounded upon confrontation
clause concerns. During this period of time,
the United States Supreme Court addressed
the question of face-to-face confrontation in
child abuse cases in its decision in Coy v.
Iowa, 487 U.S. 00, 7 ABA Juv. & Ch. Wel'f
L. Rptr. 76 (1988).
The New Mexico Court of Appeals and the
Florida Supreme Court affirmed the convic-
tions, finding that the opinion in Coy did not
mandate a reversal. The.courts recognized
that Coy stood for the proposition that face-
to-face confrontation was guaranteed by the
sixth amendment. However, the statute ad-
dressed in Coy created a presumption that

a child abuse victim would be traumatized
by having to testify in the presence of the
defendant at trial. In Florida and New
Mexico, no such statutory presumption
existed. The courts viewed Coy as allowing
for possible exceptions to the face-to-face rule
in cases such as these, where particularized
findings of likely trauma were made by the
trial court prior to the authorization of the
video deposition's taking. In light of these
particularized findings, the courts were con-
vinced thrt the harm to the victims out-
weighed the defendants' right to face-to-face
confrontation.
Abuse, Evidence
Incest Statute Did Not Prohibit Sexual
Contact Between Stepgrandfather And
Stepgranddaughter.
and
Hearsay Evidence Regarding Sexual
Abuse Was Improperly Admitted.
Glisson v. State,
-Ga. App.-, 372 S.E.2d 462
(1988).
A stepgrandfather was accused of com-
mitting incest with his minor stepgrand-
daughter. At trial, the child refused to testify
continued on next page
HIGHLIGHTS
Child Welfare                  1
Ri hts of Children
an  Families                  6
Juvenile -Justice              8
Other Cases
of Interest                  10
Supreme Court News           12
From the ABA                 14
Surrogates, Grandparents and
Putative Fathers
American Bar Association

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