Hearsay Can Be Admitted – Rarely

IN RE: H.G., 2023-NCCOA-______ (2023) (unpublished).

Facts:

In June 2012, the respondent adopted Heather, along with her older sisters Sally and Ellen. In a prior legal proceeding, allegations of improper discipline led to the adjudication of neglect and dependency for Heather, and abuse, neglect, and dependency for Sally and Ellen.
However, these adjudications were reversed in July 2020 due to inadmissible hearsay. On 8 July 2020, a report was made to the Guilford County Department of Health and Human Services, alleging sexual abuse and an injurious environment for Heather. Heather confirmed the allegations during interviews, reporting inappropriate sleeping arrangements and touching by the respondent.

Subsequent interviews with Heather and her sisters revealed concerning behaviors by the respondent, including showering and sharing a bed with Heather. Based on the investigation, the DHHS filed a petition in July 2020, asserting that Heather was an abused, neglected, and dependent juvenile. In October 2020, DHHS filed a motion to present hearsay statements from Heather and her sisters during the adjudication process.

The trial court granted this request, considering the statements under the residual hearsay exception. Heather’s therapist indicated that Heather was not ready to testify, further supporting the admission of the hearsay statements. Following hearings in September 2021 and March 2022, the trial court adjudicated Heather as an abused, neglected, and dependent juvenile, ultimately determining that she should remain in DHHS custody, with reunification efforts between Heather and the respondent ceasing. The respondent appealed.

• Issue: Did the trial court err by admitting hearsay testimony?

• Holding:

• Rationale: In order to admit hearsay under the residual exception, the trial court must make findings determining whether (1) proper notice has been given; (2) the hearsay statement is not specifically covered elsewhere; (3) the statement possesses circumstantial guarantees of trustworthiness; (4) the statement is material; (5) the statement is more probative than any other evidence which the proponent can procure through reasonable efforts; and (6) the interest of justice will be best served by admission.

  Respondent argues that the third prong was found in error. Under North Carolina law, trustworthiness is determined by factoring (1) the declarant’s personal knowledge of the underlying event; (2) the declarant’s motivation to speak the truth or otherwise; (3) whether the declarant ever recanted the testimony; and (4) the practical availability of the declarant at trial for meaningful cross-examination. Running the analysis to Heather’s statements to her therapist, there was personal knowledge, no evidence of a reason to lie, no recanting, and she was unavailable. No error.