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IN RE TAYLER F. ET AL.* (SC 18280)
Rogers, C. J., and Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.* Argued February 11--officially released June 8, 2010

Jon D. Golas, for the appellant (respondent mother). Benjamin Zivyon, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner). Sheila A. Huddleston, with whom was John H. Beers, for the minor children.

Opinion

KATZ, J. The underlying neglect proceeding in the present case requires us to consider whether, and under what circumstances, a child witness may be deemed unavailable for purposes of admitting the child's outof-court statements under the residual exception to the hearsay rule when it is claimed that testifying would be psychologically harmful to the child. The respondent mother1 appeals, upon our grant of certification, from the judgment of the Appellate Court affirming the trial court's judgments adjudicating her minor children neglected. In re Tayler F., 111 Conn. App. 28, 958 A.2d 170 (2008). The sole issue in this certified appeal is whether the Appellate Court correctly concluded that the trial court properly had admitted statements made by the respondent's children under the residual exception to the hearsay rule. In re Tayler F., 290 Conn. 901, 962 A.2d 128 (2009). We affirm the judgment. The record reveals the following undisputed facts and procedural history. The respondent and her former husband (father) are the parents of Tayler F. and Nicholas F. (children). After the couple divorced in 2001, they shared custody of the children. The respondent also has an adult daughter, Melissa D., from a previous marriage. On December 7, 2004, when Tayler was eleven years old and Nicholas was nine years old, an incident occurred in which the respondent's live-in boyfriend, William B., disciplined Tayler, in the presence of the respondent and Nicholas, by putting his hands on her shoulders, walking her to her bedroom and locking her inside.2 As a result of the confrontation, Tayler became quite upset and did not want to remain in the respondent's house. Tayler informed her father about the incident, and, on December 8, 2004, the father contacted the Enfield police department and relayed Tayler's account of the events. Officer Gregory Skop investigated the complaint that same day, interviewing the father, the two children, the respondent and William B. As a result of information gleaned in those interviews, on December 9, 2004, Skop filed a report of suspected child abuse-neglect with the department of children and families (department). Karen Dupuis, a department social worker, was assigned to investigate the matter. Dupuis interviewed the father, the children and the respondent on December 10, 2004, and subsequently prepared an investigation protocol. On December 14, 2004, the petitioner, the commissioner of children and families, filed neglect petitions and a motion seeking to vest temporary custody of the children with their father. The neglect petitions alleged inadequate care, failure to provide a safe, stable and nurturing environment, emotional neglect, and inadequate supervision. Supporting documents specifically alleged, inter alia, that the children had been exposed to domestic violence in their home and that the respondent

had unresolved substance abuse issues that negatively impacted her ability to provide appropriate care for the children. The department also filed an affidavit from Dupuis setting forth the substance of her investigation. The motion for temporary custody was granted ex parte by the court. On December 22, 2004, the court sustained the orders of temporary custody by agreement of the parties. The department assigned social workers to the case: Keri Ramsey, who initially was assigned to the case, prepared a social study report, and Lisa Butler, who later took over the case, prepared a case status report. Thereafter, the court directed David M. Mantell, a clinical psychologist, to evaluate the children, the respondent, other family members and William B., subject to the adults' consent. Mantell conducted interviews on five dates between February, 2005, and June, 2005, and, on the basis of those interviews, prepared a summary report and a more comprehensive psychological report. Hearings on the neglect petitions were held on seven days between November 4, 2005, and September 29, 2006. On November 3, 2005, the day before hearings were to commence on the neglect petitions, the respondent filed a motion in limine seeking to preclude the admission of any out-of-court statements made by the children on the ground that they were inadmissible hearsay to which no exception applied. The court addressed the motion before hearing testimony from the department's first witness. The department and the father both contended that the motion in limine should be denied. The department argued that the statements were admissible under the residual exception to the hearsay rule, as long as the proper foundation could be laid, and that, under State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988), the court could dispense with the respondent's right of confrontation. The department acknowledged that the rules of practice permit the court to question child witnesses in chambers, but it asserted that it did not favor that practice in a case like the present one, wherein the two parents disputed whether the neglect had occurred and with whom custody of the children should be vested, because ``bringing children in puts them in the middle of an adult situation. Very likely raises [the] probability that the children can be harmed by the very system that . . . is designed to protect them.'' In response to the respondent's assertion that there was no proof that the children were unavailable to testify, as necessary to invoke the residual exception, the department made an offer of proof, on the basis of a conversation that the father's attorney had had with the children's therapist that morning, that ``the therapist's position is that she does not feel it would be appropriate for the children to testify, again, putting them in the middle of an adult situation, which can cause harm to them emotion-

ally.'' The department contended that this risk of harm rendered the children unavailable to testify. In response, the respondent acknowledged that she had filed the motion in limine late, but requested that the court suspend the proceedings for up to one month if necessary, to allow the parties to brief this issue. The trial court concluded that it would be inappropriate to issue a blanket exclusion of the children's out-ofcourt statements before knowing what the state would proffer. It therefore denied the motion without prejudice. The court also noted the untimeliness of the respondent's motion and denied her request to suspend the proceedings for additional briefing. When the department questioned its first witness, Officer Skop, regarding the children's statements to him, the respondent objected on hearsay grounds. The department claimed that the statements were trustworthy and reliable, and stated that ``one, we'll argue that [the children are] unavailable as well as the interests of justice that bringing them in, putting them in the middle of this hearing between the two parents . . . is going to be harmful to them, and I believe the father's attorney can address that as well in that she had the conversation with the [children's] therapist.'' The respondent again objected, claiming that allowing this evidence through Skop would deny her the right to confront and cross-examine the children and that the department had not proven that the children were unavailable. The respondent further argued that, ``[i]f they're going to claim that the children are unavailable because of some psychological reason, I'd request a hearing on that and [that it] not be done by oral argument.'' In response, the father's attorney asserted that ``the therapist thinks that it would be very detrimental to the children to have to come in here and testify. And I think . . . the only other alternative . . . is to put [them] in here on the [witness] stand or to have a hearing in Your Honor's chambers where you can question the children and, if you find it necessary, we could submit written questions that Your Honor could ask the children. But short of allowing this evidence in . . . through Officer Skop, then there will be no choice but to bring the children in. And [the children's therapist] expressly stated to me today that it will make the children feel guilty and will pit them against each other.'' After confirming the current ages of the children, Tayler being twelve years old and Nicholas being ten, the court stated: ``I cannot believe it would be in the best interest of the children to subject them to this contested hearing and cross-examination and to put them squarely in the middle between their mother and their father. I think that I would not be serving their best interest.'' On that basis, the court overruled the respondent's hearsay objection to Skop's testimony,

concluding that, because the children's statements were trustworthy and reliable and because there was a reasonable necessity for their admission, they were admissible under the residual exception to the hearsay rule. The department never called the children's therapist to testify. Instead, on the second day of trial, March, 31, 2006, the department raised the issue of the children's ability to testify with its first witness, Mantell. The department asked Mantell whether he had formed an opinion as to whether the children should testify. The respondent objected on the grounds of: (1) relevance, because the children were not included on the state's witness list; and (2) lack of notice, because Mantell's report and the court's order did not reflect that he was going to offer an opinion on this subject. The department explained that this question related to the respondent's previous objection to the admission of the statements under the residual exception, specifically the question of the reasonable necessity. The trial court overruled the objection, and the following exchange between the department's attorney and Mantell ensued: ``Q. . . . [C]an you testify with a reasonable degree of psychological probability as to whether or not these children should testify in this action regarding their parents? ``A. Yes, I can. ``Q. What is that opinion? ``A. The opinion is that they shouldn't. ``Q. They shouldn't. Why not? ``A. I think it would be harmful to them. It would unnecessarily intensify the extent of their involvement in these matters. I think the children have already given abundant testimony that is consistent [with] multiple sources and as both parents have pointed out to me, this is the third time that the children have gone through professional interviews within the last few years on the issues of their relationships with their parents and about custody and visitation issues. That's a large amount of exposure to the adult court system, more than most children ever have in contested custody and visitation matters and contested abuse and neglect matters. So I think it's overexposing the children. I also think the children are of a young, tender age and deserve to be protected from unnecessary intrusive questioning and exposure.'' Mantell later stated on cross-examination that testifying would be ``very distressing to the children.'' On further cross-examination, Mantell acknowledged that, although courts sometimes will make a specific evaluation request to have a child interviewed for the purpose of seeing whether the child should testify, the court had not made such a specific request in the present case. The respondent offered no further objections to Mantell's opinion.

Ultimately, over various objections by the respondent, the court admitted the children's hearsay statements through: Skop's police report; the December 9, 2004 report of suspected child abuse or neglect; Dupuis' affidavit, investigation protocol and testimony; Ramsey's social study; Butler's case status report; and Mantell's summary report and psychological report.3 These statements reported that the children had: witnessed domestic violence between the respondent and William B., as well as a violent encounter between William B. and an acquaintance; witnessed substance abuse by the respondent and William B., which included operating a vehicle while intoxicated with the children in the car; and been dragged, slapped and called epithets. See In re Tayler F., supra, 111 Conn. App. 31

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