In re Lucero L. /In re I.C.
These two cases present a very interesting issue as to Welfare and Inst Code § 355 and the Issue around Indicia of reliability. These cases highlight the conflict of issue of whether statements made by a truth incompetent child under 12 are admissible and if so can they be the sole basis of jurisdiction. In the case of Lucero L. the minor had made statements that were considered admissible under Welf and Inst Code § 355 even though the child was found to be truth incompetent. Although this begs the question of how can hearsay statements be admitted but not used in rendering a judgment. The court answers by stating that minor’s statements could not be the sole basis of jurisdiction unless sufficient indicia of reliability is established.
Which brings us to what is indicia of reliability?
Indicia of reliability is used as a kind of catchall when normal hearsay exceptions do not apply. It is most commonly applied for truth incompetent minors. There are several criteria for indicia of reliability. In Lucero L. the court applies the following:
Mental state of declarant
Use of terminology unexpected
Lack of motive
Any other factors
Spontaneity and repetition refer to when and how often did the minor declarant make these statements. Did the declarant make the statements soon after the incident or did the declarant have a lengthy period of time before making a statement? Spontaneity refers to how often did the declarant say these statements. Did they say it once or did they say it many times to several persons? Mental state of declarant simply means did the declarant suffer from a mental illness that might have influenced their statement. Motive refers to whether there was an underlying issue that might have compelled the declarant to make such statements. Did the declarant use terminology that was above their understanding which could point toward coaching or influence in their answers. Now with this basis how does in re Lucero L. fit into all of this? When applying these factors for indicia of reliability the court found that in re Lucero L. the minor did meet the criteria for indicia of reliability. The minor did make her statements soon after the incident. She repeated her statements several times to social worker, forensics, and health care professionals. In regards to the mental state of the declarant, she did not have any mental health history. When considering whether the declarant used age appropriate language, the court was surprised about her knowledge about penis and vagina but found it appropriate once the mother testified she has taught the minor about these terms. There was no motive at the time so the court found that the minor was not coached in her responses. However, a personal note was that there was a history of coached statements from the siblings in the past.
Because of this the court found that pursuant to welfare and intuitions code § 355 hearsay statements by children under 12 were allowed in unless they were a product of fraud or undue. According to the exception where indicia of reliability is met, Lucero’s statements were allowed and the original 300 petition was sustained by the appellate court.
Now to tie in re I.C. with in re. Lucero L., the I.C. court ruled that establishing indicia of reliability alone is not enough. The court made clear that admissibility and substantially are two very different things. Even if evidence is admissible under WIC 355 and indicia of reliability, it must be substantial enough and not create a risk of prejudice to be the basis for jurisdiction. In the case of I.C., the court found that even though the indicia of reliability was partially met, there was not enough standing for the department’s 300 petition to be granted.
Now to In re I.C.
In the case of I.C. the minor child had first made complaints of sexual penetration by a neighborhood minor friend. When asked by the mother I.C. maintained the same stance. Later on, I.C. changed her statement to that her father had molested her. When corrected by her mother, she asserted the father culpability. During investigations, DCFS found that the minor did not know the difference between a truth or lie or establishing her as a truth incompetent minor. The forensic exam leads to inconclusive results regarding sex abuse. During the oral filmed interview, I.C. she promised that she would tell the truth. The oral evidence proffered was specific but does not corroborate with other statements. She made quite a few detailed about the incident but she said nonsensical things such as a train is the same thing as a penis and that she was molested in the same room as the interview. When asked R.J. (her sibling) testified that their dad had never touched her. The trial court sustained the initial 300 (d) petition. On appeal, the court of appeal affirmed trial court ruling and the father asked for supreme court review. It is important to note that the father on appeal did not challenge admissibility due to the WIC 355 legislature but challenged that the trial and appellate court misapplied misapplied Lucero L. because the indicia of reliability was NOT met. The supreme court decided to review the case and provided the following analysis.
The court did find that the child’s statement met WIC 355 and indicia of reliability criteria. However, upon close analysis of the oral statements by minor and relatives the court found that due to the inconsistencies, indicia of reliability cannot be met just because some of the evidence corroborates. The court stated that it is important that the record must be looked at as a whole to render a proper judgement. The court found that applying reliability tests and indicia of reliability are not designed to be overly stringent to prevent protection nor are they an empty formality. The courts must consider each as a balancing act to analyze each piece individually to determine whether the minor is telling the truth. Because of this the court shows how indicia of reliability is partially met and as a result the 300 petition cannot be sustained. In regards to the spontaneity of the minor’s statements, the court found that the statements were made too far off of the date of the incident. The minor did repeat her statements but each one varied between mother, social worker, and forensics. The minor made statements that were disjunctive or lies. I.C. at the time did not have a mental illness but the court noted that she did not clearly understand the difference between fantasy and reality. Her statements at times reflected living in a fantasy world and this impacted the validity of her statements. Her use of terminology was expected for a child of her age but there was a small difference between when she used penis and other words for penis. Minor did not have a cognizable motive that would have impacted her statements. The court did again note her loose connection with reality.
After analyzing I.C.’s statements and whether they fit the indicia of reliability, the court found that truth incompetency is a factor in a jurisdictional finding but it was alone is not dispositive. The court made it clear that truth incompetency is a threshold issue that needs to be address piece by piece. DCFS argued to give more weight to social worker testimony and the oral tape, but the court said that even though the weight of the evidence was in those two sources, the actual evidence within was not consistent enough. The court says that entire record needs to be viewed as a whole not one piece to determine that the finding of dependency was substantial.
The 300 petition was overturned by the supreme court as a result.
So now that in re Lucero L. and in re I.C. have been compared how do they affect future cases and implementing indicia of reliability? In re Lucero L. lays down the foundation for determining whether a truth incompetent child’s statements can be relevant using indicia of reliability. In re I.C. shows that implying indicia of reliability alone does not meet burden of proof for sustaining a 300 petition. This will prevent courts from immediately jumping to in re Lucero L. when trying to base their 300 petition solely on a truth incompetent child’s hearsay statements admitted through WIC 355.
Juvenile Dependency and