Child’s Statements to CPS “Testimonial,” Washington Court Holds

State v. Hopkins (2007)

A child’s allegations of sexual molestation to a case worker from Child Protective Services were testimonial, the Washington Court of Appeals has held. That means the trial court violated the defendant’s right to confront witnesses against him when it admitted those statements at a trial at which the child did not testify. The case is State v. Hopkins, 154 P.3d 250 (Wn.App. 3/6/07).

Hopkins was convicted of first-degree child rape and first-degree child molestation. The complainant, MH, his girlfriend’s daughter, was 2½ years old at the time of the alleged crimes and 3½ at the time of trial.

The parties agreed that MH was incompetent to testify because of her youth. The trial court did not conduct a competency hearing or expressly find her incompetent.

The court did conduct a hearing, under Washington’s child hearsay statute, RCW 9A.44.120, on the admissibility of MH’s statements to her mother, her mother’s mother, and a CPS social worker, Patricia Mahaulu-Stephens. All three of those adults testified at the hearing; MH did not. The court found MH’s statements to all three admissible.

Mahaulu-Stephens had interviewed MH twice. The first time, according to undisputed findings of fact, was to perform “a safety check … unrelated to any potential criminal prosecution of Hopkins.” The second time, the appeals court observed, was “for a CPS investigation because of new disclosures. [This visit] had the potential to lead to criminal prosecution of Hopkins.” Only statements MH made in the second interview were admitted at trial.

The appeals court reviewed Crawford v. Washington, 541 U.S. 36 (2004) andState v. Shafer, 156 Wn.2d 381 (2006), a case applying Crawford. It ruled MH’s statements to Mahaulu-Stephens in the second interview were testimonial for several reasons:

Mahaulu-Stephens testified that (1) her job was “to investigate whether or not those allegations [of abuse and neglect] are accurate, if there is any truth to the referral,” RP at 467; (2) it was her practice to record information gained during the investigation and then to “[a]sk them more questions if there’s something they’re talking about that’s a little more concerning,” RP at 473-74; and (3) she records her notes for the explicit purpose of “[d]ocument[ing] that [the victim] made a spontaneous disclose and be able to give that information to law enforcement.” RP at 488.

We find instructive here the Washington Supreme Court’s dicta in Shaferthat the common thread uniting testimonial statements is “some degree of involvement by a government official, whether that person was acting as a police officer, as a justice of the peace, or as an instrument of the court.” 156 Wash.2d at 389, 128 P.3d 87. Thus, while Mahaulu-Stephens might not have been working at the behest of law enforcement officers, she was a government employee and her eventual CPS investigatory role overlapped with and aided law enforcement.

154 P.3d at 257-58.

At footnote 20 the court cited cases from many other states on whether a child’s statements to a social worker were testimonial.

The court ruled MH’s statements to her mother and grandmother non-testimonial. Those women

sought answers to their questions precipitated by MH’s disclosures, not in contemplation of prosecuting a criminal case against Hopkins, but rather to assess MH’s physical well-being and her future safety. Moreover, neither … asked leading questions; nor did they engage in a structured interrogation of MH.

The Shafer case made the admissibility of their hearsay testimony turn on these facts, according to the appeals court.

The court also found error in the trial court’s failure to conduct a competency hearing. Under State v. Ryan, 103 Wn.2d 165 (1984), the court said, a stipulation to the child’s incompetence to testify could not relieve the court of its duty to hold such a hearing.