Kentucky Court Applies Crawford to Reverse Termination of Parental Rights

A.G.G. v. Com., Cabinet for Health & Family Services (2005)

The Kentucky Court of Appeals has reversed an order terminating parental rights because the trial court admitted hearsay that did not qualify under Crawford v. Washington, 541 U.S. 36 (2004). This is a novel application of the Crawforddecision outside the realm of criminal law. The case is A.G.G. v. Com., Cabinet for Health & Family Services, 2005 WL 1703599 (Ky.App. 7/22/05). The decision may be viewed here.

Kentucky’s child protection agency removed a couple’s six-year-old son and 21-month-old daughter from their care. In a foster home, they displayed behavior that seemed sexual. The boy was interviewed by police but provided no “coherent disclosures” of sex abuse. He was then given a “sexual abuse assessment” by a therapist, during which he reported molestation by his parents and two uncles. The therapist elicited more details about this in her later sessions with the boy. At the termination hearing, the therapist was permitted to testify to the boy’s allegations to her.

A pediatrician gave both children sexual abuse exams. He found “no specific abnormalities.” He was permitted to testify that he also interviewed the boy, and that the boy told him that his uncle had molested him.

The trial court terminated the parental rights of the couple, partly because of the sexual abuse the boy had reported.

The court of appeals noted that the Sixth Amendment to the U.S. Constitution guarantees the right to confront adverse witnesses in all criminal prosecutions. The court then extrapolated a confrontation right in parental termination trials:

The United States Supreme Court has held that, as a termination of parental rights proceeding seeks not only to infringe upon, but terminate, a fundamental liberty interest (that of natural parents in the care, custody, and management of their child), a parent must be provided with fundamentally fair procedures. Santosky v. Kramer, 455 U.S. 745 (1982). In termination of parental rights proceedings, fundamental fairness includes the right to confrontation. G.E.Y. v. Cabinet for Human Resources, 701 S.W.2d 713 (Ky.App. 1985). Both “[a] child and his parents share a vital interest in preventing erroneous termination of their natural relationship.”Santosky, 455 U.S. at 760.

In the Crawford case, the U.S. Supreme Court construed the Sixth Amendment’s Confrontation Clause to exclude testimonial hearsay unless the declarant testifies at trial or the defendant had an adequate prior opportunity to cross-examine the declarant. The A.G.G. decision reviewed the reasoning in the Crawford decision, then found the boy’s statements to the therapist and the pediatrician testimonial. Since the boy did not testify and had not been available earlier for cross-examination, admitting those statements required reversal.