B. Facilitating Child Testimony at Trial

1. Prerecorded Statement of Child

If a child 12 years of age or younger is alleged in a suit under Tex. Fam. Code Title 5 to have been abused, the recording of an oral statement of the child recorded prior to the proceeding is admissible into evidence if:

•   No attorney for a party was present when the statement was made;

•   The recording is both visual and aural and is recorded on film or videotape or by other electronic means;

•   The recording equipment was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;

•   The statement was not made in response to questioning calculated to lead the child to make a particular statement;

•   Each voice on the recording is identified;

•   The person conducting the interview of the child in the recording is present at the proceeding and available to testify or be cross-examined by either party; and

•   Each party is afforded the opportunity to view the recording before it is offered into evidence. Tex. Fam. Code § 104.002.

2. Prerecorded Videotaped Testimony of the Child

On the motion of a party to the proceeding, the court may order that the testimony of the child be taken outside the courtroom and be recorded for showing in the courtroom before the court, the finder of fact, and the parties to the proceeding. Tex. Fam. Code § 104.003(a).

Only an attorney for each party, an attorney ad litem for the child or other person whose presence would contribute to the welfare and well-being of the child, and persons necessary to operate the equipment may be present in the room with the child during the child's testimony. Tex. Fam. Code § 104.003(b).

Only the attorneys for the parties may question the child. Tex. Fam. Code § 104.003(c).

The persons operating the equipment shall be placed in a manner that prevents the child from seeing or hearing them. Tex. Fam. Code § 104.003(d).

The court shall ensure that:

•   The recording is both visual and aural and is recorded on film or videotape or by other electronic means;

•   The recording equipment was capable of making an accurate recording, the operator was competent, and the recording is accurate and not altered;

•   Each voice on the recording is identified; and

•   Each party to the proceeding is afforded an opportunity to view the recording before it is shown in the courtroom. Tex. Fam. Code § 104.003(e).

3. Remote Televised Broadcast of Testimony of Child

If in a suit a child 12 years of age or younger is alleged to have been abused, the court may, on the motion of a party to the proceeding, order that the testimony of the child be taken in a room other than the courtroom and be televised by closed-circuit equipment in the courtroom to be viewed by the court and the parties. Tex. Fam. Code § 104.004(a).

The procedures that apply to prerecorded videotaped testimony of a child pursuant to Tex. Fam. Code § 104.003 apply to the remote broadcast testimony of a child. Tex. Fam. Code § 104.004(b).

4. Substitution for In-Court Testimony of Child

If the testimony of a child is taken as provided by Tex. Fam. Code Chapter 104, the child may not be compelled to testify in court during the proceeding. Tex. Fam. Code § 104.005(a).

The court may allow the testimony of a child of any age to be taken in any manner provided by Tex. Fam. Code Chapter 104 if the child, because of a medical condition, is incapable of testifying in open court. Tex. Fam. Code § 104.005(b).

5. Hearsay Statement of Child Abuse Victim Can Be Allowable

In a suit affecting the parent-child relationship, a statement made by a child 12 years of age or younger that describes alleged abuse against the child, without regard to whether the statement is otherwise inadmissible as hearsay, is admissible as evidence if, in a hearing conducted outside the presence of the jury, the court finds that the time, content, and circumstances of the statement provide sufficient indications of the statement's reliability and:

•   The child testifies or is available to testify at the proceeding in court or in any other manner provided for by law; or

•   The court determines that the use of the statement in lieu of the child's testimony is necessary to protect the welfare of the child. Tex. Fam. Code § 104.006.

6. Case Law

a. Admissibility of videotaped statement of a child

“To determine whether it is necessary to use [a] videotape in lieu of [a] child's testimony in order to protect [their] welfare, the trial court should hear evidence regarding the specific child witness, the child's welfare at the time of trial, and the circumstances making it necessary to use the statement rather than the child's testimony in court or by alternative means such as closed-circuit television.” In re S.P., 168 S.W.3d 197, 208 (Tex.App.–Dallas 2005, no pet.).

“Regardless of admissibility of [a] videotaped statement under Tex. Fam. Code § 104.002, that section does not authorize the trial court to admit [child's] videotaped statement in lieu of [their] testimony at trial without requiring the Texas Department of Family and Protective Services to make the child available to testify.” In re S.P., 168 S.W.3d 197, 209-210, (Tex.App.–Dallas 2005, no pet.).

b. Age of child when statement is made

Tex. Fam. Code § 104.006, which applies to statements made by a child 12 years of age or younger, conditions the age of the child on when the statements were made, not on when the trial court later determines the admissibility of the child's statements at trial. In re K.L., 91 S.W.3d 1, 15 (Tex.App.—Fort Worth 2002).

c. Child testimony by alternative means is a case-by-case determination

An exception “to the right of face-to-face confrontation exists when the State shows that a special procedure is necessary to protect child witnesses from the trauma of testifying in court…The determination of whether such alternative forms of testimony are necessary should be made on a case-by-case basis. In making such a determination, courts should consider whether: (1) use of a video is necessary to protect the welfare of the child; (2) the trauma to the child comes from exposure to the abuser, rather than from the courtroom generally; and (3) the emotional distress to the child would be more than minimal.” In re R.V., 977 S.W.2d 777, 781 (Tex.App.—Fort Worth 1998, no pet.).

d. Nonverbal communication during a child interview

“[…] questions directed to a child must be open-ended and not suggestive of a response.” Additionally, an interviewer's nonverbal communication may not contribute to the making of a particular statement. James v. Texas DHS, 836 S.W.2d 236, 239-241, (Tex.App.—Texarkana 1992, no writ.).

e. Confrontation Clause

“[A] statement cannot fall within the Confrontation Clause unless the primary purpose [of the statement] was testimonial. Statements by very young children will rarely, if ever, implicate the Confrontation Clause. [Additionally,] statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers. Ohio v. Clark, 576 U.S. 237, 238, 248-249 (2015).

f. Statement of Abuse

“The determination that a child had suffered significant emotional difficulty due to her parents' continuous fighting, drug use, lack of food and care, and spanking or slapping of the child was sufficient for the trial court as the factfinder to have determined that the incidents together rose to the level of abuse.” In re E.M., 494 S.W.3d 209, 218 (Tex.App.—Waco 2015, pet. denied) (allowing therapist testimony about statements child made to her).

A child's testimony about parent's drug use, how the child was placed in charge of a younger sibling, how the family found their food in dumpsters, how the family drove around at night to try to find a place to sleep, and how the children were spanked with belts, fell within the definition of abuse under Tex. Fam. Code § 261.001(1) for the purposes of Tex. Fam. Code § 104.006. In re M.R., 243 S.W.3d 807, 812 (Tex. App.—Fort Worth 2007, no pet.).

g. Reliability of Statement

“The analysis provided in case law relating to Tex. Crim. Proc. Code Art. 38.072 is an appropriate guide for courts to follow in determining reliability [of a statement] pursuant to Tex. Fam. Code § 104.006…In making its determination of reliability pursuant to Tex. Fam. Code § 104.006, just like in Tex. Crim. Proc. Code Art. 38.072,[…] the focus of the inquiry must remain upon the outcry statement, not the abuse itself. A child's outcry statement may be held reliable pursuant to Tex. Crim. Proc. Code Art. 38.072 even when it contains vague or inconsistent statements about the actual details of the sexual abuse…[T]he same [is] true as it relates to Tex. Fam. Code § 104.006.” In re E.M., 494 S.W.3d 209, 218 (Tex.App.—Waco 2015, pet. denied).

A child's statements introduced in a caseworker's report were not reliable because the report did not describe the circumstances of the interview, including who was present. Additionally, there was no evidence of whether the child was asked leading questions or allowed to tell what happened to her, and there was no evidence that the child understood the difference between truth and lies. In re E.A.K., 192 S.W.3d 133, 146-147 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

Tex. Fam. Code § 104.006 “is the civil analogue of Tex. Crim. Proc. Code Art. 38.072 …, [and courts can use] the same type of analysis [when applying Tex. Fam. Code § 104.006]…The reliability referred to in Tex. Crim. Proc. Code Art. 38.072 is the reliability of the child's declaration, not the witness relaying the child's declaration.” In re M.R., 243 S.W.3d. 807, 813-814, (Tex.App.—Fort Worth 2007, no pet.).

h. Admissibility of videotaped statement of a child

Tex. Fam. Code § 104.006 does not require the trial court to make a finding that the witness' statement in lieu of the child's testimony is necessary to protect the child's welfare if the child does not testify…Only if a child is unavailable to testify is the trial court required to make a finding that admission of the witness' statement in lieu of the child's testimony is necessary to protect the child's welfare.” In re K.L., 91 S.W.3d 1, 16 (Tex.App.—Fort Worth 2002).