In re: J.J. and T.S.

Barbera, C.J. Out-of-court statements offered for the truth of the matter asserted are generally inadmissible as hearsay unless otherwise permitted by statute or rule. One such statutory exception, known as the “tender years exception,” is found at § 11-304 of the Criminal Procedure (“CP”) Article of the Maryland Code. Section 11-304 applies to criminal cases and juvenile court proceedings, including child in need of assistance (“CINA”) proceedings. 1 That section further provides that a child’s out-of-court statement is admissible to prove the matter asserted “only if’ the statement has “particularized guarantees of trustworthiness.” CP § ll-304(e)(l). In making that determination, the court “shall consider, but is not limited to” thirteen factors listed in the statute.

CP § ll-304(e)(2). We address in the present case the admissibility at a CINA proceeding of the out-of-court statement of J.J., the then-nine-year-old daughter of Petitioner James J. (“Mr. J.”), alleging that Mr. J. had sexually abused her. The Wicomico County Department of Social Services sought to introduce J.J.’s statement to prove the truth of the matter asserted at the CINA adjudication and disposition hearings involving J.J. and her brother, T.S. The Circuit Court for Wicomico County, sitting as a juvenile court, determined that J.J.’s statement would be admissible to prove the truth of the matter asserted because the statement possessed the requisite particularized guarantees of trustworthiness.

The Court of Special Appeals affirmed the judgment of the juvenile court. In re: J.J. and T.S., 231 Md.App. 304, 311 , 150 A.3d 898 (2016). In an apparent exercise of its discretion, the intermediate appellate court first addressed Mr. J.’s argument, raised for the first time on appeal, that the juvenile court should have ruled on J.J.’s competence to distinguish between truth and falsehood before determining whether her out-of-court statement was admissible under CP § 11-304. Id. at 327-31, 150 A.3d 898 .

The intermediate appellate court concluded that CP § 11-304 does not require a juvenile court to determine a child’s truth competency when ruling on the admissibility of the child’s out-of-court statement. Id. at 331, 150 A.3d 898 . The court then held that the juvenile court complied with the requirements of CP § 11-304 in concluding that J.J.’s statement possessed particularized guarantees of trustworthiness. Id. at 335, 150 A.3d 898 .

We similarly exercise our discretion to address the unpre-served competency issue, and, like the Court of Special Appeals, hold that competency is not a prerequisite to admission of a child’s out-of-court statement for the truth of the matter asserted under CP § 11-304. We also agree with the Court of Special Appeals that the juvenile court did not err in finding that J.J.’s out-of-court statement possessed the requisite particularized guarantees of trustworthiness required for admissibility under that section. Accordingly, we affirm the judgment of the Court of Special Appeals. I. The Statute We begin with a more detailed overview of CP § 11-304.

That section prescribes the conditions under which a child’s out-of-court statement is admissible to prove the truth of the matter asserted in a juvenile court proceeding. As a threshold matter, the statement must be made by a child victim who is under thirteen years old and “is the alleged victim or the child alleged to need assistance in the case before the court concerning ... a juvenile court proceeding[.]” CP § ll-304(b). Next, the statement must be “made to” and “offered by a person [who is] acting lawfully in the course of’ certain professions, including, as relevant here, a social worker, when the statement was made. CP § ll-304(c).

The statement may be admitted in a CINA proceeding pursuant to the statute “if the statement is not admissible under any other hearsay exception” and “regardless of whether the child victim testifies.” CP § 11—304(d)(2)(i). If the child victim does not testify, the statement “will be admissible only if there is corroborative evidence that the alleged offender had the opportunity to commit the alleged abuse or neglect.” CP § 11-304(d)(2)(ii). As noted above, to be admissible, the statement must also have “particularized guarantees of trustworthiness.” CP § 11-304(e)(1). When determining whether the statement has such guarantees, the juvenile court “shall consider, but is not limited to,” the following thirteen factors: (i) the child victim’s personal knowledge of the event; (ii) the certainty that the statement was made; (iii) any apparent motive to fabricate or exhibit partiality by the child victim, including interest, bias, corruption, or coercion; (iv) whether the statement was spontaneous or directly responsive to questions; (v) the timing of the statement; (vi) whether the child victim’s young age makes it unlikely that the child victim fabricated the statement that represents a graphic, detailed account beyond the child victim’s expected knowledge and experience; (vii) the appropriateness of the terminology of the statement to the child victim’s age; (viii) the nature and duration of the abuse or neglect; (ix) the inner consistency and coherence of the statement; (x) whether the child victim was suffering pain or distress when making the statement; (xi) whether extrinsic evidence exists to show the defendant or child respondent had an opportunity to commit the act complained of in the child victim’s statement; (xii) whether the statement was suggested by the use of leading questions; and (xiii) the credibility of the person testifying about the statement.

CP§ 11-304(e)(2). Prior to the hearing at which the out-of-court statement is to be introduced, the court conducts a hearing at which the court must “make a finding on the record as to the specific guarantees of trustworthiness that are in the statement” and “determine the admissibility of the statement.” CP § 11-304(f). Section 11—304(g)(1) directs the court to examine the child as part of its determination unless “the court determines that an audio or visual recording of the child victim’s statement makes an examination of the child victim unnecessary.” We have said that a judge who is called upon to determine “the admissibility of a tape recorded interview offered into evidence pursuant to [CP] § 11-304 ... must comply with the foundational requirements of that statute, including the requirement that the court ‘make a finding on the record as to the specific guarantees of trustworthiness that are in the statement[.]’ ” Jones v. State, 410 Md. 681, 699-700 , 980 A.2d 469 (2009) (quoting CP § 11—304(f)(1)). The hearing at which that determination is made is generally referred to as the “§ 11-304 hearing.” We shall employ that description here.

II

The Present Case A. Factual Background The underlying facts relevant to this appeal are not extensive. J.J. was bom in April 2006 and, as mentioned, was nine years old when she made the allegation of sexual abuse against her father, Mr. J. Her brother, T.S., born in December 2011, was three years old at the time of the allegation. J.J. and T.S. are the children of Petitioners, Mr. J. and Ms. B. The children were living alone with Mr. J. in August 2015 because Ms. B. was incarcerated. On August 30, 2015, during a visit with her maternal grandmother, J.J. told her grandmother that Mr. J. had sexually abused her twice in the prior week.

Someone—the record does not disclose who—contacted the Fruitland Police Department on August 30, 2015, to report J.J.’s allegation that Mr. J. had sexually assaulted her. That same day, the Fruitland Police Department contacted Trooper Donna Hale of the Wicomico County Sheriffs Office about J.J.’s allegations. Sometime between 5:00 p.m. and 6:00 p.m. that afternoon, Tiffany Gattis, a licensed clinical social worker with the Child Advocacy Center, received a report of the allegation. At 7:09 p.m. on August 30, Ms. Gattis conducted an audio-recorded forensic interview of J.J. in a treatment room at the Peninsula Regional Medical Center.

The interview was audio-recorded because visual recording was unavailable due to the location of the interview. Trooper Hale was present when the interview was conducted. Ms. Gattis interviewed J.J. using a forensic interview method known as RATAC, an acronym for Rapport, Anatomy, Touch, Abuse, and Closure. RATAC is a guided, non-leading, standardized approach for interviewing children about alleged abuse.

The interview lasted approximately twenty-one minutes and ended when J.J. asked to stop the interview. Later on the evening of August 30, Ms. Gattis spoke with Mr. J. and T.S. at the police department. Mr. J. told Ms. Gattis that J.J. and T.S. had gone to visit their maternal family on Wednesday, August 25, and returned to his care on the evening of Saturday, August 29. Mr. J. denied abusing J.J., stating that “he would not consider fighting for his children because it was becoming an old and tiring process to be accused of sexual abuse.” Mr. J. also told Ms. Gattis that J.J. was “starting [a] mess, again” and that “he should have never allowed her to visit ... her family because they were filling her head with nonsense.” Ms. Gattis also spoke with T.S., who was three years old at the time.

No useful information was gathered because the information sought was beyond the scope of his age. That same evening, a doctor at the Peninsula Regional Medical Center performed a Sexual Assault Forensic Exam (“SAFE”) on J.J., but J.J. had brushed her teeth, showered, urinated, and defecated prior to the exam. The SAFE report documented that J.J. was observed to have a “notch” on her hymen and that she was “tender.” The report also noted that “[J.J.] pointed to [a] penis sketch to say ‘it went in me.’ ” On August 31, 2015, the Department of Social Services (“Department”) removed J.J. and T.S. from their home and placed them in shelter care. That day, after the children had been removed from their home, the Department filed a Petition for CINA.

At the shelter care hearing on September 2, 2015, both parents agreed to shelter care, and an adjudication was scheduled. On September 3, 2015, a medical doctor conducted a Child Abuse Medical Providers (“CHAMP”) exam and produced a report. The CHAMP report documented that J.J. stated, “[D]ad put his finger in me and made me suck his private part,” Though the physical CHAMP exam “show[ed] no lacerations, scars, bruises, [and] no evidence of acute trauma,” the examiner found that this “exam CAN be consistent with disclosure.” (emphasis in original). The Department filed an Amended CINA Petition on September 22, 2015, supplementing the Petition with allegations of neglect dating back to 2012.

B. The Proceedings 1. The § 11-304 Hearing Pursuant to CP § 11-304(d)(3), the Department filed a notice of intent to introduce J.J.’s audio-recorded out-of-court statement to Ms. Gattis and, on November 30, 2015, the juvenile court conducted a hearing on its admissibility. Both parents were present and represented by counsel. J.J. and T.S., though not present at the hearing, were also represented by counsel.

The court heard testimony from Ms. Gattis and Christine Whitworth, a Department in-home case worker assigned to Petitioners’ family from December 2014 through and including August 2015. Mr. J. also testified. Ms. Whitworth testified that Mr. J. lived alone with J.J. and T.S. on the days immediately preceding the alleged sexual abuse. Although she could not confirm that Mr. J. remained alone with the children on the exact days of the alleged abuse, she saw no reason that Mr. J. would have discontinued his role as the sole caregiver.

Ms. Gattis’s testimony focused on her interview of J.J. At the time of trial, Ms. Gattis had eight years of experience with the Department and had interviewed approximately 3500 children in her work with the Child Advocacy Center, though not exclusively for sexual abuse. She described J.J.’s demeanor during the interview. She stated that J.J. was initially “very pleasant,” showing no signs of physical distress in the interview. When, however, the conversation turned to anatomy and abuse, J.J. became more “quiet and reserved,” her “shoulders would cave in and her head dropped down,” and “she withdrew from conversation.” Ms. Gattis interpreted such changes as a “sign of distress.” Ms. Gattis described J.J.’s allegations of sexual abuse by her father: [J.J.] was very specific during the forensic interview.

She identified that her father forced her, and she identified as wee wee, adult or others would say penis. She identified that her father forced her to suck his wee wee. She also identified that her father rubbed his wee wee on her vagina at some point in time.... She was very specific to say that it occurred in the living room of their current home[.] ...

When asking about dates, [J.J.] referred to the incidents as occurring, she stated last night [August 29] and Tuesday [August 24].... [J.J.] identified that it was herself, her father and her brother in the household.[ 2 ] Ms. Gattis added that “[J.J.] made a very spontaneous comment regarding her brother. During the abuse scenario, [she] referred to her brother as upstairs in the bathtub making a whole bunch of noise.... Her brother was not around when the abuse occurred.” During Ms. Gattis’s testimony, the audio recording of J.J.’s statement was played for the court. In the audio recording, J.J. described Mr. J. as getting “fully naked,” after which he “pulled [her] pants off and pulled [her] shirt off,” “got on top,” “rubbed his wee wee” on her unclothed “private part,” and made her “suck his wee wee.” J.J. said that when the oral sex was over, she “threw up.” Ms. Gattis testified that, during the interview, J.J. used her hands to demonstrate to Ms. Gattis the size of Mr. J.’s penis, of which J. J. drew a picture that was consistent with what she demonstrated to Ms. Gattis.

When Ms. Gattis asked J.J. if this had ever happened before, J.J. said, “Yeah, the last time I talked to you.” 3 Ms. Gattis testified that J.J. demonstrated with a pen the act of “sucking a wee wee.” Ms. Gattis added that this was “sexual knowledge” a nine-year-old should not have and that it was “grotesque ... to see a child who is 9 years old perform what she is telling you.” Ms. Gattis also described her August 30 interview with Mr. J., who told her that J.J. and T.S. “[l]eft his house and care on Wednesday” and “were with maternal family from Wednesday until Saturday morning.” On cross-examination by counsel for Mr. J., Ms. Gattis admitted to using leading questions inadvertently—for example, Ms. Gattis used the word “penis” in a sentence, instead of referring to it as a “little wee wee,” as J.J. had done. Ms. Gattis acknowledged that she did not discuss “truthfulness” with J.J. during the interview because it is “not part of the RATAC protocol.” Ms. B.’s counsel questioned Ms. Gattis on inconsistencies in J.J.’s audio-recorded statement: J.J. made conflicting statements to Ms. Gattis whether Mr. J.’s penis “rubbed” or was “in” J.J.; and whether J.J. was partially or fully nude. Ms. B.’s counsel noted the inconsistencies between J.J.’s statement to Ms. Gattis and those she gave to the SAFE and CHAMP examiners. Ms. B.’s counsel also highlighted, as a possible motive for alleging that Mr. J. sexually abused her, JJ.’s statement to Ms. Gattis that she was “trying to stay the night with my grandmom.” Ms. Gattis conceded that “[t]here is no document that says from another individual that he had the opportunity” to commit the abuse.

After hearing the above testimony, the court concluded that it would not examine J.J. as part of its determination of the particularized guarantees of trustworthiness and admissibility of her statement. Section 11-304(g)(1) directs the court to examine the child victim when making these findings unless “the court determines that an audio or visual recording of the child victim’s statement makes an examination of the child victim unnecessary.” The court concluded that “the audio recording of the child makes an examination of the child victim unnecessary in this case.” The court further stated, “I don’t think it would add to my ability to determine whether that statement made back [in August] in light of the questioning had particularized guarantees of trustworthiness. So I’m not going to interview the child.” The juvenile court next addressed whether JJ.’s statement would be admissible for the truth of the matter asserted if she did not testify at the adjudication hearing. Pursuant to CP § 11-304(d)(2)(ii), a child victim’s out-of-court statement is admissible when the child does not testify “only if there is corroborative evidence that the alleged offender had the opportunity to commit the alleged abuse or neglect.” The Department argued that such corroborative evidence could be found in Mr. J.’s statement to Ms. Gattis that he was the sole caregiver of the children on the nights of the alleged abuse, which was consistent with J.J.’s statement and Ms. Whit-worth’s testimony.

Ms. B.’s counsel argued that the Department had not met its burden to show that such corroborative evidence existed. The juvenile court disagreed, finding corroborative evidence that Mr. J. had the opportunity to sexually abuse J.J., given his pre-hearing statement against interest to Ms. Gattis that he was alone with the children on the dates of the alleged abuse and “the existence that they were all living there.” The juvenile court then heard from Petitioners and the Department regarding the thirteen factors set forth in CP § 11-304 for determining the admissibility of J.J.’s out-of-court statement at the subsequent adjudicatory hearing. The juvenile court then made on-the-record findings concerning each statutory factor: 4 [ (i) the child victim’s personal knowledge of the event] The child has great personal knowledge of the event. She talks about it in detail about—there is no confusion about what happened in the statement. [ (ii) the certainty that the statement was made] It was clearly made.

It was tape-recorded. We all heard it. [ (iii) any apparent motive to fabricate or exhibit partiality by the child victim, including interest, bias, corruption, or coercion] [S]he, in 2013,1 think a little more than a year and a half before this incident made the statements about her father and wanted to get the gun and shoot him. And in addition, there was testimony that the recurrence of this occurs that she may [have been] coerce[d] somewhat by her maternal relatives. So there does exist an apparent motive to exhibit partiality by the child, and there was some testimony about [the] possibility [of] coercion, although nothing specific under that factor. [ (iv) whether the statement was spontaneous or directly responsive to questions] There was some spontaneity in the answers.

Most of them were directly responsive to questions. [ (v) the timing of the statement] The timing of the statement is very proximate to the most recent abuse which was the night before. So at least with regard to that, it’s very proximate. And then if you go back to Tuesday and Thursday, it was close in time to those, also. [ (vi) whether the child victim’s young age makes it unlikely that the child victim fabricated the statement that represents a graphic, detailed account beyond the child victim’s expected knowledge and experience] Well, she is 9 years old now, right? Am I right?

And what she described would be beyond the child victim’s expected knowledge and experience except for, unfortunately, for this child victim, she is a prior victim of sex abuse. So she may have and in all likelihood does have much more knowledge and experience. So it was an age appropriate statement for a 9-year-old in the sense of, I mean, it was a believable statement in the sense that she wouldn’t have that knowledge. We don’t know how much knowledge she has if any as a result of having been sexually abused before.

Now, I will talk more about how I’m evaluating that factor when I make my final ruling[ 5 ] [ (vii) the appropriateness of the terminology of the statement to the child victim’s age] It was completely appropriate using the terms of wee wee and private parts[.] [ (viii) the nature and duration of the abuse or neglect] She talked about the three specific days that she said. And then she said Tuesday and last night, but also that it started, I think, it was three weeks after she went to see Miss Christine I think we figured out. [ (ix) the inner consistency and coherence of the statement] There are things that are inconsistent in this statement. First, there’s no clothes on. Then there’s clothes on.

Where she is during this? But when I look at, and then what happened? ... She is not being led in that part, and she is giving it graphically. Then she draws a picture—I mean, she writes a note about the suck.

And uses her finger to go in and out of her mouth, I believe, later on when we get through here. So there is nothing about that that is inconsistent or incoherent. And those are the two—the discussion of the actual events or whatever—the meat of the statement. [(x) whether the child victim was suffering pain or distress when making the statement] She was, obviously—according to the testimony of Ms. Gattis in some distress, the stress not inconsistent with a 9-year-old making those statements. [ (xi) whether extrinsic evidence exists to show the defendant or child respondent had an opportunity to commit the act complained of in the child victim’s statement] In the child victim’s statement, there is extrinsic evidence. How convinced the trier of fact will be in light of other evidence does [not] [sic] negate the fact that there is extrinsic evidence, and that is his statement against interest to [the Department] and/or the law enforcement officer.

I don’t know who he made that to exactly, the fact that they all live together in that house. And I don’t know what other evidence will come in at trial. But there is extrinsic evidence. [ (xii) whether the statement was suggested by the use of leading questions] There were a lot of leading questions in here. I’m not sure with the social work background that Ms. Gattis has the same understanding of what a leading question is as people with a legal background.

But as I was just reading through that part, which I call the meat of the statement, those weren’t leading. And then what happened? And then what? Tell me what you remember.

This is what she says about the oral sex. Tell me what you remember.... These are not leading questions, at least as to the meat of anything or the central issues.... [Y]es, there are leading questions. I do not find that the salient parts of this statement were suggestive by the use of leading questions. [ (xiii) the credibility of the person testifying about the statement] Ms. Gattis was a credible witness.

I didn’t—I mean, it looked to me—I mean, from my evaluation, she was trying just to evaluate this statement. She did know in the back of her mind that there had been earlier allegations. But I don’t find that that influenced the way she conducted the interview. Now, whether that had any influence with their finding of indicated or—I don’t know.

But that’s not for me to decide here and now. Based on its findings concerning each of the above factors, the court, pursuant to the statute, found that J.J.’s out-of-court statement was admissible pursuant to CP § 11-304: So I find that there are particularized guarantees of trustworthiness, and so I will determine that the statement is admissible as far as the Statute goes. But, again, I think it’s unclear to me whether at trial, additional evidence on the issue of opportunity might become relevant, but at this point I find it to be admissible. Of note, neither Mr. J. nor Ms. B. argued at any point during the § 11-304 hearing that J.J. was incompetent to be a witness or asked the court to examine J.J. to determine her competency. 2.

Adjudication, Disposition, and Appeal J.J.’s statement was introduced and played at the adjudicatory hearing on December 16, 2015. At the conclusion of the evidence, the juvenile court found J.J.’s interview and her statements “to be entirely credible.” The court sustained the allegations of Mr. J.’s sexual abuse of J.J., stating that “[n]oth-ing has refuted those statements.” Mr. J. and Ms. B. noted their exceptions on the record. At the disposition hearing on January 26, 2016, the juvenile court declared both children CIÑA and committed them to