In Re Rachel T.

ROSALYN B. BELL, Judge. Rachel T. is the six-year-old daughter of George and Kathleen T. In August of 1987, a master determined that Rachel was a Child in Need of Assistance. Rachel’s parents filed exceptions to the master’s decision, and after a de novo hearing, the Circuit Court for Carroll County reversed the master’s decision. The Department of Social Services for Carroll County (Department) and Rachel T. appeal, contending that the trial court should have admitted certain out-of-court statements made by Rachel.

The Department also contends that, even in the absence of these statements, the evidence overwhelmingly supported a finding that Rachel needed court protection. We vacate the judgment and remand. The facts leading up to this appeal are as follows. On March 30, 1987, at about 6:20 p.m., Mrs. T., Rachel’s mother, found Rachel in an upstairs bathroom sitting on the toilet.

Mrs. T. discovered blood in the toilet after Rachel ²⁴ left the room. Although Mrs. T. knew that the blood had come from Rachel, she did not ask her any questions, or examine her to ascertain the severity or origin of Rachel’s bleeding. She went instead to the kitchen to wait for her husband to return from work. After Mr. T. arrived home at about 6:50 p.m., Mrs. T. showed him the blood in the toilet, and they returned to the kitchen where she served Mr. T. his supper.

Mr. T. suggested to his wife that perhaps Rachel was starting her period early. Rachel was not quite five at this time. When Rachel came into the kitchen 15 or 20 minutes later, Mr. T. noticed blood on the back of her nightgown. Mrs. T. telephoned her own mother, who told her to call Rachel’s pediatrician.

The pediatrician’s receptionist told Mrs. T. to locate the source of the bleeding and, for the first time that day, Mrs. T. examined Rachel. In the interim, Rachel’s father discovered more blood in a downstairs toilet. Mrs. T. made an appointment for Dr. Ignatowski, Rachel’s pediatrician, to see her at 8:00 p.m. When Dr. Ignatowski examined Rachel, he found a fresh tear in her hymen, a significant amount of blood in the vaginal vault, and clotted blood in Rachel’s rectum.

He also found that her rectal sphincter muscle was abnormally dilated. Rachel’s vaginal hymenal opening measured 15 millimeters, a serious abnormal finding because a measurement exceeding five millimeters is considered to be significantly enlarged. Dr. Ignatowski knew that he must refer Rachel to a sexual child abuse specialist as soon as he saw the condition of her hymen. Dr. Ignatowski related that, when he had performed a routine examination of Rachel a year earlier, she had presented none of these disturbing abnormalities.

Dr. Ignatowski also found remarkable the relaxed ease with which Rachel endured his examination. Based on his own experience as a pediatrician and upon the relevant medical literature, this indicated chronic sexual abuse. After he examined Rachel, Dr. Ignatowski spoke to her parents about his findings, telling them that he would personally make an appointment for Rachel with a pediatric ²⁵ gynecologist. Mrs. T. was reluctant to have Rachel seen by the pediatric gynecologist, denying the possibility of sexual abuse, suggesting instead that Rachel must have somehow injured herself.

The parents did, however, bring Rachel the next day to see Dr. Timothy Doran. Dr. Doran is the Assistant Medical Director of the Chesapeake Clinic at the Francis Scott Key Medical Center. Francis Scott Key is one of three rape centers in the Baltimore area. The center uses an interdisciplinary approach: that is, when appropriate, a female social worker may be asked to interview a young female child to gather a medical history, if the child seems to be uncomfortable with an adult male.

In the instant case, Dr. Doran, in accordance with his usual procedure, asked the social worker to take Rachel’s history because she was unwilling to talk to him. When asked about the source of the bleeding, Rachel told the social worker that she had a secret with her Dad and that if she told her Mom her father would be in big trouble. The history was then incorporated into the hospital’s medical record. Dr. Doran, an expert in pediatric gynecology and the evaluation of sexually abused children, discovered that Rachel’s vaginal opening and hymen were extremely dilated, and the widest he had seen in any child under the age of 10.

He also found diminished anal sphincter tone, which is a sign of sexual abuse if found in conjunction with a gaping hymenal orifice. It was Dr. Doran’s opinion that Rachel had been victimized by on-going sexual abuse. Dr. Doran spoke to the Department about his findings, and a Department staff member referred Rachel and her family to Dr. Gladys Sweeney, a clinical psychologist specializing in sexual abuse cases. Dr. Sweeney saw Rachel and her parents on four occasions.

At the first session, Dr. Sweeney presented Rachel ²⁶ with anatomically correct dolls. 1 Rachel took the male adult doll, pulled his pants down, showed Dr. Sweeney the doll’s penis and said, “[T]his is his tutor.” When asked if she had ever seen a tutor, Rachel replied, “Yes, my daddy’s.” Rachel grabbed the male doll’s penis, put it in the female doll’s genitalia and said, “Tutor goes in here, too.” Rachel named the female doll “Cindy” and said that the male doll was Cindy’s daddy. She told Dr. Sweeney that Cindy’s daddy had hurt Cindy by putting his “tutor” inside her. When asked to show what had happened, Rachel depicted intercourse with the dolls. At the next session with Dr. Sweeney, Rachel spontaneously repeated this sequence with the dolls.

She told Dr. Sweeney that her father had on two occasions put his “tutor” in her, and that it had hurt. Rachel told Dr. Sweeney that her father had told her that she was going to cry a lot if she told. Rachel then showed Dr. Sweeney with a doll how her Daddy spanked her with a paddle, and then threw the doll to the floor and screamed, “You’re a bad girl.” Mrs. T. told Dr. Sweeney that she was convinced that Rachel had been injured at nursery school. Mrs. T. tried to get Rachel to confirm that something had happened at nursery school (and not at home), but Rachel refused to do so.

Mr. T. expressed a lot of anger, stating that men were always accused of sexual abuse. He told Dr. Sweeney that he often found it necessary to spank Rachel with a stick. Dr. Sweeney related that, near the end of a session with Rachel’s parents, Rachel, who had been waiting outside, began knocking on the door to come into the room. Mr. T. looked at the door and stated, “That’s why we have a stick in the house.” It was Dr. Sweeney’s opinion that Rachel had been sexually abused, and she relayed this information to the Department. ²⁷ On June 18, 1987, the Department filed a petition for shelter care and, after a hearing that same day, Rachel was removed from the house and placed in a foster home.

On June 25, 1987, the Department, pursuant to Md.Cts. & Jud.Proc.Code Ann. § 3-801(e) (1974,1984 Repl.Vol.), filed a petition alleging that Rachel was a Child in Need of Assistance (CINA). Specifically, the Department’s petition alleged that medical evidence indicated sexual abuse, that Rachel had indicated that her father was the abuser and had threatened her with corporal punishment. The petition further alleged that Rachel’s parents had not provided the sympathetic and supportive environment she needed in order to avoid or minimize permanent emotional damage, and that Rachel had been put under intense pressure by her mother to confirm that the abuser was someone other than her father. On August 5, 1987, the master found Rachel to be a CINA, after considering extensive testimony from Drs.

Doran and Sweeney, as well as testimony from other Department witnesses. In a disposition hearing a few days later, the master was informed that Mr. T. was willing to move out of the house so that Rachel could be returned to her mother. In early September of 1987, Rachel was returned home. The trial court conducted its de novo hearing on Rachel’s parents’ exceptions to her CINA status during February and April of 1988.

The trial court, relying on Cassidy v. State, 74 Md.App. 1 , 536 A.2d 666 (1988), excluded statements made by Rachel to three different people. The first set includes those portions of Dr. Doran’s testimony which were based on Rachel’s statements to the social worker who took her medical history and which identified her father as the abuser. The second set consists of statements made by Rachel to Dr. Sweeney about her daddy’s “tutor,” as well as statements made by Rachel which, in Dr. Sweeney’s opinion, showed unusual detail of sexual matters for a child ²⁸ of five. Thirdly, the trial court excluded statements Rachel made to her foster mother, which also implicated her father.

At the close of the evidence, the trial judge stated: “[WJe’re not here today to decide who did it. Everybody has stipulated that the child was sexually molested in one form or the other____” He concluded that Rachel was not a CINA because he could not make a finding that Rachel’s parents were unwilling or unable to give her proper care and attention. After first giving a brief overview of the CINA statute, we analyze these three groups of allegedly hearsay statements and explain why two of the groups should have been admitted and considered by the trial judge. —The CINA Statute— A child in need of assistance is defined as a child requiring court protection because “(1) He ... is not receiving ordinary and proper care and attention, and (2) His parents ... are unable or unwilling to give proper care and attention to the child and his problems----” Md.Cts. & Jud.Proc.Code Ann. § 3-801(e) (1974, 1984 Repl. Yol.).

Allegations that a child is in need of care and assistance must be proved by a preponderance of the evidence. § 3-819(d). The purpose of a CINA proceeding is to protect children and promote their best interests. It is not intended to punish the parents, and the statute limits the juvenile court’s authority to orders designed to protect the child. In re Neil C., 308 Md. 591, 597 , 521 A.2d 329 (1987).

A CINA proceeding is aimed at accomplishing this protective purpose by temporarily separating the child from his parents or by supervising the parents in the raising of their child. In re Colin R., 63 Md.App. 684, 697 , 493 A.2d 1083 (1985). In Colin R., 63 Md.App. at 697 , 493 A.2d 1083 we pointed out the distinction between a CINA proceeding and a paren ²⁹ tal rights termination action, stating that the latter was a “much more drastic and permanent interference — ” The standard of proof in a parental rights termination is therefore higher. Clear and convincing evidence is necessary to justify such a determination.

Md.Fam. Law Code Ann. § 5-313 (1984). Appellants contend that, because § 3-812(e) of the CINA statute 2 provides that hearings should be conducted in an “informal manner,” formal rules of evidence should not be applied at these hearings. We do not agree.

In Colin R., 63 Md.App. at 684 , 493 A.2d 1083 , we held that a hospital record, containing urine sample results tending to show that Colin’s mother had regularly given him diuretics, was admissible under the business record exception contained in Md.Cts. & Jud.Proc.Code Ann. § 10-101 (1974, 1984 Repl.Vol). We observed in Colin R. that, because there had been no suggestion that the laboratory record was erroneous, the burden was on Colin’s parents to produce a witness to demonstrate weakness or error in the record. Colin R., 63 Md.App. at 693 , 493 A.2d 1083 . More important to our purpose here, we stated, in response to Colin’s parents’ reliance on Moon v. State, 3 300 Md. 354 , 478 A.2d 695 (1984), cert. denied, 469 U.S. 1207 , 105 S.Ct. 1170 , 84 L.Ed.2d 321 (1985): “The instant case is a juvenile C.I.N.A. proceeding, not a criminal prosecution, and the right of confrontation appli ³⁰ cable in Moon is not available to the parents of an alleged C.I.N.A.” Colin R., 63 Md.App. at 693-94 , 493 A.2d 1083 .

Although the rule against hearsay and the right of confrontation are designed to protect similar values, the latter, of course, is applicable only to an accused in a criminal prosecution. McCormick on Evidence, § 252 at 749 (3rd ed. 1984). We do not interpret Colin R., however, as standing for the proposition that all hearsay evidence is admissible in a CINA proceeding. In Colin R., we did not address the issue of whether the rules of evidence were relaxed in such cases.

In In re Beverly B., 72 Md.App. 433 , 530 A. 766 (1987), we held that any admission of certain alleged hearsay statements was harmless error because the trial court had not rested its decision that Beverly needed court protection on the contents of these statements. In In re Wanda B., 69 Md.App. 105 , 516 A.2d 615 (1986), we held that a court-ordered psychiatric report was admissible at a CINA proceeding under the hearsay exception for court-ordered Juvenile Services Agency reports. 4 While the issue has not been directly raised, these decisions indicate that standard rules of evidence have been assumed to apply at CINA proceedings. We do not agree with appellants that the various changes made by the Legislature through the years mean that it intended that hearsay evidence be admitted without limitation. The 1916 version of the statute provided that hearings in all cases of “dependent neglected or delinquent ³¹ children” were to be conducted “without regard to technicalities of procedure or the rules of evidence____” 1916 Md.Laws, ch. 326.

The 1945 version of the Act eliminated the provision which stated that the rules of evidence should not apply, but retained the provision that hearings were to be conducted in an “informal manner.” Sec. 48J, Md. Laws Ch. 797. The Act underwent considerable change in 1969, and the provision regarding informality of hearings was completely deleted at that time. 5 In 1975, when major revisions were again made in the Act, the informality provision was replaced in the statute and continues without change to this day. Appellants have provided no history nor have we located any independently which indicates why the Legislature originally added the provision relative to the rules of evidence and then deleted it. Appellants argue that the only reasonable inference that can be drawn from these changes is that the Legislature intended that the rules of evidence be “somewhat relaxed” in order to effectuate the purpose of the Act.

Additionally, appellants argue that the so-called “tender years” exception, effective July 1, 1988, Md.Cts. & Jud. Proc.Code Ann. § 9-103.1, manifests a legislative recognition that the rules of evidence are not to be applied as stringently in CINA cases. The tender years exception allows out-of-court statements of child abuse victims to be introduced in criminal cases only. One of the first drafts of the legislation would have made the exception applicable to all judicial proceedings.

As ultimately enacted, however, the portions of the Act concerning “any judicial proceeding” were deleted, and the legislation now only applies to state ³² ments made by child victims in criminal proceedings. 6 Specifically, appellants argue that this deletion illustrates that the Legislature assumed that it was unnecessary to include noncriminal judicial proceedings, since the rules of evidence were not to be applied anyway. We think the more likely and obvious explanation is simply that the Legislature meant what it said and intended the tender years exception to apply only in criminal cases. In the cases we cited earlier, Colin R., Beverly B., and Wanda B., we implicitly recognized that the rules of hearsay do apply in CINA cases. Indeed, the CINA statute itself contains a hearsay exception—that contained within § 3-818.

See n. 4, supra. There would be no reason for the Legislature to provide § 3-818 unless the rules of evidence were to be applied. Moreover, even if the Legislature had extended the tender years exception in CINA cases, there are two reasons why it would be inapplicable here. First, it was not enacted until after this proceeding, and it contains a provision stating that it is to be applied only prospectively.

H.B. 1018, ch. 549, § 2. 7 Secondly, even under the tender years exception, the child “must be subject to cross-examination about the out-of-court statement and testif[y]” at either the trial or by closed circuit television. 8 ³³ —Rachel’s Statements to Member of Dr. Doran’s Treatment Team— Appellants contend that the trial judge, relying on our opinion in Cassidy , erroneously excluded all of Rachel’s statements concerning the “big secret” she shared with her father. It will be remembered that Rachel made these statements to a social worker who, at Dr. Doran’s request, took her medical history because Rachel was unwilling to confide in him. We agree with appellants that these statements were admissible under both the treating physician and business record exceptions to the rule against hearsay. We explain.

The classic definition of hearsay is an out-of-court assertion offered in court for the truth of the matter asserted, and thus