COLORADO COURT OF APPEALS                                        2016COA183


Court of Appeals No. 16CA0780
Arapahoe County District Court No. 15JV1163
Honorable Bonnie McLean, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of G.E.S., Child,

and Concerning G.S.,

Respondent-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                   Division IV
                          Opinion by JUDGE J. JONES
                         Graham and Miller, JJ., concur

                         Announced December 15, 2016


Ron Carl, County Attorney, Marilee M. McWilliams, Senior County Attorney,
Aurora, Colorado, for Petitioner-Appellee

Ranee Sharshel, Alison A. Bettenberg, Guardians Ad Litem

Pickard & Ross, P.C., Joe Pickard, Justin Ross, Kerry Simpson, Littleton,
Colorado, for Respondent-Appellant
¶1    G.S. (father) appeals the judgment adjudicating his daughter,

 G.E.S., dependent and neglected and adopting a treatment plan for

 him. Because we conclude that the district court erred in admitting

 unduly prejudicial testimony regarding polygraph examinations, we

 reverse the judgment adjudicating the child dependent and

 neglected as well as the related dispositional order adopting a

 treatment plan, and remand the case for a new trial.

                            I. Background

¶2    In May 2015, father’s then twelve-year-old stepdaughter, J.O-

 E., told her therapist that father had made her uncomfortable by

 talking about inappropriate things and touching her

 inappropriately. The therapist called the police and the Arapahoe

 County Department of Human Services (department).

¶3    An intake caseworker from the department immediately went

 to meet with the child at the therapist’s office, and the child made

 similar statements to the caseworker. The child then participated

 in a recorded forensic interview. She said that father had touched

 both her vaginal area and her breasts and had talked to her about

 sexual things.




                                   1
¶4    Shortly thereafter, however, the child told her mother that her

 statements about father sexually abusing her were untrue. The

 child met with a police detective and, in another recorded interview,

 recanted her prior statements that father had acted inappropriately

 toward her. The police closed their case.

¶5    In the meantime, the family voluntarily cooperated with the

 department and followed the department’s recommended safety

 plan. As part of the plan, father left the family home and had no

 contact with his infant child (G.E.S.) or any of his three

 stepchildren. The department also asked him to complete a

 psychosexual evaluation and disclose the results to the department.

 Father agreed to do the evaluation and completed it after a few

 months. The evaluator recommended that father undergo a

 polygraph examination, but father declined.

¶6    Although the child had recanted, the department believed the

 child’s original statements about sexual abuse by father.

 Explaining that father’s unwillingness to undergo the recommended

 polygraph examination prevented the case from moving forward

 voluntarily, the department filed a dependency and neglect petition

 as to G.E.S.


                                    2
¶7    Father denied the petition’s allegations and requested a jury

 trial. At trial, the department sought to prove that G.E.S. was

 dependent and neglected because:

          the parent subjected the child to mistreatment or abuse

           or had suffered or allowed another to mistreat or abuse

           the child without taking lawful means to stop such

           mistreatment or abuse and prevent it from recurring;

          the child lacked proper parental care through the acts or

           omissions of the parent;

          the child’s environment was injurious to her welfare; and

          the parent failed or refused to provide proper or

           necessary subsistence, education, medical care, or any

           other care necessary for the child’s health, guidance, or

           well-being.

 See § 19-3-102(1)(a)-(d), C.R.S. 2016.

¶8    The department argued that this was a prospective harm case.

 See People in Interest of D.L.R., 638 P.2d 39, 43 (Colo. 1981) (the

 statutory grounds for dependency and neglect can be satisfied by

 showing prospective harm to the child). Its theory was that G.E.S.

 was at risk in the future because father had sexually abused his

                                    3
 stepdaughter and had not cooperated with the department in

 attempting to assess the safety of the home. See People in Interest

 of S.N., 2014 COA 116, ¶¶ 16-17 (“[T]o determine whether a child is

 dependent and neglected based on prospective harm, it must be

 determined whether it is likely or expected that the child will lack

 proper parental care through the actions or omissions of the parent

 . . . . Prospective harm thus requires a prediction of whether, based

 on the parent’s past conduct and current circumstances, it is likely

 or expected that the parent will fail to provide proper care for the

 child in the future.”) (citation omitted).

¶9    The court presented the jurors with a special verdict form,

 which asked the following questions:

            Question 1: Did [father] mistreat or abuse
            [G.E.S.] or tolerate or allow another person to
            mistreat or abuse [G.E.S.] without taking
            lawful means to stop such mistreatment or
            abuse and prevent it from being repeated?

            Question 2: Is [G.E.S.] lacking proper parental
            care as a result of [father]’s acts or failures to
            act?

            Question 3: Is [G.E.S.]’s environment
            injurious to her welfare as a result of [father]’s
            acts or failure[s] to acts?




                                     4
            Question 4: Did [father] fail or refuse to
            provide proper or necessary subsistence,
            education, medical care or any other care
            necessary for [G.E.S.]’s health, guidance, or
            well-being?

¶ 10   The jury answered “Yes” to the first three questions but “No” to

  the fourth.

¶ 11   After the jury returned its verdict, the court entered judgment

  adjudicating G.E.S. dependent and neglected. The court then held

  a dispositional hearing at which father agreed to the department’s

  proposed treatment plan. The court adopted that plan.

                        II. Father’s Contentions

¶ 12   Father contends that the jury’s verdicts should be reversed

  because the district court erred in admitting evidence that he

  underwent a psychosexual evaluation, refused to undergo a

  polygraph examination, and later underwent a polygraph

  examination but did not tell the department. He also contends that

  the court erred in admitting the child’s hearsay statements about

  sexual abuse without the child testifying. We agree with father that

  the court erred in admitting evidence that he had taken a

  psychosexual evaluation and in admitting polygraph evidence.

  Because these errors were not harmless, we reverse.


                                   5
          A. Psychosexual Evaluation and Polygraph Evidence

                                  1. Law

¶ 13   The purpose of an adjudicatory trial is to determine whether

  the factual allegations in the dependency and neglect petition are

  supported by a preponderance of the evidence, and whether the

  status of the subject child warrants intrusive protective or

  corrective state intervention into the familial relationship. People in

  Interest of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009).

¶ 14   Before an adjudication, the court may issue temporary orders

  providing for the child’s custody, protection, support, medical

  evaluation or medical treatment, surgical treatment, psychological

  evaluation or psychological treatment, or dental treatment as it

  deems in the child’s best interests. § 19-1-104(3)(a), C.R.S. 2016.

  And, parents may voluntarily work with the department to alleviate

  any child welfare concerns. See, e.g., § 19-3-308.3(2), C.R.S. 2016

  (creating a differential response program in which the family may

  voluntarily participate); § 19-3-501(1)(c), C.R.S. 2016 (allowing

  informal adjustment without the filing of a dependency and neglect

  petition with the consent of the parents); People in Interest of L.B.,

  254 P.3d 1203, 1205 (Colo. App. 2011). But, a parent need not


                                     6
  cooperate with the department’s efforts to investigate the factual

  allegations supporting the petition. See, e.g., E.S.V. v. People, 2016

  CO 40, ¶ 5. Rather, it is the department’s burden to prove, by a

  preponderance of the evidence, the petition’s allegations. § 19-3-

  505(1), C.R.S. 2016; People in Interest of S.N., 2014 CO 64, ¶ 9.

¶ 15   Because a dependency and neglect proceeding is preventative

  as well as remedial, an adjudication may be based not only on

  current or past harm but also on prospective harm. D.L.R., 638

  P.2d at 43. The fact finder may properly consider the treatment

  accorded other children in determining whether the child at issue is

  dependent and neglected. Id. at 42.

¶ 16   Evidence of polygraph test results are per se inadmissible at

  an adjudicatory trial because they are not reliable. People in

  Interest of M.M., 215 P.3d 1237, 1248 (Colo. App. 2009). Such

  evidence presents a “serious risk” of unfair prejudice and

  misleading the jury, and “there is an inherent danger that a jury

  will rely too heavily” on such evidence. People v. Anderson, 637

  P.2d 354, 361 (Colo. 1981). The prohibition of polygraph evidence

  extends to expert opinions, based in whole or in part, on

  polygraphs. M.M., 215 P.3d at 1250.


                                    7
¶ 17   Nonetheless, a mere reference to polygraph testing does not

  require reversal. Bloom v. People, 185 P.3d 797, 806 (Colo. 2008);

  People v. Banks, 2012 COA 157, ¶¶ 89-96, rev’d on other grounds

  sub nom. People v. Tate, 2015 CO 42, ¶¶ 61-62. Reversal is

  required when the admission of such evidence prejudices a parent.

  M.M., 215 P.3d at 1251-52. This occurs when the inadmissible

  polygraph evidence becomes inseparable from the admissible

  evidence. Id. at 1252.

                   2. The Evidence Presented at Trial

¶ 18   Before trial, father filed a motion in limine asking the court to

  exclude any evidence related to his psychosexual evaluation and

  any reference to his refusal to participate in a polygraph

  examination. Both the department and the guardian ad litem (GAL)

  argued that psychosexual evaluations are a tool used by

  caseworkers to assess safety and are part of the department’s

  evaluative process and thus relevant to explain the department’s

  involvement. The GAL said that the psychosexual evaluator

  recommended that father participate in an instant offense

  polygraph examination, and the department characterized the

  polygraph examination as part of the evaluation process.


                                    8
¶ 19   The GAL also argued that father’s failure to undergo a

  polygraph examination was relevant to show father’s lack of

  cooperation, and that his lack of cooperation was relevant to the

  petition’s allegations of mistreatment, abuse, and injurious

  environment.

¶ 20   Father argued that polygraph evidence is unreliable and

  therefore usually per se inadmissible. He continued that any

  relevance of the psychosexual evaluation and the subsequent

  recommendation for a polygraph examination would be overly

  prejudicial and would confuse the jurors. He explained that, to the

  extent that the evidence’s asserted relevance was to show that he

  did not cooperate with the department, this evidence would unfairly

  prejudice him because it would lead to an implication that he had

  declined to take the polygraph examination because he had

  committed the alleged sexual abuse.

¶ 21   The court was persuaded that the evaluation and the

  polygraph refusal were part of the evaluative process to determine

  the safety of the children. The court ruled that the probative value

  of this evidence outweighed its prejudicial effect and thus allowed

  evidence that father had taken the psychosexual evaluation and


                                    9
  had declined to take the polygraph. The court made clear that

  evidence of the results of the psychosexual evaluation would not be

  admissible and noted that, because father did not take a polygraph

  examination, there was no issue as to the results of such an

  examination.

¶ 22   During its presentation of evidence, the department offered the

  testimony of the intake caseworker about the psychosexual

  evaluation and the polygraph. She testified that she thought the

  child’s initial statements were credible because the child was matter

  of fact and was able to provide details. Because the intake

  caseworker felt the child’s statements were credible, she believed

  that the family was in need of services and that the department

  should continue to investigate its child protection concerns.

¶ 23   She told the jury that to assess for safety, the department

  asked father to complete a psychosexual evaluation and a

  polygraph. She described the evaluation and the polygraph to the

  jury as “an assessment tool that’s used to determine if there is any

  risk for future maltreatment,” specifically, future sexual abuse. She

  agreed that the evaluation and polygraph were necessary to finish

  the assessment of the child’s safety. Both the intake caseworker


                                   10
  and the permanency caseworker testified that father completed the

  psychosexual evaluation, but had not completed a polygraph

  examination. The permanency caseworker testified that because

  father did not complete the polygraph examination, he did not

  complete the assessment process.

¶ 24   The department also presented an expert in sexual abuse.

  She reiterated that when there is an allegation of inappropriate

  touching, a psychosexual evaluation is typically requested to

  determine the risk of future inappropriate behavior and that

  completing the entire evaluation is important.

¶ 25   Father presented his own expert on sexual abuse and child

  protection. That witness agreed that when there is an allegation of

  sexual abuse, there is an evaluation that social services

  departments use to assess safety. And, he agreed that a good

  clinician collects as much information as possible in assessing

  outcries of sexual abuse. But, he also testified that sexual abuse

  cannot be diagnosed.

¶ 26   Father then testified. Before his cross-examination began,

  father’s counsel alerted the court to a further fact ― namely, that

  father had completed a polygraph examination privately, the results


                                    11
  of which father had not provided to the department. Father’s

  counsel asked the court to prohibit the department from inquiring

  during cross-examination as to whether father had taken a

  polygraph. Counsel reasoned that if the jurors learned that father

  had taken a polygraph examination, but had not provided the

  results to the department, they would presume that the

  examination results were not favorable to father, which would

  amount to inappropriately admitting the polygraph results. The

  court ruled that the department could ask father whether he had

  taken a polygraph examination and could follow up by asking father

  whether he had “turned it over” to the department, but reiterated

  that polygraph results were not admissible.1

                         3. Polygraph Evidence

¶ 27   Father contends that the court erred in admitting any

  references to a polygraph. He argues that, in allowing witnesses to

  testify that he had refused to take a polygraph examination and in

  allowing the department to ask him whether he had turned over the

  results of the polygraph examination he did take to the department,


  1In light of this ruling, father’s attorney asked him about the
  polygraph on direct examination.

                                    12
  the court allowed jurors to infer that, in the case of the former, he

  believed that taking an examination would reveal that he had

  sexually abused his stepdaughter and, in the case of the latter, that

  the results were unfavorable to him. We agree.

¶ 28   A typical juror would have viewed the polygraph evidence as

  tending to show that father had abused his stepdaughter. Because

  the credibility of stepdaughter’s initial report was the central issue

  in the case, we conclude that it is unlikely in the extreme that the

  jurors would not have used the evidence as bearing on that

  question. And although no polygraph results per se were related to

  the jury, the implications that father feared taking a polygraph

  examination and had “failed” the examination he ultimately took

  were unmistakable. And admitting polygraph results by implication

  is not substantially different from actually admitting results. See,

  e.g., M.M., 215 P.3d at 1250 (expert opinions that were formed by

  relying on polygraph results renders the expert’s testimony

  inadmissible because the basis of the opinion is unreliable).

  Therefore, we agree that the district court erred in allowing this

  testimony.




                                    13
       4. Prejudicial Implication that Father Feared or Failed the
                                Polygraph

¶ 29   But this does not end the analysis. We must also determine

  whether the admission of the evidence prejudiced father. See id. at

  1251-52. We conclude that the implications that father feared

  taking a polygraph and failed the polygraph are inseparable from

  the other evidence and that insufficient admissible evidence

  untainted by the implication of the polygraph evidence remains.

¶ 30   The department advanced two theories as to why G.E.S. was

  dependent and neglected. First, the department alleged that father

  had sexually abused the stepdaughter, placing G.E.S. at risk for

  sexual abuse. As noted, the admission of the evidence suggesting

  that father feared a polygraph and had failed the polygraph could

  have made it more likely in the jurors’ minds that he had sexually

  abused the stepdaughter.

¶ 31   We acknowledge that the jurors viewed the stepdaughter’s

  forensic interview in which she made the sexual abuse allegations,

  and also viewed her recorded interview with the police later

  recanting her allegations and could have assessed the credibility of

  the two statements for itself. But, we cannot say that the jurors’



                                   14
  determination was free of improper consideration of the polygraph

  given the evidence the department presented to support the child’s

  initial outcry. The department’s position was that the child’s initial

  outcry was “credible.” The department’s expert witnesses opined

  that the initial outcry was credible and gave details on why those

  specific statements should be believed. The department also asked

  its sex abuse expert, “[D]o you have any concerns about the

  credibility of the outcry?” The expert replied, “I do not.” See CRE

  608(a); People v. Eppens, 979 P.2d 14, 17-18 (Colo. 1999) (witnesses

  are not permitted to offer opinions that a child was telling the truth

  on the specific occasion that the child reported sexual abuse);

  People v. Cernazanu, 2015 COA 122, ¶¶ 11-22 (same).2

¶ 32   The department’s experts also testified about why a child

  might recant an allegation of sexual abuse. The department’s sex

  abuse expert explained that recantation is “completely

  understandable.” She related that child abuse victims are under


  2 Given that this court and the supreme court have long held that a
  witness may not vouch for the credibility of another witness on a
  particular occasion, the admission of the vouching testimony by the
  department’s witnesses was obviously erroneous. Allowing such
  testimony is so prejudicial that a court should step in and disallow
  it notwithstanding the absence of an objection.

                                    15
  pressure — caught between wanting their abuse to stop and

  wanting their family to stay together. She elaborated that once

  there is an outcry and a family member is removed, there is a

  burden of guilt, fear of what will happen next, and fear of being

  ostracized from the family, all of which pressure the victim who

  made the disclosure. The permanency caseworker expressed

  concern that the stepdaughter felt guilty about father having to

  leave the home and that there were some indications that her

  siblings knew father was out of the home because of her.

¶ 33   In explaining why victims recant, the experts told the jurors

  that recantations almost never occur because the allegations are

  false. Rather, the department’s sexual abuse expert explained that

  the rate of false allegations of sex abuse “is really very small,” and

  noted that it was between two and eight percent.

¶ 34   Given the inherently prejudicial nature of the polygraph

  evidence, and the lack of otherwise admissible evidence

  overwhelmingly proving the allegations of dependency and neglect,

  the erroneous admission of the polygraph evidence was not

  harmless. Indeed, the prejudice to father was only increased by the




                                     16
  testimony of several witnesses improperly vouching for the victim’s

  credibility (at least with respect to her initial allegations).

  5. Prejudicial Implications Related to Father’s Level of Cooperation

¶ 35   We are also concerned about the prejudice surrounding the

  department’s second theory as to why G.E.S. was dependent and

  neglected: that she was at risk because father failed to cooperate

  with the department’s evaluative process because he did not

  complete both the psychosexual evaluation and the polygraph. In

  relation to this theory, father contends that the court erred in

  admitting any testimony of a polygraph because such evidence is

  per se not relevant to the adjudicatory proceedings. He also objects

  to admitted expert testimony regarding the necessity for a

  polygraph and father’s refusal to provide one. For similar reasons,

  he contends that the court erred in admitting evidence that he

  participated in a psychosexual evaluation due to its irrelevance and

  unfair prejudice. Under the circumstances here, we are persuaded

  that the prejudicial impact of the polygraph evidence, together with

  the prejudice flowing from evidence of his partial cooperation with

  the department’s request that he complete its evaluative processes,

  also dictate reversal.


                                      17
¶ 36   Relevant evidence is evidence having “any tendency to make

  the existence of any fact that is of consequence to the determination

  of the action more probable or less probable than it would be

  without the evidence.” CRE 401. But even relevant evidence may

  be excluded when “its probative value is substantially outweighed

  by the danger of unfair prejudice, confusion of the issues, or

  misleading the jury, or by considerations of undue delay, waste of

  time, or needless presentation of cumulative evidence.” CRE 403.

  In evaluating the evidence’s probative value, the “court should

  consider the logical force of the evidence and the proponent’s need

  for the evidence.” Martin v. People, 738 P.2d 789, 794 (Colo. 1987).

¶ 37   Father voluntarily agreed to take the psychosexual evaluation.

  The permanency caseworker’s testimony made clear that no

  treatment plan had been adopted, and the department was not in

  the treatment phase of the case because there had been no

  adjudication. She also noted that father’s participation was on a

  voluntary basis. There was no indication that father was not within

  his rights to refuse the department’s requests that he cooperate

  with its evaluative process. Even assuming the psychosexual

  evaluation and polygraph were necessary for the department to


                                   18
  assess the potential threat to the child as part of its normal

  evaluative process, we are not persuaded that the department may

  then use a refusal to complete the voluntary evaluative process to

  show that the child was dependent and neglected.

¶ 38   Under the Children’s Code, father had no duty to cooperate by

  completing a psychosexual evaluation and polygraph. The

  probative value of telling the jurors that the department needed to

  continue to evaluate the safety of the home was low because no

  department witness testified that they were uncertain of the

  truthfulness of the stepdaughter’s outcry. As noted above, the

  department’s witnesses characterized the stepdaughter’s outcry as

  “credible.”

¶ 39   Because the department believed the outcry, we disagree with

  the district court that the probative value of father’s willingness to

  cooperate with the psychosexual evaluation and of the polygraph

  evidence outweighed the evidence’s prejudicial effect. Given the

  department’s position that the stepdaughter’s initial outcry was

  truthful, evidence of its need for further investigation related to the

  sexual abuse allegations could have been confusing to the jury. At

  a minimum, evidence of father’s failure to complete the evaluative


                                     19
  process leads to the prejudicial implication that he failed to

  complete the process because he had sexually abused the

  stepdaughter and was attempting to evade further inquiry.

¶ 40   We also observe that allowing this type of evidence at an

  adjudicatory proceeding places a parent between a rock and a hard

  place. As discussed, participating in the psychosexual evaluation

  and polygraph at this stage is purely voluntary. But if evidence of

  refusal is admissible, the parent must choose between, on the one

  hand, participating in a test that, in the case of the psychosexual

  evaluation, is designed for persons who have been found to have

  engaged in sexual abuse, and, in the case of a polygraph, is

  unreliable or, on the other hand, refusing to participate and having

  that refusal used against him as “lack of cooperation.”

¶ 41   That father was under no obligation to complete a

  psychosexual evaluation or undergo a polygraph examination

  distinguishes this case from People in Interest of L.K., 2016 COA

  112 (cert. granted Nov. 7, 2016). In that case, a treatment plan

  required the father to participate in sex offender treatment and take

  a polygraph examination, so his refusal could be used to support




                                    20
  termination of his parental rights based on failure of the treatment

  plan.

¶ 42      In short, we are convinced that the prejudice of this evidence,

  together with the implication that father feared and failed a

  polygraph, dictates that the judgment should be reversed.

¶ 43      Having concluded that the court should not have allowed

  evidence of father’s participation in the psychosexual evaluation or

  of a polygraph to be presented to the jury because of its prejudicial

  impact, we need not address father’s contentions that the evidence

  should not have been admitted based on his due process rights,

  attorney-client privilege, and CRE 408.

                     B. The Child’s Hearsay Statements

¶ 44      Because it may arise on remand, we address, and reject,

  father’s last contention that the court erred in admitting the child’s

  hearsay statements.

                                   1. Law

¶ 45      Section 13-25-129(1), C.R.S. 2016, authorizes the admission

  of an out-of-court statement made by a child describing an

  unlawful sexual offense, which would otherwise not be admissible.

  Such statements are admissible if the court determines that (1) the


                                      21
  time, content, and circumstances of the statements provide

  sufficient safeguards of reliability; and (2) the child either testifies at

  trial or is unavailable as a witness and there is corroborative

  evidence of the act which is the subject of the statements. Id.

¶ 46   In criminal cases, the Sixth Amendment and its associated

  right to confront witnesses require that out-of-court testimonial

  statements be subject to cross-examination before being admitted.

  See People in Interest of R.A.S., 111 P.3d 487, 490 (Colo. App. 2004)

  (holding that the admission of an unavailable child’s forensic

  interview violated a juvenile’s Sixth Amendment right to

  confrontation in a delinquency case). But, a division of this court

  has held that due process does not necessitate extension of the

  Sixth Amendment’s right to confront witnesses to litigants in

  dependency and neglect cases. People in Interest of S.X.M., 271

  P.3d 1124, 1127 (Colo. App. 2011). And, the potential traumatic

  impact of a child victim’s giving testimony of sexual abuse may form

  the basis of a finding of unavailability if the child’s emotional or

  psychological health would be substantially impaired if the child

  was forced to testify. People v. Diefenderfer, 784 P.2d 741, 750

  (Colo. 1989).


                                      22
¶ 47   We review the admission of child hearsay statements for an

  abuse of discretion. People v. Phillips, 2012 COA 176, ¶ 63. The

  district court does not err in finding that a child is unavailable to

  testify if adequate evidence in the record supports that finding.

  Diefenderfer, 784 P.2d at 748, 751.

                        2. District Court’s Order

¶ 48   In its order allowing the child’s hearsay statements to be

  admitted, the court recounted the child’s therapist’s testimony that

  the child’s mental and emotional health would be gravely

  endangered if the child testified. The court ruled that if the child’s

  mental health on the date of trial was the same as at the time of the

  pretrial evidentiary hearing, she would be deemed unavailable to

  testify. The court also ruled that there was corroborative evidence

  of the act which was the subject of the statements, and that the

  right of confrontation does not extend to litigants in a dependency

  and neglect case.

                              3. Discussion

¶ 49   Adequate evidence from the pretrial hearing supports the

  court’s finding that the child was unavailable to testify. The child’s

  then-current therapist testified that the child had difficulty


                                     23
  regulating her emotions and “can quickly move to a very low place.”

  The child’s former therapist said that the child had been

  hospitalized because of suicidal threats and had engaged in other

  self-harming behavior in the past. The then-current therapist said

  that the child felt a lot of pressure and responsibility for separating

  the family. She believed that testifying would be harmful for the

  child because it would increase the pressure she felt, which would

  lead to increased difficulty regulating her emotions and increased

  suicidality. She explained that, even within the safe space of

  therapy, the child did not feel comfortable talking about the

  allegations. On the first day of trial, the parties agreed that the

  child’s therapist had not changed her opinion about the child

  testifying.

¶ 50   On appeal, father does not challenge the court’s findings that

  the time, content, and circumstances of the statements provide

  sufficient safeguards of reliability and that corroborative evidence

  supported the child’s statements. We agree with the district court

  that the Sixth Amendment’s Confrontation Clause does not extend

  to dependency and neglect cases, and the record supports the

  court’s finding that the child was unavailable to testify because


                                    24
  testifying would gravely harm her mental and emotional health.

  Thus, we conclude the court did not abuse its discretion in

  admitting the child’s statements without the child testifying at trial.

  See Phillips, ¶ 63.

                              III. Conclusion

¶ 51   The judgment adjudicating the child dependent and neglected

  and entering a dispositional order is reversed. The case is

  remanded for a new trial.

       JUDGE GRAHAM and JUDGE MILLER concur.




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