is no way that the Appellant can prove that there would be no emotional harm to the child if he or she was to testify. This “emotional trauma” in some cases may be slight and short in duration and does not justify completely blocking the child’s tes- timony. Odious though it may be, even if there is reason to believe the child would suffer a great deal or would not recover from the experience, then the state must consider its decision to proceed. Only if the child’s testimony is cumulative could there be a justification for barring testi- mony.
The obvious problem with this regu- lation is again that the local department would like everyone to believe that the playing field is level because the Appel- lant has the same record they have. It is important to keep in mind that the local department had an opportunity to actu- ally interview the child as well as any other witnesses that the appellant does not have access to and has the ability to put what- ever it chooses in the actual record. That record is the very same record the local
department uses when testifying at the hearing. The Appellant is unable to have the child testify as to any inaccuracies the local department may have put in their record. These inaccuracies are often ex- tensive and, at times, beyond everyday imagination. Social workers often live in a hypothetical world of child rearing that bears little relation to the everyday expe- rience of parents. In a recent unreported and pending
case, an D.J. v. Baltimore County Depart- ment of Social Services, the Adminstrative Law Judge did find that the Child Abuse Registry infringed upon constitutionally protected liberties and declared the regu- lations prohibiting testimony of children unconstitutional.
Reconsidering the Constitutional Evidentiary Standard for
Children in Need of Assistance (CINA) and Child Abuse Registry Cases The final issue raised by the article is also the most controversial.
While this article has not discussed CINA cases, the (Continued on page 26)
issues raised here about standard of evi- dence is as equally applicable to CINA cases as it is to Child Abuse Registry cases. The evidentiary standard set for both type of cases is preponderance of the evi- dence: COMAR 07.02.26.14(B) as to registry cases and CJP § 3-819(d) as to CINA proceedings. The leading Supreme Court cases deal- ing with the burden of proof and parental rights are Santosky v. Kramer, 455 U.S. 745 (1982) and Stanley v. Illinois, 405 U.S. 645. Both cases deal with termination of parental rights and are directives to the states with regard to treatment of paren- tal rights in general. Santosky states: “Today we hold that the Due Process Clause of the Fourteenth Amendment demands more than this. Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convinc- ing evidence. Id. at 748.
Winter 2003
Trial Reporter
25
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