KANSAS COURT OF APPEALS EXCLUDES DETECTIVE’S HEARSAY TESTIMONY OFFERED TO PROVE FATHER’S SEXUAL ABUSE OF HIS CHILD.

In Marriage of J.H. and K.H., Docket No. 125,823, 2023 WL ______­ (Unpub. Ct. of App. Sept. 1, 2023 Franklin Dist. Ct.  J. Witteman reversed and remanded).  The trial court excluded as hearsay the testimony of a detective who interviewed the mother of a minor child for alleged sexual abuse of the minor child by her mother’s husband, and another detective conducted a forensic interview with the child.  A few months later, the same detective observed a DCF second forensic interview of the minor child.  The detective testified the substance of the child’s second interview stayed the same, but she disclosed more information in the second interview.  Mother’s attorney asked the detective to describe what the child said in the first interview. Father’s attorney objected that such testimony was hearsay.  Mother’s attorney told the court the child was available to testify.  The trial court sustained the hearsay objection.  Mother argued such exclusion violated her due process right to fully present her case.  The Court of Appeals agreed, apparently in part because the mother’s Fourteenth Amendment right to make decisions regarding the care, custody and control of her child was involved.  While hearsay is an out-of-court statement offered to prove the truth of the matter asserted, an exception to that rule is found in K.S.A. 60-460(a), which is a statement previously made by a person [albeit a minor in this case] who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by the declarant while testifying as a witness.