## Facts

- Three female students, including 13-year-old E.M., reported to a school counselor that they had been sexually abused by their fathers.
- E.M. alleged her adoptive father, Jesus M., began touching her, stopped for a time after she told her mother, Marian M., and later progressed to sexual intercourse.
- The school counselor reported the disclosures to child-protection authorities, and the Children, Youth and Families Division (CYFD) investigated and filed an ex parte custody petition alleging E.M. was abused and neglected.
- E.M. underwent two physical examinations; both were essentially normal.
- At the adjudicatory hearing, one physician testified E.M. disclosed sexual abuse, while the other physician testified E.M. denied sexual abuse.
- A clinical psychologist testified E.M. disclosed abuse, felt strong pressure to protect her family, and wanted to testify so she could deny the abuse and convince the judge it did not happen.
- E.M. did not testify because the psychologist believed testifying would be psychologically damaging.
- E.M.’s parents did not testify, although they wanted E.M. to take the stand. When announcing the decision, the children’s court judge commented that it was “interesting” and “disappointing” the parents wanted E.M. subjected to scrutiny while they did not testify.
- The trial guardian ad litem (GAL) assigned to E.M. participated minimally and did not meaningfully present E.M.’s position or advocate regarding E.M.’s best interests during the adjudicatory hearing.
- The children’s court adjudicated E.M. abused and neglected. The parents appealed.
- A different GAL was appointed on appeal and filed an answer brief describing both the GAL’s best-interests position and E.M.’s contrary stated wishes. The parents moved to strike that brief.

## Issues

1. Whether the children’s court improperly admitted multiple witnesses’ hearsay testimony repeating E.M.’s out-of-court statements, and, if so, whether the remaining admissible evidence was sufficient to support an abuse/neglect adjudication under the required burden of proof.
2. Whether the children’s court judge’s comment about the parents’ failure to testify required reassignment to a different judge on remand given the parents’ Fifth Amendment rights.
3. Whether the appellate GAL’s answer brief should be stricken because it presented the GAL’s best-interests position while also reporting E.M.’s contrary wishes.
4. Whether the appellate court should address, even if not raised by the parties, the adequacy of the trial GAL’s representation in an abuse/neglect adjudication.

## Decision

- The Court of Appeals reversed the abuse/neglect adjudication and remanded for further proceedings consistent with its opinion.
- The court held that key portions of the challenged child-hearsay were admitted without an adequate basis under the Rules of Evidence (including an insufficient foundation for admission under the medical diagnosis or treatment exception), and the adjudication could not stand on that record.
- After excluding improperly admitted hearsay, the remaining competent evidence was insufficient to meet the State’s burden to prove abuse and neglect.
- The court declined to order reassignment to a different judge on remand, concluding that the judge’s remark was improper but did not, by itself, require substitution of the trial judge.
- The court denied the parents’ motion to strike the appellate GAL’s brief, holding the appellate GAL acted properly by stating the GAL’s best-interests position and also informing the court of the child’s stated wishes when they differed.
- The court addressed the trial GAL’s lack of meaningful participation and signaled that children’s courts must ensure GAL representation is effective in abuse/neglect proceedings.

## Legal Principles

- In an abuse/neglect adjudication, the judgment must rest on competent evidence meeting the statutory burden of proof; if improperly admitted evidence was central to the State’s case, reversal is required.
- A child’s out-of-court statements are not automatically admissible in abuse cases; the proponent must establish a valid hearsay exception and the necessary foundation (including, where claimed, that statements were made for medical diagnosis or treatment).
- Even when some child-abuse disclosures may qualify under the medical diagnosis/treatment exception, the court must have a record showing the declarant’s statements were made for that purpose and were reasonably related to diagnosis or treatment.
- Reassignment on remand requires a showing that the original judge cannot fairly preside; an improper remark, without more, is not enough to compel reassignment.
- A guardian ad litem may advance a best-interests recommendation while also reporting the child’s expressed wishes when the two conflict; an appellate filing may include both.
- Children’s courts have responsibility to ensure that a GAL appointed to protect a child’s interests participates meaningfully in abuse/neglect litigation.

## Conclusion

In re Esperanza M. reversed and remanded an abuse/neglect adjudication because the children’s court relied heavily on improperly admitted hearsay repeating the child’s allegations, and the remaining admissible proof was insufficient; the Court of Appeals declined to require a new judge on remand, refused to strike the appellate GAL’s brief that presented both best interests and the child’s wishes, and addressed the trial GAL’s minimal participation as a serious concern for abuse/neglect proceedings.


In re Esperanza M., 955 P.2d 204 (1998)