Department of Human Services v. J. G., 308 P.3d 296

Background

Mother and father married; they had one biological child A (age 3). Mother had four children from a prior relationship (the stepchildren). DHS removed all children in 2011 and petitioned for juvenile dependency alleging father physically and emotionally abused the stepchildren and that that abuse posed a danger to A.
At father’s jurisdictional hearing, DHS presented testimony recounting out-of-court statements by the stepchildren to a DHS caseworker (Wright) and to CARES personnel; DHS sought to admit those statements to prove danger to A.
Father objected to admission of the stepchildren’s out-of-court statements as hearsay. DHS initially relied on OEC 801(4)(b)(A) (admission by a party-opponent); DHS and children’s counsel also relied on OEC 803(4) (medical-diagnosis/treatment exception). The juvenile court provisionally admitted the evidence and later ruled the statements admissible under multiple theories.
On initial appeal this court upheld admission under OEC 801(4)(b)(A) but the Oregon Supreme Court reversed and remanded in light of Dept. of Human Services v. G. D. W., holding that 801(4)(b)(A) requires the declarant to have taken an adverse position in the proceeding.
On remand this court concluded admission under OEC 801(4)(b)(A) was erroneous but affirmed jurisdictional finding because the stepchildren’s statements were admissible under OEC 803(4) as made for purposes of medical diagnosis or treatment during CARES assessments.

Issues

Issue	Plaintiff's Argument (DHS)	Defendant's Argument (Father)	Held
Whether stepchildren’s out-of-court statements could be admitted as admissions by a party-opponent under OEC 801(4)(b)(A)	DHS: Children are parties adverse to DHS so their statements can be offered against them as party admissions.	Father: Statements are hearsay; children did not take adverse positions so 801(4)(b)(A) inapplicable.	Rejected: Under G. D. W., 801(4)(b)(A) requires the declarant to have declared an adverse position in the proceeding; DHS did not show that, so admission under 801(4)(b)(A) was error.
Whether the stepchildren’s statements were admissible under OEC 803(4) (medical diagnosis/treatment exception)	DHS: Statements to CARES personnel were made during medical assessments and for purposes of diagnosis/treatment, so admissible.	Father: Statements were investigatory, lacked indicia of reliability, and thus not made for medical purposes.	Accepted: Record shows CARES exam and interview took place at a medical center, physician explained purpose as diagnosis/treatment, interviewer introduced as part of exam; statements admissible under 803(4).
Whether admitting CARES statements raises Confrontation Clause concerns	DHS: Confrontation not implicated in juvenile dependency context here.	Father: Forensic/investigative nature of CARES interviews makes statements testimonial, raising confrontation problems.	Not reached constitutionally: Federal confrontation right for criminal defendants differs; no confrontation right here, so testimonial concerns do not bar admissibility under OEC 803(4) in this civil juvenile proceeding.

Key Cases Cited

Dept. of Human Services v. G. D. W., 353 Or. 25 (2012) (801(4)(b)(A) requires declarant to have declared an adverse position in the proceeding)
Dept. of Human Services v. J. G., 251 Or. App. 515 (2012) (prior appellate ruling admitting children’s statements as party admissions)
State v. Moen, 309 Or. 45 (1990) (framework for medical-diagnosis/treatment hearsay exception)
State v. Jensen, 313 Or. 587 (1992) (factors supporting that statements were made for diagnosis/treatment)
State v. Logan, 105 Or. App. 556 (1991) (CARES physician’s explanation and interview as part of exam support 803(4) admissibility)
Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause analysis for testimonial statements)