Department of Human Services v. K. A. H.Department of Human Services v. K. A. H.
Mother appeals a juvenile court judgment asserting jurisdiction over her child, A. On appeal, the issues are (1) whether the juvenile court erred in admitting scientific evidence in the form of a medical diagnosis that A had been abused, and (2) whether the court erred in allowing the diagnosing physician to testify by telephone rather than in person. For the reasons explained below, we agree with mother that, because the physician’s testimony was wholly determinative of the outcome of the proceeding,
The facts pertinent to our review are undisputed. On March 8, 2015, A, who was six months old at the time, was taken to an emergency room in Pendleton after her parents called 9-1-1. Mother reported that A had been injured when A’s six-year-old sister, who was carrying A, tripped and fell on top of A onto the living room floor, which was carpeted. Mother said that she had left the living room to get a clean diaper for A, heard a “thud,” and ran back to the living room to find A crying. While mother held A, A stopped crying, went “limp and pale,” began “taking shallow breaths,” and appeared “almost unconscious.”
At the emergency room, A appeared tired but was able to consume a small amount of liquids. She was discharged from the hospital that evening, but her parents brought her back the following day, March 9, because of concerns about possible dehydration. At that time, A had a slight abrasion on her head but displayed no swelling, bruising, or bone fractures. Examination of A revealed a “left hemisphere mixed density [subdural hemorrhage]” with no visible skull fracture.
Later that day, A was transferred to Doernbecher Children’s Hospital in Portland for further examination. The treating physician there was Dr. Valvano, the medical director of the hospital’s suspected-child-abuse program. Tests ordered by Valvano confirmed the subdural hemorrhage and indicated that A did not suffer from any bleeding disorder or bone disease. The tests also did not reveal any “pattern injuries” or bone fractures. Valvano also consulted with an ophthalmologist, who identified “numerous” retinal hemorrhages in her left eye that “extended to the mid-periphery.” Valvano did not identify any underlying disorders in A that he believed could cause retinal hemorrhaging.
In a written assessment, Valvano stated that A’s brain and retinal hemorrhages “raise concern for nonac-cidental trauma.” He explained, among other things, that the “pan hemispheric size of the [brain] hemorrhage is not expected from a short fall such as described by parents,” and that the “[m]ixed density” nature of the brain hemorrhage can be an indicator of “hemorrhage of multiple
Valvano recommended that a follow-up bone survey be conducted two weeks later to look for fractures that may have been missed in the initial survey. During that period, A was returned to mother’s care under an “in-home safety plan” prescribed by the Department of Human Services (DHS). The bone survey was conducted on April 3, 2015, and revealed that A had a posterior rib fracture was “not consistent with the fall” but rather, “characteristic of physical abuse.”
Based on Valvano’s assessment, DHS took A into protective custody and filed a dependency petition under
Before the jurisdictional trial, mother moved to exclude any evidence based on the theory of “shaken baby syndrome” or “abusive head trauma” (hereinafter SBS/ AHT). The juvenile court conducted an evidentiary hearing on June 24, 2015. Testifying by telephone, Valvano said, among other things, that he had previously testified as an expert on the SBS/AHT theory, that it is generally accepted among child abuse pediatricians, and that it is considered a medical diagnosis. The juvenile court denied mother’s motion to exclude the evidence.
DHS moved to allow Valvano to testify at the judicial hearing by telephone, under
The juvenile court granted DHS’s motion. The record does not include a copy of the court’s ruling or the grounds for its decision.
The jurisdictional trial occurred on August 5, 2015, at which Valvano testified by telephone. Valvano described his findings as to A’s injuries and testified that each “by itself is highly associated with inflicted trauma and rarely associated with accidental trauma.” He stated that it was “highly improbable” that the rib fracture resulted from A’s sister coming into contact with her during a fall. Valvano concluded that, “ultimately, we have three findings here: Subdural hemorrhages, retinal hemorrhages, and rib fractures. And the one diagnosis that clearly explains all of those findings is abuse.” A’s caseworker testified that jurisdiction was necessary because “we don’t know what happened and who was the perpetrator.” The juvenile court entered a judgment asserting jurisdiction over A “based on the unexplained injuries [and] the credible testimony of Dr. Valvano concerning the head injury and the rib injury.”
On appeal, mother challenges the jurisdictional judgment on two grounds. First, she argues that the juvenile court improperly allowed the use of SBS/AHT evidence, which, according to mother, fails the Brown/O’Key standard for admissibility of scientific evidence. See State v. Brown,
The parties sharply dispute a number of issues related to the SBS/AHT theory, including the extent to which it is accepted by experts in the field, how to define the relevant “field,” the scientific validity of Valvano’s diagnosis of SBS/AHT, and whether mother’s scientific arguments were adequately preserved for our review.
Initially, we address the standard of review. We have not had occasion in a published case to interpret
In interpreting a statute, our primary concern is the statute’s text and context. State v. Gaines,
“(1) Upon motion of any party and for good cause shown, the court may order that the testimony of the party or any witness for the moving party be taken by telephone or by other two-way electronic communication device in any civil proceeding or any proceeding under ORS chapter 419B.
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“(3) Except as provided under subsection (4) of this section, the court shall allow testimony under this section upon a showing of good cause. The court may not allow the use of telephone testimony in any case if:
“(a) The ability to evaluate the credibility and demeanor of a witness or party in person is critical to the outcome of the proceeding',
“(b) The issue or issues the witness or party will testify about are so determinative of the outcome that face-to-face cross-examination is necessary,
“(c) A perpetuation deposition under ORCP 39 I is a more practical means of presenting the testimony;
“(d) The exhibits or documents the witness or party will testify about are too voluminous to make telephone testimony practical;
“(e) Facilities that would permit the taking of telephone testimony are not available;
“(f) The failure of the witness or party to appear personally will result in substantial prejudice to a party in the proceeding', or
“(g) Other circumstances exist that require the personal appearance of a witness or party.”
(Emphases added.)
The statute thus begins by stating a general rule that the court “may order” testimony by telephone “for good cause shown.”
The initial phrase of
In the context of evidentiary rulings, the Supreme Court has explained that “‘discretion’ *** refers to the authority of a trial court to choose among several legally correct outcomes.” State v. Rogers,
Although this case does not involve an evidentiary ruling, the reasoning in Rogers is instructive. Here,
In the case of
Turning now to the parties’ arguments, mother argues that the juvenile court erred in allowing Valvano to testify by telephone for two reasons: (1) his testimony was
DHS, for its part, agrees that
“the central issue in this case concerned Dr. Valvano’s medical determination that [A]’s injuries were suggestive of nonaccidental trauma and were inconsistent with mother’s report of a short fall. That determination—unlike, for example, a credibility determination concerning whether a witness is telling the truth—turned on an assessment of whether the diagnosis was medically justified. In other words, the juvenile court had to determine whether the reasons Dr. Valvano provided for the AHT diagnosis were valid and whether the medical evaluation was adequate. As such, the determination did not depend on any credibility assessment that would have been affected by a face-to-face cross-examination.”
We reject DHS’s argument for two reasons. DHS proceeds from a premise that assessments of credibility play a role in the “outcome-determinativeness” inquiry under
Second, and more fundamentally, the premise of DHS’s argument is incorrect. The undisputed fact that Valvano’s testimony was outcome-determinative eliminates any need to consider whether his “credibility” was at stake. That conclusion follows from the plain language of the statute. Again, the statute lists a series of situations in which the juvenile court “may not allow” the use of telephonic testimony. The first listed category are cases where the “ability to evaluate the credibility and demeanor of a witness or party in person is critical to the outcome.”
For the same reason, DHS’s next argument—-that mother was not prejudiced by the telephonic appearance because she was still able to cross-examine Valvano, albeit with some inconvenience—is unavailing, in part, because the question of “substantial prejudice” is also addressed in its own subsection, thereby making it a separate consideration.
Furthermore, DHS’s position that mother was merely inconvenienced—but not substantially prejudiced— by her inability to cross-examine Valvano in person is unpersuasive given the critical nature of Valvano’s testimony to the case. Mother explained to the juvenile court that she had planned to cross-examine Valvano with scientific research and that she could not effectively do so over the telephone. Given that his testimony was the only evidence that definitively linked A’s injuries to a theory of abuse, any significant hindrance in effectively cross-examining him amounted to substantial prejudice under these circumstances.
Finally, DHS suggested at oral argument that the statute’s use of the phrase “so determinative of the outcome that face-to-face cross-examination is necessary” (emphasis added) implies that there are degrees of outcome-determinativeness, and that a trial court therefore retains some discretion to allow telephonic testimony depending on the situation. We do not further consider that possibility because, even if one could imagine a circumstance in which DHS’s interpretation would prevail, it cannot prevail here. DHS has conceded that Valvano’s testimony was “outcome-determinative.” Indeed, Valvano’s testimony made up the entirety of DHS’s jurisdictional case. We understand the legislature to have directed, in
Having concluded that the juvenile court erred, we further conclude that that error requires a remand. DHS makes no argument that, even if the juvenile court erred, we should nevertheless affirm (e.g., because any error was harmless). Furthermore, because “[p]arental rights are of paramount importance [,] proceedings affecting those rights must comport with due process.” State ex rel Juv. Dept. v. Burris,
Reversed and remanded.
Notes
Mother, on appeal, presented evidence challenging the validity of the SBS/ AHT theory that she did not first present to the juvenile court. Mother asserted that preservation principles were not an impediment to her doing so. Without opining on the correctness of that assertion, we caution that mother, on remand, would be well advised to provide the juvenile court with the first opportunity to consider any challenges that mother may wish to make to the evidence on which DHS relies.
In another context, we have held that a trial court’s determination of whether a party has demonstrated substantial prejudice is reviewed for legal error. See, e.g., State v. Williams,