*1 1, Argued May 1992, 23, and appeals submitted affirmed on both June Cornett’s petition Huskey’s petition for reconsideration and for reconsideration denied 29, (318 September petitions 24) both for review allowed October Or Oregon Reports See later issue In the Matter of K., C. and Children.
STATE ex rel JUVENILE DEPARTMENT
OF MULTNOMAH COUNTY,
Respondent, v.
James CORNETT Huskey, and Shannon Appellants, Karin CORNETT, Huskey, fna Karin Respondent. (Control))
(86110; CA A70521 Marriage In the Matter of the HUSKEY, Shannon Appellant, Karin HUSKEY, nka Karin Cornett, Respondent. CA A70580)
(D8308-66069; (Cases Consolidated)
Peter the cause and filed the brief appellant Huskey. for Shannon Attorney Burcart, General, Salem,
Janie M. Assistant argued respondent Oregon. the cause for State of With her on Attorney Crookham, General, brief were Charles S. Virginia Linder, General, L. Solicitor Salem. argued respon- Reeves, Portland,
Martin W. the cause for Reeves, dent Karin With him the brief Kahn Cornett. on Eder, & Portland. argument Marquoit, Portland, oral
James T. waived respondent children.
266-a Presiding Judge, De Muniz and Rossman, Before Judges. n,* Leeso
ROSSMAN, P. J. dissenting part. part; concurring in Muniz, J.,
De *4 * J., Buttler, J., Leeson, retired. vice
266-b
ROSSMAN, P. J. juvenile appeal court is an from consolidated
This regarding proceedings children, two relations and domestic 19.010(4). 419.561(1); juvenile In the ORS and K.1 ORS C jurisdic- proceeding, children within its the court found both In the court. the domestic and made them wards of tion custody proceeding, mother of C. the court awarded relations assign stepfather a error to the admission of C’s father and therapy videotape them as session in which C identified They sexually chal- had abused her. also the individuals who by during drawings lenge therapy made C the admission of several testimony about statements. We affirm and of C’s proceedings. both sexually abusing his
In father was convicted of years ten-year-old later, niece. Four mother’s and father’s by stipulated marriage Father was was dissolved decree. special given custody daughter, needs child C, of their who is a developmental with disabilities. County August, Juvenile 1990, a Multnomah
In asking petition find C the court to filed a Court counselor jurisdiction and condi- because of circumstances within its alleged petition endangering The her welfare. tions sought parent, court ordered sex the custodial had not father, recently admitted to his niece treatment, and had offender August sexually 31, CSD was abused C. On that he had custody placed temporary with of C and she was awarded stepfather. mother, who was then married to by early September, examined Dr. 1990, C was In Response physician and Evalua- at the Child Abuse Keltner, (CARES) hospital. program The at Emmanuel tion Services physical abuse, with sexual consistent evidence doctor found vaginal ridge hymen in including down to erosion of the findings, Dr. Keltner recom- As a result of some areas. any potentially abusive from that C be removed mended therapy awith individual C to environment, and referred working special who therapist needs children with skilled family was contacted of sexual abuse. have been victims only. own motion case, On our their initials refer to the children In this we full names. caption delete the children’s changed of the case to we have Center, was set at the Morrison counseling up a commu- mental health clinic. nity
Mother birth to K in late gave 1990. On September, 3,1991, January C was removed from mother’s home because of concerns about mother’s abilities. parenting C was placed in foster care. She was still treatment at the receiving com- mental health munity clinic. She had been with working Carolyn Weir, a at the clinic who had therapist previous experience developmentally March, disabled children. 1991, C’s foster mother contacted Weir and told her that C had abused complained being sexually by both father and *6 Weir testified that she focused on that stepfather. issue the sessions, next few in an therapy effort to C deal with her help and work feelings through issues of blame the regarding incident. The first of those sessions was videotaped.2
In sessions, the next four Weir and C discussed the sexual session, abuse. one C drew five of stick During pictures that showed She identified the as figures genitalia. figures Weir, said, herself with father and stepfather. According C here,” “I’m sad because dad touched me and my right pointed the middle body. of her She made similar disclosure about Weir those comments onto each of the stepfather. wrote drawings. 1991,
In peti- the state filed a third amended April, father tion, that both and had alleging stepfather sexually K abused C and the court to find both C and within its asking previously Weir testified that C had disclosed that she had been touched fragile inappropriately that was discuss it that time. The but Weir had felt C too support touching argues the that the was dissent that the record does not conclusion conclusion, following exchange: inappropriate. reaching upon we relied you topic preceding of use with this child in the Do ever broach “Q: you had with her?
sessions Uh-huh, yes. “A: work out? And how did that
“Q: touched, very directly her if had ever been “A: one occasion I asked On very early yes. reactive was—this was on and she so-so and she said But she time, pursue any question further at that that I felt and I not to it to that chose develop therapeutic relationship really worth for it to be of that our needed (Emphasis supplied.) harm to her.” rather than of transcript, apparent we cannot be Unfortunately, error in the because of the “abuse,” topic not “use.” Given absolutely asked about the certain that Weir was interpretation. context, however, There is no and reasonable it is an obvious surrounding incident. testimony describing this the circumstances other jurisdiction proceeding on the basis of that information. The proceeding was consolidated with a domestic relations court sought custody in which mother to obtain of C. trial,
At
the court admitted into evidence the video
tape
therapy
figure
of the
drawings.
session and the stick
likely
court found that it was more
than not that father had
repeatedly sexually
stepfather
C,
abused
and that
had had
inappropriate sexual contact with her.3
aAs
result of those
findings,
jurisdiction
the court found
over
children,
both
placed
made them
custody
wards of
court,
them in the
419.476(1)(c);
e.g.,
of CSD. ORS
See,
ORS 419.507.
State ex
Dept.
rel Juv.
v. Gates, 96
365,
Or
774 P2d
rev den
Father the order that made C a ward of the judgment gave court and legal custody. mother Stepfather appeals the order that made K a ward of the court. assign Both drawings, error to the admission of the videotape testimony about statements that C made dur- ing therapy. They argue that the trial court should not have 803(4), admitted the evidence under OEC because C’s state- *7 purposes ments were not “statements made for the of medi- diagnosis cal or treatment.” question by The is whether statements4 made a child treating therapist identifying sex abuse victim to her 803(4), provides: abuser are admissible under OEC which “The following are not excluded by [OEC the rule against hearsay], though admission of even the declarant is available as a witness: support allegations The court found regarding insufficient evidence to parties appeals
mother and the conditions of the residence. None of the
from those
findings.
4 Many
However,
manipula
of C’s “statements” were not verbal.
her nods and
anatomically
equivalent
tions of the
correct dolls were the
of verbal assertions and
631, 643,
Mayfield,
are therefore statements. State v.
302 Or
“ (4)
diagnosis
of medical
made for purposes
Statements
or
describing
history,
past
medical
or
or treatment
sensations,
pain
inception
or
or the
or
present symptoms,
general
in
external source thereof
[or]
character of the cause
diagnosis
treatment.”
reasonably pertinent
far
or
so
as
(1990), the
Moen,
45, 55,
309 Or
“(b) describe or relate ‘medical The statement must sensations, or or history, past present symptoms, pain or or external general [or] character of the cause inception or thereof;’ source “(c) ‘reasonably be pertinent The statement must ” treatment.’
diagnosis or
stepfather argue
matter,
As a threshold
father
803(4)
person hearing
apply,
not
because the
that OEC
does
degree. They are
did not have a medical
the statements
803(4)
require
not
that the declarant
incorrect. OEC
make her statements to a doctor.
tary
does
Legislative
The
Commen
803(4)
provides:
OEC
made to
not
that statements be
require
“This subsection does
atten-
hospital
be admissible. Statements to
physician
family
members of the
dants, ambulance drivers or even
’’Legislative
scope
exception.
within the
ofthe
may
friends
be
803(4),
Ore-
Kirkpatrick,
in
Commentary
reprinted
to Rule
(2d
1989.) (Emphasis supplied.)
ed
Evidence 543
gon
treating therapist who
not whether the
Thus, the issue is
possesses
The issue
certain credentials.
heard C’sstatements
requirements
the three
meet
whether the statements
is
they
Moen;
so,
under OEC
are admissible
if
described
803(4).
question
were
is whether the statements
The first
purpose
or treatment. State
of medical
made for the
requirement
supra,
ensures that
This
Moen,
at 57.
309 Or
v.
trustworthy
declarant
is
because the
are
the statements
diag
proper
promote
treatment or
a desire to
motivated
Oregon
declar-
Kirkpatrick,
Evidence
544.
See
*8
nosis.
“necessarily
making
be
must
in
the statements
motive
ant ’s
determined
reference
to the
circumstances
which they
Moen,
were made.” State v.
supra,
In this
the trial court found that C understood
that what Weir was
in the
doing
sessions was for C’s benefit
and that her cooperation would further
that
It
effort.
also
found that it took “quite awhile” to develop a trust relation
C,
with
ship
the growing therapeutic
relationship
between C and Weir increased C’s
understanding
her
sadness and
would
pain
go away by
Weir. Even
talking
on de
review,
novo
we give some deference to the trial court’s
See,
findings.
Moe,
Moe and
e.g.,
66 Or App
“Q: Does she understand the concept treatment or therapy? I
“A: don’t think has the vaguest [C] idea of what the means, word but ‘therapy’ yes, she does understand that I am there to her” help (Emphasis supplied.) Weir also testified that C understood that were sessions where she came to talk about sad It is clear that C things. her, that, knew that Weir was there to and we find to the help best of her C knew she was treatment ability, receiving *9 that her statements would further that treatment.5
The but no provides satisfactory dissent disagrees testimony of Weir’s that C knew that explanation alternative Weir there her help go away. was her and make “sadness” Instead, argues “virtually ignored” the dissent that we have the were both the circumstances under which statements of Moen. The thrust the made and the first of requirement that the under which C argument dissent’s is circumstances the made her statements cast doubt whether she had upon motive in them. required making over fact that C’s The dissent concern the expresses is a session included a game.6 Play therapy therapy playing an abused child. See and of part treating common important Hall, “The in Cases Involv Experts Role of as Psychologists 451, L Abuse,” Family 23 J ing of Child Sexual Allegations (1989). child, provides It the and threatening 460 is less that cannot be therapist information to the obtained treating “The by interviewing. Rosenberg, Psychologist direct Children,” (1979), 273-76 Proceedings Involving Court Neglect Litigation: excerpted A Manual in Child Abuse and Judges occasion, that, 164 testified on one Weir for C said yes. C if she had ever been touched. directly she asked she the and so question, Weir was troubled C’s reaction to 5 making understanding for the C’s of the reasons Weir was asked about drawings into that were admitted evidence: you part as of Were these statements made “[DEFENSE COUNSEL!: you therapy were—
the or treatment working feelings. Yes. I on “THE WITNESS: was * * * you And that she under- COUNSEL]: were satisfied “[DEFENSE being drawings why they being made? were that that’s were stood —these ability this.” her to understand To the best of “THE WITNESS: 6 having “during a made as been The dissent characterizes the that, using suggests C had game,” App and because been 121 Or at recess from disagree suspect. with both game, We imagination during her statements are the period fact, game played for a of suggestion. In the was the and the characterization game, kept looking the to see time, at clock specified Throughout the C in advance. winner, up, play. time C was declared the After the was how time was left to much Weir, C, mother at and the foster game table which was removed from the playing was game to C that the time was a clear indication sat. removal of the minutes, issues. on sexual abuse worked with C over. For the next Weir talking, Weir Finally, completely withdrawn and resistant when C had become game. else, and C something reached for if wanted to do asked her she including therapy techniques, play specifically to use chose irreparably games, be that C would because of concerns early therapeutic by interrogation rela- in the traumatized tionship. recognized the use of these We do not see how therapeutic whether C made her state- is relevant to tools purposes treatment.” “medical or ments for positive mentions Weir’s use The dissent also experience “[i]n Weir, she feedback, and notes that C’s praised repeatedly questions when had been asked finally gave It is answers.” Or 290. the correct practice importance has in the dissent’s what this not clear any reject argument. that the use of event, we notion developmentally positive child disabled reinforcement when correctly improves basic skills answers her mathematics veracity questions of her casts a shadow over somehow *10 identifying her abusers. routinely videotaped sessions Weir testified that permission given her to do so. her clients who had with all of by supervisory group, tapes review then viewed a Those were supervisor the clinic and a direct which included Weir’s psychologist.7 the fact, the existence of In licensed clinical tape parties the few weeks before to the until a was not known began. trial the video that she neither made
Weir also testified purposes. tape The dissent trial the session for nor conducted part videotape correctly of Weir’s was made as that the notes taped, however, process.8 that was The session educational tape to of C that she showed that Weir never testified *11 “A: Uh-huh. leading questions.
“Q: supposed to ask You’re not very That’s true.” “A: sug- my supervisor, he reported session to When I this “THE WITNESS: experience past with report of his because
gested I make this loose verbatim that up in things come court. knowing possibly like this do this and cases like it, taped interview after the I understand it was Just so “THE COURT: report? this supervisor supervisor recommended you talked to the supervision Oh, my supervisor in yeah. I meet “THE WITNESS: * * supplied.) my (Emphasis weekly go all of cases to over agree reading passage We do not with the dissent’s of this as supposed an leading questions. question Weir that admission she was not to ask response
Instead, we read it as a to a protocols about the consistent for sexual abuse any agree event, evaluations. we do not with the dissent’s by inappropri- conclusion that C’s disclosures were “elicited leading questions.” videotape ate 121 Or at 290. The stepfather shows that the disclosures about occurred as follows:
“Weir: Your mom told me that the other day you were telling things her about some that happened you to at—with your real stepdad your dad?
“C: yes.] [Nods ** *
“Weir: Can you explain to me or tell me what it is your did stepdad you? “Weir: I have an I idea. have some dolls over here and * * *
maybe you can show using me these you dolls. Do have your dolls at house? you Sometimes do play Well, with dolls? these are kind special dolls. you Have ever seen dolls like these before? you
“Weir: Do anything notice that is different on these dolls than what is on your dolls? girl
“C: That is a boy. and this is a [Pointing genitals on daddy doll.]
“Weir: right. That’s How do you know that? [Again
“C: points genitals daddy on doll.] boy’s “Weir: Is it that parts? yes.]
“C: girl. [Nods This is a to mommy [Points doll.] Yeah, right. you “Weir: that’s Have boy’s ever seen parts like these? [Pointing genitals daddy on doll.] yes.] [Nods
“C: that, you
“Weir: Where have seen [C]?
“C: At the house. house,
“Weir: At whose honey? *12 Grandma’s house. pause.] a [After “C: — did parts Whose whose house? “Weir: Grandma’s the name of youDo remember pause.] you [After see there? person? [Nods no.] “C: parts or a man’s like boy’s parts you
“Weir: Did see see there? you yes.] [Nods
“C: ‘ something hap- telling your mom You were Weir: stepdad Jim. you your with pened yes.] “C: [Nods what happened me with the dolls you
“Weir: Will show happened me what Jim? You show your stepdad with you you your stepdad. your stepdad, with you? like dolls looks most ‘Which one of these doll, doll’s mommy feet.] girl using “C: [Points doll.] at girl one? [Points at this you pointing “Weir: Are yes.] [Nods “C: youWill hold this? that doll? youWill hold
“Weir: the doll that looks Is this girl doll.] hands C mother [Foster daddy [Lifting up doll.] Jim? your stepdad like most yes.] [Nods “C: your happened me what you show
“Weir: Can I this is doing know good. You’re using the dolls? stepdad Jim to do. hard it girl sits.] doll so [Positions
“C: do? that what the dolls sitting there. Is You are “Weir: daddy doll] do? [gesturing this doll "Whatdoes Standing. “C: and what say, What does he Okay. up. He stands
“Weir: he do? does to her? say anything this doll
“Weir: Does no.] [Nods “C: something? he do No. Does
“Weir: yes.] [Nods “C: he do? What does
“Weir: doll girl closer.] [Moves “C: closer, they? aren’t They’re “Weir: girl hand.] hand to touch doll’s daddy doll’s [Moves “C: *13 Why show me. her? You need to he touch “Weir: Does me what he does. hold this doll and show don’t you no, daddy [Nodding pokes doll.] at “C: I don’t Okay, this doll? but You want me to hold “Weir: do, does, to tell me what to you doll so need know what this you you can show me. Can on this doll so what to move what to move? tell me daddy arm.] doll’s [Grabs
“C: hand? “Weir: His yes.] [Nods
“C: with his hand? Where he touch her Okay. “Weir: does girl genitals.] doll’s [Points “C: youWill show me? Point. “Weir: points genitals.] girl up “C: doll [Lifts touches her. you where show me he “Weir: Point yes.] Nods genitals on doll. [Points “C: is called? you place Do know what this “Weir: Privates. “C: — Where does Okay. her privates. Private. It’s
“Weir: with his hand? What does he do
“C: Touch. else? anything her? And
“Weir: Touches up. Back [Inaudible.] “C: standing Jim doll Is the up. He stands her back “Weir: me you tell he do? Can that? What else does when he does
up doing right now? what he is this. His hand on privates. her with his Touching
“C: girl doll.] on genitals [Points What is ‘this’?
“Weir: Privates.
“C: her? touching is he part. Where “Weir: Private girl “C: Down there. doll up points [Lifts genitals.]
‘ your ‘Weir: And ‘downthere’ is private part. How often did that happen? you many... Do know how
“C: A lot. A up finger.] [Holds “Weir: lot? One time? one [Nods “C: no.]
“Weir: Not one time. More than one time?
“C: yes.] [Nods many you
“Weir: How times do think? Two times? up fingers.] two [Holds yes.]
“C: [Nods anybody happened? “Weir: Was else home when that [Shaking her no.] “C: head No. you your
“Weir: Do know where mom was? Shopping. “C: Shopping.
“Weir: And where in the house did this *14 happen?
“C: Brown house.
‘ In Were Weir: the brown house? there different rooms in the brown house? yes.]
“C: [Nods happen
“Weir: What room did it in?
“C: Mom’s. in did it
“Weir: mom’s room. And where mom’s room happen, [C]?
“C: The bed. you? to say anything “Weir: And did he “C: No. going to Nothing? you anything Did he tell was
“Weir: you anybody? told you...[C no]...if to nods happen [Nods no.] “C: No. time what he was you No. Did he tell ahead of
“Weir: ling to do... Í
“C: No. goodjob you? telling me, of “Weir: ... to You’vedone hard.” I knowit was sufficiently questions the were We are satisfied that asked given open-ended, communication C’s skills. “consistently Weir wrote in dissent notes that reports that C continued to avoid sexual abuse issues
her that she ‘made no disclosures’ ” videotaped until the session. reports explained at 290. Weir these entries. Her Or correspond goals, with of had to the identified treatment one ability past improve cope sexual which was C’s agency required by Weir write a result, abuse. As a was her referring goal, yet sentence to each even if it had not been therapy.9 addressed question given the no that Weir had been
There is sexually allegedly abused; C was information that C referred to Weir for treatment of that abuse after Dr. Keltner signs physical It us to found the require of it. would be ridiculous for therapist treating psychologi- the to be unaware of trying despite injury that, Weir cal she is heal. testified knowledge allegedly abused, she have that C had been did not identity any preconceptions We are about the of abuser. allegations knowledge and her of the satisfied Weir’s impact understanding techniques materially of C’s did not making her sessions, affect C’s statements. motive stepfather argue reason Father and that C could not promote ably effec would have believed C’s statements Weir not or treatment because is tive medical questions argument First, it This raises two issues. doctor. person who heard statements. Weir’s credentials as already rule focuses on the motive noted, we have As accomplishments academic the lis declarant, not the the tener. Oregon Kirkpatrick, Second, it chal at 544. Evidence *15 that lenges belief of a declarant’s the reasonableness pro than a doctor could made to someone other statements diagnosis. medical treatment mote 9 she had to mean that were not intended also statements Weir testified referring Instead, simply being interrogated denied abused. C and C had general related issues. avoidance of 280 father and
Essentially, stepfather are us to asking that, hold law, as a matter of who is therapist not a doctor is not engaging “medical treatment or diagnosis,” pur- for poses 803(4), of OEC when she provides for a therapy child referred to her for the psychological injuries associated with sexual abuse. We find no cases Oregon on directly point.
Federal courts have admitted statements of identity
made
child abuse
victims to mental health professionals as
statements made for the
purposes
“medical diagnosis and
803(4). See,
treatment” under FRE
e.g.,
Newman,
U.S. v.
965
(7th
F2d 206
Cir 1992), cert den
US_,
506
“[T]he would in any event have been hearsay admissible under the exception ‘statements purposes diagnosis for 803(4). of medical or treatment.’ [FRE] rule, psychology
Is medicine? For the it purpose of is. The idea behind the rule a person is that who believes that injured strong he is or be ill or has a may incentive to tell the professional from whom he seeks or treatment the history, symptoms, truth about his medical etc. because if he diagnose doesn’t it will be harder for the professional his effectively. and treat it problem as to a applies forcefully psycholo- “The rationale clinical and warrants us in ‘medical’ gist physician, reading as to F2d broadly.” (Emphasis supplied.) at 210. that have
Similarly,
hearsay exceptions
most states
803(4) have held that
made to
to FRE
equivalent
are for the
of “medical treatment
purposes
psychologists
153 Ariz
Robinson,
the rule. See State v.
under
diagnosis”
SW2d 380
(1987);
Com.,
(Ky
Drumm v.
191,
281
(1990);
(1989),
of R.T.,
US
In re
364
den 494
1067
cert
Welfare
(Minn
1985);
780,
Bullock,
v.
NC
Ct
State
320
NW2d 884
(1987);
App 617,
In
77
335 SE2d
Helms,
re
NC
We find those cases rationale exception the focuses on the declarant and the trustworthi- promote proper her motive treatment ness that flows from to diagnosis. Kirkpatrick, Oregon at Father and Evidence 544. ignore asking stepfather court the are, effect, to and many professionals engaged who in health care activities are they diagnosis involving not have treatment, because do Every day, degrees. people make to treat- statements medical psychologists ing chiropractors, optometrists their about history, symptoms, pain past present or sensa- or medical general inception of the cause or tions, “the or character or help. get to We thereof’ in an effort medical external source fail to see any between those statements relevant distinction orthopedist, opthamologist made an and statements seeking help person psychiatrist. is moti- case, In each physical get proper for their treatment vated the desire meet case, if the statements ailments, and in each and mental they requirements be admitted. Moen, of should 10 LaLone, See, People 432 e.g., 129, v. not followed this trend. Some states have (1989); 103,437 Gokey, A2d 766 154 Vt 574 v. NW2d 611 State Mich permit admission did not Gokey, that Vermont’s rule court noted condition,” pertinent if “relating even inception or cause of statements supra, Lalone court Gokey, Vt 141 n 8. The v. at State or treatment. health care to mental made recognized admission the trend towards People rule. rejected Michigan narrower than the federal rule is providers it. but LaLone, supra, 432 Mich 114. v.
Weir “Qualified was a Mental Health Professional” at a community mental health clinic.11 She testified had to satisfy certain state requirements in order to work at the center.12 She met weekly her immediate supervisor, a licensed clinical social worker. Her work was supervised aby medical psychiatrist, Sack, Dr. who had the final authority to determine what treatment was appropriate.13 At their meet- ings, they discussed the treatment plan and whether C was making progress. Weir described what had happened since provides *17 OAR purposes 309-32-135 community definitions for the of treat services, including ment ders, the treatment of children with mental or emotional disor approved by “Qualified as the Mental Health Division. Section 8 defines a Mental Health Professional” as: “(a) psychiatrist, A psychologist, person licensed licensed or with a masters degree in specialty, registered a mental health a nurse with mental health experience, person approved by or other community the program mental health ’ person An director. years ‘other shall have at comparable least 3 documented of experience
education or setting; in a mental health treatment and “(b) Whoat a competence identify minimum has precipi- demonstrated events; tating drug gather disabilities; physical of histories mental and alcohol and use, past services, contacts; justice mental health and criminal assess social, family, relationships; assessment; and work conduct a mental status diagnosis diagnostic impression; document a DSM-III supervise or write and a plan; individual, provide family, group therapy.” treatment and (Emphasis and supplied.) Clearly, “Qualified the Mental Health Division considers a Mental Health Profes- competent status, relationships sional” to be to assess and mental document diagnostic impressions, treat and setting. counsel in a mental health 12 background years providing Weir’s ongoing includes four of both crisis and counseling provided to sex abuse victims. She the trial court with a detailed list of jobs, work, training programs volunteer prepared courses and that have her for her position therapist C, as a providedtherapy at the Center. At the time that she year graduate was in her final aas student at the School of SocialWork at Portland University. part required graduate State Her work at the center was of a student practicum.
13Weir testified about the doctor’s role her cases: “By agency, days mandate with our within the first 45 of treatment or client, my plan my within initial contact with the I need to review treatment and summary background case either consulting psychiatrist. and all the information I have with will him. He agree words, disagree provide suggestions. or or In other he is the authority sign He has final I off on whether what am doing appropriate is treatment.” She also described the initial consultation: go background “He has the child’schart in front of him. I over material — case, know, you history. plan ofthe I talk little bit of about the treatment this — plan developed my is at the initial consultation approach the treatment that I’ve and any have, any questions gives to treatment. I him I he me feedback ask treatment, my questions aspects he has. He me about different of and that’s
what the initial one consists of.”
283 provided suggestions Dr. and consultation, last and Sack Clearly, approved plan. guidance and the treatment Weir working professional. as a mental health care requirements third of
Wenow turn to the second and admissible, must the declar- Moen. To be statements describe history, physical symptoms, medical current ant’s general inception symptoms. Moen, v.
or cause of the State Logan, supra, App supra, at 309 Or at In State v. Or 55. 105 identifying held her abuser 561, we that a child’s statements they requirement Moen, the second “general because described met symptoms of the character cause” of people Here, sexual abuse. C’s statements described the who injury. They require meet the caused therefore second ment of Moen. “reasonably pertinent” must also be supra, Moen, or treatment. State at 55. v. 309 Or recognized child
We have
sexual abuse
emo-
involves
physical
psychological injuries,
tional,
allowed
have
identifying
the admission of a child’s statements
her abuser
in cases where the statements were made to
doctor. See
(1991),
App
Alvarez,
230, 235,
State v.
110 Or
Here, the doctor
potentially
situa
abusive
ommended that Cbe removed from
therapy
part
as
of her treatment
and referred C to this
tions
therapy
treat
was intended to
sexual abuse. The
for
injuries
psychological
Father
associated with
abuse.
“reasonably
argue
stepfather
were not
that C’s statements
diagnosis
not
pertinent
did
or treatment” because doctor
rely
They point
on them.
to several cases in which we have
held that statements on which a doctor had relied were
“reasonably pertinent
diagnosis
e.g.,
See,
or treatment.”
Newby,
App
State v.
97 Or
598,
“Judge Weinstein writes that ‘a fact enough reliable diagnosis serve as the basis for a enough is also reliable escape hearsay proscription.’ Berger, [4] Weinstein and [Weinstein’s Evidence] 803-129 [no edition] This principle recognizes that life and death decisions are made physicians in reliance on such facts and as such should have sufficient trustworthiness to be admissible in a court of law. This closelyparallels rationale that underlying rule 703 and suggests a similar apply, namely test should this —is fact of type reasonably upon by relied in a experts particular field forming opinions.” (Emphasis supplied.) 633 F2d at 83-84. past, identifying
In we have held that statements physician reasonably rely the abuser are “such aas would on Newby,supra, App or treatment.” State v. 97 Or Here, at 602. the doctor testified that the identification of the perpetrator is an essential element in the treatment of sexual potentially abuse. She recommended that C be removed from undergo therapy abusive situations and that she for the injuries psychological knowing of the abuse. Without who the perpetrator was, the doctor’s recommendations could not any meaningful e.g., See, have been carried out in fashion. supra, Vosika, v. State 83 Or at 308. Identification of the important determining abusers was potentially psychological injuries. in and in which situations were effectively treating
abusive the child’s Finally, suggest stepfather father and that the state *19 required jump prove be and should an additional hurdle 803(4) that statements admitted under OEC are reliable.
285 803(4) “firmly hearsay is a rooted” OEC They are incorrect. Moen, supra, v. at When evidence State 309 Or 63. exception. inferred. State v. is reliability an exception,
falls such within (1991). P2d Stevens, 311 Or 119, 142, 806 92 satisfy that C’s statements concluded Having testimony we hold that the videotape, Moen requirements, 803(4). See State v. under OEC were admissible drawings and rev den 311 Or 644 751, 723, P2d 809 Verley, App Or (1991). find of the
On de novo
review, we
aby preponderance
C,
abused
and
sexually
that father has repeatedly
evidence
sexual contact with
has had
stepfather
inappropriate
in
relations
find,
proceeding,
her. We therefore
the domestic
in
change
been a substantial
circumstances
there has
and that a
in
decree,
change
dissolution
since
original
Southworth
107.137(1);
in
is C’s best interests. ORS
custody
rev den
Southworth,
607, 612,
122,
113 Or
835 P2d
App
(1992). In the
court
De concurring part. held testimony, the court any other hearing
Before able whether C would be hearing to determine competency two of the manner. The court and in any helpful testify lived, she who about where questions asked C several lawyers was, she had for number what with, what her phone she lived was, response so name forth. breakfast, what dad’s response no audible she either gave of the questions, most found that “I know.” The court answered, don’t or she she was “unable to because testify, was not competent communicate or to formulate communications about any- *20 other than thing very proximate historical facts, what she had breakfast, for what she had for lunch.”
The court admitted hearsay C, statements in which she identified her father and her stepfather as people who had sexually her, abused and the court made C a ward of the court. The court concluded that C’s half-sister, K, was abuse, also risk of sexual because K lived in a home that (K’s father). included C’s stepfather The court therefore made K a ward of the court also. The only bases for K making a ward of the court were the hearsay statements made by C to Weir during sessions at therapy the Morrison Center. For the reasons expressed below, I conclude that the court erred by statements, those admitting and that it therefore erred by K a ward of the making However, court. the record contains sufficient admissible evidence that shows that C was sexually abused by someone while she was in her living father’s home,1 and I conclude that the court did not err by making her a ward of the court and awarding custody of her to her mother.
The sole issue in this case is whether statements made by student, a child to a graduate who was a social doing work but practicum, was not in any state,2 licensed way by are admissible under the hearsay exception that are made for the purposes medical treatment or 803(4). diagnosis. OEC As the majority recognizes, admis- sibility hearsay under that rule depends on the declarant’s motive in 121 making statements. Or at 270. As App we said in 598, State v. 97 Or 777 Newby, App P2d rev den Or (1989), 308 660
“the declarant’s in making motive the statement to the medical provider promote must be to treatment diag- or nosis.” 97 Or at 601. (Emphasis supplied.) That not prerequisite admissibility present, court erred by C’s statements to Weir. admitting
1 admissibility unchallenged. of that evidence is 2 However, professional.” “qualified Weir that a testified she was mental health completed degree she also testified that she had not and that she was not licensed any way by the state.
287 803(4) only Hearsay may if under OEC be admissible diagnosis purpose to obtain medical or the declarant’s is (1990). 45, 55, P2d 111 Moen, v. 309 Or 786 treatment. State determining purpose had that when she made In whether C under statements, we must examine circumstances her which she made them. State v. Barkley, 420, 424, Or P2d 390 Barkley, about the child’s statements sexual physical properly admitted, were because the record abuse showed (a) [with of the interview purpose
“the child knew medical to obtain medical or professional] was (b) that had to be truthful to advance that treatment and 426. diagnosis.” medical treatment Or at *21 The record in this case not reflect that C had a similar does understanding. majority virtually ignores Yet the the circum- the under which she made statements and stances requirement promote the be that declarant motivated diagnosis. treatment or at the
Weir saw C once a week Morrison Center. She very ability had a limited “to deal in the found that C examples “us[ed] Consequently, abstract.” Weir lots of and repeating questions” of of when she worked with lots positive did She that she used feedback when C child. something correctly, testified adding the numbers on the dice like games. during understanding their C’s of
Weir testified about weekly sessions:
“Q. your weekly meetings, what C understand [D]oes what the them is? purpose I think that very interesting question.
“A. That’s I’m the that she comes person understands that what to talk is [she] how would things, be describe [she] sad would about And would also prob- with me she probably. what she does * ** time, games. good play ably say play we and have that what the word vaguest idea of [she] “I don’t think has the I am means, yes, she does understand but ‘therapy’ help there to her.”
288 Although Weir met with a periodically supervising psychia- trist, C, never examined psychiatrist and Weir never told that she worked with a girl doctor.3 before
Long obtaining about sexual C, abuse from Weir assumed that the child had been sexually
abused. 24, 1991, On she wrote in a January C report continued to avoid sexual abuse issues both talk and play. In a 31 Weir January report, indicated that there was “no still no In a change, wrote, disclosure.” 7 she February report, “C avoids sexual any exploration abuse.” On Feb- regarding ruary wrote, “C has made no disclosures.” March,
In early C’s foster mother told that C Weir had.said that she had been abused her father and sexually her stepfather. Weir decided to videotape her next session with the girl.4 C, The shows the foster and videotape mother Weir a board The playing game. involved role game playing At one answering hypothetical questions.5 Weir set point, the board aside and used a series of leading questions “anatomically correct” dolls to ask C about the sexual abuse required psychiatrist days Weir was meet with within 45 after her initial plan developed. contact a client to review the treatment that Weir had The revisions, psychiatrist approve plan suggest would either and the two would every days progress. meet once after that to client’s discuss the majority mistakenly which Weir characterizes circumstances under tape. made the Weir testified: routinely tape my permission tape. “I all of clients for whom I have I am
part part my process I educational at Morrison Center and Portland State —as part supervisory group routinely am of a review where we each review * * tapes of other’s —the each other’s work However, tape Weir never testified that she showed the of C to the licensed clinical *22 worker, supervising psychiatrist anyone supervisory to the or to else in her social Moreover, group. testimony relayed her not reveal whether C’s review does she any person about sexual abuse to who was licensed to make a medical prescribe support to treatment. The record not an inference that or does taped “therapeutic purposes.” App was 121 Or at 273. the session
5 role-playing game The included: thing you
“What’s the worst can do to someone?” you thing say your family?” “What’s the best can about just you going call “You’ve written a book. What are the book?” up “Make a dream.” you boy plays penis?” a with his
“What do think of that sometimes baby.” “Act like a else, something you you changed what would be?”
“If had to be into
289 place. had Weir testified was she assumed taken that she that leading questions, supposed use because that would not compromising reliability the child’s answers.6 risk response leading questions, her
to Weir’s C indicated that sexually stepfather her.7 then father and her had abused Weir non-leading question, you again “Can tell me asked this you?” people that shook her head names of the did this C game, Weir the board and the three resumed no. playing.8 retrieved explained why leading questions jeopardize seeking process: truth Weir supposed leading questions. not to use “Q. You’re very “A. That’s true.
“Q. leading danger asking questions? [Wlhat is the in Well, danger you is would influence the child. “A. that you what [Dio know the term ‘contamination’ means in a context of “Q. reporting sexual abuse? “A. Yes. that What does mean?
“Q. something “A. It when has come in to interfere with the evidence? means Now, you you’re Okay. agree therapeutic would that in model that “Q. using, higher protocol [CARES] that than in the there’s risk of contamination discussing? that we’ve been using. therapeutic “A. model that I’m The — you agree Would that “Q.
“A. Yes. higher you agree by using leading questions Okay. Would that there’s “Q. risk contamination? “A. Yes.” show, majority’s excerpts leading questions interview Weir’s As the from the stepdad App
clearly suggested The that her Jim molested her. 121 Or at 276-78. to C here is whether C was The issue is whom. issue not molested. majority previously been that that had claims “C had disclosed inappropriately.” n 2. reads much into 121 Or at 268 That assertion too touched testimony. testified: Weir’s She very directly videotaped I [before interview] asked "On one occasion touched, very early yes. But she was—this was
if she had ever been and she said any question pursue not it that and I chose on and she was so-so reactive to * * further at that time session, early question Weir C in The record not indicate what asked does testimony indicating nothing absolutely Weir’s C’s answer was. There is what touched, touched, by whom or anything was how she where she said about C Any inappropriately that she was touched what assertion under circumstances. speculation. to sheer amounts *23 In their next four sessions, Weir and C discussed the sexual abuse issues that had been brought the up during March 7 session. C then drew the stick figures that are described by majority. 121 Or App at 268.
Hearsay is ordinarily inadmissible, because it is not
Sheedy Stall,
v.
trustworthy.
802;
OEC
594,
255 Or
596, 468
(1970).
P2d 529
However, there are
to the
exceptions
general
rule, such as the
exception
that are made for
purposes of medical treatment or diagnosis. The cornerstone
of the recognized exceptions to the hearsay rule is that some
statements are “made under circumstances calculated to give
some
[them]
State v. Kendrick, special trustworthiness.”
Or
515,
In C’s experience Weir, she had been asked questions repeatedly was praised when finally gave the correct answers. Although Weir assumed that C had been sexually abused, Weir wrote in consistently her that reports C continued to avoid sexual abuse issues and that she “made no disclosures” before the videotaped session. that During ses- sion, she made statements about sexual abuse that were elicited by inappropriate leading questions, during recess from a game required her to use her to make imagination things up. Those are hardly sort of circumstances that are “calculated to give [her some statements] trust- special Kendrick, worthiness.” State v. supra, 239 Or at 515. To the those are contrary, circumstances virtually guaranteed generate unreliable statements.
The importance protecting innocent children from sexual predators cannot be However, minimized. I cannot join the majority’s application of OEC 803(4), which stretches the rule its limits beyond to admit statements that have to do with nothing a desire to obtain medical treatment diagnosis. C’s statements are not admissible under OEC 803(4) or any other exception to the rule. hearsay bases for only K a making ward of court were allegations C’s had stepfather abused C. sexually from C’s Apart statements, and the drawings videotape, there is no evidence as identifying stepfather person making K a ward of erred her. The court molested who had perpetuates that error. this court court, and The notes dissent that she did not group. never testified anyone supervisory Weir also her review in routinely supervisory group reviews group. that the tape She stated show part There is no evidence taped of that routine. tapes, was as and that this session event, any we in this case. group from the routine suggest deviated whether tape is making recorded on the the statements in how C’s motivation fail to see by this issue. affected relayed whether she incorrectly never revealed that Weir states The dissent provide treatment. person to make medical a licensed C’s statements to Weir testified: — following [Dr. Sack] because with actually extra consultation “I I had an on, him, I with him so I discussed and the need to talk I felt the disclosures believe, April.” the 3rd of place: exchange following also took therapeutic education or inves- not for purposes, held for investiga- asked about trial, At Weir was repeatedly tigation. in her violated them and whether she had tory protocols a distinc- noted that there is correctly She sessions. therapy a non- by interview conducted diagnostic tion between a session of trial and purposes for the treating physician of ther- purposes for the treating therapist conducted exchange occurred: following At one apy. point, * * * here, with “Q: Let’s, in foundation deal up terms of with to this you may [C] have encountered any difficulties time, discussing any matter. in point Well, very ability, my opinion, limited in “A: has [C] abstract, you So receptively. expressively deal in the both in concrete, just any my experience, in extremely have to be [C], my work with And so all of level of communication concrete, and lots of using examples lots of very her is things we do. repeating repeating questions, “ us to use here in Court allow Q: Our Rules of Evidence youDo we talk to children witnesses. leading questions when therapy? you when talk to children leading questions use I The difference is do in cases like [C’s]. Yeah. I do “A: legal reasons. doing my questioning I’m too. not therapy, therapeutic.” are My purposes who had about several authors Later, Weir was questioned abuse evaluations or articles on sex written treatises occurred: exchange The following protocols. investigatory “ you find protocols Q: Okay. Among the consistent — were asked a you and I think evaluations for sex abuse leading questions. about by Mr. Gardner question