*1 8, Argued January Appeals and submitted decision of Court of reversed and judgment of the circuit court affirmed October reconsideration denied November In the Matter of Terance Robert a Child. Beasley, STATE ex rel JUVENILE DEPARTMENT COUNTY,
OF TILLAMOOK Review, Petitioner on Raymon BEASLEY, Respondent on Review.
(CC S38281) J-1650; A64963; CA SC *2 General, Salem, Latto, Assistant Attorney Harrison him on review. With on the cause for petitioner argued and Vir- General, Attorney were Dave Frohnmayer, petition Linder, General, Salem. Solicitor L. ginia Wilsonville, the cause Kohlhoff, argued Theresa M. on review. respondent Peterson, Van Hoom- Carson, Justice, and
Before Chief Unis, Graber, Justices. issen, Fadeley, UNIS, J.
445-a J.,
Fadeley, concurred and filed an specially opinion.
445-b *4 UNIS, J.
The broad this case whether question presented court, a trial to terminate parental rights 419.525,1 may under ORS quash subpoena2 requires the attendance of a minor child to as a witness on testify behalf of the to the child are rights whose parent terminated, child, to be and refuse to allow that sought whose testimonial is not rele- competence challenged, give vant on the to allow the testimony, ground production and of the child would be “contrary best interest.” from a termination of parental
This is an appeal Juvenile Depart The Tillamook rights proceeding. County of ment initiated a to terminate the parental rights petition — state, father, and the father to his son.3 The parties 419.525(1) (2) appointment deal with service of summons and ORS and 419.525(3) (4) counsel, implications respectively. procedure and ORS and set out the proceeding: of a termination * * * “(3) rights parents of which the of the are The facts on the basis admitted, convincing terminated, must be established clear unless * * *. “(4) terminating rights appeal of the an from the order Unless there is rights parent
parent parents, permanently all or or the order terminates parents standing parent have no parents and the whose are terminated any legal proceeding concerning appear the child.” as such in subpoena invalid proceeding that the was either no contention in this There is improperly served. Rights” part: stated the Termination of Parental The “Petition for “6. be terminated on parental rights [father] to the child should “The seriously or conditions grounds father is unfit reason conduct that the improbable integration of the child into his home the child and detrimental to likely change, conditions not future due to conduct or in the foreseeable limited, following: including, to the but not “(a) Addictive, intoxicating liquors or con- habitual chronic or use trolled substances. “(b) and maintain lack of effort or failure to obtain There has been a of the child to living for the child so that return or stable situation suitable parent possible. “(c) through drug alcohol with has failed to follow The father community. programs in the treatment “(d) plan present return of the a viable for the has failed to The father custody. his care and child to
“(e) neglect Physical the child. and emotional *5 — time of At the represented by lawyer. child were each was and one-half child, who six trial, January in foster care under the supervision was age, years (CSD). trial, Before father Services Division Children’s him to interview CSD to allow moved the court to order Father then served The court denied the motion. child. to as a the child at trial testify on CSD to subpoena produce child to pursuant moved examine the witness. Father to would rebut testimony that stating subpoena, motion, father In of his the state’s evidence.5 support much of stated that lawyer, an affidavit of his which included “vital and child’s was testimony believed that lawyer the trial Father’s advised lawyer to the father’s case.” crucial testimony to have the child’s willing court that father chambers the trial court and taken in the trial court’s without father’s presence. parties’ lawyers motion, the state filed an affi- In father’s opposing the child. davit of the CSD caseworker with for responsibility testify to “requiring [the child] The affidavit stated his best inter- would be harmful to him and detrimental to and a ests.” A letter written aby psychologist psychology ‘‘(f) circumstances, adjust Lack of effort the father to his conduct lasting possible return of the child or failure to effect a conditions make adjustment agencies after available social for such reasonable efforts lasting adjust- appears that no extended duration of time that it reasonable ment can be effected.
“7. 9, 1987, September and has been “The child has been in foster care since care, attention, dependent people [father on other for the and love which ability provide, provide has] [has] failed to failed to exhibit an or intent to adoption provided and be with and it is the child’s best interest to be freed security permanent of a home.” rights, parties aproceedingto “[t]hree are involved: the terminate state, McMaster, parents and the child.” State v. (1) motion, testimony child’s would rebut the In the father stated that the ’ substantially forgotten and had the child “has about his father’ state’s evidence that (2) father; returning hear rebut the state’s evidence that no desire to see or about his (3) him; custody detrimental rebut the state’s child to father’s would be grandmother, developed with a bond with his maternal evidence that the has (4) responsible living; for the child’s father was not whom the child was show that (5) seeing behavior; the child’s mother had been determine whether unusual sexual (6) him; opportunity obtain give parties to observe “and thus the court and all an understanding the child.” a clearer affidavit, stated intern, attached to the CSD caseworker’s there would be substantial risk of harm their opinion if were and that the child’s testify to the child he compelled accurate because of his likely impres- answers would not and desire to sionability please.6 motion, quashed court denied father’s The trial need, not the child produce and ordered that CSD subpoena, that, although The trial court concluded as a witness. had relevance to the allegations child’s some the risk of harm to that relevance was outweighed by petition, concluded, therefore, it would the child. The trial court his to the child’s best interests compel produc- be contrary trial, the trial court termi- tion and testimony.7 Following *6 the child. nated father’s parental alia, inter error, as assigning Father appealed, and allow him to the child subpoena trial court’s refusal his behalf. The him to call the child as a witness on permit 6 purpose making request for the of a The letter was written at the of CSD proposed testimony regarding father’s termination at recommendation hearing. psycho of a recent made their on the basis The authors recommendation therapist, and logical history, the child’s emotional behavioral examination child’s part: developmental considerations. letter stated and the child’s history demonstrating exceptionally young boy child] a who has a of “[The is to, anxiety including strong responses, but limited self-destructive behav- showing iors, dangerous bed-wetting, hoarding items. While he is and of areas, very likely regress improvements he will to these earlier it is these general It felt that in addition to the under stressful circumstances.
behaviors any testimony, experienced would courtroom which stressful nature of child, following: anxiety particularly provoking [the child] due to the it would be instability caretaking regarding again of his raise issues it will situation; since his father whom he has not seen he willneed to be in contact with terminated; perceiving placed in of and he will be a situation visitation hurting antagonizing his father. himself as * * * * íí* considerations, required to [the child] not be it is advisedthat “Due to these testify.” order states: The trial court ‘ arguments allegations petition ‘Having and heard the reviewedthe ofthe ** * herein, considering proposed [father’s] based on the record and counsel and questions child, age now and at the and the both to be asked of the child relevancy importance father; weighing and and after time he livedwith his against harm to testimony sought the risk of to be elicited defense counsel the the child, contrary best hereby it to the child’s finds and concludes that “The court * * compel production *.” his and interest to dissenting, Appeals, judge reversed and with one Court of stating: remanded, parent conduct is on trial and that parent’s
“When a own impose, drastic actions a state can faces one of most child, parent oppor- must have the permanent loss that the evidenti- tunity to rebut the state’s case to extent statutes allow. See OEC 402. No statute ary rules and case to refuse to authorizes the court a termination it is not in the child’s best interests. examine a because * * * Assuming the child was the court was competent, to allow him to be examined chambers.” State ex required 515, 519, Or Dept. Beasley, App rel Juv. v. (1991) (footnote omitted). petition for
We allowed the state’s review. We reverse judgment Appeals affirm the decision of the Court court. circuit Oregon matter, observe that the As a threshold we applies to terminate Evidence Code rights. Dept. Ashley, ex rel Juv. State (1991).8 legisla Oregon Code, the P2d 1270 In the Evidence thematically approach adopted consistent, overall ture way actions, should be in those suits and the proceedings treated provides “[a] applies.
in which it OEC 402 except provided admissible, relevant evidence as otherwise Oregon Code, Evidence the Constitutions of by Oregon statutory Oregon, deci United States and admissible.” sional law. Evidence which is not relevant is not Oregon reading that the It is clear from a of OEC 402 *7 complete to be is a Evidence Code was neither intended codification of all the rules of evidence.9 OEC nor impliedly 402 8 actions, Oregon applies generally to civil suits and “The Evidence Code 101(2). Martin, Dept. State ex rel Juv. v. proceedings.” In 271 Or 533 OEC (1975), case, “[a]lthough pre-OEC to P2d 780 this court stated that * * * may generis purposes, parental rights we believe terminate be sui for some subject purposes essentially proceeding,’ to that for of evidence it is a ‘civil so as to be physician-patient provisions privilege, as forth in ORS for set [former] * * 44.040(l)(d)
9 101(2) Commentary to OEC states: compen- Oregon applies proceedings, to all it is not “While the Evidence Code apply proceedings. A number of the rules of evidence that to dium of all addressed, many general others are treated evidential issues are not Commentary judicial lawmaking.” Legislative to fashion. These are left for Oregon Rules of Evidence 450 rules, in areas not evidentiary decisional that
recognizes of the Code.10 Code, the adoption survive by covered under to exclusion Thus, subject evidence may proffered of relevant evidence admissibility exceptions one law). not If the evidence is barred decisional (e.g., in OEC 402 the trial nevertheless, be excluded 402, may, OEC it “[although 403 that provides OEC 403. OEC court under is if its value probative be excluded relevant, may evidence prejudice, of unfair danger substantially outweighed consid or issues, misleading jury, or confusion of the of cumula needless delay presentation erations of undue tive evidence.” child’s no that case, dispute In this there is 11 testimony Because the child’s is relevant.
testimony testimony whether relevant, we must first decide 402. In addressing exclusion under OEC subject what involved and to note what it is inquiry, important case. There is no claim that not, therefore, decide this we do under the “constitu is inadmissible child’s statutory or by Oregon of the United States and Oregon, tions incompetent.12 the child is There is no contention law.” trauma to the the stress or Nor is there contention any would result from requiring the trial court found child that him him from prevent satisfying would testify to appear competency (e.g., make the or more of the elements one communicate). child unable to that, the decisional law of under argues
The state State, (1962), Chandler P2d 626 it was 370 Or and refuse to the subpoena the trial court to quash proper the court because on his behalf testify father’s child allow interest his compel in the “child’s best that it was not found Chandler, a father petitioned and testimony.” production a ward of his 13-year-old daughter order making to revoke an “qualification [that be excluded that the One writer states necessary certain rules presumably in order to continue law] deemed decisional recognized by prior case law.” code that are outside the evidence of exclusion (2d 1989). Oregon ed Kirkpatrick, Evidence “ any tendency having means evidence ‘[Relevant evidence’ Under OEC consequence any to the determination of fact that is of the existence of to make probable would be without the evidence.” probable less than it more action Milbradt, (1988), for a discussion of P2d 620 See State v. 621, 624, 756 competency. testimonial essential elements of
451 At trial hearing, court. court denied juvenile father’s to examine his as a witness request daughter open in the court. The child was court questioned privately by the state. A record was of counsel for the father and presence made of the and answers. This court that questions upheld such is discre- procedure, stating permitting with the trial court and that the trial court did tionary a distinguished abuse its discretion. This court between and a custody proceeding juvenile proceed- divorce is to intent latter ing, stating compelling child and that the trial court must be given protect such when This necessary. discretion to provide protection court stated: juvenile he concept and intent of the code would
“[T]he if if children providing competent [a violated are can them to were to be testify, party require testify] either proceedings contemplated by the code. The applied juvenile proceeding protect intent code is to compelling any the child in situation in which the court thinks the child may require it. Discretion must be vested the trial court to make the initial determination tion a child it would be proper ques- if given Id. at 456 open any [in court] case.” added). (emphasis from Chandler not be quoted language should taken to mean that all that arise from statutes proceedings on codified in the code focus juvenile initially exclusively of the child.13 A to terminate proceeding the best interests 419.525, statute, which arises from a ORS parental rights, code, on and is codified in the does not focus juvenile initially the best interests of the child. The statute for termination The first contemplates two-stage analysis. i.e., the parent, alleged focuses on the conduct of a stage The second focuses stage statutory grounds termination. of the child will be served on whether the best interests 13 State, (1962), Shortly P2d before Chandler v. 230 Or decided, this court stated: has no similar relation to the “The best-interests-of-the-child standard adoption. dispense In an presented in with consent for an
issues every right the natural adoption, court is asked to terminate and interest of custody during goes beyond question parent. Adoption far the child-centered Smith, 277, 281, minority.” P2d et ux v. 229 Or Simons decision, Thus, the termination at least in the context of this court determined that adoption, separate question child. from the of the best interests an if a con- proceeding, parent’s termination. a termination termination, then the best interests of justifies duct termi- and could even then explicitly, prevent are considered ex rel nation from As this court stated State occurring.14 (1990): Geist, Juv. Dept. *9 case, is whether a parent “In a termination the issue not a termination of his or her ‘punished’ by parental should be rather, statutory grounds is whether the for rights; issue convincing termination have been established clear and evidence, 419.525(3), and, so, if whether the child’s best ORS parent-child will of the interest be served termination 419.523(1).” relationship. ORS A footnote to this text states: “Even court determines if will be served a termination a child’s best interest statutory ordered unless the may it not be rights, established clear and for termination have been grounds n in Id at 189 15 (emphasis original).15 evidence.” convincing Kreutzer, 158, P2d 536 In Kreutzer v. 226 Or 359 decree, this (1961), for modification of a divorce a proceeding in in view of the that, court held express provisions former 44.030, the statutes that then ORS 44.020 and ORS former as wit- testify who were persons competent delineated nesses, could not refuse to minor permit the trial court if under those former testify they qualified children to are The court stated: statutory provisions. of the defendant to call
“Consequently,
right
testimony
and to elicit
from them
children to
stand
have
issues was
the same as it would
precisely
material to the
is,
other
witness. This
any
competent
been in the case
Lakson,
course,
Lakson v.
124 Or
right.
a fundamental
14Thus,
prevent
where the
of the child could
termination
the best interests
established,
where the
grounds
are
but cannot cause termination
for termination
grounds for termination are not established.
15
recently
adoption proceeding in which the natural
held that an
This court has
consent,
grounds
to the
for
parent
that a substitute for consent similar
does not
so
established,
stages:
two
must be
also divides into
termination
rights may
parent’s
stage
natural
be termi
whether the
“The first
determines
independent
in
stage
as to whether it is
is an
determination
nated. The second
Fanning,
adoption.
approve
[310
child to
Zockert v.
the best interests of the
Geist,
(1990)];
514, 518-19, 800
Dept.
[310 Or
State ex rel Juv.
v.
P2d 773
Or
105, 109-10, 475
(1990)];
Voorhies,
189, 796
Moody
P2d 579
[257
v.
Or
P2d 1193
(1961)].”
277, 280-85, 366
Smith,
(1970)];
Eder
[229
P2d 875
Simons et ux v.
Or
West,
244, 261,
P2d 400
821
[1928],
cases,
uniformly
P
In divorce
it seems to be
testimony
authority
has no
to exclude the
held that
court
if
are
parties
years
they
of tender
otherwise
of children
567, 455,
§
Am
anno. 2 ALR2d
witnesses. 17
Jur
competent
in a There is no reason for a different rule
1330.
granting
in
divorce decree
of a
provision
modification
children,
controversy
parties
for the
to such a
custody
court as
right
present
open
have
same
Rea,
other case. Rea v.
Or
any
It is true under the holding minor children to testify court not refuse to permit if they requisite because are children simply they possess the Kreutzer Nevertheless, testimonial qualifications. a trial from relevant excluding would not prevent the child under an rule set forth exclusionary OEC 403. Code, Evidence such as OEC Oregon State, Chandler v. did involve a termina- supra, Although the rule we conclude that proceeding, tion of parental the trial it announced and the followed procedure *10 in case should be in a termination applied court proceeding.16 rule of Chandler involves best
The “child’s interest” interests, the risk Although of as does OEC 403.17 balancing severe or harm that would result psychological emotional considerations set forth to a child is not one of the or dangers code, juvenile parental rights A to terminate is under the as was proceeding involved in the Chandler. countervailing forth in OEC 403 is a The existence of the factors set 104(1). Graham, preliminary question Wright & 22 Federal of fact under OEC See 403, 320, (stating principle § same as to FRE Practice and Procedure: Evidence 403). 104(1) counterpart reads: the federal to OEC OEC admissibility “Preliminary questions concerning shall the of evidence (2) court, subject provisions the of subsection of this be determined to the determination, making the rules of In its the court is not bound section. except respect privileges.” those with 104(1) consider, testimony, example, hearing, may trial for In an OEC the court records, experts, or the informed word of counsel. of mental health medical affidavits (1991) Pinnell, 98, 114-15, 806 (stating respect with P2d 110 See State v. unavailability physical illness or or mental of a witness due to determination infirmity). admissibility court, determining 403, the the trial in Under OEC 402, 401, balances the barred OEC relevant under OEC and not evidence that is against of the evidence its benefits. costs exception 403,18Chandler, as a decisional law under OEC independent 402, of OEC 403 for inad- OEC is a basis missibility testimony proceeding. in a of a child’s termination procedure in Chandler and the followed The rule set forth analytical consistent with the the trial court that case are admissibility approach to determine the set forth OEC 403 proceeding. testimony in Similar to a child’s a termination balancing rule, the under the Chandler OEC probative testimony cannot be excluded unless child’s substantially outweighed testimony is the child’s value of psychological harm to the or the risk of severe emotional testimony example, has minimal If, the child’s child. substantially outweighed by probative the risk of value, but psychological trial child, harm to the severe emotional Balancing proba- testimony. may the child’s court exclude testimony against risk of severe tive value of psychological child under the harm to the emotional commonly balancing under OEC rule, like the Chandler in chambers where of the child involve examination will requested.19 allow a child whose court refuse to Before a trial challenged give competence relevant is not testimonial protect testimony excluded, in order to not otherwise that is perform the interests,” trial court must the “child’s best required by balancing Chandler, must i.e., the trial court (1) probative child’s value of the whether determine (2) outweighed by substantially severe the risk of testifying. psychological the child from harm to emotional or regarding making the risk of severe the determination psychological child, the trial harm to emotional or (1) probability of severe as: consider such factors should injury psychological as a result emotional or factfinding process impact on specifically at the 403 is not directed OEC proffered Rather, improper impact of proffered OEC 403 addresses witness. *11 factfinding process. on the evidence psychological recognize importance protecting and of the emotional the We psychological harm to child, why well-being severe emotional or which is risk of of the balancing required appropriate testifying factor under the is an child from the may child in the trial court’s of the instances when examination Chandler. There child necessary. of the may in which examination One instance not be chambers say request agree and necessary parties the child would on what is if the would not be on that under the Chandler rule based make its determination that the trial court offer. (2) (3) testifying; degree anticipated injury; the of the (4) expected injury; expected of duration and whether the psychologicalinjury substantially greater than the reaction average probative of an who child testifies. Unless the value of testimony substantially outweighed the child’s the risk psychological of severe emotional or harm child to the from testifying, is no to there discretion exclude the child’s tes- timony; testimony If, must be however, admitted. goes against probative the worth, balance court the trial practice, that, exclude the evidence.20 We realize these extremely quantify. opinions factors are difficult to The experts usually necessary mental health will be order for the court to its make assessment the asserted emotional psychological injury that would result child. to the We encourage the trial court to articulate on the record the ruling. reasons for its trial here did not have the benefit of this
opinion guide performing balancing it in to its task under the decisional Chandler, law of as clarified However, here. we perform need not remand this case to the trial court to approach task in accordance with the outlined this case. Although agreed testify, never father that the child not need father did submit written offer of what would testify hearing quash to, in the the motion on to subpoena, father what the summarized child’s importance supra, would be and its case. See note 5. We accept summary having as father’s of facts been established purposes light that, de of our review and hold novo Pinnell, 112-13, supra, quoted Wright In State at we from & Graham, 263-64, 5214, § supra, counterpart, at that OEC like its federal FRE 403: “requires judge go through process balancing the trial conscious the costs against judge probative ofthe evidence its benefits. Unless concludes that outweighed’ ‘substantially worth of the evidence is one more of the factors, countervailing exclude; there is no discretion must be If, hand, worth, goes against probative admitted. other on the the balance
judge required ‘may’ is not to exclude he [in the evidence but the words of OEC words, balancing 403] process prerequisite do so. other is a to the discretion, exercise; presupposes exercise of but it is not a formula for its — two-step process balancing, discretionary Obviously judgment. then the balancing factors in the discretion, test taken are to be into account in the exercise of they purport process do but not to control it. Discretion intuitive is an ” susceptible quantification presupposed by metaphor scales. principle essence, balancing applies, in That same as to the under the Chandler rule. *12 456 case, in the
the record as a whole this state has established rights clear and evidence that father’s convincing parental should be terminated. the of reversed. The
The decision of Court is Appeals is affirmed. of the circuit court judgment J., FADELEY, concurring. specially I is, I in in case. That concur the result this agree of that even “father’s summary with the statement accepting as what the witness would proposed testify] [as facts of our de novo review been having purposes established * * * case, as state has light of the record á whole in this the convincing clear and evidence that father’s established 455. should be terminated.” 314 Or at true, is no need to deal with the being That there the testimonial evidence merely admissibility proposed contest its exclusion. Whether because the continue to parties will no effect the evidence is admissible have practical or not the on the evidence ruling on the outcome the case. Because (and we not view outcome, my not affect need does not) correct. The whether ruling should decide evidence, excludability court’s consideration is dictum. It is dictum that I do not wish to join. thus, to hear the
No is made that refusing claim function truth-seeking improves of a witness competent have a liberty that both and child parent of the court. Given see Zockert association, of their interest continuation citing Lassiter (1990), Fanning, 514, 519, 800 P2d 773 Services, Social 27, 101 S Ct v. Department of 18, 452 US (1981) interest in the 2d (“parent’s 68 L Ed 2153, to terminate paren of the decision accuracy justice * ** one”), relevant excluding a commanding tal status into entered witness should competent of a lightly.1 so influ- testimony would
No suggests one not enter might emotionally judge judge ence the emotional notwithstanding merits on the of fact finding 2403, 263, 104 Martin, L Ed 2d 207 US S Ct Schall v. See (“no juvenile (1984) applicable in Due Process Clause doubt proceedings”). Thus, carried OEC 403 charge testimony. (“probative value is of unfair substantially danger outweighed not involved in the court’s dic- prejudice”) rationalizing tum, Imwinkelried, Meaning it be. Proba- nor should Prejudice tive Value and Rule Evidence 403: Federal Can Be Rule 403 used to Resurrect the Common Law of L Evidence?, 41 Vand Rev 879
OEC 402 is referred dicta. This rule provides: admissible,
“All relevant evidence is as otherwise except Code, provided Oregon *13 by by Evidence the Constitutions of the United States and Oregon by Oregon statutory and decisional law. Evidence which not relevant is not admissible.”2 the
Obviously, rule intends Oregon to deci- preserve sional law evidence rules. over the whether Passing issue the reference is to decisions and cases that arise in the future, or, after adoption instead, of the rules ais retroactive all incorporation prior cases announcing exclusionary rules of evidence, the dicta in the lead in opinion present the case refers to a 1962 decision of this court where the issue was simply a 13-year-old whether child jurisdic- was within the tion of the court juvenile after run from having home. away State, Chandler v. Or
This court remanded case for an additional hearing on the ground that the parent should have been to permitted inspect the files public agency having custody of the 13-year-old child under court order. On the toway the holding, court stated that the trial judge did not abuse discretion “in to the child refusing permit to be called as a witness and to have been examined in open court.” Id. at However, 456. the only court rules after pointing out that, in that case:
“The child questioned was in privately by the court the presence of counsel for the father and for the A record state. questions the and answers is here.” Id. 2 Oregon adopt provisions did not the same as in the federal rules. Federal Rule provides: of Evidence 402 admissible, except provided by “All relevant evidence is as otherwise the States, rules, Congress, by Constitution of the United of Act other these ” prescribed by Supreme authority. pursuant statutory
rules Court juvenile Chandler, court comments that the this with an court is vested discretion to make initial determina- any proper question tion given it in whether would be child said case. The comment was itself dictum. The court juvenile compelling that the intent ofthe code protect any thinks the child situation in which reasoning may require it, the child but did not discuss this rationale further.3 That statement is dictum because that employed in that and statement about discretion were questioned case, in the child was on the record albeit present open Thus, court. case is outside of dicta pre-OEC based on dictum in the Chandler case. opinion passes question The of the court also judiciary by statutory of evidence whether the is bound rules develops only judiciary required apply them until the or contrary question because, law That arises rule. common setting, legisla- namely, cases, abuse different child sexual adopted than rule articu- ture has a rule that is different present although opinion case, lated the lead statutory protection fea- of the child has some the same opinion’s rule. tures as are in the lead new The somewhat statutory clearly rule to the of cases similar limited class cases, abuse OEC which it enacted.4 In child sexual 803(18a)(b) hearsay testimony permits of statements hearsay allows of sexual abuse. victim *14 * * * likely substantially suffer witness “is when child lasting testifying” pro- trauma from and severe emotional “[ujnless agreedby parties, vides otherwise The the child in and on record.” shall examine chambers predates application of some adult constitutional decision Gault, 1428, 18 E.g., 1, 87 juvenile L Ed re protect US S the child in court. Ct 2d 527 case, neglect involving parental but one This not a child sexual abuse rather parent’s illegal occupation. where rules claim or issue Nor is case one and fully issue had tried preclusion on an issue because that been would exclude evidence e.g., prosecution where proceeding, abuse and in another child sexual determined Obviously, regulation guilty. of admission of the defendant was found notwithstanding preclusion permissible the fact that the reason of issue claim Graham, Wright Federal would seem to be relevant. See evidence otherwise [i.e., (1978) (“substantive laws] § 5200 rules Practice and Procedure: Evidence id. provisions”); at admissibility equivalent not altered Rule 402 are (“exclusion law”); 240-42, id. at maybe required rule § some of substantive § 5203. expressly “civil, states it covers criminal and juve- (18a)(c). nile court proceedings.” OEC 803 That rule requires examination on the record and requires higher proof standard of emotional damage the child than are found in the court’s dicta the present case. Most the evidence significantly, that the could give still comes in. The legislature’s rule places the relevant evi- record; dence on the dicta the rule in the lead if opinion’s may, the criteria created in it satisfied, are exclude relevant evi- dence. Confrontation and some cross-examination are no doubt impacted by legislative rule protecting children in the limited circumstance and terms described. But the court is not deprived as a whole, and the of a ability party call a witness possessing relevant testimony is not thwarted, totally as would potentially be under possible today’s dicta. course,
Of the legislature has not in the spoken context of a case like this one involving parental neglect. But the differences between the lead choice opinion’s and the choice of the legislature an analogous, egregious situation should be rationally resolved before a rule that invoked to facilitate exclusion of relevant evidence adopted. That has not occurred. At the dicta least, present case is premature, I and do join in it.