Submitted on remand May 15, 2013.
Klamath County Circuit Court 1000082JV Petition Number 1100389M.
On remand from the Oregon Supreme Court, Dept. of Human Services v. J. G., 353 Or 428, 299 P.3d 889 (2013), Marci Warner Adkisson, Judge.
Peter Gartlan, Chief Defender, and Holly Telerant, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
The Supreme Court allowed father's petition for review of our decision in this juvenile dependency case, Dept. of Human Services v. J. G., 251 Or.App. 515, 283 P.3d 450 (2012), and vacated and remanded for reconsideration in light of the court's subsequent decision in Dept. of Human Services v. G. D. W., 353 Or 25, 292 P.3d 548 (2012). On remand, we affirm the judgment finding father's biological son, A, to be within the court's jurisdiction based on allegations by the Department of Human Services (DHS) that father's emotional and physical abuse toward his four stepchildren presented a danger to his biological son. In asserting jurisdiction, the juvenile court relied on evidence recounting out-of-court statements made by father's stepchildren, also parties to the proceeding before the juvenile court. We conclude that those statements were admissible as statements made for purposes of medical diagnosis or treatment under OEC 803(4).
We reiterate the undisputed facts set forth in our earlier opinion. Mother and father are married and have one child together, A, who was three years old at the time of trial. Mother had four children from a previous relationship, H, D, M, and C (collectively "stepchildren"). In 2011, DHS took custody of all the children on the basis of abuse and then filed a petition to establish jurisdiction. DHS alleged that, pursuant to ORS 419B.100(1)(c), the children were under threat of harm from father because
"father to [A] * * * has physically and emotionally abused the children, [H], [D], [M], and [C], in the form of shooting the children with a BB gun, slamming their heads into the wall, and aiming a shotgun at [H]'s chest then shooting the gun when she ran away from him. [Father] also threatened the children if they made disclosures of this abuse."
The juvenile court held separate jurisdictional hearings for mother and father. At father's hearing, the juvenile court asked the parties whether the jurisdictional proceeding would be for just A or for all five children. Father assented to a hearing as to all of the children. DHS then presented testimony from Wright, a DHS case worker, who had interviewed the children.
Wright recounted what the stepchildren had said to her. They told Wright that father locked them in their room when he and mother were fighting, but that they could hear mother screaming and being thrown against the wall. Stepchildren reported that, after mother and father argued, mother would have visible bruises. H reported that father pointed a shotgun at her chest and told her to get off his property and that, as she ran away, father fired in her direction. Stepchildren also reported that father shot them with a BB gun, leaving visible bruises on some of stepchildren. On one occasion, father dumped cold water on the children when they were outside with little clothing in the middle of winter. Stepchildren also reported that, as punishment, father made them face a wall and would "smack their heads against the wall" if they touched the wall. Stepchildren said that father told them not to report any of the abuse or they would get in trouble.
Father's attorney timely objected to Wright's testimony as to stepchildren's out-of-court statements on hearsay grounds. DHS relied solely on OEC 801(4)(b)(A), admission by a party-opponent, for the admissibility of stepchildren's statements to Wright. The court reserved ruling on the issue and allowed the children to present evidence.
The children's attorney presented testimony from Dr. Purvis, a medical examiner for Child Abuse Response and Evaluation Services (CARES), who conducted a physical examination of stepchildren. As part of the examination, Purvis observed a CARES forensic examiner interview each child. Purvis then generated a written CARES evaluation report. Purvis testified as to statements that stepchildren made to her and to the forensic interviewer concerning father's abuse toward them. The children's attorney also sought to enter into evidence Purvis's CARES assessment reports regarding each stepchild. Again, father's attorney timely objected to the introduction of stepchildren's statements and the CARES report on hearsay grounds. DHS and the children's attorney relied on the medical exception to the ...