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In re G. D.-J. B.

Court of Appeals of Oregon

August 29, 2018

In the Matter of G. D.-J. B., a Child.
v.
R. A. B., aka R. A. E., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, In the Matter of E. R. B., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
R. A. B., aka R. A. E., Appellant.

          Argued and submitted June 26, 2018.

          Washington County Circuit Court 17JU03655; 17JU03656 Oscar Garcia, Judge.

          George W. Kelly argued the cause and fled the brief for appellant.

          Cecil A. Reniche-Smith, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         [293 Or.App. 583] Case Summary:

         In this termination of parental rights case, mother appeals a judgment terminating her parental rights to her two children. Mother challenges the juvenile court's exclusion of the testimony of one of mother's expert witnesses as a sanction for a discovery violation. Mother argues that there was no discovery violation because no document existed to be discovered and she was not obligated to create and produce a report that did not otherwise exist. Department of Human Services (DHS) argues that mother had a discovery obligation to create and produce a report from the expert. DHS also argues that mother's offer of proof was insufficient to establish that the expert's testimony would have been admissible or that its exclusion would have been prejudicial to her case.

         Held:

         ORS 419B.881 does not require that an expert witness create a report. While litigants can undertake, via mutual consent, discovery obligations beyond those set by statute, here, mother made no promise to the juvenile court that the expert would create a report for discovery and did not assume a voluntary discovery obligation beyond those imposed by ORS 419B.881. The trial court erred in concluding that mother committed a discovery violation and imposing the sanction, but that error was harmless because mother's offer of proof showed the expert's testimony would have been inadmissible under State v. Black, 289 Or.App. 256, 261, 407 P.3d 992 (2017), rev allowed, 363 Or. 104 (2018).

         [293 Or.App. 584] JAMES, J.

         Mother appeals a judgment terminating her parental rights to her two children on the grounds of extreme conduct and unfitness by conduct or condition. ORS 419B.502; ORS 419B.504. On appeal she raises three assignments of error. We reject the first and third without discussion and write only to address her second. There, she argues that the juvenile court erred by excluding the testimony of one of her expert witnesses, Poppleton, as a discovery sanction for failing to produce a report from Poppleton to the Department of Human Services (DHS) and the children's counsel. Mother argues that the failure to produce the report could not have been a discovery violation because there was no report to be discovered, and that she was not obligated to have her expert prepare such a report. DHS argues that mother did have an obligation to create and produce a report from Poppleton. Additionally, DHS argues that that mother's offer of proof in the juvenile court is insufficient to establish that Poppleton's testimony would have been admissible or that the exclusion of his testimony was prejudicial to her case. We agree with mother that the trial court erroneously believed that she had committed a discovery violation based on her failure to produce an expert report; however, we agree with DHS that, based on mother's offer of proof, the trial court did not commit reversible error in excluding Poppleton's testimony. Accordingly, we affirm.

         For purposes of considering mother's second assignment of error, the relevant facts are procedural in nature. DHS began termination proceedings against mother under ORS 419B.502, on account of "extreme conduct"; and ORS 419B.504, on account of "mother's unfitness." The grounds for termination of mother's parental rights were partially due to disclosures mother's two children, E and G, made at a CARES facility regarding physical and sexual abuse. Mother believed those disclosures might have been the result of coaching by the children's father. Mother retained an expert witness, Poppleton, to testify about the coaching of witnesses.

         On October 23, 2017, the children's counsel filed a motion in limine for an order "prohibiting mother from [293 Or.App. 585] presenting non-discovered evidence." Children's counsel argued that mother was violating ORS 419B.881 as of October 23, 2017, by not providing information as to the content or length of any witness's testimony with the exception of one draft report from a "professional witness." Children's counsel also argued that mother was "trying to force a postponement by purposefully engaging in discovery violations." That motion concluded by asking the juvenile court to order in limine that "[m] other may not offer either the oral testimony or the written material of any witness or material that has not been disclosed at this time."

         A hearing on that motion was held on October 25, 2017.[1] The juvenile court proceeded to go through mother's witness list by individual and requested information regarding whether discoverable information had been generated by mother's witnesses. During that hearing, the following exchange between the juvenile court and mother's counsel occurred:

"[THE COURT]: Was there a report generated from Dr. Poppleton? And-
"[COUNSEL]: No. Not yet, and it's not going to be for-at least, it's not ready yet. So I don't know when ...

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