In the Matter of G. D.-J. B., a Child.
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,
R. A. B., aka R. A. E., Appellant.
and submitted June 26, 2018.
Washington County Circuit Court 17JU03655; 17JU03656 Oscar
W. Kelly argued the cause and fled the brief for appellant.
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
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Or.App. 583] Case Summary:
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.
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
Or.App. 584] JAMES, J.
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.
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.
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."
hearing on that motion was held on October 25,
2017. 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.
"[COUNSEL]: No. Not yet, and it's not going to be
for-at least, it's not ready yet. So I don't know