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.
Submitted on remand August 19, 2019.
Washington County Circuit Court 17JU03655, 17JU03656 Oscar
remand from the Oregon Supreme Court, Dept. of Human Services
v. R. A. B., 365 Or. 369, P.3d (2019).
W. Kelly fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Cecil A. Reniche-Smith, Assistant Attorney
General, fled the brief for respondent.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Or.App. 644] JAMES, J.
Or.App. 643] Case Summary: This case comes before the Court
of Appeals on remand from the Oregon Supreme Court in light
of its recent decision in State v. Black, 364 Or.
579, 437 P.3d 1121 (2019). In Dept. of Human Services v.
R. A. B., 293 Or.App. 582, 591, 49 P.3d 426 (2018), the
Court of Appeals held that the juvenile court did not commit
reversible error when it excluded the testimony of one of
mother's expert witnesses as a discovery sanction for
failing to produce a report from that witness to the
Department of Human Services and the children's counsel.
Held: In light of the recent guidance provided by
the Oregon Supreme Court in Black, and based on this
record, the error was not harmless.
case comes before us on remand from the Oregon Supreme Court
in light of its recent decision in State v. Black,
364 Or. 579, 437 P.3d 1121 (2019). In our original opinion,
we held that the juvenile court had erred by excluding the
testimony of one of mother's 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. Dept. of Human Services v. R. A.
B., 293 Or.App. 582, 589-91, 429 P.3d 426 (2018).
However, relying on our decision in State v. Black,
289 Or.App. 256, 264, 407 P.3d 992 (2017),
rev'd, 364 Or. 579, 437 P.3d 1121 (2019),
wherein we held that such testimony was "tantamount to
providing the expert's view on whether the child
witnesses were likely telling the truth in their
interviews" and therefore impermissible vouching, we
concluded that the trial court did not commit reversible
error in excluding Poppleton's testimony. R. A.
B., 293 Or.App. at 590. Now, in light of the guidance
provided by the Supreme Court in Black, 364 Or. 579,
we reach a different result; the record in this case does not
satisfy us that the error was harmless. Accordingly, we
modify our disposition, and reverse and remand to the
original harmless error analysis, based on our opinion in
Black, 289 Or.App. 256, stated that
"all three sentences of mother's offer of proof
identified impermissible commentary on the evidence: (1)
'Dr. Poppleton would testify to the fact that the
children's interview responses as found in the CARES
report of August 16, 2016, should be looked at with an eye of
skepticism'; (2) 'that the interview did not appear
to be done correctly, or rather, in a way that would decrease
the reliability when looked at in the context of the
development and memory of these children'; and (3)
'that the prior interview that had been done on January
20th, 2016, also should be looked at with skepticism due to
the same problems.'"
R. A. B., 293 Or.App. at 591.
testimony here closely mirrors the proposed testimony in
Black. However, in Black, the Supreme Court
declined to label all of that testimony as vouching, noting
[299 Or.App. 645] that testimony as to interview methods
could potentially be admissible, but required evaluation
under multiple sections of the Oregon Evidence Code:
"Because, under [State v.] Southard [347 Or.
127, 218 P.3d 104 (2009)], it is OEC 403 and OEC 702 that
make a diagnosis of sex abuse inadmissible when it is not
based on physical evidence, it is logical to conclude that it
also is those rules of evidence that make ...