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In re G. D.-J. B.

Court of Appeals of Oregon

October 2, 2019

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.

          Submitted on remand August 19, 2019.

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

         On remand from the Oregon Supreme Court, Dept. of Human Services v. R. A. B., 365 Or. 369, P.3d (2019).

          George W. Kelly fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Cecil A. Reniche-Smith, Assistant Attorney General, fled the brief for respondent.

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

         [299 Or.App. 644] JAMES, J.

         [299 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.

         This 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 juvenile court.

         Our 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.

         The 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 ...

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