State ex rel. Juv. Dept. v. S.P.

• Decision Date: 13 August 2009
• Docket Number: CA A129435.,SC S056089.,CC 2004812301.
• Citation: 215 P.3d 847,346 Or. 592
• Parties: In the Matter of S.P., a Youth. STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Petitioner on Review, v. S.P., Respondent on Review.
• Court: Oregon Supreme Court

215 P.3d 847

346 Or. 592

In the Matter of S.P., a Youth STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Petitioner on Review, v. S.P., Respondent on Review.

CC 2004812301.

CA A129435.

SC S056089.

Supreme Court of Oregon, En Banc.

Argued and Submitted January 13, 2009.

Decided August 13, 2009.

On review from the Court of Appeals.^*

Janet A. Metcalf, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Rebecca Duncan, Assistant Chief Defender, Salem, argued the cause and filed the brief for respondent on review. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

DURHAM, J.

This juvenile court delinquency proceeding comes before us on a question of federal constitutional law. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Sixth Amendment to the United States Constitution forbids the admission of testimonial hearsay in a criminal trial, unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine.¹ See also Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) (applying Crawford). In this case, we are asked to determine whether hearsay statements, made by a three-year-old victim of sexual abuse to staff members at the CARES Northwest² program, are "testimonial." The Court of Appeals determined that such statements are testimonial, and held that the juvenile court erred in admitting them at youth's hearing to determine the court's jurisdiction. State ex rel. Juv. Dept. v. S.P., 218 Or.App. 131, 178 P.3d 318 (2008). We review that decision for errors of law. ORS 19.415(4).³ For the following reasons, we affirm the decision of the Court of Appeals.

I. FACTS

On June 10, 2004, the victim, N, visited the home of his paternal grandparents. Youth, an acquaintance of the family, also was present. At some point that day, youth and N were alone together in a bedroom, watching television, while the adults were in another room. That evening at home, N stated to his parents, without prompting, "I don't want to bite [youth's] penis." N's parents asked N to repeat what he had said, and N repeated that he did not want to bite youth's penis. N also stated that youth had touched his penis. When N's father asked if anything else had happened, N put his hand down the front of his diaper and touched his penis.

That evening, N's father called the Department of Human Services (DHS). DHS instructed N's father to take N to a pediatrician for a referral to CARES. The following day, N's mother took N to his regular pediatrician. During that visit, N did not make any statements about being touched. The pediatrician advised N's mother to schedule an evaluation with CARES.

N's mother contacted CARES and reported what had happened to an intake worker. The intake worker also spoke with a DHS representative, McCarthy, who faxed a report to CARES describing the earlier report from N's father. McCarthy also stated that she would cross-report the matter to the Multnomah County Child Abuse Team. CARES staff discussed the case and determined that because N "was not talked to in the context of the exam and because DHS needs clarification of the allegations," it was appropriate to schedule an evaluation of N. The intake worker then contacted N's mother and scheduled an evaluation for that same day. The worker also called DHS to confirm that McCarthy would attend the evaluation.

The evaluation team consisted of Heiferman, a pediatrician, and Findlay, a social worker. McCarthy and another DHS worker attended, but were unable to stay for the entire evaluation. A Clackamas County Sheriff's Deputy, Krummenacker, also attended the evaluation "as a courtesy to the Portland Police Bureau." N's mother filled out a written questionnaire and answered several questions regarding N's medical and personal history. Krummenacker was not in the room with N's mother during that part of the evaluation, but observed it through a one-way mirror.

Heiferman and Findlay then conducted an examination and interview with N, without his mother present. Again, Krummenacker was not in the room, but was able to monitor the evaluation by microphone. Heiferman conducted a physical examination of N and found nothing abnormal. She then conducted what she called a "body review," which consisted of a series of questions to N. Heiferman asked N if anyone had hurt various parts of his body, such as his head, eye, neck, or belly. N answered "no" to each question. She asked if anyone had touched his penis or his buttocks, and again, he answered "no." She asked if his mom was worried about him, and he answered "no." She asked if there was anyone that he was afraid of, and he said, "No. I got a jellyfish at home." N continued to respond "no" to various questions about his home and friends.

At that point, Heiferman and Findlay became concerned that N was giving what they referred to as a "patterned response," meaning that N was giving the same answer to the questions without understanding them. Findlay then told N that N's mother was worried that someone had touched his penis, and asked N if anyone had done that. N responded that youth "already did" and that youth "was trying to suck it." When Findlay asked what youth tried to suck it with, N responded, "His mouth." Findlay asked if youth had sucked it, and N said "yes." N also made repetitive grabbing motions to his crotch and indicated that youth had grabbed it. At that point, N said that he wanted to see his mother, and Findlay ended the interview.

Heiferman and Findlay then met to review their findings and discuss treatment recommendations. They were joined by Krummenacker and by Smith, another social worker. Heiferman's diagnosis was "highly concerned for sexual abuse." The evaluation team recommended no further contact between N and youth, and advised that N's parents monitor his behavior, but did not recommend therapy. The team also recommended "further investigation by DHS and law enforcement into these allegations of abuse." The team then provided N's mother with a summary of the evaluation. Deputy Krummenacker did not participate in making treatment recommendations, but did meet with N's mother "to discuss the ongoing investigation."

Subsequently, detectives assigned to the Multnomah County Child Abuse Team interviewed youth. CARES had provided the detectives with a copy of the CARES evaluation report, and the detectives referred to it during the interview. Youth initially denied any sexual contact with N, but ultimately admitted to touching and sucking on N's penis.

The state filed a petition in juvenile court, alleging that youth had committed acts that, if performed by an adult, would constitute first-degree sodomy and first-degree sexual abuse. The case proceeded to trial and the parties stipulated that N lacked competency as a witness and, for that reason, would be unavailable to testify. The state announced its intent to offer into evidence the statements that N had made during his evaluation at CARES, and statements that he had made to his parents. Youth objected, arguing that both groups of statements were inadmissible under the Oregon Evidence Code, and that admission of the statements to CARES would violate the Confrontation Clause of the Sixth Amendment, as interpreted in Crawford.

The juvenile court ruled that all of N's statements were admissible under the Oregon Evidence Code. The court further held that the bulk of N's statements to CARES were not barred from evidence by Crawford, because they were not testimonial statements; as an exception, however, the court determined that N's identification of youth as the perpetrator was a testimonial statement. After the presentation of evidence, the court found that youth was within its jurisdiction for acts that, if committed by an adult, would constitute first-degree sodomy and first-degree sexual abuse.

Youth appealed, arguing that the juvenile court had erred in admitting the statements described above. First, youth argued that N's statements to his parents and to CARES were hearsay and not admissible under the exception for statements concerning acts of abuse, OEC 803(18a)(b). Specifically, youth argued that, under State v. Campbell, 299 Or. 633, 705 P.2d 694 (1985), the trial court erred by accepting the parties' stipulation that N was unavailable as a witness, rather than making an independent determination as to N's unavailability. Second, youth argued that N's statements to CARES were inadmissible under the hearsay exception for statements for purposes of medical diagnosis and treatment, provided at OEC 803(4). Finally, youth renewed his argument that N's statements were "testimonial" under the Sixth Amendment and, as such, were not admissible because youth had not had a prior opportunity to cross-examine N.

The Court of Appeals held that youth's arguments based on OEC 803(18a)(b) and Campbell were unpreserved and declined to review them as error apparent on the face of the record. Because the Court of Appeals upheld the juvenile court's ruling that N's statements were admissible under OEC 803(18a)(b) and Campbell, youth's argument regarding OEC 803(4) was of no consequence. However, the Court of Appeals then held that youth's statements to the CARES representative were testimonial, and thus inadmissible under the Confrontation Clause of the Sixth Amendment. The court determined that, under Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), "the purpose of the questioner in eliciting statements is a key focus of the inquiry" as to whether a statement is testimonial. S.P., 218 Or.App. at 145, 178 P.3d 318. However, the court went on to observe that, when an interview serves more than one...