State ex rel. Juvenile Dept. of Multnomah County v. Cornett

• Decision Date: 29 September 1993
• Citation: 121 Or.App. 264,855 P.2d 171
• Court: Oregon Court of Appeals
• Parties: In the Matter of C. and K., Children. STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. James CORNETT and Shannon Huskey, Appellants, and Karin Cornett, fna Karin Huskey, Respondent. In the Matter of the Marriage of Shannon HUSKEY, Appellant, and Karin Huskey, nka Karin Cornett, Respondent. 86110 & D8308-66069; CA A70521 (Control) and CA A70580.

Page 171

855 P.2d 171

121 Or.App. 264

In the Matter of C. and K., Children.

STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. James CORNETT and Shannon Huskey, Appellants, and Karin Cornett, fna Karin Huskey, Respondent.

In the Matter of the Marriage of Shannon HUSKEY, Appellant,

and

Karin Huskey, nka Karin Cornett, Respondent.

86110 & D8308-66069; CA A70521 (Control) and CA A70580.

Court of Appeals of Oregon.

Argued and Submitted May 1, 1992.

Decided June 23, 1993.

Reconsideration Denied Sept. 29, 1993.

Michael A. Greenlick, Portland, argued the cause and filed the brief, for appellant James Cornett.

Peter Miller, Portland, argued the cause and filed the brief, for appellant Shannon Huskey.

Janie M. Burcart, Asst. Atty. Gen., Salem, argued the cause, for respondent State of OR. With her on the brief were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Martin W. Reeves, Portland, argued the cause, for respondent Karin Cornett. With him on the brief was Reeves, Kahn & Eder, Portland.

James T. Marquoit, Portland, waived oral argument for respondent children.

[121 Or.App. 266-A] Before ROSSMAN, P.J., and DE MUNIZ and LEESON, ^* JJ.

ROSSMAN, Presiding Judge.

This is an appeal from consolidated juvenile court and domestic relations proceedings regarding two children, C and K. ¹ ORS 419.561(1); ORS 19.010(4). In the juvenile proceeding, the court found both children within its jurisdiction and made them wards of the court. In the domestic relations proceeding, the court awarded mother custody of C. C's father and stepfather assign error to the admission of a videotape of a therapy session in which C identified them as the individuals who had sexually abused her. They also challenge the admission of several drawings made by C during therapy and of testimony about C's statements. We affirm both proceedings.

In 1980, father was convicted of sexually abusing his ten-year-old niece. Four years later, mother's and father's marriage was dissolved by stipulated decree. Father was given custody of their daughter, C, who is a special needs child with developmental disabilities.

In August, 1990, a Multnomah County Juvenile Court counselor filed a petition asking the court to find C within its jurisdiction because of circumstances and conditions endangering her welfare. The petition alleged that father, the custodial parent, had not sought court ordered sex offender treatment, and had recently admitted to his niece that he had sexually abused C. On August 31, CSD was awarded temporary custody of C and she was placed with mother, who was then married to stepfather.

In early September, 1990, C was examined by Dr. Keltner, a physician at the Child Abuse Response and Evaluation Services (CARES) program at Emmanuel hospital. The doctor found physical evidence consistent with sexual abuse, including erosion of the hymen down to the vaginal ridge in some areas. As a result of her findings, Dr. Keltner recommended that C be removed from any potentially abusive environment, and referred C to individual therapy with a therapist skilled in working with special needs children who have been victims of sexual abuse. The family was contacted and counseling was set up at the Morrison Center, a community mental health clinic.

Mother gave birth to K in late September, 1990. On January 3, 1991, C was removed from mother's home because of concerns about mother's parenting abilities. C was placed in foster care. She was still receiving treatment at the community mental health clinic. She had been working with Carolyn Weir, a therapist at the clinic who had previous experience with developmentally disabled children. In March, 1991, C's foster mother contacted Weir and told her that C had complained of being sexually abused by both father and stepfather. Weir testified that she focused on that issue in the next few therapy sessions, in an effort to help C deal with her feelings and work through issues of blame regarding the incident. The first of those sessions was videotaped. ²

In the next four sessions, Weir and C discussed the sexual abuse. During one session, C drew five pictures of stick figures that showed genitalia. She identified the figures as herself with father and stepfather. According to Weir, C said, "I'm sad because my dad touched me right here," and pointed to the middle of her body. She made a similar disclosure about stepfather. Weir wrote those comments onto each of the drawings.

In April, 1991, the state filed a third amended petition, alleging that both father and stepfather had sexually abused C and asking the court to find both C and K within its jurisdiction on the basis of that information. The proceeding was consolidated with a domestic relations court proceeding in which mother sought to obtain custody of C.

At trial, the court admitted into evidence the videotape of the therapy session and the stick figure drawings. The court found that it was more likely than not that father had repeatedly sexually abused C, and that stepfather had had inappropriate sexual contact with her. ³ As a result of those findings, the court found jurisdiction over both children, made them wards of the court, and placed them in the custody of CSD. ORS 419.476(1)(c); ORS 419.507. See, e.g., State ex rel Juv. Dept. v. Gates, 96 Or.App. 365, 774 P.2d 484, rev den 308 Or. 315, 779 P.2d 618 (1989). C remained in shelter care and K was placed with mother, who was ordered not to permit K to be alone with stepfather. In the domestic relations proceeding, the court modified the custody order and gave mother legal custody of C.

Father appeals the order that made C a ward of the court and the judgment that gave mother legal custody. Stepfather appeals the order that made K a ward of the court. Both assign error to the admission of the drawings, the videotape and testimony about statements that C made during therapy. They argue that the trial court should not have admitted the evidence under OEC 803(4), because C's statements were not "statements made for the purposes of medical diagnosis or treatment."

The question is whether statements ⁴ made by a child sex abuse victim to her treating therapist identifying her abuser are admissible under OEC 803(4), which provides:

"The following are not excluded by [OEC 802, the rule against admission of hearsay], even though the declarant is available as a witness:

" * * * * *

"(4) Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause [or] external source thereof in so far as reasonably pertinent to diagnosis or treatment."

In State v. Moen, 309 Or. 45, 55, 786 P.2d 111 (1990), the Supreme Court described the three requirements of OEC 803(4):

"(a) The statement must be 'made for purposes of medical diagnosis or treatment;'

"(b) The statement must describe or relate 'medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause [or] external source thereof;'

"(c) The statement must be 'reasonably pertinent to diagnosis or treatment.' "

As a threshold matter, father and stepfather argue that OEC 803(4) does not apply, because the person hearing the statements did not have a medical degree. They are incorrect. OEC 803(4) does not require that the declarant make her statements to a doctor. The Legislative Commentary to OEC 803(4) provides:

"This subsection does not require that statements be made to a physician to be admissible. Statements to hospital attendants, ambulance drivers or even members of the family or friends may be within the scope of the exception." Legislative Commentary to Rule 803(4), reprinted in Kirkpatrick, Oregon Evidence 543 (2d ed 1989.) (Emphasis supplied.)

Thus, the issue is not whether the treating therapist who heard C's statements possesses certain credentials. The issue is whether the statements meet the three requirements described in Moen; if so, they are admissible under OEC 803(4).

The first question is whether the statements were made for the purpose of medical diagnosis or treatment. State v. Moen, supra, 309 Or. at 57, 786 P.2d 111. This requirement ensures that the statements are trustworthy because the declarant is motivated by a desire to promote proper treatment or diagnosis. See Kirkpatrick, Oregon Evidence at 544. The declarant's motive in making the statements must "necessarily be determined by reference to the circumstances in which they were made." State v. Moen, supra, 309 Or. at 55-56, 786 P.2d 111.

In the past, we have rejected the notion that, as a matter of law, children are incapable of understanding the nature of a medical examination. State v. Logan, 105 Or.App. 556, 560, 806 P.2d 137, rev dismissed 312 Or. 16, 815 P.2d 703 (1991). Similarly, we cannot say that, as a matter of law, children are incapable of understanding the concept of therapy and the underlying treatment goals. In each case, we must examine the facts to determine the particular child's understanding. 105 Or.App. at 560, 806 P.2d 137.

In this case, the trial court found that C understood that what Weir was doing in the sessions was for C's benefit and that her cooperation would further that effort. It also found that it took "quite awhile" to develop a trust relationship with C, and that the growing therapeutic relationship between C and Weir increased C's understanding that her sadness and pain would go away by talking with Weir. Even on de novo review, we give some deference to the trial court's findings. See, e.g., Moe and Moe, 66 Or.App. 947, 676 P.2d 336 (1984). Here, we are convinced that the record clearly shows that C had the required motive for these statements to be for the purposes of "medical diagnosis or treatment." Dr. Keltner referred C to therapy in order to treat the symptoms of sexual abuse. C attended...