Department of Human Services v. K. A. H.

381 P.3d 1052, 278 Or. App. 284, 2016 Ore. App. LEXIS 555
CourtUmatilla County Circuit Court, Oregon
DecidedMay 11, 2016
DocketJV150031; Petition Number JV150031A; A160261
StatusPublished
Cited by3 cases

This text of 381 P.3d 1052 (Department of Human Services v. K. A. H.) is published on Counsel Stack Legal Research, covering Umatilla County Circuit Court, Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Human Services v. K. A. H., 381 P.3d 1052, 278 Or. App. 284, 2016 Ore. App. LEXIS 555 (Or. Super. Ct. 2016).

Opinion

GARRETT, J.

Mother appeals a juvenile court judgment asserting jurisdiction over her child, A. On appeal, the issues are (1) whether the juvenile court erred in admitting scientific evidence in the form of a medical diagnosis that A had been abused, and (2) whether the court erred in allowing the diagnosing physician to testify by telephone rather than in person. For the reasons explained below, we agree with mother that, because the physician’s testimony was wholly determinative of the outcome of the proceeding, ORS 45.400 required the physician to appear in person. Because the juvenile court erred in allowing his telephonic testimony, we reverse the judgment and remand for further proceedings. In light of that disposition, we do not address the merits of mother’s challenge to the scientific evidence.

The facts pertinent to our review are undisputed. On March 8, 2015, A, who was six months old at the time, was taken to an emergency room in Pendleton after her parents called 9-1-1. Mother reported that A had been injured when A’s six-year-old sister, who was carrying A, tripped and fell on top of A onto the living room floor, which was carpeted. Mother said that she had left the living room to get a clean diaper for A, heard a “thud,” and ran back to the living room to find A crying. While mother held A, A stopped crying, went “limp and pale,” began “taking shallow breaths,” and appeared “almost unconscious.”

At the emergency room, A appeared tired but was able to consume a small amount of liquids. She was discharged from the hospital that evening, but her parents brought her back the following day, March 9, because of concerns about possible dehydration. At that time, A had a slight abrasion on her head but displayed no swelling, bruising, or bone fractures. Examination of A revealed a “left hemisphere mixed density [subdural hemorrhage]” with no visible skull fracture.

Later that day, A was transferred to Doernbecher Children’s Hospital in Portland for further examination. The treating physician there was Dr. Valvano, the medical director of the hospital’s suspected-child-abuse program. [287]*287Tests ordered by Valvano confirmed the subdural hemorrhage and indicated that A did not suffer from any bleeding disorder or bone disease. The tests also did not reveal any “pattern injuries” or bone fractures. Valvano also consulted with an ophthalmologist, who identified “numerous” retinal hemorrhages in her left eye that “extended to the mid-periphery.” Valvano did not identify any underlying disorders in A that he believed could cause retinal hemorrhaging.

In a written assessment, Valvano stated that A’s brain and retinal hemorrhages “raise concern for nonac-cidental trauma.” He explained, among other things, that the “pan hemispheric size of the [brain] hemorrhage is not expected from a short fall such as described by parents,” and that the “[m]ixed density” nature of the brain hemorrhage can be an indicator of “hemorrhage of multiple ages, raising concern that [A] suffered another injury in addition to the injury from the fall.” Valvano also stated in his report that A’s retinal hemorrhages “are concerning for abusive head trauma”; that they “are not commonly associated with accidental falls and, when present, are few in number and limited to the posterior pole”; and that “[t]he pattern of retinal hemorrhages in [A]’s left eye is more extensive than would be expected from a short fall.” Valvano concluded that the reported fall, as described by A’s parents, “does not clearly explain the full scope of the patient’s medical findings” and that A’s injuries had a “high association with abusive head trauma.”

Valvano recommended that a follow-up bone survey be conducted two weeks later to look for fractures that may have been missed in the initial survey. During that period, A was returned to mother’s care under an “in-home safety plan” prescribed by the Department of Human Services (DHS). The bone survey was conducted on April 3, 2015, and revealed that A had a posterior rib fracture was “not consistent with the fall” but rather, “characteristic of physical abuse.”

Based on Valvano’s assessment, DHS took A into protective custody and filed a dependency petition under ORS 419B.100. The petition alleged that A’s conditions and circumstances endangered her welfare because, while in [288]*288mother’s custody, she “suffered injuries, including but not limited to subdural hemorrhage, retinal hemorrhage, [and] fractured left rib * * * that are at variance with the explanation given.”

Before the jurisdictional trial, mother moved to exclude any evidence based on the theory of “shaken baby syndrome” or “abusive head trauma” (hereinafter SBS/ AHT). The juvenile court conducted an evidentiary hearing on June 24, 2015. Testifying by telephone, Valvano said, among other things, that he had previously testified as an expert on the SBS/AHT theory, that it is generally accepted among child abuse pediatricians, and that it is considered a medical diagnosis. The juvenile court denied mother’s motion to exclude the evidence.

DHS moved to allow Valvano to testify at the judicial hearing by telephone, under ORS 45.400. In support of the motion, DHS argued that traveling from Portland to Pendleton would require Valvano to miss a full day of work, that he was the hospital’s only pediatrician specializing in child abuse, and that it would be very difficult to obtain replacement coverage. Mother objected that she could not effectively cross-examine Valvano over the telephone. She further argued that, under ORS 45.400(3)(b), the court was not permitted to allow telephonic testimony because Valvano’s testimony would be “determina [tive] of the outcome” of the case.

The juvenile court granted DHS’s motion. The record does not include a copy of the court’s ruling or the grounds for its decision.

The jurisdictional trial occurred on August 5, 2015, at which Valvano testified by telephone. Valvano described his findings as to A’s injuries and testified that each “by itself is highly associated with inflicted trauma and rarely associated with accidental trauma.” He stated that it was “highly improbable” that the rib fracture resulted from A’s sister coming into contact with her during a fall. Valvano concluded that, “ultimately, we have three findings here: Subdural hemorrhages, retinal hemorrhages, and rib fractures. And the one diagnosis that clearly explains all of those findings is abuse.” A’s caseworker testified that jurisdiction [289]*289was necessary because “we don’t know what happened and who was the perpetrator.” The juvenile court entered a judgment asserting jurisdiction over A “based on the unexplained injuries [and] the credible testimony of Dr. Valvano concerning the head injury and the rib injury.”

On appeal, mother challenges the jurisdictional judgment on two grounds. First, she argues that the juvenile court improperly allowed the use of SBS/AHT evidence, which, according to mother, fails the Brown/O’Key standard for admissibility of scientific evidence. See State v. Brown,

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State v. W. B.
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493 P.3d 1051 (Court of Appeals of Oregon, 2021)

Cite This Page — Counsel Stack

Bluebook (online)
381 P.3d 1052, 278 Or. App. 284, 2016 Ore. App. LEXIS 555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-k-a-h-orccumatilla-2016.