State Ex Rel. Juvenile Department of Multnomah County v. Cornett

855 P.2d 171, 121 Or. App. 264, 1993 Ore. App. LEXIS 1040
CourtCourt of Appeals of Oregon
DecidedJune 23, 1993
Docket86110 & D8308-66069 CA A70521 (Control) and CA A70580
StatusPublished
Cited by10 cases

This text of 855 P.2d 171 (State Ex Rel. Juvenile Department of Multnomah County v. Cornett) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Juvenile Department of Multnomah County v. Cornett, 855 P.2d 171, 121 Or. App. 264, 1993 Ore. App. LEXIS 1040 (Or. Ct. App. 1993).

Opinions

[267]*267ROSSMAN, P. J.

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 [268]*268and 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 [269]*269jurisdiction 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 P2d 484, rev den 308 Or 315 (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 statements4 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:
[270]*270“ (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 P2d 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.

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State Ex Rel. Juvenile Department of Multnomah County v. Cornett
855 P.2d 171 (Court of Appeals of Oregon, 1993)

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Bluebook (online)
855 P.2d 171, 121 Or. App. 264, 1993 Ore. App. LEXIS 1040, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-juvenile-department-of-multnomah-county-v-cornett-orctapp-1993.