Dept. of Human Services v. R. A. B. , 299 Or. App. 642 ( 2019 )

642
Submitted on remand from the Oregon Supreme Court August 19, reversed and
remanded October 2, 2019
In the Matter of G. D.-J. B.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
R. A. B.,
aka R. A. E.,
Appellant.
Washington County Circuit Court
17JU03655; A167079 (Control)
In the Matter of E. R. B.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
R. A. B.,
aka R. A. E.,
Appellant.
Washington County Circuit Court
17JU03656; A167080
452 P3d 1078
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
P3d 1121 (2019). In Dept. of Human Services v. R. A. B., 293 Or App 582, 591, 49
P3d 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 wit-
nesses 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.
Reversed and remanded.
On remand from the Oregon Supreme Court, Dept. of
Human Services v. R. A. B., 365 Or 369, 451 P3d 980 (2019).
Oscar Garcia, Judge.
Cite as 299 Or App 642 (2019) 643
George W. Kelly filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Cecil A. Reniche-Smith, Assistant
Attorney General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
JAMES, J.
Reversed and remanded.
644 Dept. of Human Services v. R. A. B.
JAMES, J.
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 P3d 1121 (2019). In our orig-
inal 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 P3d 426 (2018).
However, relying on our decision in State v. Black, 289 Or
App 256, 264, 407 P3d 992 (2017), rev’d, 364 Or 579, 437 P3d
1121 (2019), wherein we held that such testimony was “tan-
tamount 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
Cite as 299 Or App 642 (2019) 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 P3d
104 (2009)], it is OEC 403 and OEC 702 that make a diag-
nosis 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 testimony about the cri-
teria used in such a diagnosis inadmissible.
“* * * * *
“Applying the foregoing to the evidence at issue here,
Johnson’s proposed testimony would not have provided
jurors with his opinion on the truthfulness of GP or JN.
Rather, Johnson’s testimony would have identified the ways
in which the interviews of GP and JN fell short of estab-
lished interviewing protocols and would have provided
information that would have been helpful to the jury in
assessing the credibility of those witnesses. The trial court
erred in concluding that the testimony would have been
impermissible vouching and in prohibiting it under that
rule.”
364 Or at 592-94.
Here, because of the predicate ruling excluding such
testimony for discovery reasons, neither the litigants nor the
juvenile court proceeded to a point where they considered
the evidentiary admissibility of Poppleton’s proposed testi-
mony. As we explained in our previous opinion, that was
error. R. A. B., 293 Or App at 591. Mother could advance
reasonable arguments that at least some of Poppleton’s tes-
timony is admissible; and a juvenile court, relying on Black,
could potentially conclude that the Oregon Evidence Code
does not prohibit admission. Poppleton’s testimony, if it
were admitted, would be highly relevant to a trier of fact.
Accordingly, we cannot conclude, based on this record, that
the error is harmless.
Reversed and remanded.