Mary Walton v. David C. Ireland Jr.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 130
Docket: Aro-13-245
Argued: June 11, 2014
Decided: November 25, 2014
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.
Majority: SAUFLEY, C.J., and ALEXANDER, SILVER, and JABAR, JJ.
Dissent: MEAD and GORMAN, JJ.
MARY WALTON
v.
DAVID C. IRELAND JR.
SILVER, J.
[¶1] David C. Ireland Jr. appeals from an Order of Protection from Abuse
entered in the District Court (Presque Isle, O’Mara, J.) based upon a finding that
Ireland sexually abused the parties’ five-year-old daughter. Ireland argues that the
court committed an abuse of discretion by admitting evidence of statements that
the victim made to a social worker during play therapy identifying Ireland as her
abuser. Ireland also contends that the court’s finding of abuse was clearly
erroneous. We affirm.
I. BACKGROUND
[¶2] David Ireland and Mary Walton had an intimate relationship in 2006.
After the relationship ended, Walton learned that she was pregnant. The parties’
daughter was born in December 2006. About a year later, the court issued an order
2
allocating parental rights and responsibilities. The order was modified several
times. As of October 2012, pursuant to the order, the child lived primarily with
Walton and stayed with Ireland every other weekend and for certain extended
periods during school vacations. The parties were generally cooperative with one
another and had no problems adhering to the visitation schedule. According to
Walton, the child began to exhibit reluctance to visit Ireland and would cry
hysterically before leaving for visits with him. Nevertheless, Walton encouraged
the child to go on the visits.
[¶3] One evening in October 2012, after the child had returned from a visit
with Ireland, Walton gave her a bath. While Walton was bathing the child, the
child said that it “hurt down there” and pointed to the area of her crotch. Walton
asked her why, and the child gave an explanation. Walton brought the child to the
emergency room at The Aroostook Medical Center, where doctors examined the
child and advised Walton to schedule a forensic child-abuse evaluation at the
Spurwink Clinic. The following day, Walton filed an action seeking a protection
from abuse order against Ireland on the child’s behalf and contacted Spurwink to
schedule an evaluation.
[¶4] Over the next several days, the child became upset and expressed fear
that Walton no longer loved her. Walton took the child to meet with Cindy Barker,
a clinical therapist, to address this behavior. Barker, a licensed clinical social
3
worker, explained her role to the child in what she considered to be an
age-appropriate way, then initiated conversation with the child by asking
open-ended questions about her family. The child stated that she did not like going
to see her father and that she did not want to see him anymore. During the session,
the child repeatedly stated, “he picks at [my] butt and crotch with his fingers and
puts his fingers in me,” and said that he would then lick his fingers. The child told
Barker that she was surprised and confused when her father did this, that it was
“really gross,” and that she didn’t understand why he would do that.
[¶5] Barker has continued to meet with the child for an hour every other
week. Barker described her treatment plan for the child as being to help the child
to feel comfortable expressing herself, to work on anxieties and insecurities that
have occurred, and to help the child develop coping skills. Barker explained that
the content of the child’s statements⎯including the identity of the person she
described as abusing her⎯was important to the treatment plan because it helped
Barker to understand the basis for the child’s fears and insecurities.
[¶6] Walton took the child to Spurwink for the sex-abuse evaluation in
December 2012. The child met with Donna Andrews, a licensed clinical social
worker employed as a forensic interviewer. Andrews’s primary purpose in
evaluating the child was to determine whether there was evidence that abuse
occurred. Andrews asked the child if she knew why she was there; the child
4
responded that she didn’t know. During the interview, Andrews asked the child if
anyone had done something to her crotch and told her not to tell about it, to which
the child responded, “Yes, Dad, but I told anyway.” The child gave further
descriptions of the abuse consistent with what she had told Barker.
[¶7] A physical examination revealed no evidence of trauma or abuse.
Andrews recommended that the child remain in therapy with Barker, that law
enforcement and DHHS investigate, and that the child have no contact with her
father while the investigation continued. The child did not meet with Andrews
again.
[¶8] At the hearing on Walton’s complaint for protection from abuse, both
Barker and Andrews testified over Ireland’s objection as to the statements the child
made describing the abuse. The court conditionally admitted the statements but
gave the parties the opportunity to brief the issue, indicating that it would strike the
testimony from the record if the parties’ briefs convinced it that the statements
should be excluded.
[¶9] By agreement of the parties, the child, who was then six years old,
testified without either party being present in the courtroom.1 At first, the child
testified that she did not know who her “daddy” was, but when asked if she knew
1
The court, after conducting preliminary questioning, concluded that the child was competent to
testify. Neither party has challenged that determination on appeal.
5
anyone named David she identified him as her “dad.” When asked how Ireland
treated her, the child responded, “Bad.” She explained that this was because “he
did something wrong,” which means “when someone did something bad,” but that
she had forgotten what the bad thing was. She testified that she did not like going
to see her father because he spanked her. She also testified that her father asked
her not to talk about “what he did,” but that she told her mother anyway. She said
that she did not tell anyone else, and that she did not know whether she knew
anyone named Cindy Barker. She testified that the only reason she did not want to
see Ireland was because he spanked her, and that there was no other reason she did
not want to see him.
[¶10] Ireland testified that he occasionally spanked his daughter as
discipline. He explained that his daughter usually wanted to change her underwear
when she changed into her pajamas, and that at these times he noticed “that her
vagina was red and that her rear end was red.” Ireland attributed the redness to the
child’s failure to wipe herself adequately after using the toilet and explained that he
applied ointment to treat the redness and irritation. He denied engaging in any
conduct with his daughter that could be considered sexual.
[¶11] Following the hearing, the court issued the protection from abuse
order against Ireland, finding that Ireland had abused his daughter, ordering that he
have no contact with her, and temporarily awarding sole parental rights and
6
responsibilities to Walton. The court also issued an attachment to the judgment in
which it explained that Barker’s testimony was admissible pursuant to
M.R. Evid. 803(4) because the child’s statements, including those identifying her
abuser, were pertinent to the diagnosis and treatment of her anxiety and noted that
the appellant did not object to Barker’s testimony on medical-treatment grounds.
The court explained that it had stricken Andrews’s testimony because it concluded
that the forensic interview had not been undertaken for the purposes of diagnosis or
treatment. The court further explained that it found the child’s statements to
Barker to be more reliable than the child’s in-court testimony due to the child’s
therapeutic relationship with Barker. The court noted that several months had
passed since the child had had contact with Ireland and that her testimony indicated
that she was unable to remember important facts. Ireland appealed. Walton
cross-appealed, contesting the exclusion of Andrews’s testimony.
II. DISCUSSION
A. Barker’s Testimony
[¶12] An out-of-court statement offered to prove the truth of the matter
asserted is hearsay and is inadmissible unless an exception applies.
M.R. Evid. 801(c), 802. Pursuant to M.R. Evid. 803(4), hearsay statements are not
excluded by the hearsay rule if they are “[s]tatements made for purposes of
medical diagnosis or treatment and describing medical history, or past or present
7
symptoms, pain, or sensations, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis or treatment.”
“A trial court’s decision to admit or exclude alleged hearsay evidence is reviewed
for an abuse of discretion.” State v. Guyette, 2012 ME 9, ¶ 11, 36 A.3d 916.
When the trial court must make preliminary factual findings pursuant to
M.R. Evid. 104(a), however, those findings are reviewed only for clear error.
State v. Snow, 438 A.2d 485, 487 (Me. 1981).
[¶13] We have previously recognized that application of M.R. Evid. 803(4)
is not limited to statements made for treatment of physical injuries; it applies to
statements made for psychological and mental-health treatment as well. 2 For
instance, in the context of a custody dispute, we affirmed the admission of a child’s
statements to a licensed clinical social worker about why he was afraid of his
father. Ames v. Ames, 2003 ME 60, ¶ 16, 822 A.2d 1201. In that case, the parties’
six-and-a-half-year-old son began “displaying problems with concentration, sleep,
anger, fear, and stomachaches” and refused to visit his father. Id. ¶¶ 2, 4. The
mother sought the advice of a licensed clinical social worker who “hoped to
2
A number of federal courts have also recognized that the exception in Fed. R. Evid. 803(4), which is
substantively identical to M.R. Evid. 803(4), applies to statements made for the purpose of psychological
or mental-health treatment. See, e.g., Morgan v. Foretich, 846 F.2d 941, 948-50 (4th Cir. 1988) (applying
rule to child’s statements to a psychologist concerning sexual abuse); United States v. Kappell, 418 F.3d
550, 556-57 (6th Cir. 2005) (applying rule to child’s statements to a psychotherapist); United States v.
Yellow, 18 F.3d 1438, 1442 (8th Cir. 1994) (explaining that the Eighth Circuit has “consistently upheld
the admission of statements made to psychologists or trained social workers” that otherwise meet the
rule’s requirements).
8
address the child’s concerns and help him become comfortable with his father.”
Id. ¶ 5. The child told the social worker that he was afraid of his father and that it
was the child’s idea to stop visitation. Id. At trial, the social worker testified about
the child’s statements that he was afraid of his father and did not want to visit him.
Id. ¶ 7. We explained that the child’s statements to the social worker “explained
the source of his fear” and concluded, “Given that the purpose of the treatment was
to identify the cause of his fear and overcome it, this statement was pertinent to his
diagnosis and treatment and [was] properly admitted.” Id. ¶ 16.
[¶14] Similarly, we held that a nurse practitioner’s diagnosis of a young
woman’s “depression, anxiety, and situational stress secondary to emotional abuse
by [her] boyfriend” was admissible at the boyfriend’s trial for the woman’s
subsequent murder. State v. Cookson, 2003 ME 136, ¶¶ 18, 26, 837 A.2d 101. In
that case, the woman told the nurse practitioner that she was depressed because her
boyfriend had been stalking and harassing her. Id. ¶¶ 18-19. We held that the
nurse practitioner’s testimony about these statements was admissible pursuant to
M.R. Evid. 803(4) because “[the victim’s] statements to the nurse about having a
problem with Cookson and about Cookson following and stalking her were made
to describe to the nurse the external source of her depression.” Id. ¶ 26. We
further explained that “[the victim’s] statements were also pertinent to her
9
treatment, including the provision of antidepressant drugs, given by the nurse
practitioner.” Id.
1. The Reliability of the Statements
[¶15] Ireland argues that the child’s statements to Barker should have been
excluded because they lacked the indicia of reliability typically associated with
statements made for the purpose of securing medical treatment. The reliability of a
hearsay statement, however, goes to its weight, not its admissibility; it is a matter
for the fact-finder to consider in its evaluation of all the evidence, and not for the
court to consider in determining the admissibility of the statement.
See Handrahan v. Malenko, 2011 ME 15, ¶¶ 19-20, 12 A.3d 79 (concluding that
the fact-finder “was justified in [its] assessment of the reliability of the child’s
out-of-court statement” where the child was not shown to have a “strong
motivation . . . to be entirely honest with her physician for purposes of medical
diagnosis and treatment” (quotation marks omitted) (alteration omitted)); Field &
Murray, Maine Evidence § 803.4 at 479 (6th ed. 2007) (explaining that a
statement’s “trustworthiness is less when the purpose is [for diagnosis only rather
than] for treatment, but this goes to its weight rather than its admissibility”);
see also Danaipour v. McLarey, 386 F.3d 289, 297-98 (1st Cir. 2004) (holding that
a mother’s statements to a medical provider describing two young children’s
disclosures of sexual abuse were admissible pursuant to Fed. R. Evid. 803(4) and
10
observing that “[t]he [fact-finder] carefully considered the fact that statements by a
young child, even if accurately recounted by an adult, may not reflect the truth”);
United States v. George, 960 F.2d 97, 100 (9th Cir. 1992) (“As a general matter,
the age of the child and her other personal characteristics go to the weight of the
hearsay statements rather than their admissibility.”) Absent a change to the rules
of evidence, we decline to require an additional showing of reliability for hearsay
statements that fall within the Rule 803(4) exception.3
[¶16] Although the trial court did not explicitly find that the statement was
made for the purpose of medical diagnosis or treatment, we must assume that it
made this preliminary finding. See Pelletier v. Pelletier, 2012 ME 15, ¶ 20,
36 A.3d 903 (“In the absence of a motion for additional findings of fact . . . we will
infer that the trial court made any factual inferences needed to support its ultimate
conclusion.”). The trial court’s implicit finding concerning the purpose of the
child’s statements was supported by Barker’s testimony that she explained her role
to the child and that the child’s statements were important for developing a
treatment plan. The court acted well within its role as fact-finder by inferring the
purpose of the child’s statements. See Snow, 438 A.2d at 487-88 (explaining that
the fact-finder is permitted to draw reasonable inferences in making a finding
3
Because this is not a criminal case, we do not address whether the Confrontation Clause may require
additional guarantees of trustworthiness for the admission of hearsay statements in criminal prosecutions.
See Handrahan v. Malenko, 2011 ME 15, ¶ 16 n.4, 12 A.3d 79.
11
preliminary to the admission of evidence). The child was sent to the therapist
because her mother was concerned about the child not feeling loved, and Barker’s
goal was to treat the child for anxiety. Although these facts could arguably support
a finding that the statements were not made for purposes of diagnosis or treatment,
on this record we cannot conclude that the trial court’s preliminary factual
determination constituted clear error. See id. at 487 (“Use of the clearly erroneous
test to review the trial judge’s preliminary finding of fact recognizes the superior
opportunity that he enjoyed to hear the evidence as it was presented through live
witnesses . . . .” (quotation marks omitted)).
2. The Pertinence of the Perpetrator’s Identity to Diagnosis or Treatment
[¶17] Ireland’s primary contention is that the portions of the child’s
statements identifying Ireland as her abuser were not pertinent to diagnosis or
treatment because they served “merely [to] affix fault or blame.”
See State v. Sickles, 655 A.2d 1254, 1257 (Me. 1995). “Pertinence, within the
contemplation of Rule 803(4), is an objective consideration beyond the declarant’s
state of mind.” Id. (quotation marks omitted). “Pertinence may be tested by
asking whether the information is of a type on which a physician could reasonably
rely to form a diagnosis or provide treatment.” Id.
[¶18] In many cases, extraneous details of an assault, including the identity
of the perpetrator, may not be pertinent to medical diagnosis or treatment. For
12
instance, in a case in which a victim described the time and location of an alleged
rape and identified her brother as the perpetrator, we concluded:
That it was intercourse that caused [the victim] to see the doctor and
that it occurred the previous evening are facts reasonably pertinent to
the diagnosis and treatment . . . . But the identity of the perpetrator
and the scene of the alleged rape do not fall within that hearsay
exception.
State v. True, 438 A.2d 460, 467 (Me. 1981). Similarly, we concluded that hearsay
statements describing medically irrelevant details of a sexual assault, such as that
the victim “asked that it stop,” were improperly admitted pursuant to
M. R. Evid. 803(4) where the testifying physician’s “role in examining the victim
was limited to providing emergency room care” and the doctor “did not indicate
whether or how the knowledge that the victim may have ‘asked that it stop’ helped
her in her diagnosis.” Sickles, 655 A.2d at 1257.
[¶19] We have concluded, however, that certain details that may not be
relevant to treatment for physical injuries may be pertinent to treatment for
emotional or psychological trauma. For instance, we determined that a
sexual-assault victim’s statement to a doctor that she had been threatened with a
knife “pertained to the emotional trauma that the physician was . . . addressing”
where “the physician prefaced his remark by saying that the emotional
ramifications of rape are a significant part of the victim’s problem in relation to
treatment.” State v. Rosa, 575 A.2d 727, 729 (Me. 1990). Similarly, in Ames, we
13
determined that a young child’s statement that he was afraid of his father was
pertinent to diagnosis and treatment “[g]iven that the purpose of the treatment was
to identify the cause of his fear and overcome it . . . . ” 2003 ME 60, ¶¶ 14, 16,
822 A.2d 1201.
[¶20] Here, Barker testified that the identity of the child’s abuser was
important for developing a treatment plan for the child. Under these
circumstances, as in almost any case involving a child who is abused by a family
member, the identity of the perpetrator may indeed be pertinent to diagnosis and
treatment. See Danaipour, 386 F.3d at 297 (“Child therapists routinely, as part of
their diagnosis or treatment, obtain the type of statements made by the patients
here . . . about the identity of the perpetrator of the abuse. . . . [Such statements] are
usually reasonably pertinent to treatment of the child.”); United States v. Joe,
8 F.3d 1488, 1494 (10th Cir. 1993) (“[W]here the abuser is a member of the family
or household, the abuser’s identity is especially pertinent to the physician’s
recommendation regarding an appropriate course of treatment . . . . ”);
Morgan v. Foretich, 846 F.2d 941, 949-50 (4th Cir. 1988) (“[A] physician in
determining treatment may rely on factors in child abuse cases such as an
assailant’s identity that would not be relied on were the patient an adult.”);
United States v. Renville, 779 F.2d 430, 437 (8th Cir. 1985) (“The exact nature and
extent of the psychological problems which ensue from child abuse often depend
14
on the identity of the abuser.”). The trial court did not abuse its discretion by
admitting evidence of the statements the child made to Barker identifying Ireland
as her abuser.
B. Andrews’s Testimony
[¶21] Walton argues that the court abused its discretion by excluding
Andrews’s testimony. Because Walton obtained a favorable result in the trial
court, and we affirm the court’s opinion, we would not ordinarily reach this issue.
In re Johnna M., 2006 ME 46, ¶ 7, 903 A.2d 331; see also Storer v. Dep’t of Envtl.
Prot., 656 A.2d 1191, 1192 (Me. 1995); Ullis v. Town of Boothbay Harbor,
459 A.2d 153, 155-56 (Me. 1983). Nevertheless, we note that the court did not
commit an abuse of discretion by excluding Andrews’s testimony based on its
conclusion that the forensic interview was not undertaken for the purpose of
diagnosis or treatment. Andrews’s role was to collect and assess evidence of
abuse. When an interview is conducted primarily for the purpose of collecting
evidence and determining whether abuse occurred, the court may conclude that
statements made during that interview are not made for purposes of diagnosis or
treatment. See M.R. Evid. 803(4); Handrahan, 2011 ME 15, ¶ 16, 12 A.3d 79
(observing that, where the interviewer “conducted a forensic interview of the child
in her capacity as co-director of the Spurwink Child Abuse Program” it was “not
clear that the child’s statements . . . were made for purposes of medical diagnosis
15
or treatment”). The court did not abuse its discretion by excluding evidence of
statements the child made during the forensic interview.
C. The Court’s Finding of Abuse
[¶22] A plaintiff seeking an order for protection from abuse must prove by a
preponderance of the evidence that the defendant abused the plaintiff.
19-A M.R.S. § 4006(1) (2013). We review a trial court’s finding of abuse for clear
error “and will affirm a trial court’s findings if they are supported by competent
evidence in the record, even if the evidence might support alternative findings of
fact.” Handrahan, 2011 ME 15, ¶ 13, 12 A.3d 79 (quotation marks omitted);
see also Jacobs v. Jacobs, 2007 ME 14, ¶ 5, 915 A.2d 409.
[¶23] Ireland argues that the court’s finding of abuse was clearly erroneous
because the child, during her in-court testimony, effectively denied that any abuse
had occurred. Ireland contends that the court was required to accept the child’s
testimony as being more reliable than the statements she made to Barker. This
contention is unpersuasive. “No principle of appellate review is better established
than the principle that credibility determinations are left to the sound judgment of
the trier of fact.” Weinstein v. Sanborn, 1999 ME 181, ¶ 3, 741 A.2d 459.
Moreover, we have previously held that a child’s out-of-court statements provide
sufficient evidence to support a finding, by a preponderance of the evidence, of
abuse, even when the child testifies that the abuse did not occur and that he does
16
not remember making the earlier statement describing the abuse. In re Charles
Jason R., Jr., 572 A.2d 1080, 1081-82 (Me. 1990).
[¶24] Here, the trial court explained that it found the child’s statements to
Barker to be more credible than the child’s in-court testimony. See White v.
Illinois, 502 U.S. 346, 355-56 (1992) (“[F]actors that contribute to the statements’
reliability cannot be recaptured even by later in-court testimony. . . . [A] statement
made in the course of procuring medical services . . . carries special guarantees of
credibility that a trier of fact may not think replicated by courtroom testimony.”).
The court found the child’s testimony to be confusing and contradictory and also
noted the child’s inability to recall certain basic facts during her testimony.
Because credibility determinations are exclusively within the province of the
fact-finder, Ireland’s contention that the child’s testimony must be given more
weight than the statements she made to her therapist is unavailing.
See In re Charles Jason R., Jr., 572 A.2d at 1081 (“Once admitted and relied upon
by the court, [the child’s out-of-court] statement amply supported the court’s
finding [of abuse] by a preponderance . . . .”). The evidence was sufficient to
support the court’s finding of abuse by a preponderance of the evidence.
17
The entry is:
Judgment affirmed.
MEAD, J., with whom GORMAN, J., joins, dissenting.
[¶25] I respectfully dissent from the Court’s conclusion that the daughter’s
identification of Ireland as the person who inappropriately touched her falls within
the hearsay exception created by Rule 803(4) of the Maine Rules of Evidence.
While I do not disagree with the Court’s recitation of the broad principles that
govern the application of Rule 803(4), I conclude that the evidentiary record does
not provide a sufficient foundation for the admission of these statements.
[¶26] Rule 803(4) provides:
The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
...
(4) Statements for purposes of medical diagnosis or treatment.
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 insofar as reasonably pertinent to diagnosis or
treatment.
18
The rule establishes two separate and distinct points of inquiry: (1) did the
declarant make the statements with the subjective purpose of obtaining a medical
diagnosis or treatment? and (2) was the information pertinent to diagnosis or
treatment? The Court focuses only on the second inquiry. I would hold, however,
that both questions must be answered in the affirmative, based upon evidence in
the record, before such statements are admissible as exceptions to the hearsay rule.
[¶27] Here, the second of the two inquiries required the court to determine
whether the identity of the child’s abuser was pertinent to diagnosis or treatment.
The record compellingly establishes that it was. Any treatment plan for a victim of
child sexual abuse will certainly include a strategy for protecting the child from
further abuse by that person. Expert testimony in the record establishes the
element of pertinence to diagnosis or treatment without doubt. See State v. Sickles,
655 A.2d 1254, 1257 (Me. 1995) (“Pertinence, within the contemplation of
Rule 803(4), is an objective consideration beyond the declarant’s state of mind.”
(quoting Cassidy v. State, 536 A.2d 666, 686 (Md. Ct. Spec. App. 1988))).
[¶28] The first of the two inquiries—whether the statements were made for
the purposes of medical diagnosis or treatment—necessarily calls into issue the
subjective state of mind of the declarant. This critical subjective element is the
raison d’être of the Rule 803(4) exception. As the Advisor’s Notes indicate: “The
justification [for the exception] is the patient’s strong motivation to be truthful.”
19
M.R. Evid. 803(4) Adviser’s Note; see also Meaney v. United States,
112 F.2d 538, 539-40 (2d Cir. 1940) (Hand, J.) (“A man goes to his physician
expected to recount all that he feels, and often he has with some care searched his
consciousness to be sure that he will leave out nothing. . . . because his treatment
will in part depend upon what he says.”). Some courts do not engage in such an
inquiry and limit the focus of their analysis only on whether the treating physician
deems a statement pertinent to treatment. See, e.g., Stallnacker v. State,
715 S.W.2d 883, 884 (Ark. App. 1986). Others, however, conclude that
Rule 803(4) requires consideration of the unique circumstances of each case
relating to the patient’s motivation. See, e.g., Cassidy v. State, 536 A.2d 666, 678
(Md. Ct. Spec. App. 1988) (“[N]o one would willingly risk medical injury from
improper treatment by withholding necessary data or furnishing false data to the
physician who would determine the course of treatment on the basis of that data.”);
United States v. Peneaux, 432 F.3d 882, 894 (8th Cir. 2005) (“The motive
requirement means that the victim must have had a selfish subjective motive of
receiving proper medical treatment or the state of mind of someone seeking
medical treatment.” (quotation marks omitted)).
[¶29] Common sense, and the principles underlying the Rule 803(4)
exception, require the approach articulated in Cassidy and Peneaux. If a person
seeks medical treatment for a particular condition, it is likely that he will be
20
truthful with the caregiver when describing the nature or source of his complaints.
Meaney, 112 F.2d at 539-40. As with other hearsay exceptions, the circumstances
of such statements create an independent basis for truthfulness. We have not
previously directly addressed the Rule 803(4) element of the declarant’s subjective
purpose in making statements to medical providers. Our existing jurisprudence
focuses upon the pertinence element; the declarant’s subjective purpose for the
statements in those cases is obvious from the context of those statements. Today,
the Court clarifies that both the purpose element and the pertinence element must
be established by the proponent of the statement, and determines that Walton has
successfully done so.
[¶30] In discerning whether the declarant, when making specific statements
to a health care provider, made those statements with the specific purpose of
obtaining a diagnosis or treatment, it is necessary for the court to consider the
circumstances of the statements and the declarant’s subjective state of mind. In the
typical instance of an adult who sincerely seeks medical attention for a particular
condition, the analysis is ordinarily quite straightforward. The declarant’s purpose
is obvious from the context of the medical consultation. In those matters, the
803(4) analysis quickly turns to the pertinence element.
[¶31] When a child is communicating with a health care provider, however,
the “purpose” question becomes more complex and nuanced. Children do not
21
generally seek medical care. Although a child may report a condition or symptom
to a parent or others, it is usually an adult who seeks the care on the child’s behalf.
The fact that an adult brings a child to a provider for the purpose of diagnosis or
treatment does not create greater likelihood that the child’s statements to the
medical care provider will be truthful.4 A child may not understand the importance
of giving an accurate history to the medical care provider. Unless the evidentiary
record establishes that the child had an understanding of the connection between
truthful reporting and meaningful diagnosis and treatment and gave the
information with the subjective purpose of giving such truthful information, the
critical foundation for Rule 803(4) is lacking.
[¶32] Walton took her daughter to the Life by Designs facility for “play
therapy” with Cindy Barker, who holds a certification as a Licensed Master Social
Worker, Clinical Conditional.5 Walton cites as a reason for this action that, “She
[the daughter] was saying that I don’t love her anymore. She was upset. She
wasn’t the same little girl.” Walton further testified that the professionals at the
Spurwink Center recommended that she continue to have her daughter attend the
play therapy sessions with Cindy Barker.
4
Arguably, the opposite may occur. A child, who may fear the doctor or medical setting, may be
more likely to deny, minimize, or misstate circumstances to discourage further medical attention.
5
I note, but do not address, the issue of whether a play therapist makes a “medical diagnosis” or
provides “medical treatment” as those terms are used in the rule.
22
[¶33] The record is devoid of any basis for a court to conclude that any of
the daughter’s statements to Ms. Barker resulted from any subjective purpose on
the daughter’s part to obtain diagnosis or treatment. Stated otherwise, the court
had utterly no way of knowing what, if anything, the daughter thought the play
therapy sessions were intended to accomplish or why it would be important to tell
the truth. The only testimony in the record that remotely addresses the daughter’s
perceptions of the sessions is the testimony of Ms. Barker that, “I just—I
introduced myself to her. Just kind of explained in an age-appropriate way my
role, what I do. I work with kids. I talk to kids.” This testimony provides no
insight into the daughter’s perceptions, particularly when the testimony does not
relate what was actually said.
[¶34] The fact that a parent may have a purpose in taking a child to a
treatment facility does not translate into a subjective intent of the child—the
declarant—to make statements for the purposes of diagnosis or treatment. The law
provides no basis for a parent’s purpose to be imputed to the child. Accordingly,
I would conclude that the admission of the out-of-court statements by the child to
Ms. Barker was erroneous.6 The trial court simply cannot conclude that a declarant
6
Although the Rule 803(4) element of purpose was not emphasized by the parties at the trial level, it
must be addressed expressly or impliedly by a trial court before admitting a hearsay statement as a
statement made for purposes of medical diagnosis or treatment. The trial court here did address the issue
of purpose in its decision, but conflated it with the element of pertinence.
23
had a particular subjective intent in making statements for purposes of medical
diagnosis and treatment when the record contains absolutely no evidence, and
allows no reasonable inference, of such.
[¶35] I do not suggest that a child’s statements to a medical care provider
require greater indicia of reliability than those that would be required of an adult’s
out-of-court statements. Rather, the proof regarding the circumstances of the
statements—by an adult or a child—simply must be sufficient to establish a basis
for a court to conclude that the declarant made them with the purpose of obtaining
meaningful diagnosis or treatment.7 In the complete absence of such evidence, the
foundation for Rule 803(4) is lacking, and the statements do not qualify as
exceptions to the hearsay rule. Accordingly, I would vacate and remand for the
court to determine whether the plaintiff met her burden of proof in the absence of
these statements.
7
A colloquy, such as the following, would likely be sufficient:
Q: Why were you seeing [the counselor]?
A: Because I was [sad/mad/scared].
Q: Did you think talking to her about why you were [sad/mad/scared] would help?
A: Yes.
24
On the briefs:
Logan Perkins, Esq., and Jeffrey M. Silverstein, Esq., Bangor, for appellant
David C. Ireland Jr.
James M. Dunleavy, Esq., Currier and Trask, P.A., Presque Isle, for appellee
Mary Walton
At oral argument:
Logan Perkins, Esq., for appellant David C. Ireland Jr.
James M. Dunleavy, Esq., for appellee Mary Walton
Presque Isle District Court docket number PA-2012-211
FOR CLERK REFERENCE ONLY