The opinion
SHORR, J.,
dissenting.
I respectfully dissent from the majority’s conclusion that the FDAB did not err when concluding that respondent *509 did not have reasonable cause to believe that the child had reported sexual abuse. I would conclude that respondent had reasonable cause to believe that the child had reported sexual abuse and would reverse and remand the FDAB’s order for further proceedings in light of its conclusions to the contrary.
I agree with the majority’s legal analysis and its recitation of the appropriate test for determining when a mandatory reporter of child abuse has “reasonable cause” under ORS 419B.010(1) to believe that a child has suffered abuse. As the majority correctly observes, we have concluded that “reasonable cause” is equivalent to “reasonable suspicion.” A. F. v. Oregon Dept. of Human Services, 251 Or App 576, 584 , 284 P3d 1189 (2012). I also agree with the majority that a mandatory reporter, acting as an objective person exercising reasonable judgment, does not always have to accept and immediately report, without any further questioning, a third person’s or even a potential victim’s report of alleged abuse. For instance, an objectively reasonable reporter would not have to report to DHS or law enforcement immediately upon hearing a report from a child of alleged abuse when further questioning made clear that the child had used a term in describing the allegation that the child obviously misunderstood or was squarely contradicted by the additional facts relayed by the child, leading an objectively reasonable person to conclude that there was no reasonable cause to report sexual abuse.
I disagree with the majority and the FDAB’s application of the legal standard to the facts here. The basic facts drawn from the record, and noted in the majority opinion, would lead an objectively reasonable person to have a reasonable suspicion that the child had suffered sexual abuse, particularly the report from the child that she had been “molested,” that her brother was trying to touch her breast and had touched her upper torso, and that the child confirmed that the touching was “inappropriate.” When asked what “molest” meant to her, the child stated that her brother had touched her and indicated generally by waving her hand in front of her upper torso. Respondent told the child’s mother that respondent understood from the conversation that the child’s brother was “trying to touch a *510 boob.” Respondent also told the child’s mother that her son’s behavior was “not okay.” As noted above, a school resource officer testified that respondent told him that the child confirmed to respondent that the child believed the touching was “inappropriate.”
Of course, it is possible that further questioning of a 17-year-old girl with lower cognitive capacity could indicate that the girl had either misunderstood the terms she was using or was not using the terms to indicate that the brother was acting out sexually toward her. The counselor essentially concluded that the brother was being a jerk, harassing an older sister, and engaging in “horseplay.” That is at least a possibility that could refute the child’s report of being molested and touched inappropriately if drawn from any “specific and describable facts.” The problem is that respondent jumped to the conclusion of “horseplay” without relying on or reciting any specific and describable facts from which she could draw that conclusion from the child’s description of the events.
In reviewing whether a mandatory reporter reasonably exercised judgment to conclude that there was no reportable abuse, there must be a basis on which to evaluate that judgment. It might be possible for a mandatory reporter reasonably to conclude based on a discovery of additional facts from the child that the conduct was not sexual or sexually motivated. But when, as here, the alleged touching involved an intimate body part and a claim of molestation and inappropriate touching, it is not sufficient for a mandatory reporter simply to state that she formed an opinion that the accused person did not have a sexual intent based on a general assessment from a conversation with the alleged victim; the record must demonstrate some factual basis from which the mandatory reporter could reach that specific conclusion.
Here, respondent provided no description of what she learned from the child during her conversation that led her to conclude, after the child claimed she was molested and touched inappropriately, that the brother did not have the requisite intent. Among other things, she did not testify concerning the child’s description of the nature of the alleged *511 conduct, how it occurred, or where it occurred. 1 Respondent’s conversation with the mother, who was in a conflicted situation involving her son and daughter, also revealed nothing specific about sexual intent. Respondent knew that the brother was younger, but not so young that one could reasonably infer from his age alone that his intent could not have been sexual. Based on this record and given the “very low evidentiary threshold” of reasonable suspicion, A. F., 251 Or App at 584 , respondent’s determination that the child’s brother did not have a sexual intent appears to have been based on impermissible speculation and did not contradict the child’s initial report that she had been “molested” and touched “inappropriately.”
For those reasons, I would reverse and remand the FDAB’s order based on its erroneous conclusion that respondent did not have an objectively reasonable suspicion to report sexual abuse of a child.
While unknown to respondent at the time of her conversation with the child, a school resource officer who later investigated and interviewed the child obtained far more explicit statements from the child that her brother took off her bra and repeatedly touched and mouthed her bare breasts and nipples, which incidents occurred in a bedroom at their mother’s house.