State Ex Rel. Juvenile Department v. Beasley

FADELEY, J.,

specially concurring.

I concur in the result in this case. That is, I agree with the statement that even accepting “father’s summary of facts [as to what the proposed witness would testify] as having been established for purposes of our de novo review * * * in light of the record as á whole in this case, the state has established by clear and convincing evidence that father’s parental rights should be terminated.” 314 Or at 455.

That being true, there is no need to deal with the admissibility of the proposed testimonial evidence merely because the parties continue to contest its exclusion. Whether or not the evidence is admissible will have no practical effect on the outcome of the case. Because the ruling on the evidence does not affect the outcome, we need not (and in my view should not) decide whether the ruling was correct. The court’s consideration of the excludability of the evidence, thus, is dictum. It is dictum that I do not wish to join.

No claim is made that refusing to hear the testimony of a competent witness improves the truth-seeking function of the court. Given that both parent and child have a liberty interest in continuation of their association, see Zockert v. Fanning, 310 Or 514, 519 , 800 P2d 773 (1990), citing Lassiter v. Department of Social Services, 452 US 18, 27 , 101 S Ct 2153 , 68 L Ed 2d 640 (1981) (“parent’s interest in the accuracy and justice of the decision to terminate * * * parental status is * * * a commanding one”), excluding relevant evidence of a competent witness should not be entered into lightly. 1

No one suggests that the testimony would so influence the judge emotionally that the judge might not enter a finding of fact on the merits notwithstanding the emotional *457 charge carried by the testimony. Thus, OEC 403 (“probative value is substantially outweighed by the danger of unfair prejudice”) is not involved in rationalizing the court’s dictum, nor should it be. Imwinkelried, The Meaning of Probative Value and Prejudice in Federal Rule of Evidence 403: Can Rule 403 Be used to Resurrect the Common Law of Evidence?, 41 Vand L Rev 879 (1988).

OEC 402 is referred to by the dicta. This rule provides:

“All relevant evidence is admissible, except as otherwise provided by the Oregon Evidence Code, by the Constitutions of the United States and Oregon or by Oregon statutory and decisional law. Evidence which is not relevant is not admissible.” 2

Obviously, the Oregon rule intends to preserve deci-sional law evidence rules. Passing over the issue whether the reference is to decisions and cases that may arise in the future, after adoption of the rules or, instead, is a retroactive incorporation of all prior cases announcing exclusionary rules of evidence, the dicta in the lead opinion in the present case refers to a 1962 decision of this court where the issue was simply whether a 13-year-old child was within the jurisdiction of the juvenile court after having run away from home. Chandler v. State, 230 Or 452, 458 , 370 P2d 626 (1962).

This court remanded that case for an additional hearing on the ground that the parent should have been permitted to inspect the files of the public agency having custody of the 13-year-old child under court order. On the way to that holding, the court stated that the trial judge did not abuse discretion “in refusing to permit the child to be called as a witness and to have been examined in open court.” Id. at 456 . However, the court only rules after pointing out that, in that case:

“The child was questioned privately by the court in the presence of counsel for the father and for the state. A record of the questions and answers is here.” Id.

*458 In Chandler , this court comments that the juvenile court is vested with discretion to make an initial determination whether it would be proper to question the child in any given case. The comment was itself dictum. The court said that the compelling intent of the juvenile code proceeding is to protect the child in any situation in which the court thinks the child may require it, but did not discuss this reasoning further. 3 That statement is dictum because that rationale and statement about discretion were not employed in that case, in that the child was questioned on the record albeit outside of open court. Thus, the dicta in the present case is based on the dictum in the pre-OEC Chandler case.

The opinion of the court also passes by the question whether the judiciary is bound by statutory rules of evidence or only required to apply them until the judiciary develops a contrary common law rule. That question arises because, in a different setting, namely, child sexual abuse cases, the legislature has adopted a rule that is different than the rule articulated by the lead opinion in the present case, although the statutory protection of the child has some of the same features as are in the lead opinion’s new rule. The somewhat similar statutory rule is clearly limited to the class of cases for which it was enacted. 4 In child sexual abuse cases, OEC 803(18a)(b) permits hearsay testimony of statements by a child victim of sexual abuse. The rule allows the hearsay when the child witness “is substantially likely * * * to suffer lasting severe emotional trauma from testifying” and provides that “[ujnless otherwise agreedby the parties, the court shall examine the child in chambers and on the record.” The *459 rule expressly states that it covers “civil, criminal and juvenile court proceedings.” OEC 803 (18a)(c).

That rule requires examination on the record and requires a higher standard of proof of emotional damage to the child than are found in the court’s dicta in the present case. Most significantly, the evidence that the child could give still comes in. The legislature’s rule places the relevant evidence on the record; the rule in the lead opinion’s dicta may, if the criteria created in it are satisfied, exclude relevant evidence. Confrontation and some cross-examination are no doubt impacted by the legislative rule protecting children in the limited circumstance and terms described. But the court is not deprived of the testimony as a whole, and the ability of a party to call a witness possessing relevant testimony is not totally thwarted, as would potentially be possible under today’s dicta.

Of course, the legislature has not spoken in the context of a case like this one involving parental neglect. But the differences between the lead opinion’s choice and the choice of the legislature in an analogous, egregious situation should be rationally resolved before a rule that may be invoked to facilitate exclusion of relevant evidence is adopted. That has not occurred. At the least, the dicta in the present case is premature, and I do not join in it.

See Schall v. Martin, 467 US 253, 263 , 104 S Ct 2403, 2409 , 81 L Ed 2d 207 (1984) (“no doubt that the Due Process Clause is applicable in juvenile proceedings”).

Oregon did not adopt the same provisions as in the federal rules. Federal Rule of Evidence 402 provides:

“All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. * * * ”

The decision predates application of some adult constitutional rights to protect the child in juvenile court. E.g., In re Gault, 387 US 1 , 87 S Ct 1428 , 18 L Ed 2d 527 (1967).

This is not a child sexual abuse case, but rather one involving parental neglect and a parent’s illegal occupation. Nor is the case one where rules of claim or issue preclusion would exclude evidence on an issue because that issue had been fully tried and determined in another proceeding, e.g., a child sexual abuse prosecution where the defendant was found guilty. Obviously, regulation of admission of evidence by reason of issue or claim preclusion is permissible notwithstanding the fact that the evidence otherwise would seem to be relevant. See Wright and Graham, Federal Practice and Procedure: Evidence 229, § 5200 (1978) (“substantive rules [i.e., laws] of admissibility are not altered by Rule 402 and equivalent provisions”); id. at 226, § 5199 (“exclusion maybe required by some rule of substantive law”); id. at 240-42, § 5203.