Dep't of Human Servs. v. R. A. B. (In re G. D.-J.)
Docket: A167079 (Control); A167080
Court: Court of Appeals of Oregon; August 29, 2018; Oregon; State Appellate Court
Mother appeals a judgment terminating her parental rights to her two children due to extreme conduct and unfitness, as defined under ORS 419B.502 and ORS 419B.504. She raises three assignments of error on appeal; the first and third are rejected without discussion, with the focus on the second assignment. Mother contends that the juvenile court made an error by excluding the testimony of her expert witness, Poppleton, as a sanction for not producing a report for the Department of Human Services (DHS) and the children's counsel. She argues that there was no report to produce and that she was not required to have an expert prepare one. Conversely, DHS asserts that she had an obligation to produce such a report and claims that the mother's offer of proof was insufficient to show that Poppleton's testimony would have been admissible or that its exclusion was prejudicial.
The court agrees with the mother that the trial court mistakenly believed she committed a discovery violation due to the absence of the expert report. However, it aligns with DHS's view that the trial court did not err in excluding Poppleton's testimony based on the mother's offer of proof. Consequently, the court affirms the judgment. Procedurally, termination proceedings began against mother due to allegations of physical and sexual abuse based on children's disclosures at a CARES facility, which she believed were influenced by coaching from their father. Mother engaged Poppleton to testify regarding this coaching. On October 23, 2017, children's counsel filed a motion to exclude non-disclosed evidence, claiming mother was violating discovery obligations. During the hearing on October 25, 2017, the court confirmed with mother's counsel that no report from Poppleton was available, although there was a request for one. The court indicated it would allow some leeway regarding the timeline for Poppleton's report, which was to be submitted by October 26, 2017.
Poppleton provided testimony on the eighth day of trial, which was met with objections from children's counsel regarding a report he had not prepared for mother. Poppleton confirmed he was contacted by mother for a records review approximately two and a half weeks before trial but had not been asked to prepare a report. Children's counsel highlighted that during the October 25 hearing, mother misled the court into believing that a report was forthcoming from Poppleton, which led to claims of being 'blind-sided.' DHS's counsel corroborated this, stating that mother had indicated a report would be available for the proceedings. Mother's counsel acknowledged expecting a report but had not anticipated Poppleton's swift testimony and clarified that she had not explicitly asked him to produce a report in time. The juvenile court determined that representations made during the October 25 hearing suggested a report was imminent and that it was never forthcoming, thus confirming a discovery violation. Consequently, the court granted the motion to exclude Poppleton's testimony, as it found DHS and children's counsel were prejudiced by the lack of disclosure. Mother offered proof of Poppleton's anticipated testimony, which included skepticism about the reliability of children's interview responses from previous reports. Ultimately, the court terminated mother’s parental rights to E and G. Mother appeals the exclusion of Poppleton's testimony, arguing she did not violate the discovery statute, ORS 419B.881, since no report existed and she had no duty to create one, while DHS contends the trial court's decision was correct and not erroneous.
Discovery rulings are reviewed based on the trial court's factual findings, which must be supported by evidence. If no findings exist and the evidence allows for multiple interpretations, the facts are assumed to align with the court's conclusion. Whether these facts constitute a discovery violation is a legal question. The exclusion of a witness as a sanction for a discovery violation is evaluated for abuse of discretion.
In juvenile proceedings, discovery obligations are governed by ORS 419B.881, which mandates that parties disclose specific information, including witness names and expert reports. The juvenile court can supervise discovery but cannot create new obligations beyond those specified in the statute. ORS 419B.881(1)(c) specifically requires disclosure of expert reports but does not impose an obligation on a party to request such reports.
In this case, the juvenile court identified a discovery violation based on local customs, suggesting that the absence of a report from witness Poppleton constituted an unfair surprise. However, such customary practices cannot serve as grounds for a statutory sanction. The court's authority to impose sanctions is linked to the obligations outlined in ORS 419B.881, and since there was no statutory requirement for the creation of a report, excluding Poppleton as a witness was not permissible based on a failure to provide one.
Parties may agree to discovery obligations beyond statutory requirements, but in this case, no such agreement occurred. The juvenile court found that no report from expert Poppleton would be produced, as indicated during the October 25 hearing where the mother stated that a report would only exist if Poppleton could create one. DHS's counsel noted uncertainty about the report's availability. The court's discovery order aligned with the statute, requiring the mother to provide any received expert report, but she did not promise to generate a report beyond what was mandated by ORS 419B.881. Thus, the failure to produce a nonexistent report was not a discovery violation, and the trial court erred in concluding otherwise. However, this error does not automatically lead to reversal; the burden is on the party seeking reversal to prove the error was not harmless. Under Oregon's constitutional test, the crucial question is whether the error likely affected the verdict.
DHS contended that the mother's offer of proof regarding Poppleton's testimony did not demonstrate prejudice from the exclusion of his testimony, as it merely commented on witness credibility. Courts do not permit vouching or credibility testimony from experts or lay witnesses. Previous rulings established that expert testimony suggesting witness truthfulness is inadmissible. In this instance, the mother's offer of proof included impermissible commentary, asserting that the children's interview responses should be viewed skeptically and questioning the reliability of the interviews. Consequently, regardless of any discovery violation, Poppleton's testimony would have been inadmissible. The exclusion of his testimony was unlikely to impact the verdict, making any error harmless. The judgment was affirmed. The hearing was conducted by Judge Rini, while the trial was overseen by Judge Garcia. A continuance was requested by the mother to allow Poppleton to draft a report to prevent his exclusion as a witness.
