State ex rel. Juvenile Department v. Beasley

WARREN, P. J. Father appeals a judgment terminating his parental rights. He contends that the trial court erred by refiising to allow him to call the child as a witness on his behalf. We reverse. Before trial, father moved the court to order CSD to allow his attorney to interview the child. The court denied the motion. Father served a subpoena on Children Services Division, directing it to produce the child at trial to testify. He also filed a motion to examine the child pursuant to the subpoena. He asserted, inter alia, that the child’s testimony was relevant to rebut evidence that he had caused the child’s unusual sexual behavior.1 Father agreed that the child’s testimony could be taken in the judge’s chambers without his presence. The state responded that the child should not be called as a witness, because it would not be in the child’s best interests. It presented a letter by a psychologist and a psychology intern that stated that the risks to the child from testifying were substantial and that his answers would not likely be accurate, because of his impressionability and desire to please. The trial court weighed the probative value of the proffered evidence against the risk of harm to the child. It concluded that the evidence had some relevance but that it would be contrary to the child’s best interests to compel his appearance. Father argues that the trial court had no authority to weigh the probative value of the evidence against the possible harm to the child. That issue has already been decided in the context of a custody dispute. In Kreutzer v. Kreutzer, 226 Or 158, 359 P2d 536 (1961), both parents sought to have the court talk to the minor children outside their presence regarding custody. The court refused, stating it did not think the children “should be put to that test.” The Supreme Court analyzed whether the children were competent and after concluding that they were, stated: “Consequently, the right of the defendant to call the children to the stand and to elicit testimony from them material [518] to the issues was precisely the same as it would have been in the case of any other competent witness. This is, of course, a fundamental right. <<* * * * * “We have examined the record for the purpose of determining if it is possible to hold that the exclusion of the children from the witness stand was not reversible error, but, in view of the fact that there was conflict in the testimony on the issue of changed conditions and that the children were in a position to testify concerning some of these matters, we have no alterative other than to reverse the decree and remand the cause for further proceedings.” 226 Or at 161. See also Nichols and Fleischman, 67 Or App 256, 677 P2d 731 (1984). In Chandler v. State, 230 Or 452, 370 P2d 626 (1962), the Supreme Court considered whether a parent in a dependency proceeding has the right to examine the child in open court. The child had been made a ward of the court, and the father was seeking to have her returned to him. The trial court questioned her outside the father’s presence with counsel present, but it did not allow her to be called to the stand. The Supreme Court held that the trial court had the discretion not to permit the child to testify. It said: “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.” 230 Or at 456. Although this case falls under the juvenile code, it is more like Kreutzer, because Chandler decided a different issue. In Chandler, the issue was father’s right to call the child in open court after the trial court had already examined her in chambers. Here, as in Kreutzer, the issue is whether the court can refuse to permit any examination of the child. Chandler is also inapposite because it involved dependency rather than termination of parental rights. A termination hearing differs from a dependency hearing, not only because the consequences are much more drastic, but also because the natures of the hearings are fundamentally different. At a dependency hearing, the focus is on the interests of the child. See ORS 419.476; ORS 419.507. At a termination hearing, the focus is on the fitness of the parents. See ORS 419.523. The best interests of the child do not come into play [519] until the state has proved the statutory criteria for termination by clear and convincing evidence. ORS 419.523; ORS 419.525(3); State ex rel Juv. Dept. v. Geist, 310 Or 176, 189, 796 P2d 1193 (1990). The reasoning in Kreutzer applies with equal force to this case. When a parent’s own conduct is on trial and that parent faces one of the most drastic actions a state can impose, the permanent loss of a child, the parent must have the opportunity to rebut the state’s case to the extent that the evidentiary rules and statutes allow. See OEC 402.2 No statute authorizes the court in a termination case to refuse to examine a child because it is not in the child’s best interests. Compare State ex rel Juv. Dept. v. Abbott, 104 Or App 466, 801 P2d 898 (1990). Assuming that the child was competent, the court was required to allow him to be examined in chambers. The state argues that we should consider the evidence as described in father’s motion as having been established and, on de novo review, affirm despite the error. Father did not have the opportunity to interview the child before trial, so his description of what the child would testify is necessarily general and speculative. We cannot say what effect the child’s testimony might have had on the process of weighing the other evidence. See State ex rel Juv. Dept. v. Abbott, supra, 104 Or App at 468. We find nothing in father’s remaining assignments that requires discussion. Reversed and remanded. Footnotes [1] Specifically, the motion stated that the child’s testimony would rebut evidence that (1) he does not want to see father; (2) he wants to remain with his maternal grandmother; (3) father is responsible for the child’s unusual sexual behavior; and (4) the child’s mother has not been seeing him. Father also wanted to give the court an opportunity to observe “and thus obtain a clearer understanding of the child.” [2] OEC 402 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.”