Dept. of Human Services v. K. A. H.

Under ORS 45.400(3)(b), testimony may not be given via telephone if the issues the party will testify about are so determinative of the outcome that face-to-face cross-examination is necessary.

Mother appealed a judgment asserting jurisdiction over her child, A, which was based on an assessment by a doctor that outlined injuries that raised concern for non accidental trauma. Before trial, Mother moved to exclude evidence based on the theory of shaken baby syndrome or abusive head trauma. The doctor testified during an evidentiary hearing on the issue by phone, after which the court denied Mother’s motion. DHS then moved to allow the doctor to testify at the judicial hearing by phone under ORS 45.400. Mother objected, arguing she could not effectively cross-examine the doctor and the telephone testimony should not be allowed because the testimony was outcome-determinative. (ORS 45.400(3)(b)). The court granted DHS’s motion and at the jurisdictional trial the doctor testified by telephone, after which the court entered a judgment asserting jurisdiction over A. Mother appealed, arguing the scientific evidence was improperly allowed and that the trial court erred in allowing the testimony to be taken telephonically under ORS 45.400. The Court did not reach the first argument, but held the trial court did err in allowing the doctor to testify by telephone because, under ORS 45.400(3)(b), testimony may not be given via telephone if the issues the party will testify about are so determinative of the outcome that face-to-face cross-examination is necessary. DHS conceded that the testimony was outcome-determinative, and the Court rejected its arguments that telephonic testimony should have been allowed. Reversed and remanded.