Friday, June 11, 2010
You're Giving Me A Headache: Court Of Appeals Of Texas Deems Child's Statements To Therapist About Parents' Drug Use Admissible Under Rule 803(4)
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
So, does a four-and-a-half year-old's statement to her therapist that her parents used drugs and that she saw white powder around her house qualify for admission as a statement for purposes of medical treatment or diagnosis under Texas Rule of Evidence 803(4)? According to the Court of Appeals of Texas, Austin, in its recent opinion in Jesse Calderon and Marixza Melendez v. Texas Department of Family and Protective Services, 2010 WL 2330372 (Tex.App.-Austin 2010), the answer is "yes."
In Calderon, a jury returned a verdict finding that the parental rights of Marixza Melendez and Jesse Calderon to their daughters J.C.C. and J.B.C. should be terminated, and the trial court signed a final decree terminating their parental rights in accordance with the jury's verdict. Calderon thereafter appealed, claiming, inter alia, that the trial court improperly allowed for the admission of statements that his six year-old daughter J.C.C. made to her therapist. Specifically,
J.C.C.'s therapist testified that during play therapy, J.C.C., who was about four and one-half years old, pretended that "she was being arrested for drugs that she did, that she did use drugs and she had found them on the-on the sidewalk. They made her feel weird and that-then a baby had used the drugs and it killed the baby." The therapist later returned to the subject, telling J.C.C., "we are being serious now. I have to know, did you ever use drugs?" J.C.C. said she had not but that "her parents did use drugs and she recalled seeing some white powder," indicating that she had seen the powder on a table. When the therapist asked how J.C.C.'s parents acted when they used drugs, J.C.C. said they "would act weird" and that it caused J.C.C. to "always get a headache, so she would go into her room."
The Court of Appeals of Texas, Austin, disagreed, finding the therapist's testimony to be admissible under Texas Rule of Evidence 803(4). According to the court,
We agree with the trial court that the therapist's testimony about J.C.C.'s statement about white powder was admissible. The therapist testified that she stressed the importance of J.C.C. telling whether she had used or seen her parents use drugs and that she believed J.C.C. was truthful in her responses, and there is no indication in the record of evidence to negate the child's awareness that her therapist needed accurate information and that being truthful was in her best interest....Finally, the statement was made in the context of therapy....Thus, the trial court would not have abused its discretion in admitting the statement under rule 803(4) of the rules of evidence.
So, according to the court, a child's statement to a therapist regarding her parents' drug use and her resultant headaches (a) is a statement "made for purposes of medical diagnosis or treatment," and (b) describes "medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."
I'm not sure that I am willing to buy that, but in the end, it doesn't matter because the court also found J.C.C.'s statements admissible under Tex. Fam.Code Ann. § 261.001(1)(I) as "a hearsay statement about abuse, which is defined to include a parent's drug use that causes physical, emotional, or mental harm to a child...if the trial court decides that the child's best interest would be best protected by allowing the statement into evidence."