People v. E.R.

463 P.3d 872

The PEOPLE of the State of Colorado, Petitioner-Appellee,

IN the INTEREST OF E.R., a/k/a E.M., a Child, and Concerning A.M., Respondent-Appellant.

Court of Appeals No. 17CA0460

Colorado Court of Appeals, Division A.

Announced April 19, 2018

J. Patrick Coleman, County Attorney, Katherine A. Barnes, Assistant County Attorney, Grand Junction, Colorado, for Petitioner-Appellee

Martha Kent, Guardian Ad Litem

Debra W. Dodd, P.C., Debra W. Dodd, Berthoud, Colorado, for Respondent-Appellant

Opinion by JUDGE CASEBOLT^*

¶ 1 In this dependency and neglect proceeding, mother, A.M., appeals the trial court's judgment of adjudication and disposition regarding her child, E.R., a/k/a E.M. We affirm the adjudication order, reverse the dispositional order, and remand the case to the trial court to ensure compliance with the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. § § 1901 - 1963 (2012).

I. Background

¶ 2 The child was born prematurely and spent six weeks in the hospital. The Mesa County Department of Human Services (Department) sought and received emergency custody after the hospital reported that it could not locate his parents to take him home. The Department later filed a petition in dependency and neglect. At a shelter hearing, the court granted the Department's request to return the child to his parents' care under the Department's supervision.

¶ 3 The court held an adjudicatory trial three months later. As the sole basis for adjudication, the court found that the child had tested positive for a schedule II controlled substance at birth, and that the positive test did not result from mother's lawful use of prescribed medication. See § 19-3-102(1)(g), C.R.S. 2017. To support its finding, the court relied on testimony from a physician specializing in neonatal care who had cared for the child immediately after his birth.

II. Hearsay

¶ 4 Mother contends that certain test results to which the child's physician testified were inadmissible hearsay under CRE 803(4). We disagree.

A. Legal Standards

¶ 5 A child is dependent and neglected if the child tests positive at birth for a controlled substance. § 19-3-102(1)(a). Whether a child is dependent and neglected presents a mixed question of fact and law because it requires application of the statutory grounds to the evidentiary facts. People in Interest of S.N. v. S.N. , 2014 CO 64, ¶ 21, 329 P.3d 276.

¶ 6 We review a trial court's decision to admit or exclude evidence for an abuse of discretion. In Interest of L.B. , 2017 COA 5, ¶ 58, 413 P.3d 176. A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair, or when it misapplies the law. Id. ; Reisbeck, LLC v. Levis , 2014 COA 167, ¶ 7, 342 P.3d 603.

¶ 7 Hearsay is a statement other than one made by the declarant while testifying at trial that is offered in evidence to prove the truth of the matter asserted. CRE 801. Hearsay is not admissible except as provided by statute or rule. CRE 802.

¶ 8 CRE 803(4) creates a hearsay exception for "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." This provision thus creates an exception for statements (1) made for purposes of medical diagnosis or treatment; (2) that describe medical history, symptoms, or the inception or cause of symptoms; (3) insofar as they are reasonably pertinent to diagnosis or treatment. Kelly v. Haralampopoulos , 2014 CO 46, ¶¶ 19-20, 327 P.3d 255 ; King v. People , 785 P.2d 596, 600 (Colo. 1990). "[A] statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility." White v. Illinois , 502 U.S. 346, 356, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). Such a statement carries with it a presumption of reliability because of a declarant's belief that the effectiveness of the treatment may depend largely upon the accuracy of the information provided to the physician. See People v. Jaramillo , 183 P.3d 665, 669 (Colo. App. 2008).

B. Application

¶ 9 Here, the physician who cared for the child testified that he was a licensed medical doctor with board certification in pediatrics and neonatology. The physician had provided newborn intensive care for twenty-three years. Without objection, the court qualified him as an expert in neonatology and pediatrics.

¶ 10 The physician testified that the child had been born in a hospital that lacked an intensive care unit for babies, and that the hospital had requested the physician's hospital to transport the child there and treat him. The doctor stated that the primary problem presented by the child was prematurity because he had been born at twenty-eight weeks of gestation, and that he was in respiratory distress and needed evaluation for infections and other conditions.

¶ 11 The physician further said that, when admitting a premature child to hospital care, it is important to obtain medical notes about the baby's birth and the mother in order to determine treatment for the baby, and that he had reviewed notes and medical records regarding the child's birth. He noted that mother had not received prenatal care, so there were no prenatal records; however, the records from mother's arrival at the first hospital to the time of the child's admission at the physician's hospital were available, as was a verbal report from the hospital's transport team. The physician further stated that he considers and relies on all those reports to determine a course of treatment for the child, as do physicians in similar positions.

¶ 12 When asked about a course of treatment, the physician described the previous placement of a breathing tube and administration of medication through that device to improve the child's lung function. He stated that he placed the child in a humidifier isolate to maintain body temperature. He described previous placement of special catheters through the child's umbilical cord through which antibiotics, intravenous fluids, and nutrition could be administered. He started the child on medication to prevent apnea of prematurity, and then recited that the history from the first hospital revealed that mother had had a positive urine toxicology screen for methamphetamine.

¶ 13 Mother objected, asserting that this information was inadmissible hearsay and was not admissible for its truth under CRE 703 (testimony by expert witnesses). The trial court disagreed, concluding it was admissible under CRE 803(4) and also under CRE 703.

¶ 14 The physician continued that he considered mother's positive test for methamphetamine when the child was born, stating that any social issues relevant to the child's hospitalization or ultimate disposition are part of the child's problem list or plan in the hospital.

¶ 15 Over mother's objection, the doctor identified a second confirmatory test in the medical record, a test on the child's umbilical cord, which revealed a positive methamphetamine result. He opined that methamphetamine exposure can cause premature birth.

¶ 16 We perceive no abuse of discretion in the admission of this testimony. It conforms to the requirements of CRE 803(4) that the statements must be made for purposes of medical diagnosis or treatment; describe medical history, symptoms, or the inception or cause of symptoms; and must be reasonably pertinent to diagnosis or treatment. See Kelly , ¶¶ 19-20.

¶ 17 This information was not simply a random statement found in the medical records that was not pertinent to the treating physician's diagnosis. Instead, it was medical information he found useful in understanding the child's medical condition. The test results were part of the child's medical record from the first hospital. The physician testified that he relied upon those medical records in diagnosing and treating the child and noted that methamphetamine exposure can cause premature birth. He also stated that physicians in similar situations likewise rely on such information in the medical record. See id. at ¶ 24 (if a statement is offered for the purpose of determining the nature, source, or cause of a patient's medical condition, it falls within the language of CRE 803(4), regardless of whether it is accompanied by treatment); id. at ¶ 30 (drug use is part of a patient's medical history and is an important indicator of a patient's physical condition); id. at ¶ 31 (statements regarding past drug use would be reasonably pertinent to determining the cause of—that is, to diagnose—the patient's condition); King , 785 P.2d at 603 (once the proponent of the hearsay statements establishes that they were made to a physician for purposes of either diagnosis or treatment, and that such statements were reasonably pertinent to diagnosis or treatment and were relied on by the physician in arriving at an expert opinion, the statements themselves qualify for admission under CRE 803(4) without regard to any independent demonstration of trustworthiness); People v. Tyme , 2013 COA 59, ¶ 20, 315 P.3d 1270 (upholding admission of testimony by sexual assault nurse examiner (SANE) that she relied on the medical history to guide her examination of the victim and used it to diagnose and treat, and that SANEs normally rely on similar histories to guide diagnosis and treatment, thereby demonstrating the reasonableness of reliance on statements by victim); see also Weaver v. State , 290 Ark. 556, 720 S.W.2d 905, 907 (1986) (blood alcohol test ordered by emergency room physician for use in treatment of a patient was admissible under Ark. R. Evid. 803(4) ); Tracy A. Bateman, Annotation, Admissibility of Statements Made for Purposes of Medical Diagnosis or Treatment as Hearsay Exception Under Rule 803(4) of the Uniform Rules of Evidence , 38 A.L.R.5th 433 (2011) (colle...