MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2014 ME 130
Docket:   Aro-13-245
Argued:   June 11, 2014
Decided:  November 25, 2014

Panel:       SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.
Majority:    SAUFLEY, C.J., and ALEXANDER, SILVER, and JABAR, JJ.
Dissent:     MEAD and GORMAN, JJ.


                                 MARY WALTON

                                          v.

                              DAVID C. IRELAND JR.

SILVER, J.

       [¶1] David C. Ireland Jr. appeals from an Order of Protection from Abuse

entered in the District Court (Presque Isle, O’Mara, J.) based upon a finding that

Ireland sexually abused the parties’ five-year-old daughter. Ireland argues that the

court committed an abuse of discretion by admitting evidence of statements that

the victim made to a social worker during play therapy identifying Ireland as her

abuser.     Ireland also contends that the court’s finding of abuse was clearly

erroneous. We affirm.

                                 I. BACKGROUND

       [¶2] David Ireland and Mary Walton had an intimate relationship in 2006.

After the relationship ended, Walton learned that she was pregnant. The parties’

daughter was born in December 2006. About a year later, the court issued an order
2

allocating parental rights and responsibilities. The order was modified several

times. As of October 2012, pursuant to the order, the child lived primarily with

Walton and stayed with Ireland every other weekend and for certain extended

periods during school vacations. The parties were generally cooperative with one

another and had no problems adhering to the visitation schedule. According to

Walton, the child began to exhibit reluctance to visit Ireland and would cry

hysterically before leaving for visits with him. Nevertheless, Walton encouraged

the child to go on the visits.

      [¶3] One evening in October 2012, after the child had returned from a visit

with Ireland, Walton gave her a bath. While Walton was bathing the child, the

child said that it “hurt down there” and pointed to the area of her crotch. Walton

asked her why, and the child gave an explanation. Walton brought the child to the

emergency room at The Aroostook Medical Center, where doctors examined the

child and advised Walton to schedule a forensic child-abuse evaluation at the

Spurwink Clinic. The following day, Walton filed an action seeking a protection

from abuse order against Ireland on the child’s behalf and contacted Spurwink to

schedule an evaluation.

      [¶4] Over the next several days, the child became upset and expressed fear

that Walton no longer loved her. Walton took the child to meet with Cindy Barker,

a clinical therapist, to address this behavior. Barker, a licensed clinical social
                                                                                   3

worker, explained her role to the child in what she considered to be an

age-appropriate way, then initiated conversation with the child by asking

open-ended questions about her family. The child stated that she did not like going

to see her father and that she did not want to see him anymore. During the session,

the child repeatedly stated, “he picks at [my] butt and crotch with his fingers and

puts his fingers in me,” and said that he would then lick his fingers. The child told

Barker that she was surprised and confused when her father did this, that it was

“really gross,” and that she didn’t understand why he would do that.

      [¶5] Barker has continued to meet with the child for an hour every other

week. Barker described her treatment plan for the child as being to help the child

to feel comfortable expressing herself, to work on anxieties and insecurities that

have occurred, and to help the child develop coping skills. Barker explained that

the content of the child’s statements⎯including the identity of the person she

described as abusing her⎯was important to the treatment plan because it helped

Barker to understand the basis for the child’s fears and insecurities.

      [¶6] Walton took the child to Spurwink for the sex-abuse evaluation in

December 2012. The child met with Donna Andrews, a licensed clinical social

worker employed as a forensic interviewer.          Andrews’s primary purpose in

evaluating the child was to determine whether there was evidence that abuse

occurred. Andrews asked the child if she knew why she was there; the child
4

responded that she didn’t know. During the interview, Andrews asked the child if

anyone had done something to her crotch and told her not to tell about it, to which

the child responded, “Yes, Dad, but I told anyway.”                    The child gave further

descriptions of the abuse consistent with what she had told Barker.

         [¶7] A physical examination revealed no evidence of trauma or abuse.

Andrews recommended that the child remain in therapy with Barker, that law

enforcement and DHHS investigate, and that the child have no contact with her

father while the investigation continued. The child did not meet with Andrews

again.

         [¶8] At the hearing on Walton’s complaint for protection from abuse, both

Barker and Andrews testified over Ireland’s objection as to the statements the child

made describing the abuse. The court conditionally admitted the statements but

gave the parties the opportunity to brief the issue, indicating that it would strike the

testimony from the record if the parties’ briefs convinced it that the statements

should be excluded.

         [¶9] By agreement of the parties, the child, who was then six years old,

testified without either party being present in the courtroom.1 At first, the child

testified that she did not know who her “daddy” was, but when asked if she knew

    1
       The court, after conducting preliminary questioning, concluded that the child was competent to
testify. Neither party has challenged that determination on appeal.
                                                                                     5

anyone named David she identified him as her “dad.” When asked how Ireland

treated her, the child responded, “Bad.” She explained that this was because “he

did something wrong,” which means “when someone did something bad,” but that

she had forgotten what the bad thing was. She testified that she did not like going

to see her father because he spanked her. She also testified that her father asked

her not to talk about “what he did,” but that she told her mother anyway. She said

that she did not tell anyone else, and that she did not know whether she knew

anyone named Cindy Barker. She testified that the only reason she did not want to

see Ireland was because he spanked her, and that there was no other reason she did

not want to see him.

      [¶10]    Ireland testified that he occasionally spanked his daughter as

discipline. He explained that his daughter usually wanted to change her underwear

when she changed into her pajamas, and that at these times he noticed “that her

vagina was red and that her rear end was red.” Ireland attributed the redness to the

child’s failure to wipe herself adequately after using the toilet and explained that he

applied ointment to treat the redness and irritation. He denied engaging in any

conduct with his daughter that could be considered sexual.

      [¶11] Following the hearing, the court issued the protection from abuse

order against Ireland, finding that Ireland had abused his daughter, ordering that he

have no contact with her, and temporarily awarding sole parental rights and
6

responsibilities to Walton. The court also issued an attachment to the judgment in

which it explained that Barker’s testimony was admissible pursuant to

M.R. Evid. 803(4) because the child’s statements, including those identifying her

abuser, were pertinent to the diagnosis and treatment of her anxiety and noted that

the appellant did not object to Barker’s testimony on medical-treatment grounds.

The court explained that it had stricken Andrews’s testimony because it concluded

that the forensic interview had not been undertaken for the purposes of diagnosis or

treatment. The court further explained that it found the child’s statements to

Barker to be more reliable than the child’s in-court testimony due to the child’s

therapeutic relationship with Barker. The court noted that several months had

passed since the child had had contact with Ireland and that her testimony indicated

that she was unable to remember important facts. Ireland appealed.          Walton

cross-appealed, contesting the exclusion of Andrews’s testimony.

                                II. DISCUSSION

A.    Barker’s Testimony

      [¶12] An out-of-court statement offered to prove the truth of the matter

asserted is hearsay and is inadmissible unless an exception applies.

M.R. Evid. 801(c), 802. Pursuant to M.R. Evid. 803(4), hearsay statements are not

excluded by the hearsay rule if they are “[s]tatements made for purposes of

medical diagnosis or treatment and describing medical history, or past or present
                                                                                                        7

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.”

“A trial court’s decision to admit or exclude alleged hearsay evidence is reviewed

for an abuse of discretion.” State v. Guyette, 2012 ME 9, ¶ 11, 36 A.3d 916.

When the trial court must make preliminary factual findings pursuant to

M.R. Evid. 104(a), however, those findings are reviewed only for clear error.

State v. Snow, 438 A.2d 485, 487 (Me. 1981).

        [¶13] We have previously recognized that application of M.R. Evid. 803(4)

is not limited to statements made for treatment of physical injuries; it applies to

statements made for psychological and mental-health treatment as well. 2 For

instance, in the context of a custody dispute, we affirmed the admission of a child’s

statements to a licensed clinical social worker about why he was afraid of his

father. Ames v. Ames, 2003 ME 60, ¶ 16, 822 A.2d 1201. In that case, the parties’

six-and-a-half-year-old son began “displaying problems with concentration, sleep,

anger, fear, and stomachaches” and refused to visit his father. Id. ¶¶ 2, 4. The

mother sought the advice of a licensed clinical social worker who “hoped to

   2
      A number of federal courts have also recognized that the exception in Fed. R. Evid. 803(4), which is
substantively identical to M.R. Evid. 803(4), applies to statements made for the purpose of psychological
or mental-health treatment. See, e.g., Morgan v. Foretich, 846 F.2d 941, 948-50 (4th Cir. 1988) (applying
rule to child’s statements to a psychologist concerning sexual abuse); United States v. Kappell, 418 F.3d
550, 556-57 (6th Cir. 2005) (applying rule to child’s statements to a psychotherapist); United States v.
Yellow, 18 F.3d 1438, 1442 (8th Cir. 1994) (explaining that the Eighth Circuit has “consistently upheld
the admission of statements made to psychologists or trained social workers” that otherwise meet the
rule’s requirements).
8

address the child’s concerns and help him become comfortable with his father.”

Id. ¶ 5. The child told the social worker that he was afraid of his father and that it

was the child’s idea to stop visitation. Id. At trial, the social worker testified about

the child’s statements that he was afraid of his father and did not want to visit him.

Id. ¶ 7. We explained that the child’s statements to the social worker “explained

the source of his fear” and concluded, “Given that the purpose of the treatment was

to identify the cause of his fear and overcome it, this statement was pertinent to his

diagnosis and treatment and [was] properly admitted.” Id. ¶ 16.

      [¶14] Similarly, we held that a nurse practitioner’s diagnosis of a young

woman’s “depression, anxiety, and situational stress secondary to emotional abuse

by [her] boyfriend” was admissible at the boyfriend’s trial for the woman’s

subsequent murder. State v. Cookson, 2003 ME 136, ¶¶ 18, 26, 837 A.2d 101. In

that case, the woman told the nurse practitioner that she was depressed because her

boyfriend had been stalking and harassing her. Id. ¶¶ 18-19. We held that the

nurse practitioner’s testimony about these statements was admissible pursuant to

M.R. Evid. 803(4) because “[the victim’s] statements to the nurse about having a

problem with Cookson and about Cookson following and stalking her were made

to describe to the nurse the external source of her depression.” Id. ¶ 26. We

further explained that “[the victim’s] statements were also pertinent to her
                                                                                     9

treatment, including the provision of antidepressant drugs, given by the nurse

practitioner.” Id.

        1.    The Reliability of the Statements

        [¶15] Ireland argues that the child’s statements to Barker should have been

excluded because they lacked the indicia of reliability typically associated with

statements made for the purpose of securing medical treatment. The reliability of a

hearsay statement, however, goes to its weight, not its admissibility; it is a matter

for the fact-finder to consider in its evaluation of all the evidence, and not for the

court    to   consider   in   determining   the   admissibility   of   the   statement.

See Handrahan v. Malenko, 2011 ME 15, ¶¶ 19-20, 12 A.3d 79 (concluding that

the fact-finder “was justified in [its] assessment of the reliability of the child’s

out-of-court statement” where the child was not shown to have a “strong

motivation . . . to be entirely honest with her physician for purposes of medical

diagnosis and treatment” (quotation marks omitted) (alteration omitted)); Field &

Murray, Maine Evidence § 803.4 at 479 (6th ed. 2007) (explaining that a

statement’s “trustworthiness is less when the purpose is [for diagnosis only rather

than] for treatment, but this goes to its weight rather than its admissibility”);

see also Danaipour v. McLarey, 386 F.3d 289, 297-98 (1st Cir. 2004) (holding that

a mother’s statements to a medical provider describing two young children’s

disclosures of sexual abuse were admissible pursuant to Fed. R. Evid. 803(4) and
10

observing that “[t]he [fact-finder] carefully considered the fact that statements by a

young child, even if accurately recounted by an adult, may not reflect the truth”);

United States v. George, 960 F.2d 97, 100 (9th Cir. 1992) (“As a general matter,

the age of the child and her other personal characteristics go to the weight of the

hearsay statements rather than their admissibility.”) Absent a change to the rules

of evidence, we decline to require an additional showing of reliability for hearsay

statements that fall within the Rule 803(4) exception.3

         [¶16] Although the trial court did not explicitly find that the statement was

made for the purpose of medical diagnosis or treatment, we must assume that it

made this preliminary finding.              See Pelletier v. Pelletier, 2012 ME 15, ¶ 20,

36 A.3d 903 (“In the absence of a motion for additional findings of fact . . . we will

infer that the trial court made any factual inferences needed to support its ultimate

conclusion.”). The trial court’s implicit finding concerning the purpose of the

child’s statements was supported by Barker’s testimony that she explained her role

to the child and that the child’s statements were important for developing a

treatment plan. The court acted well within its role as fact-finder by inferring the

purpose of the child’s statements. See Snow, 438 A.2d at 487-88 (explaining that

the fact-finder is permitted to draw reasonable inferences in making a finding

     3
     Because this is not a criminal case, we do not address whether the Confrontation Clause may require
additional guarantees of trustworthiness for the admission of hearsay statements in criminal prosecutions.
See Handrahan v. Malenko, 2011 ME 15, ¶ 16 n.4, 12 A.3d 79.
                                                                                   11

preliminary to the admission of evidence). The child was sent to the therapist

because her mother was concerned about the child not feeling loved, and Barker’s

goal was to treat the child for anxiety. Although these facts could arguably support

a finding that the statements were not made for purposes of diagnosis or treatment,

on this record we cannot conclude that the trial court’s preliminary factual

determination constituted clear error. See id. at 487 (“Use of the clearly erroneous

test to review the trial judge’s preliminary finding of fact recognizes the superior

opportunity that he enjoyed to hear the evidence as it was presented through live

witnesses . . . .” (quotation marks omitted)).

      2.      The Pertinence of the Perpetrator’s Identity to Diagnosis or Treatment

      [¶17]     Ireland’s primary contention is that the portions of the child’s

statements identifying Ireland as her abuser were not pertinent to diagnosis or

treatment     because   they   served   “merely   [to]   affix   fault   or   blame.”

See State v. Sickles, 655 A.2d 1254, 1257 (Me. 1995).       “Pertinence, within the

contemplation of Rule 803(4), is an objective consideration beyond the declarant’s

state of mind.” Id. (quotation marks omitted). “Pertinence may be tested by

asking whether the information is of a type on which a physician could reasonably

rely to form a diagnosis or provide treatment.” Id.

      [¶18] In many cases, extraneous details of an assault, including the identity

of the perpetrator, may not be pertinent to medical diagnosis or treatment. For
12

instance, in a case in which a victim described the time and location of an alleged

rape and identified her brother as the perpetrator, we concluded:

      That it was intercourse that caused [the victim] to see the doctor and
      that it occurred the previous evening are facts reasonably pertinent to
      the diagnosis and treatment . . . . But the identity of the perpetrator
      and the scene of the alleged rape do not fall within that hearsay
      exception.

State v. True, 438 A.2d 460, 467 (Me. 1981). Similarly, we concluded that hearsay

statements describing medically irrelevant details of a sexual assault, such as that

the victim “asked that it stop,” were improperly admitted pursuant to

M. R. Evid. 803(4) where the testifying physician’s “role in examining the victim

was limited to providing emergency room care” and the doctor “did not indicate

whether or how the knowledge that the victim may have ‘asked that it stop’ helped

her in her diagnosis.” Sickles, 655 A.2d at 1257.

      [¶19] We have concluded, however, that certain details that may not be

relevant to treatment for physical injuries may be pertinent to treatment for

emotional or psychological trauma.         For instance, we determined that a

sexual-assault victim’s statement to a doctor that she had been threatened with a

knife “pertained to the emotional trauma that the physician was . . . addressing”

where “the physician prefaced his remark by saying that the emotional

ramifications of rape are a significant part of the victim’s problem in relation to

treatment.” State v. Rosa, 575 A.2d 727, 729 (Me. 1990). Similarly, in Ames, we
                                                                                       13

determined that a young child’s statement that he was afraid of his father was

pertinent to diagnosis and treatment “[g]iven that the purpose of the treatment was

to identify the cause of his fear and overcome it . . . . ” 2003 ME 60, ¶¶ 14, 16,

822 A.2d 1201.

      [¶20] Here, Barker testified that the identity of the child’s abuser was

important for developing a treatment plan for the child.                   Under these

circumstances, as in almost any case involving a child who is abused by a family

member, the identity of the perpetrator may indeed be pertinent to diagnosis and

treatment. See Danaipour, 386 F.3d at 297 (“Child therapists routinely, as part of

their diagnosis or treatment, obtain the type of statements made by the patients

here . . . about the identity of the perpetrator of the abuse. . . . [Such statements] are

usually reasonably pertinent to treatment of the child.”); United States v. Joe,

8 F.3d 1488, 1494 (10th Cir. 1993) (“[W]here the abuser is a member of the family

or household, the abuser’s identity is especially pertinent to the physician’s

recommendation regarding an appropriate course of treatment . . . . ”);

Morgan v. Foretich, 846 F.2d 941, 949-50 (4th Cir. 1988) (“[A] physician in

determining treatment may rely on factors in child abuse cases such as an

assailant’s identity that would not be relied on were the patient an adult.”);

United States v. Renville, 779 F.2d 430, 437 (8th Cir. 1985) (“The exact nature and

extent of the psychological problems which ensue from child abuse often depend
14

on the identity of the abuser.”). The trial court did not abuse its discretion by

admitting evidence of the statements the child made to Barker identifying Ireland

as her abuser.

B.    Andrews’s Testimony

      [¶21]      Walton argues that the court abused its discretion by excluding

Andrews’s testimony. Because Walton obtained a favorable result in the trial

court, and we affirm the court’s opinion, we would not ordinarily reach this issue.

In re Johnna M., 2006 ME 46, ¶ 7, 903 A.2d 331; see also Storer v. Dep’t of Envtl.

Prot., 656 A.2d 1191, 1192 (Me. 1995); Ullis v. Town of Boothbay Harbor,

459 A.2d 153, 155-56 (Me. 1983). Nevertheless, we note that the court did not

commit an abuse of discretion by excluding Andrews’s testimony based on its

conclusion that the forensic interview was not undertaken for the purpose of

diagnosis or treatment. Andrews’s role was to collect and assess evidence of

abuse. When an interview is conducted primarily for the purpose of collecting

evidence and determining whether abuse occurred, the court may conclude that

statements made during that interview are not made for purposes of diagnosis or

treatment. See M.R. Evid. 803(4); Handrahan, 2011 ME 15, ¶ 16, 12 A.3d 79

(observing that, where the interviewer “conducted a forensic interview of the child

in her capacity as co-director of the Spurwink Child Abuse Program” it was “not

clear that the child’s statements . . . were made for purposes of medical diagnosis
                                                                                 15

or treatment”). The court did not abuse its discretion by excluding evidence of

statements the child made during the forensic interview.

C.    The Court’s Finding of Abuse

      [¶22] A plaintiff seeking an order for protection from abuse must prove by a

preponderance of the evidence that the defendant abused the plaintiff.

19-A M.R.S. § 4006(1) (2013). We review a trial court’s finding of abuse for clear

error “and will affirm a trial court’s findings if they are supported by competent

evidence in the record, even if the evidence might support alternative findings of

fact.” Handrahan, 2011 ME 15, ¶ 13, 12 A.3d 79 (quotation marks omitted);

see also Jacobs v. Jacobs, 2007 ME 14, ¶ 5, 915 A.2d 409.

      [¶23] Ireland argues that the court’s finding of abuse was clearly erroneous

because the child, during her in-court testimony, effectively denied that any abuse

had occurred. Ireland contends that the court was required to accept the child’s

testimony as being more reliable than the statements she made to Barker. This

contention is unpersuasive. “No principle of appellate review is better established

than the principle that credibility determinations are left to the sound judgment of

the trier of fact.”   Weinstein v. Sanborn, 1999 ME 181, ¶ 3, 741 A.2d 459.

Moreover, we have previously held that a child’s out-of-court statements provide

sufficient evidence to support a finding, by a preponderance of the evidence, of

abuse, even when the child testifies that the abuse did not occur and that he does
16

not remember making the earlier statement describing the abuse. In re Charles

Jason R., Jr., 572 A.2d 1080, 1081-82 (Me. 1990).

      [¶24] Here, the trial court explained that it found the child’s statements to

Barker to be more credible than the child’s in-court testimony. See White v.

Illinois, 502 U.S. 346, 355-56 (1992) (“[F]actors that contribute to the statements’

reliability cannot be recaptured even by later in-court testimony. . . . [A] statement

made in the course of procuring medical services . . . carries special guarantees of

credibility that a trier of fact may not think replicated by courtroom testimony.”).

The court found the child’s testimony to be confusing and contradictory and also

noted the child’s inability to recall certain basic facts during her testimony.

Because credibility determinations are exclusively within the province of the

fact-finder, Ireland’s contention that the child’s testimony must be given more

weight than the statements she made to her therapist is unavailing.

See In re Charles Jason R., Jr., 572 A.2d at 1081 (“Once admitted and relied upon

by the court, [the child’s out-of-court] statement amply supported the court’s

finding [of abuse] by a preponderance . . . .”). The evidence was sufficient to

support the court’s finding of abuse by a preponderance of the evidence.
                                                                                 17

      The entry is:

                      Judgment affirmed.




MEAD, J., with whom GORMAN, J., joins, dissenting.

      [¶25] I respectfully dissent from the Court’s conclusion that the daughter’s

identification of Ireland as the person who inappropriately touched her falls within

the hearsay exception created by Rule 803(4) of the Maine Rules of Evidence.

While I do not disagree with the Court’s recitation of the broad principles that

govern the application of Rule 803(4), I conclude that the evidentiary record does

not provide a sufficient foundation for the admission of these statements.

      [¶26] Rule 803(4) provides:

            The following are not excluded by the hearsay rule, even
      though the declarant is available as a witness:

      ...

            (4) Statements for purposes of medical diagnosis or treatment.
      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.
18

The rule establishes two separate and distinct points of inquiry: (1) did the

declarant make the statements with the subjective purpose of obtaining a medical

diagnosis or treatment? and (2) was the information pertinent to diagnosis or

treatment? The Court focuses only on the second inquiry. I would hold, however,

that both questions must be answered in the affirmative, based upon evidence in

the record, before such statements are admissible as exceptions to the hearsay rule.

      [¶27] Here, the second of the two inquiries required the court to determine

whether the identity of the child’s abuser was pertinent to diagnosis or treatment.

The record compellingly establishes that it was. Any treatment plan for a victim of

child sexual abuse will certainly include a strategy for protecting the child from

further abuse by that person.     Expert testimony in the record establishes the

element of pertinence to diagnosis or treatment without doubt. See State v. Sickles,

655 A.2d 1254, 1257 (Me. 1995) (“Pertinence, within the contemplation of

Rule 803(4), is an objective consideration beyond the declarant’s state of mind.”

(quoting Cassidy v. State, 536 A.2d 666, 686 (Md. Ct. Spec. App. 1988))).

      [¶28] The first of the two inquiries—whether the statements were made for

the purposes of medical diagnosis or treatment—necessarily calls into issue the

subjective state of mind of the declarant. This critical subjective element is the

raison d’être of the Rule 803(4) exception. As the Advisor’s Notes indicate: “The

justification [for the exception] is the patient’s strong motivation to be truthful.”
                                                                                 19

M.R. Evid. 803(4)    Adviser’s   Note;   see also Meaney v. United States,

112 F.2d 538, 539-40 (2d Cir. 1940) (Hand, J.) (“A man goes to his physician

expected to recount all that he feels, and often he has with some care searched his

consciousness to be sure that he will leave out nothing. . . . because his treatment

will in part depend upon what he says.”). Some courts do not engage in such an

inquiry and limit the focus of their analysis only on whether the treating physician

deems a statement pertinent to treatment.         See, e.g., Stallnacker v. State,

715 S.W.2d 883, 884 (Ark. App. 1986).             Others, however, conclude that

Rule 803(4) requires consideration of the unique circumstances of each case

relating to the patient’s motivation. See, e.g., Cassidy v. State, 536 A.2d 666, 678

(Md. Ct. Spec. App. 1988) (“[N]o one would willingly risk medical injury from

improper treatment by withholding necessary data or furnishing false data to the

physician who would determine the course of treatment on the basis of that data.”);

United States v. Peneaux, 432 F.3d 882, 894 (8th Cir. 2005) (“The motive

requirement means that the victim must have had a selfish subjective motive of

receiving proper medical treatment or the state of mind of someone seeking

medical treatment.” (quotation marks omitted)).

      [¶29]   Common sense, and the principles underlying the Rule 803(4)

exception, require the approach articulated in Cassidy and Peneaux. If a person

seeks medical treatment for a particular condition, it is likely that he will be
20

truthful with the caregiver when describing the nature or source of his complaints.

Meaney, 112 F.2d at 539-40. As with other hearsay exceptions, the circumstances

of such statements create an independent basis for truthfulness. We have not

previously directly addressed the Rule 803(4) element of the declarant’s subjective

purpose in making statements to medical providers. Our existing jurisprudence

focuses upon the pertinence element; the declarant’s subjective purpose for the

statements in those cases is obvious from the context of those statements. Today,

the Court clarifies that both the purpose element and the pertinence element must

be established by the proponent of the statement, and determines that Walton has

successfully done so.

      [¶30] In discerning whether the declarant, when making specific statements

to a health care provider, made those statements with the specific purpose of

obtaining a diagnosis or treatment, it is necessary for the court to consider the

circumstances of the statements and the declarant’s subjective state of mind. In the

typical instance of an adult who sincerely seeks medical attention for a particular

condition, the analysis is ordinarily quite straightforward. The declarant’s purpose

is obvious from the context of the medical consultation. In those matters, the

803(4) analysis quickly turns to the pertinence element.

      [¶31] When a child is communicating with a health care provider, however,

the “purpose” question becomes more complex and nuanced. Children do not
                                                                                                  21

generally seek medical care. Although a child may report a condition or symptom

to a parent or others, it is usually an adult who seeks the care on the child’s behalf.

The fact that an adult brings a child to a provider for the purpose of diagnosis or

treatment does not create greater likelihood that the child’s statements to the

medical care provider will be truthful.4 A child may not understand the importance

of giving an accurate history to the medical care provider. Unless the evidentiary

record establishes that the child had an understanding of the connection between

truthful reporting and meaningful diagnosis and treatment and gave the

information with the subjective purpose of giving such truthful information, the

critical foundation for Rule 803(4) is lacking.

       [¶32] Walton took her daughter to the Life by Designs facility for “play

therapy” with Cindy Barker, who holds a certification as a Licensed Master Social

Worker, Clinical Conditional.5 Walton cites as a reason for this action that, “She

[the daughter] was saying that I don’t love her anymore. She was upset. She

wasn’t the same little girl.” Walton further testified that the professionals at the

Spurwink Center recommended that she continue to have her daughter attend the

play therapy sessions with Cindy Barker.


   4
     Arguably, the opposite may occur. A child, who may fear the doctor or medical setting, may be
more likely to deny, minimize, or misstate circumstances to discourage further medical attention.
   5
     I note, but do not address, the issue of whether a play therapist makes a “medical diagnosis” or
provides “medical treatment” as those terms are used in the rule.
22

         [¶33] The record is devoid of any basis for a court to conclude that any of

the daughter’s statements to Ms. Barker resulted from any subjective purpose on

the daughter’s part to obtain diagnosis or treatment. Stated otherwise, the court

had utterly no way of knowing what, if anything, the daughter thought the play

therapy sessions were intended to accomplish or why it would be important to tell

the truth. The only testimony in the record that remotely addresses the daughter’s

perceptions of the sessions is the testimony of Ms. Barker that, “I just—I

introduced myself to her. Just kind of explained in an age-appropriate way my

role, what I do. I work with kids. I talk to kids.” This testimony provides no

insight into the daughter’s perceptions, particularly when the testimony does not

relate what was actually said.

         [¶34] The fact that a parent may have a purpose in taking a child to a

treatment facility does not translate into a subjective intent of the child—the

declarant—to make statements for the purposes of diagnosis or treatment. The law

provides no basis for a parent’s purpose to be imputed to the child. Accordingly,

I would conclude that the admission of the out-of-court statements by the child to

Ms. Barker was erroneous.6 The trial court simply cannot conclude that a declarant


     6
     Although the Rule 803(4) element of purpose was not emphasized by the parties at the trial level, it
must be addressed expressly or impliedly by a trial court before admitting a hearsay statement as a
statement made for purposes of medical diagnosis or treatment. The trial court here did address the issue
of purpose in its decision, but conflated it with the element of pertinence.
                                                                                     23

had a particular subjective intent in making statements for purposes of medical

diagnosis and treatment when the record contains absolutely no evidence, and

allows no reasonable inference, of such.

        [¶35] I do not suggest that a child’s statements to a medical care provider

require greater indicia of reliability than those that would be required of an adult’s

out-of-court statements.           Rather, the proof regarding the circumstances of the

statements—by an adult or a child—simply must be sufficient to establish a basis

for a court to conclude that the declarant made them with the purpose of obtaining

meaningful diagnosis or treatment.7 In the complete absence of such evidence, the

foundation for Rule 803(4) is lacking, and the statements do not qualify as

exceptions to the hearsay rule. Accordingly, I would vacate and remand for the

court to determine whether the plaintiff met her burden of proof in the absence of

these statements.




  7
      A colloquy, such as the following, would likely be sufficient:

  Q: Why were you seeing [the counselor]?

  A: Because I was [sad/mad/scared].

  Q: Did you think talking to her about why you were [sad/mad/scared] would help?

  A: Yes.
24

On the briefs:

        Logan Perkins, Esq., and Jeffrey M. Silverstein, Esq., Bangor, for appellant
        David C. Ireland Jr.

        James M. Dunleavy, Esq., Currier and Trask, P.A., Presque Isle, for appellee
        Mary Walton


At oral argument:

        Logan Perkins, Esq., for appellant David C. Ireland Jr.

        James M. Dunleavy, Esq., for appellee Mary Walton



Presque Isle District Court docket number PA-2012-211
FOR CLERK REFERENCE ONLY
