Oregon Appellate Court - March 19, 2014

by: Abassos and Alarson • March 19, 2014 • no comments

Child Neglect - Failed But Meaningful Efforts Do Not Constitute Negligence

A parent is not guilty of child neglect where he makes reasonable efforts but ultimately fails to protect his child. Child neglect requires a gross deviation from the standard of care exercised by a reasonable person. Here, defendant's 3 year old was twice found, blocks from his house, pantsless and unattended. Both times defendant had fallen asleep and the 3 year old had opened doors and strolled away. After the 1st incident, at the suggestion of DHS, the parents had installed additional locks on the doors and worked on a child-safety plan. However, the child left through an inside door to the garage that the parents did not believe the child was strong enough to open. They also didn't realize that the child knew how to open the overhead garage door with the opener. As the court points out: "To be sure, defendant's unavailability and inattention to his three-year-old was not a model moment in care, and that lapse is relevant to the totality of the circumstances." However:

Defendant's failure to secure the garage door shows that his efforts were imperfect, but they were meaningful, even if they failed. Defendant had not disregarded DHS's help and had acted to contain a fearless toddler. We conclude that the evidence was insufficient to permit a reasonable factfinder to find that defendant's unawareness of the risk was a gross deviation from the standard of care exercised by a reasonable person. State v Negrete, 261 Or App ___ (2014)

Hearsay is Still Hearsay Even If It's Used for Impeachment

Hearsay doesn't become non-hearsay merely because the statement is offered for impeachment. A statement that depends for it's value on the truth of the statement is being offered for the truth of the matter asserted and is, therefore, hearsay. Here, the DA attempted to offer the victim's out-of-court statements for impeachment of defendant's testimony. However, offering them for impeachment didn't cure the hearsay problem because the DA was still offering the statements for their truth. He wanted the trier of fact to believe the hearsay statements of the victim over the defendant's in-court statements. Thus, the statements were inadmissible hearsay.State v. Barnes, 261 Or App __ (2014).