Background
John Westbrook and Shauna Hubbard are the parents of two young children and had been operating under an existing parenting order that gave Westbrook visitation time. Hubbard stopped allowing any visitation, concluding that Westbrook had sexually abused one of the children. Westbrook responded by filing motions to enforce parenting time and to modify custody, parenting time, child support, and one child’s last name. All motions were set for a single evidentiary hearing before the Jackson County Circuit Court.
At the hearing, during the course of mother’s testimony, she referenced statements the child had made. Father objected on hearsay grounds. Mother indicated she had a video recording and played it for the court. The video, which mother had recorded while changing the child’s diaper, included a brief exchange in which mother asked the child why the child had “tried to put your finger in your butt,” and the child responded that father “did.” Father renewed his objection, arguing that the video was inadmissible hearsay and that mother had failed to give the 15-day advance notice required by OEC 803(18a)(b) for child statements concerning sexual abuse. The trial court summarily overruled all objections. Father also testified that police and DHS had investigated the allegations and closed their files. The trial court denied all of father’s motions, found father not credible, and entered judgment for mother—without explaining which evidence it credited or why.
The Court’s Holding
The Court of Appeals reversed and remanded. The child’s recorded statement was hearsay under OEC 801(3). The only potentially applicable exception was OEC 803(18a)(b), which provides a hearsay exception for a child’s out-of-court statements describing acts of sexual abuse or contact—but only when the proponent satisfies two mandatory prerequisites: (1) at least 15 days’ pre-hearing written notice identifying the statement and its particulars, and (2) a showing that “the time, content and circumstances of the statement provide indicia of reliability.” Mother made no attempt to comply with either requirement. She provided no advance notice, and she made no reliability showing. The trial court therefore erred in admitting the recording.
The court then assessed harmlessness independently, as required. The child’s video statement was the sole evidence that the conduct mother alleged was sexual in nature. Father had generally acknowledged allegations of abuse and mother had generally referenced them, but the specificity of the sexual-abuse allegation came exclusively from the child’s recorded statement. Although the trial court’s disposition was stated summarily and accompanied by a credibility finding against father, the court reasoned that the allegation of sexual abuse was the entire basis for mother’s withholding of visitation and that the trial court’s credibility finding was necessarily bound up with father’s denial of that allegation. Admission of the video therefore was prejudicial to father, and the error was not harmless.
The court also delivered a pointed observation on appellate practice: father’s brief had omitted the trial court’s adverse credibility finding entirely. Counsel explained at oral argument that he had not mentioned it because he thought it irrelevant. The court pushed back, noting that adverse credibility findings must be acknowledged in appellate briefs and that counsel who believe ordinary deference is unwarranted must explain why—ignoring a credibility finding is not a legitimate briefing strategy.
Key Takeaways
- OEC 803(18a)(b)’s two prerequisites are mandatory, not discretionary: the proponent must (1) provide written notice at least 15 days before the hearing identifying the child statement and its particulars, and (2) make an affirmative showing that the time, content, and circumstances of the statement provide indicia of reliability; failure to comply makes the child’s statement inadmissible.
- Harmful-error review focuses on the actual effect of the improperly admitted evidence on the court’s disposition, not on whether the court explicitly cited the evidence in its ruling; a child’s out-of-court statement that is the sole basis for a sexual-abuse allegation central to the case is prejudicial when improperly admitted.
- Appellate practitioners must address adverse trial court credibility findings rather than omit them—if deference to the finding is unwarranted, counsel should acknowledge it and explain why the usual standard should not apply.
Why It Matters
Westbrook reinforces that OEC 803(18a)(b) is not a flexible exception that trial courts can allow on the fly. In custody and parenting-time proceedings where a parent or child makes allegations of sexual abuse, the party seeking to admit a child’s out-of-court statement must meet the exception’s strict requirements in advance—before the hearing, not during it. Practitioners on both sides of family-law matters involving child abuse allegations should build OEC 803(18a)(b) compliance into their hearing preparation: calendar the 15-day notice deadline, document the circumstances of the child’s statement to build the reliability foundation, and be prepared to make the required showing on the record. The decision also signals that improperly admitted child hearsay can unwind an entire custody or visitation order on appeal even when the trial court’s disposition is stated in summary fashion and rests on a credibility finding—provided the evidence went to the heart of the claim.