December 13, 2018

Colorado Court of Appeals: Child’s Medical Records Admissible Under CRE 803(4) where Statements Made for Medical Diagnosis or Treatment

The Colorado Court of Appeals issued its opinion in People in Interest of E.M. on Thursday, April 19, 2018.

Dependency and Neglect—Admissibility of Evidence under CRE 803(4)—Indian Child Welfare Act.

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.

Three months later the court held an adjudicatory trial. 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. The court relied on testimony from a physician specializing in neonatal care who had cared for the child immediately after his birth.

On appeal, mother argued that certain test results to which the child’s physician testified were inadmissible hearsay under CRE 803(4). CRE 803(4) creates a hearsay exception for statements that are made for purposes of medical diagnosis or treatment; describe medical history, symptoms, or the inception or cause of symptoms; and are reasonably pertinent to diagnosis or treatment. Here, the testifying physician was qualified, without objection, as an expert in neonatology and pediatrics. He gave comprehensive testimony regarding the child’s symptoms and treatment and mother’s positive toxicology screen for methamphetamine. The physician’s testimony conformed to the requirements of CRE 803(4).

The court also rejected mother’s contention that even if the test results were admissible it was error for the trial court to rely on them because they were only admitted as the basis of the expert’s testimony under CRE 703, not as substantive evidence. The trial court admitted the results under both CRE 803(4) and 703 and they were therefore substantive evidence on which the court could rely to conclude that the child had testified positive for a controlled substance at birth.

Mother also argued that the trial court erred when it determined that the Indian Child Welfare Act (ICWA) does not apply to this proceeding because the child had been returned to mother’s home. The ICWA applies to a child custody proceeding even when, following a shelter hearing, the child is returned to the mother’s home, because the hearing could have resulted in foster care placement. The trial court did not conduct the proper ICWA inquiry.

The part of the judgment adjudicating the child dependent or neglected was affirmed. The dispositional order was reversed and the case was remanded for the purpose of conducting a proper ICWA inquiry.

Summary provided courtesy of Colorado Lawyer.

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