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