On a petition for rehearing, the state claimed a recent decision by the Indiana Court of Appeals held that “a social worker would always be a declarant in child abuse cases, even when the social worker is merely a scribe.” But the judges disagreed and decided that this particular case is not the proper one to make such a blanket determination.

In Verdyer Clark v. State of Indiana, 49A04-1202-CR-66, in addition to a social worker always being a declarant, the state argued that the Court of Appeals’ previous decision held “the age of the perpetrator is never pertinent to the medical diagnosis or treatment.”

The COA reversed Verdyer Clark’s Class D felony conviction of battery last year because the state was unable to prove that Clark was over 18 years old when he battered a child younger than 14. The state presented two documents from a social worker which both listed Clark as 23 years old.

The state claimed that the hearsay statements by the social worker were admissible because they were related to medical diagnosis or treatment. The Court of Appeals, however, found them inadmissible because the social worker was the declarant, not the person seeking diagnosis or treatment, and Clark’s age wasn’t pertinent to the diagnosis or treatment of the infant victim.

“Here, the record and argument did not permit us to decide whether a social worker would ‘always’ be a declarant in child abuse cases, and we did not so hold. We leave for another day the determination whether or when a social worker is a declarant in a child abuse case,” Judge Melissa May wrote.

“In our original decision we said only that the information in the record before us about Clark’s age had no ‘apparent relevance to a diagnosis of the child’s injuries.’ The relevance was not apparent because on appeal, the State offered no ‘explanation why information about Clark’s age might be relevant to a diagnosis of the child’s injuries,’” she continued.  “Again, a determination whether the age of a perpetrator is relevant to a child victim’s medical diagnosis or treatment is best left to another case.”