Mother's statements were, thus, made in the context of, and were informed by, that explanation. See State v. Logan, 105 Or. App. 556, 562, 806 P.2d 137, rev dismissed 312 Or. 16 (1991) (court could conclude from therapist's statements to child declarant that child's motivation in making statements was to obtain diagnosis and treatment). Mother's own testimony was consistent with Jensen's rendition, and understanding, of the purpose of the interview: "Q. [By child's counsel]: Is it fair to say you were a concerned parent, saw things, and wanted to go to check on it?
“[o]ur cases examine facts like location (hospital versus private office), connection with a physical examination (social worker in room during physical or introduced as a continuation of examination or interview with social worker observed by physician through one-way mirror), and use of * * * information gathering (to protect victim from intra-familial abusers, to treat the victim, or to confirm or support diagnosis).”Pfaff, 164 Or.App. at 496, 994 P.2d 147 (Edmonds, J., dissenting) (citing State v. Jensen, 313 Or. 587, 593–96, 837 P.2d 525 (1992) and State v. Logan, 105 Or.App. 556, 559, 806 P.2d 137,rev. dismissed as improvidently allowed,312 Or. 16, 815 P.2d 703 (1991)). Logan is particularly instructive. In that case, the defendant assigned error to the trial court's admission of the out-of-court statements of an abuse victim.
Accordingly, we need not determine whether the challenged testimony was independently admissible under OEC 803(4). We thus decline defendant's invitation to revisit our holding in State v. Logan, 105 Or App 556, 806 P2d 137, rev dismissed, 312 Or 16 (1991) (affirming admission of four-year-old child declarant's statements made during sex abuse evaluation because evidence was sufficient to support determination that child understood the nature of the examination and, thus, her "answers were motivated by desire for medical diagnosis or treatment"). We proceed, finally, to youth's contention that the constitutional principles enunciated in Crawford precluded the admission of testimony recounting N's statements during the CARES interview.
Defendant argues that Cloyd is distinguishable from the present case. Defendant relies, instead, on Machunze v. Chemeketa Community College, 106 Or App 707, 714, 810 P2d 406, rev den, 312 Or 16 (1991), where we held that, because the plaintiff chose an administrative hearing procedure to seek review of a disciplinary decision, "review of that decision could only be by writ of review." In Machunze, we relied on our earlier decision in Spada v. Port of Portland, 55 Or App 148, 637 P2d 229 (1981), where the plaintiffs brought a contract action to recover the cost of removal of nursery stock from property purchased by the port.
]" This definition contains two elements: an agreement between the claimant and the employer that the employer will provide remuneration for the claimant's services, and the employer's right to direct and control the services the claimant provides. Liberty Northwest Ins. Corp. v. Church, 106 Or. App. 477, 481, 808 P.2d 106, rev den, 312 Or. 16 (1991). A claimant bears the burden of establishing the existence of the employment relationship.
In similar factual settings, we and the Supreme Court have held admissible hearsay statements made, often to Bays or others from the CARES program, by a sexual abuse victim during the course of treatment. See State v. Barkley, 315 Or. 420, 846 P.2d 390 (1993); State v. Booth, 124 Or. App. 282, 862 P.2d 518 (1993), rev den 319 Or. 81 (1994); State ex rel Juv. Dept. v. Cornett, 121 Or. App. 264, 855 P.2d 171 (1993), rev dismissed 318 Or. 323 (1994); State v. Verley, 106 Or. App. 751, 809 P.2d 723, rev den 311 Or. 644 (1991); State v. Logan, 105 Or. App. 556, 806 P.2d 137, rev dismissed 312 Or. 16 (1991); State v. Vosika, 83 Or. App. 298, 731 P.2d 449, mod 85 Or. App. 148, 735 P.2d 1273 (1987). However, defendant is correct that admissibility under OEC 803(4) must be determined on a case-by-case basis.
In reviewing the granting of a motion to dismiss, we assume the truth of all allegations, as well as any inferences that may be drawn, and view them in the light most favorable to the nonmoving party. Oksenholt v. Lederle Laboratories, 294 Or. 213, 215, 656 P.2d 293 (1982); Machunze v. Chemeketa Community College, 106 Or. App. 707, 712, 810 P.2d 406, rev den 312 Or. 16 (1991). Our review of a motion to dismiss based on the expiration of the statute of limitations, ORCP 21A(9), is limited to what appears on the face of the pleading.
As has been explained in later decisions, the determination of what the child understood must be based on the facts in each case. State v. Jensen, 313 Or. 587, 837 P.2d 525 (1992); State v. Alvarez, 110 Or. App. 230, 822 P.2d 1207 (1991), rev den 314 Or. 176 (1992); State v. Logan, 105 Or. App. 556, 806 P.2d 137, rev dismissed 312 Or. 16 (1991); State v. Newby, 97 Or. App. 598, 777 P.2d 994, rev den 308 Or. 660 (1989). In State v. Jensen, supra, the court determined from the surrounding circumstances that a three-year-old child made statements to an emergency room nurse for purposes of medical diagnosis or treatment.
In reviewing a motion to dismiss for failure to state a claim, we assume the truth of all well-pleaded allegations and all reasonable inferences favorable to plaintiff that may be drawn from them. Glubka v. Long, 115 Or. App. 236, 238, 837 P.2d 553 (1992); Machunze v. Chemeketa Community College, 106 Or. App. 707, 712, 810 P.2d 406, rev den 312 Or. 16 (1991). The parties are neighbors who are subject to a restrictive covenant that provides, in relevant part:
In reviewing the granting of a motion to dismiss, we assume the truth of all allegations, as well as any inferences that may be drawn, and view them in the light most favorable to the nonmoving party. Machunze v. Chemeketa Community College, 106 Or. App. 707, 712, 810 P.2d 406, rev den 312 Or. 16 (1991). Our review of a motion to dismiss based on the expiration of the statute of limitations, ORCP 21A(9), is limited to what appears on the face of the pleading.