dissenting.
I dissent because I believe the allegations in the second amended petition are sufficient to bring the daughter within the jurisdiction of the juvenile court. The majority and the concurrence apparently believe that the petition must allege that the daughter was suffering from a mental disturbance and that even if that were alleged, the petition must then allege that the parents were failing to provide her with necessary care. That conclusion simply is not applicable to the facts of this case.
On the father’s challenge to the sufficiency of the allegations I conclude first, that the allegations that the daughter and mother made statements are the facts which must be determined by the evidence to be true or false. And second, the allegations that the statements were made, if proven to be true, demonstrates that the daughter’s "behavior, condition or circumstances are such as to endanger [her] own welfare. * * *” The pleadings in this case have apprised the father of what he must meet, i.e., that the daughter and mother have made statements that he has had sexual relations with the daughter. I would hold that the motion to strike and the demurrer were properly denied.
The majority, because of its disposition of the case, does not reach father’s assignment of error which questions the sufficiency of the evidence, as a matter of law, to justify making the daughter a ward of the *767juvenile court. The father argues that the statements, without an inquiry into the truth or falsity of those statements, are not sufficient evidence to give the court jurisdiction and that there was no showing that the facts as they existed at the time of the hearing justified the court’s interference. I disagree with that contention also.
The evidence of the statements of the daughter and the mother which was presented at the hearing was as follows. Palmer and Conrad, CSD workers, testified that the daughter told them that she had had sexual relations with her father; and police officer Cox, and Deitz, a long time friend of the family, testified that she made the same statements to them. Conrad also testified that the daughter told her that a pregnancy which was aborted "must have been her boy” and that she continued to have contact with her father. Deitz testified that the daughter told her she became pregnant by her father, and that her father would not leave her alone sexually. Deitz also testified to her own observation of the daughter and the father when they were together and that she did not consider it normal. Deitz testified to an incident she observed between the daughter and the mother when the daughter came home from school for lunch and the mother was verbally abusive to her. When Deitz told the mother she should not treat the daughter in that manner, Deitz testified that the mother told her about the sexual relationship between the daughter and the father. Deitz testified that the daughter later told her the same thing.
In addition to Deitz’s testimony regarding the mother’s statements, Palmer and Conrad testified that the mother had made the same statement to them but said that it was based on what the daughter had told her.1
*768The father challenges th evidence presented as summarized above because he maintains it is all hearsay and is therefore not admissible.
In Sheedy v. Stall, 255 Or 594, 468 P2d 529 (1970), the Supreme Court said, "[t]he correct application of the rule that hearsay evidence is not admissible is one of the most difficult tasks in the law. * * *” 255 Or at 596. The court then examined the reasoning behind the hearsay rule. It said:
"Hearsay evidence is excluded because of its untrustworthiness. The declarant’s accuracy and veracity cannot be tested by cross-examination. State v. Kendrick, 239 Or 512, 515, 398 P2d 471 (1965). It is not the untrustworthiness of the testimony of the witness on the stand who is asked to testify to what the declarant said that causes the exclusion of hearsay testimony. The credibility of the witness can be tested by cross-examination. The problem of the trustworthiness of the witness in the courtroom is the same whether the witness is testifying to another’s conduct or to another’s words. It is the untrustworthiness of the declarant’s statement that causes hearsay testimony to be excluded.
"For this reason, if a witness testifies to a statement made by a declarant and such evidence is not introduced to prove the truth of the content of the declarant’s statement, such testimony is admissible because it is not hearsay.
* * * *
*769"McCormick writes: 'The hearsay rule forbids evidence of assertions to prove the facts asserted in them. Manifestly, proof of utterances and writings may be made with an almost infinite variety of other purposes, not resting for their value upon the veracity of the out-of-court declarant and hence falling outside the hearsay classification.’ McCormick, Evidence, 463, § 228 (1954).
"We have adopted the general principle that evidence of a third person’s out-of-court statements is admissible 'when the extra-judicial statement of a third person is not offered to prove the truth of the utterance, but only to show that the statement was made.’ Marr v. Putnam, 213 Or 17, 321 P2d 1061 (1958).
"* * * * 255 Or at 596-98.
In this case, if the language attributed to the daughter had been offered to prove the truth of the factual assertions contained in the statements, there would have been a hearsay problem. However, the statements attributed to the daughter were not offered to prove that the daughter had in fact had sexual relations with the father, but only that the statements had been made.2 The issue was whether the daughter should be made a ward of the court. The statements, as evidence going to that issue, were not hearsay. See Utley v. City of Independence, 240 Or 384, 402 P2d 91 (1965).
Whether the statements are true or false is beside the point for purposes here. I would conclude that in this situation, where the daughter has repeated the statements over a significant period of time and to a number of different people, the evidence is sufficient to meet the statutory requirement that the daughter’s "behavior, condition or circumstances are such as to *770endanger [her] own welfare.” The evidence was sufficient to justify making the daughter a ward of the juvenile court.3
For these reasons I dissent.
Thornton, J., joins in this dissent.The mother did not testify. She was present but not represented by counsel. The father’s attorney recommended a court appointed attorney for *768her, but the colloquy between the court and father’s attorney indicated the mother thought she did not need an attorney because she had done nothing wrong. Shortly after the father’s case had begun — only hospital records had been introduced — counsel for the juvenile department asked the court if he might call another witness in anticipation that the hearing would continue the following day and that he would need other witnesses. The court indicated it would allow that request and counsel called the mother. The father then rested his case and the mother did not testify. The father testified only in the dispositional phase of the hearing. The daughter testified in the dispositional phase of the hearing in chambers, but she did not testify in the adjudicative stage. By agreement of counsel and court, no one asked her about the statements, or the truth of the statements, because the court thought it would be damaging to her mental and emotional state to make any inquiry.
Not only were the allegations couched in terms requiring only proof that the statements were made and not the truth of the statements, but in the preliminary arguments on the motion to strike and the demurrer the deputy district attorney stipulated that there would be no attempt to prove the truth of the statements but only that the statements were made.
I disagree with the statement in the concurring opinion that "the pleadings here are not deficient by inadvertence. The whole course of the proceedings demonstrates that the state intended to test the limits of jurisdiction in this case * * (p. 765.) The mother was in fact called to testify at one point as explained in n 1. A motive of the state should not be read into the fact that the daughter did not testify. It would not be unusual for a girl to refuse to testify about sexual acts with a particular person if a possibility existed that, after the hearing, she would be required to return to a living situation with that person.