dissenting.
The majority holds that the trial court properly admitted evidence of double hearsay statements under OEC 805 that led to the adjudication of child as a juvenile offender for committing what would be the offense of endangering the welfare of a minor, ORS 163.575, and for two counts of harassment, ORS 166.065, if he were an adult. Because I believe that the majority’s decision is erroneous under OEC *487805 and establishes a precedent that will result in the convictions of others based on unreliable evidence, I dissent.
For purposes of the discussion of the facts in this case, I will refer to the adjudicated child as Christopher, to his 11-year-old brother, the alleged victim of the offenses, as Eddie, to their mother as “mother” and to the licensed clinical social worker who testified in court about mother’s statements to her as Jensen. The only direct evidence that the majority relies on to adjudicate Christopher on the endangering charge is Jensen’s recital of mother’s statements to her. With regard to the harassment charges, the majority deems Jensen’s testimony sufficient corroboration of Christopher’s confession under ORS 136.425(1). In her testimony, Jensen testified about mother’s report of what Eddie had told her regarding Christopher’s conduct, including the details of the incidents that led to the adjudications. At the hearing, both mother and Eddie denied making the statements that Jensen attributed to them. Christopher objected to Jensen’s testimony on the grounds of double hearsay. His objection is well-taken under OEC 802,1 unless the testimony qualifies as an exception to the rule. The majority holds that the evidence falls within an exception to OEC 802 because mother’s statements to Jensen were made for purposes of medical diagnosis under OEC 803(4)2 and Eddie’s statements to mother were complaints of sexual misconduct under OEC 803(18a)(a) and (b).3 Because OEC 805 says that “[hjearsay included within *488hearsay is not excluded under [OEC 802] if each part of the combined statements conforms with an exception set forth in [OEC 803 or 804],” the majority reasons that Jensen’s testimony about mother’s report to her of what Eddie said to mother is admissible as evidence. I disagree for the reasons that follow.
I. THE STATE’S CHANGE OF THEORY ON APPEAL
. Our review of whether Christopher has committed the alleged offenses is de novo on the record made to the trial court and based on evidence that we hold to be admissible. ORS 419A.200(5). The most troubling difficulty with the majority’s reasoning in its de novo review of the evidence is that it affirms the trial court on a ground conceded by the state below, but asserted on appeal.4 On the other hand, it accepts what it considers to be a concession made by Christopher’s counsel on appeal that Eddie’s statements to mother were admissible under OEC 803(18a) to avoid analyzing whether the sole evidence upon which it relies for an adjudication of the harassment charge is reliable, even though Christopher’s counsel argued at the hearing that the “allegations endangering the welfare of a minor and the two harassment charges do not come in under that exception.” The majority’s reasoning permits the state to change horses in mid-stream and creates an untenable precedent for purposes of other cases subject to our de novo review. The bottom line is that when we review de novo, we ought to hold the parties to the concessions that they make below. Otherwise, we risk depriving opposing parties of the benefits that result from concessions and upon which they relied.
With that perspective in mind, I turn to the record below. Christopher’s counsel told the trial court,
*489“Since some of the statements will be from Eddie to mom, mom to counselor, both those statements are hearsay and so, therefore, both of those statements are hearsay and so, therefore, both those statements have to fall within a hearsay exception.
“And I would submit to the Court that mom’s statements to the counselor do not fall under any exception. And my guess is the state’s going to argue that it falls under some sort of medical diagnosis exception. * * *
«* * * * *
“I think the most relevant is cause or source of injury which is used a lot of times in sex abuse cases where the victim is saying why they’re injured and how they were injured. This case is completely different. My client isn’t saying that he was injured and his behavior caused his own injury. And so, therefore, I feel all that, none of the statements fit under the medical diagnosis exception.”
In response to these comments, the deputy district attorney told the trial court, “I would concede that as I think of it.” The trial court responded, “Okay.” Later, after Christopher’s counsel reiterated that the state did not contend that the evidence fell within the statements made for medical purposes exception, the trial court remarked, “Right, doesn’t fall within medical diagnosis exception, and if it were being offered, would be offered only for impeachment —.” The parties and the court then embarked on a discussion about the admissibility of Jensen’s testimony on other grounds. At one point, the deputy district attorney said, “what we really have here is a confession, and we’re merely trying to corroborate the confession.” Eventually, the trial court ruled, “I’m going to receive the statements, and then we can argue a little bit later about for what purpose.”
The majority quotes a portion of child’s brief on appeal in support of its contention that child’s purported concession in his brief controls. The full quote is as follows:
“The first strand of hearsay, Eddie’s statements to his mother were admitted pursuant to [OEC 803(18a)]. The child does not challenge that ruling on appeal. Ms. Jensen’s testimony of the mother’s statements were properly admitted as impeachment through prior inconsistent statements. *490Trial counsel for the child did not object to the State’s evidence of prior inconsistent statements to impeach the testimony of the mother, [citations omitted]. If the court in fact relied on Ms. Jensen’s testimony as substantive evidence, that ruling was error.” (Footnote omitted and emphasis added.)
I agree that we should not be bound by the parties’ arguments concerning the applicability of a statutory rule when interpreting it. I also agree that, in general, a trial court can be affirmed on a different basis from the one on which it ruled. Neither of those rules control here. In this de novo trial, fundamental fairness requires that we hold both parties to their concessions made below. It is apparent that the state offered Jensen’s testimony to corroborate child’s confession and did not base its prosecution solely on the evidence on which the majority relies to find that Christopher committed the offenses. It is also apparent that child took the position below that Jensen’s testimony did not meet the requirements of OEC 803(4) and OEC 805, and the state agreed. Defendants subject to criminal prosecutions on appeal should be entitled to depend on concessions made by the state at trial. Any concession made by Christopher on appeal is necessarily qualified by the concessions of the state. Because our review should be applied in an even-handed manner to achieve justice, I would not permit the state to prevail on a theory first advanced on appeal. Judge Wollheim’s approach is correct because it would adjudicate the case on the record made below. Should the state receive the benefit of its argument made on appeal, then fairness demands that for purposes of de novo review, the issue of the admissibility of Eddie’s statement to mother and mother’s statement to Jensen are both properly before us based on Christopher’s entire argument to the trial court.
II. OEC 803(18a)(a) AND (b)
OEC 805 is predicated on the principle that before the whole can be admitted, “each link in the chain [must] bear[ ] a sufficient mark of trustworthiness.” Legislative Commentary to OEC 805, reprinted in Laird C. Kirkpatrick, Oregon Evidence, 626 (3d ed 1996). I turn first to Eddie’s statement to mother and its purported admissibility under OEC 803(18a)(a). The exception to the hearsay rule in OEC *491803(18a)(a) and (b) does not reflect a long-standing exception to the hearsay rule that is “firmly rooted” in the common law. State v. Renly, 111 Or App 453, 460, 827 P2d 1345 (1992). For that reason, it is on the same constitutional footing as the residual hearsay exception that was in issue in Idaho v. Wright, 497 US 805, 110 S Ct 3139, 111 L Ed 2d 638 (1990).
In Wright, the trial court had admitted into evidence statements that a two and one-half-year old declarant had made to an examining pediatrician. The court in Renly, citing Wright, noted that “[hjearsay is generally unreliable, because the declarant is not available for cross-examination that could uncover inaccuracies and other factors bearing on truthfulness and trustworthiness.” Renly, 111 Or App at 460. Because the residual hearsay exception in Wright lacked the tradition of reliability that supports the admissibility of statements under a firmly rooted hearsay exception, the Supreme Court reversed the defendant’s conviction on the ground that the defendant’s constitutional right to confrontation had been denied.
In Renly, we said that the rationales underlying the Confrontation Clauses and the rule against hearsay are similiar. The admission of hearsay is predicated on a showing of particularized guarantees of trustworthiness, and a trial court should admit hearsay evidence only if it is trustworthy. In that case, the defendant argued that the trial court should have excluded under Wright the evidence of detailed statements made by a child victim to her mother which were testified to in court by the mother. We held that the provision of OEC 803(18a)(b) satisfied sixth amendment and Oregon constitutional provisions regarding the right to confront one’s accusers. We then turned to the issue of whether the proffered evidence had particularized guarantees of trustworthiness in light of the requirements of the rule, inasmuch as it lacked inherent reliability. We noted that OEC 803(18a)(b) was enacted to address some of the difficulties with Oregon’s residual hearsay exception and that it was the intention of the legislature that an accused not be convicted solely on the basis of hearsay. See, e.g., Minutes, Senate Committee on the Judiciary, February 27, 1989, p 2 (testimony of Assistant Administrator of the Children’s Services Division). As a result, OEC 803(18a)(b) imposes particular requirements *492that supplant the inherent reliability that exists in other exceptions to the hearsay rule. Under (18a)(b), the victim must be subject to cross-examination, or, if unavailable for cross-examination, there must be independent corroborative evidence before more than evidence of the complaint of the victim of sexual abuse or conduct can be admitted. In Renly, there was no corroborative evidence of the details of the hearsay report, and accordingly, we reversed.
Here, the majority fails to acknowledge the problem under OEC 803(18a)(b) that exists because Jensen was permitted to testify to the details of what Eddie told mother. According to the majority, Eddie’s availability for cross-examination makes Jensen’s testimony about the details of the offenses admissible under OEC 803(18a)(b). 164 Or App at 475 n 3. The problem with that reasoning is that at the adjudication hearing Eddie denied that Christopher’s conduct had occurred and that he had reported that conduct to mother. Eddie’s alleged report of the details of the sexual conduct to mother is not inherently reliable. Although it could have been corroborated by his testimony and thereby could have met the corroboration requirements of the rule, his report was not corroborated because Eddie denied in his testimony reporting to mother that he had been sexually abused or had been subjected to sexual conduct by Christopher. Eddie’s appearance as a witness satisfied the confrontation requirement of the rule but not the corroboration requirement.
What affords the particularized guarantee of trustworthiness under OEC 803(18a)(b) is the corroboration that occurs as the result of the cross-examination of the complaining witness or from corroborating evidence that is independent of the hearsay. In the typical case, the trier of fact has before it both the hearsay report of the details and the testimony of the complaining witness about the details. Under those circumstances, the testimony of the victim satisfies the corroboration requirement of the rule. This case is different because the state had no complaining witness. There is no evidence from Eddie’s testimony that supports the adjudications. That leaves Jensen’s testimony as the sole evidence about the details of the offenses, but that evidence is uncorroborated by any other evidence independent of Jensen’s testimony. The majority affirms Christopher’s adjudication on *493double hearsay in the absence of any corroborative evidence, a result that the legislature expressly intended to avoid under OEC 803(18a)(b). Because OEC 805 requires that before double hearsay is admissible, both underlying layers must have sufficient marks of trustworthiness, Jensen’s testimony about Eddie’s report of the details of the incident is inadmissible. See Vosika, 83 Or App at 309 n 7 (“[t]he trustworthiness and reliability of a statement is relevant to all exceptions to the hearsay rule” (emphasis in original)).5
III. OEC 803(4)
Even if Eddie’s statements to mother are admissible under OEC 803(18a)(b), the second layer of Jensen’s hearsay report consisting of mother’s statement to her is not admissible under OEC 803(4). Statements made for the purpose of medical treatment are inherently reliable because a declarant of medical information does not ordinarily tell falsehoods to a medical provider when seeking treatment. In State v. Moen, 309 Or 45, 55, 786 P2d 111 (1990), the court held
“To be admissible under OEC 803(4), a statement must meet three requirements:
“(a) The statement must be ‘made for purposes of medical diagnosis or treatment’;
“(b) The statement must describe or relate ‘medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause [or] external source thereof;
“(c) The statement must be reasonably ‘pertinent to diagnosis or treatment.’ ”
In terms of the standard of review that governs our review of the admissibility of evidence under OEC 803(4), it is established that
“[w]hether a statement meets the requirements of OEC 804(3) is a preliminary question of fact for the trial court. OEC 104(1); [State v.] Barkley, 315 Or [420,] 427 [846 P2d 390, cert den 510 US 837 (1993)]; State v. Booth, 124 Or App 282, 286, 862 P2d 518 (1993), rev den 319 Or 81, cert den *494513 US 953, 115 S Ct 372 (1994). If there is evidence in the record from which the trial court could have found by a preponderance of the evidence that a child’s statements were made for the purposes of medical diagnosis or treatment, we affirm the court’s ruling. Booth, 124 Or App at 286.” State v. Mayer, 146 Or App 86, 92, 932 P2d 570 (1997).
Here, there is no evidence that Eddie’s statements about the details of the incidents were made to mother for the purpose of procuring his own medical treatment, and there is no evidence that mother’s statements to Jensen were made to procure medical treatment for either Eddie or Christopher.
Christopher is a 13-year-old socially immature child suffering from hemophilia, a post-traumatic-stress disorder, separation anxiety and school phobia. The record does not indicate that Jensen is qualified to treat any of the above medical conditions. She is a licensed clinical social worker who works primarily with behavioral problems of adolescent sexual offenders. She came into contact with Christopher after receiving a referral from a mental health service involving mother and Christopher. As a result, they appeared in her office, and she made an evaluation of Christopher’s sexual history and sexual behavior. Mother testified that she told Jensen,
“I expressed concerns about Chris’s sexually acting out because of Dennis [mother’s former boy friend] and he was going through puberty and I don’t know how to explain the sex changes of life to a boy.”
Mother went on to describe various instances of sexual conduct by Christopher, some of which involved Eddie. According to Jensen, one of those instances involved Christopher masturbating in Eddie’s presence. Jensen testified that she explained to mother that the purpose of the evaluation “was narrowly focused to look at sexual history and Christopher’s potential for acting out in the future, sexual acting out.” In the typical case involving hearsay testimony of victims of sexual offenses, the physician procures a history from the victim in order to make a medical diagnosis about whether the victim has been sexually abused. The information elicited helps the physician to evaluate the cause of the victim’s symptoms through a differential methodology. The *495patient is motivated to speak truthfully and accurately because the diagnosis and treatment depend, at least in part, on the information communicated. Also, the law recognizes that a fact reliable enough to depend on as a basis for a medical diagnosis and treatment has sufficient guarantees of trustworthiness to constitute an exception to the general inadmissibility of hearsay.6
This case presents an entirely different situation that is inconsistent with the polices underlying the typical case where information given for medical purposes is properly admitted under OEC 803(4). First, mother did not describe the details of her sons’ conduct for purposes of a medical diagnosis or treatment of a physical or mental disorder. She was there because she wanted information and help on what she could do regarding the conduct of her children. Her inquiry is comparable to a parent going to a school or family counselor to obtain assistance about how to parent more effectively. Second, her statements that led to the adjudications did not describe Eddie’s or Christopher’s medical symptoms, pain or the cause thereof. Although the details of Christopher’s conduct could have been probative to an evaluation of whether he will become a criminal sex offender in the future, they were not offered so that Jensen could make a diagnosis of a medical condition from which he suffers or to provide treatment for a previously diagnosed disorder. In mother’s words, “I wanted somebody to explain the facts of life to Chris because I, I didn’t understand a lot of what was going on with him. He’s going through puberty * * * I don’t know nothing about male puberty, nothing.” In the typical case, the conduct of a sexual offender is part of the medical history related by the victim so that the victim can receive proper medical treatment. Here, the conduct of the alleged offender was related in an effort to seek nonmedical help for the alleged offender. Consequently, mother’s statements do not meet either the second or third requirements articulated in Moen which guarantee reliability.
*496The reliability of the evidence hinges on the declarant’s motivation, not the treatment provider’s expression of the reason for involvement. See State v. Logan, 105 Or App 556, 562, 806 P2d 137, rev dismissed 312 Or 16 (1991).7 Our 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 the social worker’s information gathering (to protect victim from intrafamilial abusers, to treat the victim, or to confirm or support diagnosis). See, e.g., Logan, 105 Or App at 559; see also State v. Jensen, 313 Or 587, 593-96, 837 P2d 525 (1992). These facts are used to support a finding under the first of the Moen requirements. It is because there is an absence of these kinds of facts in this case that the state has failed to meet its burden to demonstrate by a preponderance of the evidence that mother’s statements were made for the purposes of medical diagnosis or treatment of Christopher.
The second policy justification, that a fact reliable enough for a medical diagnosis is reliable enough to escape the proscription against hearsay evidence, is also missing. The details of the incident came from the lips of Eddie, who had no motivation to speak accurately. His medical treatment or diagnosis was not dependent on the information disclosed. Moreover, Jensen did not elicit the information to make a medical diagnosis about Eddie, the initial declarant of the information. As she testified, her focus was on Christopher. Under the facts of this case, the state has not met its burden to demonstrate by a preponderance of the evidence *497that mother’s statements relaying Eddie’s complaints met the Moen requirements.
IV. OEC 805
OEC 805 is not without history regarding when it is appropriate to stack hearsay upon hearsay for medical treatment purposes. The legislative commentary provides two examples of when double hearsay will be admissible and concludes that the rule is intended to be in accord with current Oregon practice. Kirkpatrick, Oregon Evidence at 627. An exploration of those examples is instructive as to when OEC 805 ought to be employed in this context. The first example is Mayor v. Dowsett, 240 Or 196, 400 P2d 234 (1965). In Mayor, a spouse furnished information about the patient to the hospital, whose records reflected the information. Id. at 221. At trial, the records were admitted into evidence. The evidence had" sufficient guarantees of trustworthiness because the declarant’s motive was the same as the motive of the hospital: to provide an accurate record for purposes of treatment. The second example is Williams v. Laurence-David, 271 Or 712, 534 P2d 173 (1975). In Williams, the court upheld the admission of a medical record of a deceased physician that contained a statement by a patient. Id. at 721. Again, the evidence had sufficient guarantees of trustworthiness because the declarant’s motive was the same as the motive of the physician. In contrast, Eddie’s statements to mother were not prompted by a need for medical treatment, and his motive differs from the motive for mother’s report to Jensen. As the majority acknowledges, Eddie’s motive may reasonably be suspect. 164 Or App at 485 n 14.
In summary, this case presents an important issue about what evidence can be the basis for a juvenile adjudication or an adult conviction for a criminal offense. The legislature’s intent regarding OEC 803(18a)(a) and (b) is clear. It did not intend that alleged offenders could be convicted on hearsay alone and without any corroboration, which is what occurred in this case. It is also apparent that mother’s report to Jensen does not satisfy the underlying policy justifications for OEC 803(4) for the reasons expressed above. Thus, both layers of hearsay lack sufficient guarantees of trustworthiness. Admissibility of evidence under OEC 805 is predicated *498on each link in the chain of hearsay having sufficient indicia of reliability. Only then can the whole be admitted. Of course, inadmissibility results when only one link fails to survive scrutiny. In light of the fact that the integrity of the judicial process depends on adjudications and convictions that are based on reliable evidence, the majority’s reasoning is not only disturbing but it creates a significant and erroneous precedent for the admission of unreliable hearsay in sex offense related prosecutions.
I dissent.
OEC 802 provides, “Hearsay is not admissible except as provided in [OEC 801 to 8061 or as otherwise provided by law.”
OEC 803(4) provides:
“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 of external source thereof insofar as reasonably pertinent to diagnosis or treatment.”
OEC 803( 18a) provides, in part,
“(a) A complaint of sexual misconduct or complaint of abuse as defined in ORS 419B.005 made by the witness after the commission of the alleged misconduct or abuse at issue. Except as provided in paragraph (b) of this subsection, such evidence must be confined to the fact that the complaint was made.
“(b) A statement made by a child victim * * * if the child * testifies at the proceeding and is subject to cross-examination * * *. However, when a witness under 12 years of age * * * is unavailable as a witness, the statement may be admitted in evidence only if the proponent establishes that the time, content and circumstances of the statement provide indicia of reliability, and in a *488criminal trial that there is corroborative evidence of the act of abuse or sexual conduct and of the alleged perpetrator’s opportunity to participate in the conduct and that the statement possesses indicia of reliability as is constitutionally required to be admitted.”
As the Supreme Court said in State v. Hickmann, 273 Or 358, 360, 540 P2d 1406 (1975), “Appellate courts are limited in their scope of review. Generally, on appeal the case, criminal or civil, should be heard on the same theory upon which it was presented in the court below[ ] — except where important considerations of public policy are encountered in the solution of a case before the court.” (Citation omitted.)
See also Kirkpatrick, Oregon Evidence at 570 (stating that under OEC 803(18a)(b) that ‘Tiln cases where the child testifies, the rule would appear to satisfy the right of confrontation, provided a careful assessment is made of the reliability of the hearsay statement” (emphasis added)).
An instructive discussion of the policies underlying the reliability of statements made for the purpose of medical diagnoses can be found in United States v. Renville, 779 F2d 430 (8th Cir 1985).
Accord Barkley, 315 Or at 424-26 (holding that whether a child made statements for the purposes of that child’s medical diagnosis or treatment must be determined by reference to the circumstance in which the child made the statements); Mayer, 146 Or App at 93 (focusing on what the child knew and understood about the examination); State ex rel Juv. Dept. v. Cornett, 121 Or App 264, 271, 855 P2d 171 (1993), rev dismissed 318 Or 323 (1994) (“we must examine the facts to determine the particular child’s understanding” of the nature of a medical examination); Booth, 124 Or App at 287 (same); but see State v. Vosika, 83 Or App 298, 309, 731 P2d 449, on recons 85 Or App 148, 735 P2d 1273 (1987) (holding that, despite the fact that the three-year-old victim was “too young to understand that the statements she was making could be related to her diagnosis or treatment!,]” the victim’s statements to a physician were themselves inherently reliable).