Dept. of Human Services v. S. J. ( 2023 )

No. 680 December 28, 2023 723
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of B. J.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
S. J.,
Appellant.
Umatilla County Circuit Court
23JU00033; A181642
Eva J. Temple, Judge.
Submitted December 4, 2023.
Shannon Storey, Chief Defender, Juvenile Appellate
Section, and Tiffany Keast, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Inge D. Wells, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Lagesen, Chief
Judge, and Powers, Judge.
ORTEGA, P. J.
Affirmed.
724 Dept. of Human Services v. S. J.
Cite as 329 Or App 723 (2023) 725
ORTEGA, P. J.
Mother appeals a juvenile court judgment asserting
jurisdiction over her eight-year-old daughter, B, pursuant
to ORS 419B.100(1)(c). Upon filing its dependency petition
following B’s hospitalization for injuries suffered while in
mother’s care, the Department of Human Services placed B
with mother’s sister. Rather than challenging directly the
various bases asserted to support the need for dependency
jurisdiction, mother asserts that jurisdiction was not proper
given mother’s acquiescence to that placement. She argues
that because there was no evidence that B would not be safe
with mother’s sister, the department failed to establish a
basis for dependency jurisdiction, and she urges us to reverse
or, alternatively, to remand for reconsideration based on the
totality of B’s circumstances. Because the record does not
support that mother has made a plan that eliminates the
threat of serious loss or injury to B, we affirm.
We state the facts necessary to understand our
decision in the light most favorable to the juvenile court’s
disposition and assess whether, viewing the evidence as
“supplemented and buttressed by permissible derivative
inferences,” the record is legally sufficient to permit its
imposition of jurisdiction. Dept. of Human Services v. N. P.,
257 Or App 633, 639-40, 307 P3d 444 (2013). Neither party
has sought de novo review.
B came into care following an incident in which
she was found unconscious and was transported to a local
hospital. After a few hours in the emergency room, she was
transferred by helicopter to a Portland hospital and ulti-
mately tested positive for fentanyl. Circumstances in the
home where they were living were chaotic, as was mother’s
behavior during the incident and its aftermath. Following
her release from the hospital, B was placed with mother’s
sister, who continued to serve as B’s resource parent. At the
time of the jurisdictional hearing, mother was living in an
apartment with no electricity or heat and had been attend-
ing supervised visits with B at the department’s office.
The juvenile court took dependency jurisdic-
tion based on allegations that mother’s substance abuse
726 Dept. of Human Services v. S. J.
interferes with her ability to safely parent, mother exposing
B to persons who are actively using substances and involved
in criminal activities, B’s exposure to fentanyl or other dan-
gerous substances while in mother’s care, mother’s inability
or unwillingness to protect B from unsafe caregivers, and
her failure to maintain a safe environment for B. On appeal,
mother does not challenge the sufficiency of the evidence
supporting those factual allegations, which provide an ade-
quate basis for dependency jurisdiction on this record. See
Dept. of Human Services v. C. J. T., 258 Or App 57, 61-62, 308
P3d 307 (2013) (a child’s welfare is endangered if the child is
exposed “to conditions or circumstances that present a cur-
rent threat of serious loss or injury” that is nonspeculative
and reasonably likely to be realized). Instead, she argues
only that the juvenile court should not have taken jurisdic-
tion over B because mother had made a “plan” to have B
cared for by her sister, who is functioning as B’s resource
parent, and the department had failed to establish that B
was unsafe in the sister’s care.
We have previously held that dependency juris-
diction is not warranted if a parent has entrusted the pri-
mary care of their child to another caregiver as long as that
arrangement does not expose the child to a current risk of
harm. See Dept. of Human Services v. A. L., 268 Or App 391,
400, 342 P3d 174 (2015) (“Because parents have entrusted
the primary care of the children to the paternal grandpar-
ents, who do not pose a current threat of harm, the court
did not have a basis for asserting jurisdiction over the chil-
dren.”). However, “the mere fact that a child is being ade-
quately cared for by a nonparent does not prohibit the court
from taking jurisdiction [if] the totality of the child’s cir-
cumstances expose[s] the child to a current risk of serious
loss or injury.” Dept. of Human Services v. A. B., 271 Or App
354, 372, 350 P3d 558 (2015).
In contrast to the records in A. L. and A. B., this
record does not support an inference that mother has
entrusted B’s care to her sister or that she would abide by
that arrangement without court supervision. While mother
conceded that her current living situation was “not optimal,”
she expressed the view that B could live with her “if the
Cite as 329 Or App 723 (2023) 727
power and water was back.” She affirmed that she would
be “willing” to allow B to stay with her sister “for the time
being” and “would respect that placement,” but also said that
she did not understand why B had been removed from her
care. The record does not suggest that she initiated the plan
to place B with her sister—rather, the department did—and
does not address whether the sister, who did not testify, had
the resources and was willing to care for B without assis-
tance from the department. It is reasonable to infer that,
without dependency jurisdiction, mother would take steps to
regain physical custody of B without addressing the issues
that led to B’s removal. Compare A. L., 268 Or App at 394-
400 (the record contained evidence that the grandparents
had been serving as the children’s primary caretakers and
that the parents intended that arrangement to continue);
and A. B., 271 Or App at 361-62, 372-73 (the record con-
tained evidence that the grandmother had a history of serv-
ing as primary caregiver for the child and that the parents
had voluntarily ceded care of the child to the grandmother
and would respect her serving as the child’s caregiver even
without court supervision).
Mother relies on Dept. of Human Services v. M. E.,
302 Or App 571, 461 P3d 1091 (2020), for the proposition
that this case should be remanded for reconsideration. But
in that case, we held that the juvenile court “legally erred”
when it determined that A. L. and A. B. did not apply because
the third-party arrangements in those cases “predated [the
department’s] involvement,” and we remanded for reconsid-
eration “under the correct legal standard.” Id. at 575, 577.
Here, the court did not apply an incorrect legal
standard. It found that dependency jurisdiction was war-
ranted and, although it did not expressly find that B’s wel-
fare would be endangered without oversight of the court and
the department, there is evidence in the record to support
that finding.
Affirmed.