Calderon v. Dept. of Human Services ( 2024 )

24 January 4, 2024 No. 3
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Gonzalo CALDERON,
Petitioner-Respondent,
v.
OREGON DEPARTMENT OF HUMAN SERVICES,
Children, Adults, & Families Division,
Child Welfare Services,
Respondent-Appellant.
Washington County Circuit Court
20CV42272; A179179
Theodore E. Sims, Judge.
Submitted May 5, 2023.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Inge D. Wells, Assistant Attorney
General, filed the briefs for appellant.
Gonzalo Calderon filed the brief pro se.
Before Shorr, Presiding Judge, and Lagesen, Chief Judge,
and Mooney, Judge.*
SHORR, P. J.
Reversed.
______________
* Lagesen, C. J., substituted for Pagán, J.
Cite as 330 Or App 24 (2024) 25
SHORR, P. J.
In the underlying judicial review proceeding, peti-
tioner sought review of a final order of the Department of
Human Services (DHS), which included a founded disposi-
tion of physical abuse by petitioner of his daughter, S. The
trial court remanded the case to DHS for further action.
DHS now appeals to us, asserting that the trial court erred
in ruling that DHS’s final order was not supported by sub-
stantial evidence. We agree with DHS, and reverse.
“When a court reviews an agency determination
under ORS 183.484(5), the only issue is whether substan-
tial evidence in the record ‘viewed as a whole’ supports the
agency’s determinations, and * * * that standard is based on
whether that record ‘would permit a reasonable person to
make that finding.’ ” Querbach v. Dept. of Human Services, 369
Or 786, 803, 512 P3d 432 (2022) (quoting ORS 183.484(5)(c)).
“The court shall set aside or remand the order if it finds that
the order is not supported by substantial evidence in the
record.” ORS 183.484(5)(c).
The underlying facts follow. DHS received a report
of abuse regarding petitioner’s 10-year-old daughter, S, and
conducted an investigation. Petitioner is divorced from S’s
mother and had joint custody of S, who spent a portion of each
week at each parent’s house. The report to DHS happened
after S’s friends had noticed that S had self-harmed by cut-
ting herself and they asked her about it. The friends told the
school counselor, who talked with S, and then DHS was noti-
fied. Upon completion of its investigation, DHS determined
that there was “reasonable cause to believe abuse occurred,”
which is a “founded” disposition. See OAR 413-015-1010(2)(a)
(“ ‘Founded’ * * * means there is reasonable cause to believe
the abuse occurred.”). Petitioner was notified of the founded
disposition and of the fact that DHS believed that petitioner
was responsible for the physical abuse of S.
Petitioner sought internal agency review, and DHS
determined, as stated in its final order, that there was
reasonable cause to believe that petitioner was responsi-
ble for the physical abuse of S. See OAR 413-015-0115(58)
(“ ‘Reasonable cause’ as defined in ORS 419B.150 means a
26 Calderon v. Dept. of Human Services
subjectively and objectively reasonable belief, given all of
the circumstances and based on specific and articulable
facts.”). DHS stated that its “decision was based on the fol-
lowing: The documentation, including medical records and
law enforcement report, support that [S] made clear and
credible disclosures to multiple sources that while angry
with her, you have caused her physical harm and injuries on
multiple occasions.”1
The information that DHS had gathered was from
several sources. DHS began its investigation in January
2020 after S disclosed to her friends that she had self-
harmed by cutting. There were visible red cut marks on her
arm. Someone at the school notified DHS that S had dis-
closed that petitioner would punch and kick her when she
bounces her leg or fidgets with her hands. The punches were
described as hits to the upper arm with a closed fist that
would hurt for a while. S tried not to do anything to annoy
petitioner; she was “getting stressed out” and sad and did
not want to go to petitioner’s home because she did not know
what would “trigger” him. She had reported occurrences of
once per week. S had also reported that petitioner called her
the “B word.”
The DHS caseworker assigned to the case, Ellison,
interviewed S. S reported to him that petitioner physically
abuses her every week, and that petitioner calls her names,
kicks, punches, pushes, and has choked her; sometimes peti-
tioner throws objects at her. S said that she was scared of
petitioner and did not want to be alone with him. S also
reported that she was not permitted to have or use a cell
phone when she was with petitioner, therefore her access
to her mother was cut off. S reported that she cuts herself
to cope with the fear she has of petitioner and that she had
started cutting the previous year. S told the caseworker that
petitioner acts different when they are together with other
people, and that her biggest worry is that she is afraid of
what will cause him to abuse her.
Deputy Prince from the Washington County Sheriff’s
Office interviewed S at her mother’s home. S reported that
1
DHS did not file a dependency petition because S’s mother addressed the
safety concerns through the custody case between petitioner and her.
Cite as 330 Or App 24 (2024) 27
petitioner “smacks, hits, and kicks” her—sometimes in
play, sometimes to annoy, and sometimes for discipline; in
Prince’s view, S did not seem to distinguish play hitting,
angry hitting, and discipline. The last time petitioner left a
mark on S from a hit was a couple of months prior when he
had pushed her to the ground and punched her on the upper
arm/shoulder area, which resulted in a dime-sized bruise
that hurt. Prince observed the cuts on S’s forearm, which
“looked like superficial cat scratches.”
CARES Northwest conducted a medical exam and
forensic interview of S. Among information S provided, she
described some of the incidents with petitioner. S stated that
one time she refused to do extra homework that petitioner
had told her to do, and he punched her on her arm. Then
she told him that she wanted to stay with her mother, and
he slapped her, kicked her, and told her that she was worth-
less and that her mother did not want her. S also described
an incident in which she had gotten in trouble at school for
skipping class with friends and playing with cell phones in
the bathroom. When she told petitioner what had happened
at school, he slammed her face down on the table and she hit
her chin and a loose tooth got knocked out. S reported that
petitioner hit her with random things like a pillow, a jacket,
and a belt. S told the CARES interviewer that one time when
she was in the library with petitioner and out of view from
others, petitioner put his hands on her neck and choked her.
S also disclosed that she had overheard her mother tell her
stepfather, “I can’t believe it’s happening to [S] like it hap-
pened to me.” The medical examination noted scars due to
cutting with a knife. The CARES report states, in part, “In
sum, the history available to us today and today’s evaluation
are diagnostic of emotional abuse and highly concerning for
physical abuse. [S] described a repeated pattern of paternal
behavior (hitting, belittling, intimidating, name-calling and
saying she is unwanted by her mother).”
Ellison and Prince interviewed petitioner together.
Petitioner denied that he ever physically disciplined S.
Petitioner stated that he and S pray and that he talks with
her—he said that he tries to focus on the positive and when
they are upset with each other, they walk away from each
28 Calderon v. Dept. of Human Services
other. Petitioner switched topics when asked if he rough-
houses with S, and never answered that question. Petitioner
stated that S was “withdrawn” and that he found a coun-
selor for S for depression and phone addiction. When asked
about physical abuse with his former wife, he claimed that
he had not hit or punched S’s mother and that, instead, she
was the one who was abusive to him. When asked whether
he ever kicked S, he denied doing so, but then when asked
if he ever might have lightly kicked S when she was fidget-
ing her leg, he said that he may have. Petitioner was asked
whether he ever called S a bitch and he said that he did not
remember doing so. Petitioner’s explanation for why S would
make claims about his behavior toward her was that she
has difficulty telling the truth and he thought that she did
not like it at his home because he does not let her use his
phone.
Petitioner sought review of the final agency order by
the circuit court. See ORS 183.484(1) (regarding jurisdiction
and commencement of judicial review of orders other than
contested cases). The court held a hearing at which two DHS
employees testified. Petitioner supplemented the agency
record by calling six witnesses to testify on his behalf; he
did not testify himself. Petitioner’s witnesses were people
he knew through church and community programs. S did
not make any disclosures of abuse to them. DHS’s rebuttal
witness, LaNier, who is a child safety program coordinator
and also works as an assistant program manager for the
Child Safety Division at DHS, testified that nothing she had
heard from any of petitioner’s six witnesses had affected
her assessment that there was reasonable cause to believe
the abuse occurred. She explained that “none of them were
present at any of the points where they would have seen the
abuse occurred [sic]. They didn’t have anything else, other
than character references about the dad.” LaNier stated
that if she were a child protective services worker, she would
have assumed that they were “going to say exactly what they
said and not have any information about whether or not the
abuse occurred.” She testified that it was common for chil-
dren to not voluntarily disclose abuse, and the fact that peti-
tioner’s witnesses said that S never disclosed anything did
not surprise her. LaNier also explained that DHS does not
Cite as 330 Or App 24 (2024) 29
require physical corroboration of abuse to make a finding of
abuse “[b]ecause child abuse is something that happens in
the privacy of one’s home” and if DHS “required an injury to
be present every time [it] received a report of abuse, parents
would only have to keep their children home long enough
so that the injury would disappear and then [DHS] would
never know what abuse is occurring.” LaNier testified that
she did not see anything in the DHS assessment form that
indicated that petitioner had told the caseworker or police
officer to go talk to any other person about the allegations of
abuse.
At the conclusion of the hearing, the court expressed
concern about DHS accepting S’s story “at face value without
reasonably checking into it” and noted various additional
information that, in the court’s view, DHS should have gath-
ered and considered. The court stated that “nobody both-
ered to check with the child’s counselor to find out what was
going on beforehand” and that “we don’t have prior med-
ical records to verify” reported weekly physical abuse. In
the court’s view, it “almost strains credibility where a child
would report that level of weekly abuse and yet show * * * no
physical signs.”
The trial court acknowledged that four of petition-
er’s six witnesses were character witnesses who were under-
standably discounted by DHS. However, the court com-
mented about the testimony of two of petitioner’s witnesses
that it thought worthy of DHS’s consideration. One was a
female volunteer at the church food pantry, O’Rear, who
was 29 years old at the time of her testimony. O’Rear knew
S and petitioner. S sometimes helped O’Rear and they had
private conversations about their interests or school. They
were close when S was between the ages of seven and ten. S
never told O’Rear that petitioner punched, kicked, choked,
or insulted her, and O’Rear never saw any bruises on S, nor
did S ever seem distressed. O’Rear testified that S was “very
outspoken” and “doesn’t have a filter when she speaks,” so
she thought S would have been comfortable enough to dis-
close to her if there were concerns with petitioner. The trial
court stated that it “would think it appropriate that the
30 Calderon v. Dept. of Human Services
agency would consider the fact that no disclosure was made
there might be of some significance.”
The trial court also commented on petitioner’s last
witness—an 80-year-old man, who is a friend of petitioner
and has known him and S since approximately 2012 when
he and petitioner taught ESL classes and S was in nursery
care at the church where that program was held:
“I am concerned that you discounted his comments about
how the child behaved. Because, frankly, a child who’s being
physically abused on a weekly basis is not likely to display
herself to folks who are paying attention, like Mr. Locke
clearly was, as a happy-go-lucky child. That strikes a very
discordant cerebral mode and is worthy of—of the agency’s
consideration.”
The court also stated that it did not believe that DHS
was successful in compartmentalizing what DHS viewed as
“distasteful conduct” by petitioner toward S’s mother that
happened years ago.2 Ultimately, the court stated that it
was remanding “ to the agency for additional work on this,”
and a judgment reflecting that decision was entered.
On appeal to us, DHS contends that its founded
disposition is supported by substantial evidence because a
reasonable person could have found from the evidence in the
record as a whole, including the supplemental record before
the trial court, that DHS had reasonable cause to believe
that petitioner subjected S to physical abuse. DHS asserts
that S made consistent and detailed disclosures about the
abuse to her friends, her school counselor, DHS, law enforce-
ment and CARES Northwest; and that DHS “found S’s dis-
closures to be credible, and in contrast, found petitioner’s
‘systemic’ denial of any abusive conduct to be ‘unbeliev-
able.’ ” In addressing the trial court’s statement that “addi-
tional work” needed to be done, DHS contends that any
claimed deficiencies in its investigation do not undermine
2
S’s mother, who is originally from Tonga, reported that, at the approximate
age of 15, her parents gave petitioner, who is 25 years older than her, permission
to marry her after he had sexually abused her. She also reported that petitioner
was abusive to her during their marriage, which eventually caused her to divorce
him. The trial court took “judicial notice of the fact that it is lawful in several
states in this country to be married that young.” S’s mother was 17 years old
when S was born.
Cite as 330 Or App 24 (2024) 31
its reasonable cause determination. In response, petitioner
urges us to affirm the trial court’s decision, in part, because,
in his view, the testimony of his witnesses at the hearing
called into doubt the accuracy of DHS’s investigation and
conclusion. Petitioner argues that the trial court correctly
ruled that DHS’s “final disposition was in error because it
was not supported by any significant evidence.”
As the Supreme Court has explained, “ ‘founded’
determinations are not determinations that petitioner in
fact abused the [child] in the ways that were alleged, but
rather that DHS had ‘reasonable cause to believe’ that
he had done so—meaning that, given the evidence in the
record, an objectively and subjectively reasonable person
could believe that petitioner had abused the [child] in the
ways alleged.” Querbach, 369 Or at 804 (emphasis in origi-
nal). The court also acknowledged that “evidence indicating
significant flaws in DHS’s analysis” does “have a role in sub-
stantial evidence review.” Id. at 803. It explained:
“[A] person in petitioner’s position challenging [a
founded] determination might be able to present evidence
to the circuit court that so thoroughly undermines the evi-
dence that supports the determination that the record as
a whole would not permit a reasonable person to conclude
that DHS had reasonable cause to believe that the reported
abuse had occurred. But evidence of flaws in DHS’s analysis
that falls short of doing so * * * is insufficient to permit
reversal of the agency’s order under ORS 183.484(5)(c).”
Id. at 803-04 (emphasis in original).
In Kasliner v. State of Oregon, 330 Or App 85,
100, ___ P3d ___ (2023), decided today, we held that when
reviewing an order in other than a contested case for sub-
stantial evidence, “courts should defer to a circuit court’s
subsidiary findings of fact that are supported by the record.”
In Kasliner, the trial court considered exculpatory evi-
dence that the petitioner had added to the record during
the court’s review proceeding—including testimony by an
expert psychologist and two relatives that the teen girl who
reported abuse did not have a reputation for truthfulness.
Id. at 87-88. The petitioner also introduced evidence that he
and his wife had attempted to tell the DHS employee who
32 Calderon v. Dept. of Human Services
was assigned to investigate about alternative explanations
for the alleged abuse, but that DHS worker rebuffed those
efforts and actively discouraged the petitioner’s wife from
doing anything other than affirming her daughter’s allega-
tions against the petitioner. Id. at 88. The trial court issued
a six-page letter opinion detailing the problems with DHS’s
investigation and explicitly found that DHS’s investigation
was “biased,” and that a DHS witness was not credible when
she testified that she considered the petitioner’s evidence
before issuing DHS’s final order. Id. at 91.
Here, the trial court questioned whether DHS
should have made further inquiries into other witnesses
and evidence; it also stated that DHS should have better
compartmentalized certain evidence and, essentially, that
DHS should have weighed certain evidence differently.
However, the trial court made no credibility findings and
it did not find that DHS’s investigation was biased. Unlike
in Kasliner, we are not limited in our ability to assess the
substantiality of the evidence in the hybrid record developed
before DHS and the trial court. Further, although the trial
court here expected DHS to consider other witnesses and
remanded the matter to DHS for that purpose, we cannot
conclude on this record that DHS’s failure to contact those
witnesses “so thoroughly undermines the evidence that
supports [DHS’s] determination that the record as a whole
would not permit a reasonable person to conclude that DHS
had reasonable cause to believe that the reported abuse had
occurred.” Querbach, 369 Or at 803. In other words, the fact
that S did not disclose abuse or show signs of abuse to par-
ticular third parties, including family friends, does not thor-
oughly undermine DHS’s determination that it had at least
reasonable cause to believe abuse occurred based on the
substantial evidence it accumulated, namely the consistent
disclosures that S made to certain other people, including
the school counselor, DHS, law enforcement, and CARES
Northwest.
Upon viewing the record as a whole, we conclude
that there is substantial evidence in the record to support
DHS’s “founded” determination. The trial court’s stated
concerns about DHS’s investigation do not affect that
Cite as 330 Or App 24 (2024) 33
conclusion. See Querbach, 369 Or at 804 (“[T]he trial court’s
comments that DHS’s investigation and decision-making
process were flawed in certain respects are not relevant to
the issue on review, and even if we were to treat them as
‘factual findings,’ they would not alter the conclusion that
we reach here.”). Because the trial court erred in remanding
the founded disposition of physical abuse, we reverse.
Reversed.