Dept. of Human Services v. D. L. ( 2020 )


Menu:
  •                                         295
    Argued and submitted October 29, affirmed December 30, 2020, petition for
    review denied March 4, 2021 (
    367 Or 668
    )
    In the Matter of A. L.,
    a Child.
    DEPARTMENT OF HUMAN SERVICES,
    Petitioner-Respondent,
    v.
    D. L.,
    Appellant.
    Marion County Circuit Court
    19JU03181; A174263
    479 P3d 1092
    Mother appeals from a judgment denying her motion to terminate wardship
    and dismiss dependency jurisdiction over her deaf teenaged daughter, A. The
    juvenile court asserted jurisdiction over A on the grounds that mother (1) physi-
    cally assaulted the child and (2) had anger and impulse control problems. Mother
    argues that the Department of Human Services (DHS) did not meet its burden to
    establish that (1) the adjudicated bases for jurisdiction still existed at the time of
    the motion hearing and (2) that they continued to pose a serious risk of harm to
    A. DHS relies on mother’s continued impulsivity, her minimization of the impact
    that the original assault had on A, and her breach of the in-home safety plan to
    argue that the court did not err in denying her motion. Held: The juvenile court
    did not err. The record supported the court’s determination that the adjudicated
    bases for jurisdiction continued to pose a serious risk of harm to A, and that the
    harm was likely to be realized.
    Affirmed.
    Heidi O. Strauch, Judge pro tempore.
    George W. Kelly argued the cause and filed the opening
    brief for appellant. D. L. filed the supplemental brief pro se.
    Adam Holbrook, Assistant Attorney General, argued
    the cause for respondent. Also on the briefs were Ellen F.
    Rosenblum, Attorney General, and Benjamin Gutman,
    Solicitor General.
    Before DeVore, Presiding Judge, and DeHoog, Judge, and
    Mooney, Judge.
    MOONEY, J.
    Affirmed.
    296                              Dept. of Human Services v. D. L.
    MOONEY, J.
    This juvenile dependency case concerns A, a deaf
    teenager, and her mother, a hearing adult. It is the second
    time the case has been before us. The first was an appeal
    from the judgment of jurisdiction where we concluded that
    the record, though not compelling, was sufficient to have
    allowed the juvenile court to assert jurisdiction over A on
    the grounds that mother (1) had physically assaulted A and
    (2) had anger and impulse control problems, which inter-
    fered with her ability to safely parent A. Dept. of Human
    Services v. D. L., 
    303 Or App 286
    , 290, 462 P3d 781, rev den,
    
    367 Or 257
     (2020).
    Mother now appeals from the juvenile court’s order
    denying her motion to terminate wardship and dismiss
    dependency jurisdiction. She assigns error to the court’s
    denial of her motion, particularly its finding that it is “ ‘rea-
    sonably likely’ that a return to mother’s home will cause [A]
    to suffer additional physical harm.” Mother argues that,
    during the months that passed between jurisdiction and the
    hearing on her motion,1 she engaged in services, had a suc-
    cessful three-month in-home trial reunification with A, and
    did not again assault A. The Department of Human Services
    (DHS), she argues, did not meet its burden to establish that
    the bases for jurisdiction still existed at the time of the hear-
    ing, and it did not establish that those adjudicated jurisdic-
    tional bases continued to pose a serious risk of harm to A.
    DHS disagrees. It argues that mother continued to exhibit
    “anger and impulse control problems” and that she breached
    the in-home safety plan put into place for the trial reunifi-
    cation by attempting “to physically force [A] into a darkened
    room at church.” Moreover, DHS argues that mother’s dis-
    ruptive conduct in court provided additional evidence of her
    continued impulse control problems and that the juvenile
    court did not err in denying her motion. We affirm.
    Mother does not request de novo review and, given
    that this is not an exceptional case, we will not exercise our
    1
    Jurisdiction was established by judgment entered on September 3, 2019.
    Mother filed her motion to terminate wardship on January 24, 2020, and the
    hearing on that motion occurred over the course of three days on March 5,
    April 28, and June 25.
    Cite as 
    308 Or App 295
     (2020)                           297
    discretion to do so. ORS 19.415(3)(b); ORAP 5.40(8)(c). We
    view the evidence, as supplemented and supported by per-
    missible derivative inferences, in the light most favorable
    to the juvenile court’s disposition and we assess “whether
    the evidence was sufficient to permit the challenged deter-
    mination.” Dept. of Human Services v. J. E. F., 
    290 Or App 164
    , 166-67, 421 P3d 415, rev den, 
    362 Or 794
     (2018); Dept.
    of Human Services v. C. P., 
    281 Or App 10
    , 18, 383 P3d 390
    (2016). We state the facts, drawn from the testimonial and
    documentary evidence received at the hearing, according to
    that standard.
    In late April 2019, mother assaulted A by throwing
    a heavy wooden stool at her, causing significant pain and a
    black eye. A was traumatized by the assault and she experi-
    enced related nightmares after that. Prompted by a report
    of that assault, DHS removed A from her mother’s home and
    initiated this dependency case. The juvenile court placed A
    in the temporary custody of DHS and continued her out-of-
    home placement in shelter care. In August 2019, following
    a factfinding proceeding, the juvenile court asserted depen-
    dency jurisdiction over A and made her a ward of the court.
    It committed A to the legal custody of DHS, continued her
    out-of-home placement in foster care, and ordered mother to
    engage in (1) individual counseling as well as joint counsel-
    ing with A, (2) “hands-on parenting services once in-home
    plan is deemed appropriate at DHS discretion,” and (3) a
    psychological evaluation.
    In November 2019, A was returned to her mother’s
    home for a trial reunification under the terms of an in-home
    safety plan, to which mother agreed. Among other things,
    the in-home safety plan provided that mother would not use
    “any form of physical discipline” and that she would give
    A “space” when A was upset. The trial reunification went
    reasonably well until mid-February 2020, when an incident
    occurred at church resulting in A’s removal from mother’s
    home. DHS characterizes the incident as “physical disci-
    pline” and, therefore, a breach of the in-home safety plan.
    Mother disagrees with that characterization. Because the
    church incident was key to the juvenile court’s denial of
    mother’s motion, we now turn to it in some detail.
    298                         Dept. of Human Services v. D. L.
    A reported that her mother became upset with her
    at church because A “was not doing as she was told,” and
    that mother grabbed her arm hard enough to leave a bruise.
    The DHS caseworker followed up the next day by contacting
    A at school and speaking with mother by phone. They each
    recounted that mother wanted A to attend a young wom-
    en’s meeting at the church while mother volunteered there
    that evening. Mother indicated that A did not usually like
    to attend those meetings but that she had agreed to go that
    night. A said that she was really not “in the mood” to go
    because she was always the only deaf person there. When
    they opened the door to the meeting, the room was dark, and
    the participants were holding glow-in-the-dark sticks while
    engaged in a group activity. The details given to the case-
    worker of what happened next varied slightly but reduce
    to this: A changed her mind about attending the meeting
    when she saw the dark room. She is deaf and communicates
    using American Sign Language (ASL), a visual language
    that necessarily requires enough light to see. Mother took
    firm hold of A’s arm, tried to guide her into the room, kissed
    her head, and attempted to give her a “bear hug.” A became
    upset, broke away from mother’s grasp, and ran into the
    bathroom. She did not attend the meeting, instead remain-
    ing in a bathroom stall. A developed a bruise on her arm as
    a result of the incident; the bruise was photographed by the
    caseworker the next day. A was then removed from mother’s
    home.
    At the hearing on mother’s motion to terminate
    wardship, A described the incident:
    “[Mother] wanted me to come in the gym, and I really
    didn’t want to but then she was kind of getting mad and
    that’s when she grabbed ahold of me and gave me a kiss on
    the head and then she grabbed my arm and pulled me into
    the gym and was kind of trying to guide me in there, and
    then I broke free of the grab on my arm and ran off because
    I didn’t want to go in the gym.”
    Mother also testified about the incident:
    “I volunteer on Wednesdays, I clean the chapel, and at
    Wednesday nights is when they have the young women’s
    group * * *, and I ask her generally, now if she wants to
    Cite as 
    308 Or App 295
     (2020)                                   299
    come or if she doesn’t want to come, she hasn’t wanted to
    come since she’s been home, she did come a few times, but
    she didn’t want to participate in the girls group, so she sat
    with me in the chapel while I cleaned the chapel. This time
    I had asked her if she wanted to come and she said, ‘Yes, I’ll
    go,’ so it was really, I was really happy about that because I,
    I want her to have that opportunity to engage in the church
    activities, to me it’s something that’s really important and
    close to my heart, and so I was happy that she wanted to
    come and we came inside, that night was going to be a very
    special night to where they had glow-in-the-dark lights and
    sticks and to kind of symbolize when you’re in the dark or
    you don’t know what to do, you can kind of look for the good
    and try to follow the light of Jesus, and so that was the lights
    were, the lights were off, and it was like a glow-in-the-dark
    volleyball game, so it was a fun activity, and at night in her
    room she has glow-in-the-dark stars and we have the moon
    and the, the astrology, glow-in-the-dark stars on the walls
    and then she has the, the different colored lights because,
    being deaf, it’s not fun to be in total darkness, so we have
    the lights and she really likes the glow-in-the-dark lights
    and so I thought she would particularly like this one, and
    so I opened the door and she was standing next to me and
    then she freaks out, she freaks out, * * * she became fearful
    and didn’t want to go into the gym or participate in the
    activities, and so I just gave her a hug and a kiss and let
    her go to let her know I’m, I’m—you’re okay with me, what-
    ever you choose to do is fine, I’m here to support you, she
    ran off crying into the bathroom, she locked herself in the
    bathroom * * *.”
    During the course of the hearing, mother repeat-
    edly interrupted the proceeding and was redirected by the
    court more than a dozen times. The following exchanges are
    examples of those interruptions:
    “[DHS’s COUNSEL]: Isn’t the reason you’ve only had
    one visit because she didn’t want to visit you the other
    times?
    “[MOTHER]: Isn’t the reason perhaps why she didn’t
    want to is because people were made to believe that I
    injured her arm when that’s not true?
    “[DHS’s COUNSEL]: I actually get to ask you the
    questions and you get to answer them.
    300                        Dept. of Human Services v. D. L.
    “THE COURT: And so—
    “[MOTHER]:   But I’m not going to speculate—
    “THE COURT: Hold on, hold on—
    “[MOTHER]:   —on her mindset—
    “THE COURT: Hold on, hold on, stop—
    “[MOTHER]:   —that’s not appropriate for me either—
    “THE COURT: Stop. Okay? I understand that you’re
    upset, but if I say stop, you need to stop * * *.
    “* * * * *
    “[A’s COUNSEL]: You didn’t say that at the shelter
    hearing last time we were in court?
    “[MOTHER’S COUNSEL]: Objection, Your Honor,
    we’ve already just done this * * *.
    “* * * * *
    “[MOTHER]:   I think that he’s taking—
    “THE COURT: Oh—
    “[MOTHER]:   —things way out of—
    “THE COURT: —stop.
    “[MOTHER]:   —context. Oh, sorry—
    “THE COURT: It’s not your turn—
    “[MOTHER]:   I forgot I’m on the mike [sic], sorry.”
    And, later, when Rojas, a DHS caseworker, was testifying,
    mother continued to interrupt:
    “ROJAS: Yeah, ultimately [mother] said that she had
    asked [A] to do the laundry and [A] said no and then [A]
    threw the mirror at [mother] and [mother] said that she
    may have kicked [A] near her backside and she may have
    tapped her on the side to get her attention and [mother]
    described being angry and throwing an object towards [A],
    causing a black eye.
    “[MOTHER]:   I did not—
    “ROJAS: —and that she didn’t mean to hurt her.
    Cite as 
    308 Or App 295
     (2020)                                 301
    “THE COURT: So, [mother], you’re not allowed to
    interrupt testimony. If your lawyer thinks there’s a reason
    for a legal objection, she can do that, but right now someone
    else is under oath and is testifying. Do you understand?
    “[MOTHER]:      Yes. She’s perjuring herself, though.
    “THE COURT: Okay, [mother]?
    “[MOTHER]:      I won’t speak anymore, I apologize.”
    The juvenile court made the following findings con-
    cerning credibility, the incident at the church and mother’s
    conduct during the course of the hearing:
    “1. Mother’s testimony lacks credibility: [Mother] testi-
    fied that she had historically lied to get the outcome she
    desired for [A’s] placement with her and throughout her tes-
    timony she consistently minimized her role in creating an
    unsafe environment for [A], denying any assaultive behav-
    ior and any resulting trauma to the child.
    “2. The child’s testimony is credible: [A] was thought-
    ful in her responses, descriptive, and her responses were
    measured—she avoided clear opportunities to exaggerate
    to get what she wanted.
    “3. During the trial reunification, mother violated the
    in-home safety plan by using physical discipline: [Mother]
    and [A] were at their church when mother opened a door to
    a large room where a youth group was playing a game in
    the dark. [A] didn’t know what the activity was until the
    door opened in front of her to the dark room. [A] pulled
    back and tried to tell her mother that she did not want to
    participate (because [A] is deaf, in the dark room she would
    have been cut off from all communication except by touch)
    and [mother] attempted to physically force [A] by pulling
    her into the dark room, grabbing her arm and giving her
    a full body hug. [A] testified that her arm hurt from the
    grab. ([A] broke away from her mother’s hold and ran to the
    bathroom, where she locked herself in a stall. She testified
    that when her mother grabbed her she flashed back to the
    incident that precipitated her removal by DHS and thought
    her mother was going to hit her again.)
    “* * * * *
    “6. Mother’s impulsivity and difficulty in controlling
    herself was evidenced in court during the hearing, with
    302                         Dept. of Human Services v. D. L.
    verbal outbursts and body language gestures in response to
    testimony or statements in court. ([Mother] also attempted
    to communicate with [A] via sign language on the first day
    of hearing but stopped after the court advised [mother]
    that the hearing would be stopped and any communication
    would be interpreted verbally into the record by the ASL
    interpreter if she continued.)”
    Under ORS 419B.100(1)(c), jurisdiction is proper
    over a child “[w]hose condition or circumstances are such
    as to endanger the [child’s] welfare.” A child’s welfare is
    endangered when the child “is exposed to conditions or cir-
    cumstances that present a current threat of serious loss or
    injury.” Dept. of Human Services v. E. M., 
    264 Or App 76
    ,
    81, 331 P3d 1054 (2014) (internal quotation marks omitted).
    In assessing whether jurisdiction is proper, we look to the
    totality of the circumstances to determine whether there is
    a reasonable likelihood of harm to the welfare of the child.
    Dept. of Human Services v. C. Z., 
    236 Or App 436
    , 440, 236
    P3d 791 (2010). DHS bears the burden of proving that a risk
    of serious loss or injury is present and nonspeculative at the
    time of the hearing and that there is a causal link between
    the parent’s risk causing conduct and potential harm to the
    child. Dept. of Human Services v. C. J. T., 
    258 Or App 57
    , 62,
    308 P3d 307 (2013).
    Where, as here, jurisdiction is established, and the
    permanency plan remains reunification, DHS continues to
    bear the burden of demonstrating that the original bases for
    jurisdiction have not been ameliorated and that they con-
    tinue to pose a threat of serious loss or injury to the child.
    Dept. of Human Services v. T. L., 
    279 Or App 673
    , 687, 379
    P3d 741 (2016). We evaluate motions to dismiss ongoing
    jurisdiction using a two-tiered approach. We first determine
    whether the adjudicated bases for jurisdiction continue to
    pose a threat of serious loss or injury to the child, and, if
    they do, we then assess the likelihood that the risk of loss or
    injury will be realized in the absence of juvenile court juris-
    diction and wardship. Dept. of Human Services v. N. L. B.,
    
    306 Or App 93
    , 99, 473 P3d 610, rev den, 
    367 Or 220
     (2020).
    The task is not to relitigate the original allegations. Instead,
    the focus is on whether the adjudicated bases for jurisdic-
    tion continue to support jurisdiction. DHS must establish
    Cite as 
    308 Or App 295
     (2020)                             303
    that the threat of harm from those adjudicated allegations
    remains current and nonspeculative. That requires some-
    thing more than evidence of past danger. Dept. of Human
    Services v. M. Q., 
    253 Or App 776
    , 785, 292 P3d 616 (2012).
    And, of course, “there must be a reasonable likelihood that
    the threat will be realized.” Dept. of Human Services v. A. F.,
    
    243 Or App 379
    , 386, 259 P3d 957 (2011).
    The jurisdictional bases adjudicated in 2019 include
    (1) mother’s assault of A in April 2019 and (2) mother’s anger
    and impulse control problems. DHS argues that jurisdiction
    continues to be warranted because mother “continued to
    exhibit anger and impulse control problems and violated the
    in-home safety plan by physically disciplining and harming
    [A].” DHS relies on the incident at church as the prohibited
    “physical discipline” that constituted the breach. In refer-
    ence to that event, the juvenile court concluded that mother
    “attempted to physically force [A] by pulling her into the
    dark room, grabbing her arm and giving her a full body
    hug.” We understand DHS’s argument to be that there was
    evidence from which the juvenile court could have concluded
    that mother’s impulsivity and anger is ongoing and that the
    incident at the church demonstrates that A remains at risk
    of significant loss or injury. We agree. Viewing the evidence
    in the light most favorable to the juvenile court’s decision,
    we conclude that the record supports the court’s determi-
    nation that A continued to be at risk of serious harm. The
    incident at the church, considered in the context of mother’s
    demonstrated anger and impulse control issues, logically
    leads to the conclusion that the risks associated with the
    2019 assault have not been ameliorated.
    We note that jurisdiction is not based upon mother’s
    lack of parenting skills—either in general or specific to the
    needs of a profoundly deaf child. Nevertheless, the record
    reflects significant focus on A’s needs as a deaf child. We do
    not doubt that raising a deaf child presents challenges for
    a hearing parent that would not be present when raising
    a hearing child. But DHS did not allege—and the juvenile
    court did not find—parental deficiencies on mother’s part
    relative to A being deaf. And, while the ongoing DHS case-
    worker, Peters, testified that she learned that it is a form
    304                                 Dept. of Human Services v. D. L.
    of abuse to “force someone who is deaf into a hearing situ-
    ation that they do not want to go into,” that testimony does
    not support continued wardship based upon an adjudicated
    jurisdictional basis. However, evidence concerning deaf cul-
    ture and A’s needs and desires as a deaf person certainly
    provide relevant context for evaluating A’s circumstances
    and interactions. But the ultimate inquiry must focus on the
    existing bases of jurisdiction and the continued likelihood of
    serious loss or injury to A because of those bases.
    We note also that jurisdiction is not based upon
    inappropriate disciplinary practices or techniques. Mother’s
    agreement to abstain from physical discipline was in the
    context of the in-home trial reunification plan. Such a plan
    is, by its nature temporary, limited to the context of the trial
    reunification.2 It is not at all clear, even when viewing the
    evidence in the light most favorable to the juvenile court’s
    disposition, that the incident at church was “physical dis-
    cipline.” Assuming, however, that the incident was physical
    discipline—and therefore a breach of the in-home plan—
    that fact alone is not sufficient to demonstrate that A con-
    tinues to be at risk of the kind of violent assault that is the
    basis for jurisdiction. It is the character of the conduct that
    actually occurred and not its description as “physical disci-
    pline” that, in combination with mother’s continued impul-
    sivity, supports continued jurisdiction.
    Mother argues that she has engaged in the services
    required of her and that she has ameliorated the reasons for
    jurisdiction. “We have previously observed that one import-
    ant measure of whether a risk is likely to be realized is
    whether parents have taken steps to ameliorate the original
    bases for jurisdiction.” N. L. B., 
    306 Or App at 100
    . The DHS
    caseworker testified as follows regarding mother’s engage-
    ment in court-ordered services:
    “Q. And had [mother] engaged in services?
    “A. She had, yes—
    “Q. Okay. And what services were those?
    2
    Reasonable physical force used by a parent to discipline a child is not
    unlawful, ORS 161.205(1)(a), and state policy protects a parent’s liberty interest
    in raising his or her children, including the use of reasonable discipline, ORS
    419B.090(4)(c).
    Cite as 
    308 Or App 295
     (2020)                                               305
    “A. So she continues to still do some of these, she does
    ASL classes through Brianna Gary (Phonetic), who is a cer-
    tified—basically she does ASL. She took a parenting class.
    [3]
    She completed a psych eval, which we recently got the
    results of that. And she, she reports to being in counseling,
    but I don’t have access to that piece.
    “Q. Is that because [mother] testified that she declines
    to sign a release of information for you to talk with her
    counselor, correct—
    “A. That’s correct, yeah.”
    DHS argues that mother’s counseling is not properly focused
    on ameliorating the jurisdictional bases and that mother’s
    failure to provide a release to enable DHS to contact her
    therapist makes it impossible for DHS to ensure the proper
    focus and to arrange for joint counseling for mother and A.
    At the same time, there was no evidence that DHS referred
    mother to a counselor and, with respect to A, there was a
    prolonged delay in referring her to a counselor. DHS began
    searching for a counselor for A in June 2019, but that proved
    challenging because it was important to A to have a coun-
    selor with whom she could directly communicate through
    ASL, rather than having a third-party interpreter involved.
    The caseworker explained that process as follows:
    “A. Okay. So in June of 2019 we started to look for
    a therapist and actually her foster parents were working
    really hard as well to find someone. [A] made it really clear
    that she did not want a third party, she wanted someone
    that she could talk to and they could do ASL back and
    forth, which—so that, that was hard because we found—we
    finally found someone, let me see, his—through the Lighter
    Heart, but he does not—but he did not take OHP, so we
    were trying to get him on a contract with DHS, and DHS
    was actually willing to pay for that service outside, but it
    had to do with an insurance piece that I don’t quite under-
    stand, so between I want to say all through August into
    September I was going back and forth.
    “My agency also had me make several efforts to find a
    counselor out—that took the OHP, there was no one that
    was available. We—Brad Houck (Phonetic) was not, also
    not available, who later he said he was available and so we
    3
    Mother was not ordered to participate in ASL or parenting classes.
    306                           Dept. of Human Services v. D. L.
    worked, that was closer to now March of ‘20, we were trying
    to get Brad, finally, but there was also an issue because he
    didn’t take Pacific Source and that switched January 1st—
    “Q. Okay.
    “A. —so finally Johnnie Burt is now who [A] is seeing,
    but it, it took a while for that to start, she’s been seeing her
    for, I would say, a month or so.”
    While DHS was trying to negotiate a contract and
    work out insurance logistics for A’s counselor—which was
    a prerequisite to joint counseling—mother underwent a
    psychological evaluation in November 2019. Mother did not
    use the referral from DHS for a psychological evaluation.
    However, mother did obtain a psychological evaluation on
    her own and the DHS caseworker testified that she received
    a copy of the report and thought it would require only mini-
    mal follow-up:
    “Q. You mentioned a psychological evaluation that you
    reviewed, correct?
    “A. Correct.
    “Q. Is that—do you feel like that piece of the dis-
    positional order is fulfilled then or do you need more
    information?
    “A. I would like more information about it, but I don’t
    believe that [mother] would have to do a psych evaluation
    over again, I think the work she put in was appropriate, I
    would just like to send a letter to Dr. Freed.
    “Q. Did you say Dr. Freed?
    “A. Yes.
    “Q. And is that the psychologist who performed the
    psychological evaluation?
    “A. Yes, it is.
    “Q. And what do you mean send a letter to Dr. Freed?
    “A. So generally when DHS asks a parent to do a
    psych eval, they do a referral-type process where we send
    information about the case, but then we also would send a
    referral letter, and at the end of the letter we always have
    about, you know, five or six questions that we want the
    Cite as 
    308 Or App 295
     (2020)                                307
    psychologist or psychiatrist to address in their letter, and
    so the, the psych eval was like a typical psych eval I would
    have seen from another parent, so I felt like, you know, it
    covered all of what we’d be asking for, I would just like an
    addendum where I would reach out to the psychologist and
    then he could write an addendum to the psych eval.
    “Q. And what would be the purpose of the addendum?
    “A. It would be to give him updated information
    because the psych eval was taken in November of 2019 and
    a lot has happened since that time—
    “Q. And are you wondering what services Dr. Freed
    would recommend, is that—
    “A. That would be—
    “Q. —just one—
    “A. —one of my questions.”
    DHS did not call Freed as a witness and did not offer his
    report into evidence. When mother offered the report, the
    court sustained DHS’s objection to its admission and, thus,
    it is not in the record before us.
    The evidence certainly supports the conclusion that
    mother distrusts DHS and that her compliance with court
    orders has been reluctant. Given our conclusion that DHS
    failed to use reasonable efforts earlier in the case, that
    distrust is understandable. D. L., 
    303 Or App at 291
    . But
    mother has engaged in services. And it is certainly true that
    a parent’s failure to cooperate with DHS or to fully comply
    with the court’s orders alone does not permit continued juris-
    diction. Dept. of Human Services v T. D. G., 
    301 Or App 465
    ,
    476, 455 P3d 591 (2019). However, this is not a case where
    DHS argues that the sole basis for continued jurisdiction
    is mother’s suboptimal cooperation. Instead, her reluctant
    cooperation and engagement was evidence that the court
    was entitled to view in its assessment of the current level of
    risk to A.
    “When a parent has participated in some services,
    yet there is concern that the parent has not ‘internalized’
    better parenting techniques, the ‘dispositive question’ * * * is
    not what [a parent] believes, but what [that parent] is likely
    308                                 Dept. of Human Services v. D. L.
    to do.” Dept. of Human Services v. J. M., 
    275 Or App 429
    , 441,
    364 P3d 705 (2015), rev den, 
    358 Or 833
     (2016) (quoting Dept.
    of Human Services v. J. M., 
    260 Or App 261
    , 268, 317 P3d
    402 (2013) (alterations in the 2015 case)). “In such circum-
    stances, legally sufficient evidence links the ‘lack of insight
    to the risk of harm.’ ” 
    Id.
     (quoting Dept. of Human Services v.
    A. B., 
    264 Or App 410
    , 419, 333 P3d 335 (2014)).
    Here, mother’s lack of insight is related to the ongo-
    ing risk of harm. The court was entitled to rely on mother’s
    courtroom conduct in its assessment of her credibility. And
    it was entitled to consider mother’s continued minimization
    of the original assault and the new incident in determining
    the current likelihood that A will suffer serious loss or harm
    if wardship is terminated.4 Mother’s continued minimiza-
    tion of those events is evidence of a lack of insight. Her lack
    of insight, in turn, supplies a link between the adjudicated
    bases of jurisdiction and the incident in the church and her
    continued impulsivity. A. B., 264 Or App at 419. That link,
    therefore, permits the juvenile court’s conclusion that the
    risk of harm is reasonably likely to be realized without con-
    tinued wardship.
    The evidence that was before the juvenile court is
    more compelling now than it was when jurisdiction was
    established. While the original assault is more remote in
    time, there was another incident between mother and A that
    resulted in harm to A, including pain and bruising. The
    record supports the juvenile court’s determination that the
    need for wardship on the adjudicated jurisdictional bases
    continues. It did not err.
    Affirmed.
    4
    We have explained that a parent’s lack of insight into his or her past endan-
    gering conduct “can be a basis for continued jurisdiction only if there is evidence
    that [that lack of insight] makes it likely that the parent will engage in the con-
    duct again.” Dept. of Human Services v. L. C., App 731, 743, 343 P3d 645 (2014).
    Here, there is evidence that mother’s failure to acknowledge the consequences of
    her past conduct will likely result in future harm to A. Mother physically harmed
    A and left a bruise while they were still in the midst of an in-home trial run
    at reunification. One permissible inference is that mother’s minimization of her
    past and present actions poses a significant barrier to A’s safe return home.
    

Document Info

Docket Number: A174263

Judges: Mooney

Filed Date: 12/30/2020

Precedential Status: Precedential

Modified Date: 10/10/2024