Dept. of Human Services v. T. J. ( 2020 )

531
Argued and submitted December 9, 2019; reversed and remanded as to portion
of judgment ordering out-of-home placement of T, otherwise affirmed
March 4, 2020
In the Matter of T. J. II,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
T. J.,
Appellant.
Klamath County Circuit Court
19JU03693; A171753
462 P3d 315
The Indian Child Welfare Act applies to this dependency case, in which the
juvenile court asserted jurisdiction over child, T, and placed T in foster care
after father assaulted mother and mother minimized the domestic violence. Only
father appeals, challenging the jurisdictional basis as to him and the out-of-home
placement of T. Held: The juvenile court did not err in taking jurisdiction on the
basis of father’s domestic violence. However, the evidence was insufficient for the
juvenile court to conclude that mother’s continued custody of T, despite her min-
imization of father’s domestic violence, was “likely to result in serious emotional
or physical damage” to T. 25 USC § 1912(e).
Reversed and remanded as to portion of judgment ordering out-of-home
placement of T; otherwise affirmed.
Roxanne B. Osborne, Judge.
Ginger Fitch argued the cause and filed the briefs for
appellant.
Kirsten M. Naito, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
ORTEGA, P. J.
Reversed and remanded as to portion of judgment order-
ing out-of-home placement of T; otherwise affirmed.
532 Dept. of Human Services v. T. J.
ORTEGA, P. J.
The Indian Child Welfare Act (ICWA), 25 USC
§§ 1901 - 1963 (1978), applies to this juvenile dependency case,
in which infant child, T, was removed by the Department
of Human Services (DHS) after father was arrested for
assaulting mother. The juvenile court subsequently asserted
dependency jurisdiction as to both parents;1 found that DHS
had made “active efforts” to prevent breakup of the family;
and, ultimately, placed T in foster care.2 Father now seeks
reversal of the combined jurisdictional/dispositional judg-
ment, challenging the jurisdictional basis as to him and
the out-of-home placement of T. We conclude that the juve-
nile court did not err in taking jurisdiction on the basis of
father’s domestic violence against mother. We agree with
father, however, that the evidence was insufficient for the
juvenile court to conclude that mother’s continued custody
of T, despite her minimization of father’s domestic violence,
was likely to result in serious emotional or physical dam-
age to T. Accordingly, we affirm the portion of the judgment
asserting jurisdiction over T but reverse the portion of the
judgment ordering T to be placed out of mother’s home.3
De novo review is neither requested nor warranted.
See ORAP 5.40(8)(c) (only in “exceptional cases” will we
1
Generally, “the juvenile court has exclusive original jurisdiction in any
case involving a person who is under 18 years of age and * * * [w]hose condition or
circumstances are such as to endanger the welfare of the person or of others[.]”
ORS 419B.100(1)(c).
2
ICWA provides, in relevant part:
“(d) Any party seeking to effect a foster care placement of * * * an Indian
child under State law shall satisfy the court that active efforts have been
made to provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these efforts have proved
unsuccessful.
“(e) No foster care placement may be ordered in such proceeding in the
absence of a determination, supported by clear and convincing evidence,
including testimony of qualified expert witnesses, that the continued custody
of the child by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.”
25 USC § 1912(d) - (e). Oregon’s statutory counterpart, ORS 419B.340(7), is sub-
stantially similar. See also 25 CFR § 23.120; 25 CFR § 23.121(a); OAR 413-115-
0060; OAR 413-115-0130(1)(a).
3
Given our disposition, we do not address father’s second assignment of
error—that the juvenile court’s failure to describe DHS’s active preventive and
reunification efforts in the judgment warrants reversal.
Cite as 302 Or App 531 (2020) 533
exercise our discretion to try the cause anew). As such, we
review the jurisdictional and dispositional outcomes below
for legal error, viewing the evidence in the light most favor-
able to the juvenile court’s determinations and assuming
the correctness of that court’s explicit factual findings if
any evidence in the record supports them. Dept. of Human
Services v. N. P., 257 Or App 633, 639-40, 307 P3d 444 (2013);
see also Dept. of Human Services v. J. F. D., 255 Or App 742,
744, 298 P3d 653 (2013) (“We review findings of fact * * * for
any evidence, and conclusions of law * * * for legal error.”).
We state the facts consistently with those standards.
Mother became pregnant with T soon after begin-
ning her relationship with father. T is eligible to enroll in
the Klamath Tribes (the Tribes) through father’s member-
ship; therefore, ICWA applies. See ORS 419B.878 (applicabil-
ity of ICWA); 25 USC § 1903(4) (definition of “Indian child”).
At the time of the incident giving rise to this matter, T was
four months old and living with mother and four maternal
half-siblings, who ranged in age from two to five years. Since
T’s birth, father had regularly stayed at mother’s apartment
to help care for the children.
On the consequential night in May 2019, both par-
ents drank heavily and began arguing; the recent suicide of
father’s sister and the burden of caring for all the children
had strained their relationship. Mother’s two oldest children
were awakened by the commotion in the small apartment
and witnessed father pulling mother’s hair and striking
her face and head, causing a one-inch bleeding laceration
for which mother received staples. Father also attempted to
punch the five-year-old child, but mother intervened, and
he knocked down the television and broke a window. Police
arrived to find the apartment in “general disarray,” with
“stuff * * * scattered around,” including broken glass, blinds,
and picture frames. The other children, including T, were
asleep in a bedroom during the incident.
Father, who was under post-prison supervision, left
before police arrived, but he was soon arrested and observed
to have abrasions on his knuckles. Father eventually entered
a no-contest plea and was convicted of fourth-degree assault
constituting domestic violence, ORS 163.160, resulting in a
534 Dept. of Human Services v. T. J.
12-month bench probation sentence and an order to refrain
from all nonpreapproved contact with mother. Father had
prior convictions for alcohol-fueled assaults, but this was his
first involving domestic violence.
DHS caseworker Grant Laugsand interviewed mother
several times in the five days following the incident. Initially,
mother denied that father had attacked her, stating instead
that a random stranger had injured her and damaged the
apartment. She expressed that she needed father back home
to help care for the children. In later conversations, mother
admitted that father had injured her and that they had
known that “things were coming to a head” with their recent
heavy drinking. During a follow-up interview, however,
mother again equivocated, professing that she had been too
intoxicated to remember much, but she was adamant that
none of her children had witnessed or been involved in the
incident. Concerned about mother’s denial of father’s domes-
tic violence and minimization of the threat of harm to her
children, DHS removed all of the children, placing the three
oldest together in relative foster care, and the second young-
est and T together in nonrelative foster care.4
DHS petitioned the juvenile court to take jurisdic-
tion over T, alleging, as to father, that his domestic violence
against mother while T was in the residence and failure to
successfully engage in treatment to address that conduct
presented a threat of harm to T. As to mother, DHS sought
jurisdiction based on her domestic violence against father
while T was in the residence and her failure to successfully
engage in treatment to address that conduct; her belief that
father does not pose a risk to T; and her lack of understand-
ing of T’s needs and lack of skills to adequately and appro-
priately parent and protect T.
The juvenile court held a combined jurisdictional
and dispositional hearing in June 2019. Father, who admit-
ted that his memory of the incident was “fuzzy” because he
had drunk heavily that day, testified that the argument had
been outside and only verbal. He denied beating mother or
attempting to punch her five-year-old, stating that he was
4
Neither mother nor the other children are involved in this appeal.
Cite as 302 Or App 531 (2020) 535
not someone who hits his partner or children; therefore,
father asserted, ordering him to participate in domestic vio-
lence classes was “not suitable.” Father asserted that he had
pleaded no-contest to the assault charge under threat that,
otherwise, mother would also be jailed, leaving the children
with no caretaker. Nevertheless, father had abided by the
no-contact order and intended to do so as long as the order
remained in effect. He stated, “I don’t want [T] to come to
me; I want him to go home to his mom. * * * And if I’ve got to
stay away and I’ve got to do what I’ve got to do, that’s what
I’m going to do but I don’t want [mother] to suffer for what
I’ve done[.]”
According to Andrea Witcraft, father’s therapist,
father had independently sought mental health and sub-
stance abuse counseling at Youth & Family Guidance
Center in December 2018 and had remained engaged in ser-
vices until his sister died in April 2019, precipitating his
relapse into alcohol use. After the May incident, father had
immediately and voluntarily reengaged with the center to
address issues of anxiety, anger management, childhood
trauma from being in foster care, and grief and loss. At
the time of the hearing, father had maintained sobriety for
about 45 days, essentially since the day of the incident; had
attended sessions consistently; was scheduled to discuss
taking Naltrexone, a medication that causes “really bad side
effects” in alcohol users; and was going to participate in the
Positive Indian Parenting retreat and explore other parent-
ing resources. Witcraft opined that father had “an excellent
prognosis” and had been going “above and beyond to address
his issues.”
Mother also testified, maintaining that she did not
recall who had attacked her and damaged the apartment
or that any of the children had been outside of their bed-
room. However, she acknowledged that father poses a risk
to the children when he drinks. She maintained that her
relationship with father was over and that their last con-
tact had been on the night of the incident. Because father
was abiding by the no-contact order, she felt no need to
obtain a restraining order (as she had against a different
abusive partner), but she did not rule out the possibility
of doing so should the need arise. Mother’s daily regimen
536 Dept. of Human Services v. T. J.
since the children’s removal involved visits with them and
engagement in services to address substance abuse (includ-
ing recovery intervention and relapse prevention), anger
management, mental health services, and parenting skills
support (including a nonoffending parenting course about
avoiding people who pose threats to one’s self or children). At
the time of the hearing, mother had maintained sobriety for
30 days. She had also communicated with her landlord and
family members to ensure that her housing was secure, bills
were settled, and childcare support was available. Mother
stressed that the children’s safety would always come before
her relationship with father or the first drink.
Laugsand opined that the children were under a
threat of harm from domestic violence because they were
in close proximity to the violence and because violence “can
have a lasting and harmful effect” on children who observe
it. When asked about DHS’s efforts toward keeping the chil-
dren with mother, Laugsand explained that mother’s denial
of father’s violence and her expressed desire for father to
return home “kind of prevented it because we had a mother
that wasn’t necessarily being cooperative with the agency in
regards to the identified safety concern.” He expressed that
DHS was “concerned that if we tried to put some type of
service provider in the home that mother would not be act-
ing safely with the children or even with the safety provider
there.” Laugsand had attempted to identify appropriate rel-
ative placement resources for T but had been unsuccessful.
Tribal expert witness Candi Usesarrow testified
that DHS had made active efforts to prevent breakup of the
family; that T’s current foster care placement was in his
best interests; and that the Tribes’ support for T’s return to
mother was contingent on provider recommendations that
the home is clean and substance- and violence-free.5
In closing, father argued against jurisdiction,
reasoning that because both parents were abiding by the
no-contact order and there had been only one incident of
domestic violence, no reasonable likelihood of a threat of
5
Usesarrow was the Children and Family Program Manager for the Tribes,
and she oversaw T’s case while the tribal caseworker who actually handled the
case was on vacation.
Cite as 302 Or App 531 (2020) 537
harm to T existed. Even if the court took jurisdiction, father
argued, T should be returned to mother.
The juvenile court disagreed that jurisdiction was
inappropriate:
“Okay, so the guy has got a [second-degree assault] convic-
tion * * *, goes ahead and drinks even though he’s on post-
prison supervision, gets in some big gigantic problem that
[the children] for sure witnessed, and there’s no likelihood
that anything bad is going to happen in the future?”
Then, in explaining why it was ordering mother to undergo
a psychological evaluation, the court discredited mother’s
testimony regarding the incident: “I do not believe that you
don’t remember and the fact that your two little kids wit-
nessed what’s going on, you’ve got a problem.” Furthermore,
the court specified that mother’s minimization of the domes-
tic violence was the reason why it was not returning the
children to her:
“Because she was under the influence of alcohol, you guys
got in a big, gigantic, scary fight, destroyed property, and
she then said there was no problem and that you should
be able to come home. And that’s not right. No. It’s her
responsibility to protect her children from domestic vio-
lence situations.”
Ultimately, the court took jurisdiction over T as to both par-
ents based on the alleged grounds.
Only father appeals, contesting the sufficiency of
the evidence supporting (1) the juvenile court’s assertion of
jurisdiction as to him and (2) the court’s order that T be
placed in foster care rather than returned home to mother.
We first address the threshold issue of jurisdiction.
“Under ORS 419B.100(1)(c), jurisdiction is warranted if a
child’s ‘condition or circumstances are such as to endanger
[that child’s] welfare’—that is, if they ‘give rise to a threat of
serious loss or injury.’ ” Dept. of Human Services v. D. W. M.,
296 Or App 109, 117-18, 437 P3d 1186 (2019) (citation omit-
ted). DHS must prove that the threat is current, nonspecu-
lative, and causally connected to the allegedly risk-causing
conduct or circumstances. Id. at 118. Father asserts that
DHS must meet its burden by clear and convincing evidence,
538 Dept. of Human Services v. T. J.
which is the heightened standard required in ICWA cases
before a child may be placed in foster care. See 25 USC
§ 1912(e). DHS, on the other hand, contends that the lower
standard of a preponderance of the evidence suffices for
establishing jurisdiction.
Father primarily relies on D. W. M., a non-ICWA
case in which we applied the preponderance standard and
concluded on de novo review that the juvenile court erred
in taking jurisdiction based on the father’s domestic vio-
lence. 296 Or App at 112.6 Father posits that the facts in
D. W. M. are comparable to or even more egregious than
those present in this case; therefore, it follows from prior
case law that the evidence here was insufficient to meet
the more stringent clear-and-convincing standard. The evi-
dence in D. W. M. included that the parents would push and
shove each other; the father would spank or threaten to slap
the teenage child and had once grabbed her hand tightly;
and the father would behave aggressively, such as by “slam-
ming” a dog’s head into the dryer and “ripping” a door apart.
Id. at 121-22. We described the father’s conduct as “alarm-
ing” but ultimately determined that, without more—for
example, evidence of the child’s proximity to the incidents or
of an actual assault of the child—the record did not estab-
lish a serious risk of physical harm to the child. Id. In addi-
tion to relying on D. W. M., father argues that the risk of
harm to T was speculative—there was only a single incident
of domestic violence, and T did not even observe it—and not
current, given that at the time of the hearing, both parents
were engaged in services, maintaining sobriety, and abiding
by the no-contact order.
Assuming without deciding that ICWA requires the
jurisdictional allegations to be proved by clear and convinc-
ing evidence, we conclude that the record was sufficient for
the juvenile court to assert jurisdiction based on a nonspecu-
lative and current risk of harm to T from father’s domestic
violence. A child need not be “physically harmed [by] or even
aware of” the domestic violence surrounding the child to be
6
We also determined that the juvenile court erred in taking jurisdiction
based on the father’s substance abuse and in dismissing allegations of the father’s
sexual abuse of the child, which would have been a proper jurisdictional basis.
D. W. M., 296 Or App at 124.
Cite as 302 Or App 531 (2020) 539
at risk. Dept. of Human Services v. C. M., 284 Or App 521,
529, 392 P3d 820 (2017) (citations omitted). Unlike the teen-
age child involved in D. W. M., T was a more vulnerable four-
month-old infant. Although T was asleep in another room,
had the altercation escalated and spilled into his area of the
small apartment, he would have had no ability to protect
himself, nor would either parent have been in the right state
of mind to consider his safety. Indeed, both parents testified
that they had been so intoxicated that night that they could
not recall the most significant moments.
Additionally, although this was father’s first inci-
dent of domestic violence, and despite his recent return to
sobriety, his history of alcohol-fueled violence and indiscre-
tion raised the risk of harm to T above pure speculation.
Perhaps most significantly, at the hearing father continued
to deny that he had assaulted mother, attempted to punch
her five-year-old child, and damaged the apartment, and he
opposed being ordered to participate in domestic violence
classes. Given father’s unwillingness to account for and
address the conduct that triggered the dependency proceed-
ing, the risk of harm to T was current at the time of the
hearing. See Dept. of Human Services v. K. C. F., 282 Or
App 12, 19, 383 P3d 931 (2016) (“Domestic violence between
parents poses a threat to children when it creates a harm-
ful environment for the children and the offending parent
has not participated in remedial services or changed his or
her threatening behavior.”). Based on the foregoing, we are
persuaded that the evidence was sufficiently clear and con-
vincing to support dependency jurisdiction on the basis of
father’s domestic violence against mother.
We turn next to the issue of T’s out-of-home place-
ment. Under ICWA,
“[n]o foster care placement may be ordered * * * in the
absence of a determination, supported by clear and con-
vincing evidence, including testimony of qualified expert
witnesses, that the continued custody of the child by the
parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.”
25 USC § 1912(e). “[T]he evidence must show a causal rela-
tionship between the particular conditions in the home and
the likelihood that continued custody of the child will result
540 Dept. of Human Services v. T. J.
in serious emotional or physical damage” to the child. 25
CFR § 23.121(c). Neither party disputes that the juvenile
court effected a foster care placement or that Usesarrow
was a qualified expert witness for ICWA purposes. At issue
is whether DHS proved by clear and convincing evidence
that the continued custody of T by mother—the jurisdic-
tional bases as to whom are unchallenged—was likely to
result in serious emotional or physical damage to T. Father
repeats the arguments that he advanced as to the jurisdic-
tional issue, namely, that the risk of harm to T was specula-
tive and not current. DHS counters that mother’s failure “to
acknowledge the seriousness of the domestic violence inci-
dent” and her “history of abusive partners” were sufficient
to support the juvenile court’s conclusion that T would suffer
serious emotional or physical damage if he were returned to
her custody. On this issue, we agree with father.
Even though the juvenile court determined that
mother was not credible in testifying that she could not
recall the identity of her attacker, that credibility determi-
nation does not support a nonspeculative inference that seri-
ous emotional or physical damage to T would likely result
if he were returned to mother, especially given that father
was out of the home and both parents were abiding by the
no-contact order. Mother’s minimization of domestic violence
in an attempt to protect father does not necessarily equate to
her inability or unwillingness to protect T. Compare Dept. of
Human Services v. M. Q., 253 Or App 776, 786, 292 P3d 616
(2012) (“[T]he juvenile court’s apparent disbelief of father’s
claimed sobriety is not affirmative evidence that he still
was using drugs at the time of the 2012 hearing.” (Citations
omitted.)). Furthermore, although mother initially stated
that she wanted father to return home despite his domestic
violence, it appears from the record that she last expressed
that wish five days after the incident—that is, 40 days before
the jurisdictional/dispositional hearing. The record lacks
any evidence to suggest that after that time DHS talked to
mother again regarding her view of father—or, indeed, that
DHS contacted mother at all. At the hearing itself, mother
stated that she and father had not been in contact since the
incident, that their relationship was over, and that father
poses a risk to the children when he drinks. Based on the
Cite as 302 Or App 531 (2020) 541
foregoing, to infer that, at the time of the hearing, mother
continued to want father to return home is to speculate, and
to conclude further—that mother would violate a no-contact
order to make that happen, such that serious emotional or
physical damage to T would likely result—is to make an
inferential leap that is unsupported by the clear and con-
vincing evidence that ICWA requires.
Moreover, contrary to DHS’s assertion that mother
has a “history of abusive partners,” the record establishes
the existence of only one, the father of her other children,
and mother obtained a restraining order against him and
left with the children. Rather than an inability to protect,
that history demonstrates mother’s ability and willingness
to protect her children from abuse.
Additionally, the record indicates that mother was
participating in programs to address substance abuse,
anger management, mental health, and parenting skills;
had maintained sobriety for 30 days; and had communi-
cated with her landlord and family members to ensure that
her housing was secure, her bills were paid, and childcare
was available. That evidence undercuts the view that plac-
ing T with mother was likely to result in serious emotional
or physical damage to the child.
Finally, Usesarrow’s testimony likewise fails to
establish clear and convincing evidence of the requisite
danger to T should he be returned to mother’s custody. The
tribal expert witness offered only conclusory assertions as
to the ultimate issues rather than evidence regarding the
specific circumstances of the family that posed a danger.7
7
The interpretative guidelines issued by the Bureau of Indian Affairs (BIA),
although lacking in binding legislative effect, are instructive to our understand-
ing of ICWA’s requirements. Quinn v. Walters, 320 Or 233, 260, 881 P2d 795(1994). The current version of the guidelines issued in 2016. U. S. Dept. of the
Interior, Bureau of Indian Affairs, Guidelines for Implementing the Indian Child
Welfare Act (Dec 2016), https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/pdf/
idc2-056831.pdf (2016 BIA Guidelines). The guidelines recommend
“that the qualified expert witness be someone familiar with [the] particular
child. If the expert makes contact with the parents, observes interactions
between the parent(s) and child, and meets with extended family members
in the child’s life, the expert will be able to provide a more complete picture
to the court.”
2016 BIA Guidelines § G.2 at 55.
542 Dept. of Human Services v. T. J.
In sum, the juvenile court properly exercised juris-
diction over T—because the jurisdictional basis related
to father is not erroneous, for the reasons discussed, and
because the jurisdictional bases related to mother are
unchallenged. However, the court erred in ordering an out-
of-home placement for T, because DHS failed to prove by
“clear and convincing evidence” that returning T to mother,
even though she has not challenged the jurisdictional bases
as to herself, was “likely to result in serious emotional or
physical damage” to T. 25 USC § 1912(e).
Reversed and remanded as to portion of judgment
ordering out-of-home placement of T; otherwise affirmed.