Dept. of Human Services v. N. S. ( 2020 )

703
Submitted June 5; reversed as to allegation 3a, otherwise affirmed
August 5, 2020
In the Matter of L. E. S.,
aka L. E. N., a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
N. S.,
Appellant.
Marion County Circuit Court
19JU06745; A173437
471 P3d 157
Manuel Perez, Judge pro tempore.
Shannon Storey, Chief Defender, Juvenile Appellate
Section, and Shannon Flowers, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Reversed as to allegation 3a; otherwise affirmed.
704 Dept. of Human Services v. N. S.
PER CURIAM
In this juvenile dependency case, mother appeals a
judgment entered in January 2020. In that judgment, the
juvenile court, among other things, added a new basis for its
jurisdiction over mother’s infant child, L; the court initially
took dependency jurisdiction over L in June 2019 based on
its finding that mother’s mental illness interfered with her
ability to parent L safely. In the January judgment, the court
determined that mother’s use of controlled substances sup-
plied an additional basis for dependency jurisdiction under
ORS 419B.100. Mother asserts that there was insufficient
evidence to establish that as a basis for jurisdiction.
On appeal, the Department of Human Services (DHS)
concedes that, under the circumstances of this case, the evi-
dence is insufficient to establish that mother’s use of con-
trolled substances provided a basis for dependency juris-
diction. That is because the record does not permit the
inference that mother’s concerning parenting behaviors
identified at the hearing below were causally connected to
the use of controlled substances by mother. In particular, the
record, as DHS concedes, is insufficient to permit the find-
ing that mother’s behaviors resulted from drug impairment
rather than from her identified mental-health symptoms.
We agree with DHS’s concession that the record is insuf-
ficient to establish a nexus between mother’s alleged con-
trolled substance use and her ability to safely parent L. See
Dept. of Human Services v. E. M., 264 Or App 76, 81, 331 P3d
1054 (2014) (concluding that DHS has the burden to estab-
lish a nexus between the allegedly risk-causing conduct or
circumstances and risk of harm to the child). Accordingly,
we reverse the jurisdictional judgment with regard to that
allegation.
Reversed as to allegation 3a; otherwise affirmed.