Dept. of Human Services v. S. G. T. , 316 Or. App. 442 ( 2021 )

442
Argued and submitted August 31, reversed December 15, 2021
In the Matter of X. T.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
S. G. T.,
Appellant.
Deschutes County Circuit Court
20JU05160; A175330
503 P3d 1264
The juvenile court asserted dependency jurisdiction over mother’s infant
child, X, on the grounds that mother’s alcohol abuse impairs her ability to safely
parent and that she subjects X to a volatile and erratic household. Mother appeals.
She argues that the evidence was legally insufficient to establish the jurisdic-
tional bases. Held: The juvenile court erred in asserting dependency jurisdiction.
Several of the court’s factual findings are not supported by evidence in the record,
and, without those findings, the evidence was legally insufficient to establish
jurisdiction. Although mother has a history of alcohol abuse, there is no evidence
in this record that mother has drank to the point of intoxication since X’s birth
or that mother’s drinking has prevented her from providing minimally adequate
care to X and created a nonspeculative risk of serious harm to X. The evidence
also was insufficient to establish a volatile and erratic household for purposes of
creating dependency jurisdiction.
Reversed.
Walter Randolph Miller, Jr., Judge.
Joel C. Duran, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Shannon Storey, Chief
Defender, Juvenile Appellate Section, Office of Public
Defense Services.
Philip Thoennes, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
Cite as 316 Or App 442 (2021) 443
AOYAGI, J.
Reversed.
444 Dept. of Human Services v. S. G. T.
AOYAGI, J.
The juvenile court asserted dependency jurisdiction
over X, aged seven months at the time of trial in November
2020, on four bases: (1) that mother’s pattern of substance
abuse, including alcohol abuse, impairs her ability to safely
parent; (2) that mother subjects X to a volatile and erratic
household, creating a threat of harm to X; (3) that father’s
pattern of substance abuse, including alcohol abuse, impairs
his ability to safely parent; and (4) that father subjects X to
a volatile and erratic household, creating a threat of harm
to X. Mother appeals, challenging each jurisdictional basis
and, ultimately, the assertion of dependency jurisdiction.
We conclude that several of the juvenile court’s findings are
unsupported by any evidence in the record and that, with-
out those findings, the evidence is legally insufficient to sup-
port jurisdiction. Accordingly, we reverse.
A juvenile court may assert dependency jurisdiction
under ORS 419B.100(1)(c)—thus making a child a ward of
the court—when it finds that the child’s conditions or cir-
cumstances endanger the child’s welfare, considering the
totality of the circumstances. Dept. of Human Services v.
C. J. T., 258 Or App 57, 61, 308 P3d 307 (2013). To establish
jurisdiction, the state must show that the child’s conditions
or circumstances “present a current threat of serious loss or
injury” that is nonspeculative and reasonably likely to be
realized. Id. at 61-62. When a parent’s alleged risk-causing
conduct is at issue, the state has the burden to demonstrate
a nexus between the parent’s conduct and the threatened
harm to the child. Dept. of Human Services v. L. E. F., 307
Or App 254, 258, 476 P3d 119 (2020), rev den, 367 Or 559(2021).
On appeal of a judgment asserting dependency
jurisdiction over a child, we “view the evidence, as supple-
mented and buttressed by permissible derivative inferences,
in the light most favorable to the trial court’s disposition and
assess whether, when so viewed, the record was legally suf-
ficient to permit that outcome.” Dept. of Human Services v.
N. P., 257 Or App 633, 639, 307 P3d 444 (2013). We assume
the correctness of the court’s explicit findings of historical
fact, if they are supported by any evidence in the record. Id.Cite as 316 Or App 442 (2021) 445
As to any material-fact disputes on which the court did not
make explicit findings, we assume that it made implicit find-
ings consistent with its disposition. Id. at 639-40. We then
assess whether the combination of the court’s explicit and
implicit findings, together with nonspeculative inferences,
“was legally sufficient to permit the court to determine that
ORS 419B.100(1)(c) was satisfied.” Id.
With respect to the first jurisdictional basis—that
mother’s “pattern of substance abuse, including alcohol
abuse,” impairs her ability to safely parent—we conclude
that evidence for that jurisdictional basis is legally insuf-
ficient. Certainly, there is evidence that mother is addicted
to alcohol and that, to date, she has been unable to com-
pletely stop drinking alcohol. But the state may not take a
child from his home based solely on the fact of alcohol use.
See State ex rel Juv. Dept. v. Smith, 316 Or 646, 652, 853
P2d 282 (1993) (rejecting “the proposition that any specific
condition or circumstance per se does, or does not, establish
the juvenile court’s jurisdiction”). Rather, the Department of
Human Services (DHS) must prove that a parent uses alco-
hol “ ‘in a way that puts the child at risk of serious harm.’ ”
Dept. of Human Services v. J. J. B., 291 Or App 226, 236, 418
P3d 56 (2018) (quoting Dept. of Human Services v. M. Q., 253
Or App 776, 787, 292 P3d 616 (2012)).
Here, by her own admission, mother was raised in
a home where drinking was “normalized,” she first drank
alcohol at age 13, and her heaviest drinking has occurred
in her 30s. (Mother was 39 years old at the time of trial.)
Mother was medically diagnosed with “severe” alcohol abuse
disorder in March 2019, drove a vehicle while intoxicated in
July 2019 (resulting in a DUII conviction), and was medi-
cally diagnosed with “moderate” alcohol abuse disorder in
March 2020. The facts underlying the medical diagnoses
and the DUII are not in the record, but that evidence is suf-
ficient to establish that mother has a recent history of alco-
hol abuse—as distinct from mere alcohol use. At the time of
the jurisdictional hearing in November 2020, mother had
been engaged in substance abuse treatment for two months,
and she testified to being committed to staying sober and
stopping all alcohol use. However, given mother’s history,
446 Dept. of Human Services v. S. G. T.
the juvenile court had reason to be skeptical, as it was, and
reasonably could find, as it did, that mother is at high risk
of relapsing and of continuing to drink alcohol.
At the same time, there is no evidence that mother
drank alcohol while she was pregnant with X. She testified
that she did not, and there is no contrary evidence. There
is evidence that mother resumed drinking soon after X was
born. Viewed in the light most favorable to the disposition,
mother was drinking alcohol as often as “nightly” between
May and September 2020, even though it violated her DUII
probation terms. It is undisputed that mother was also min-
imally engaged in alcohol treatment programs during that
time. But there is no evidence that mother has consumed
alcohol to the point of intoxication since X was born, let
alone that she failed to care for X on any occasion due to
intoxication.
In that context, we consider an incident that occurred
on the night of September 6, 2020, which was the impetus
for DHS petitioning the juvenile court to assert dependency
jurisdiction over X. Father began drinking when he woke
up and, by some point, had consumed approximately eight
or nine beers and six or seven shots of alcohol. Maternal
grandmother, who had a difficult relationship with father,
was living in the home at the time. That evening, father
gave X a bath. He took X—and a bottle of alcohol—into
the bathroom. X was secured in a baby bath seat as father
bathed him. Grandmother, who had been drinking, began
screaming and banging on the locked bathroom door, and
she intermittently told mother that father was harming the
baby. Mother—who had had a “couple shots” earlier in the
evening—was trying to stay out of it, but she checked on
X each time to make sure that he was okay, which he was.
At least once, mother asked father to give X to her, but he
refused. Grandmother called the police twice. The first time,
mother was cleaning the oven, and the police left without
talking to her. The second time, father had taken X out-
side to get away from grandmother, mother told the police
that the issue was between grandmother and father, and,
because father was intoxicated, the police directed father
to hand X to mother, which he did. The police then left, and
Cite as 316 Or App 442 (2021) 447
mother put X to bed. Grandmother subsequently moved out
of parents’ home and, according to parents, is not allowed to
drink alcohol when she visits.
The threat of serious harm to a child created by
a parent’s behaviors need not be realized for dependency
jurisdiction to arise. A “reasonable likelihood” that it will
be realized is enough to establish jurisdiction. N. P., 257
Or App at 639. However, the risk must be “nonspeculative.”
Id. at 640.
Here, our review is complicated by the fact that the
juvenile court made (and relied on) several significant fac-
tual findings that are unsupported by any evidence in the
record. Most notably, the court expressly found that mother
was “intoxicated” on the evening of September 6 and that
things became “physical” between mother and father, “in
the sense that there’s a baby between them and one parent’s
trying to grab the baby from the other.” The court described
the situation as being that “two intoxicated parents are
attempting to exercise physical dominance over their infant
child, and then one of them keeps the child [and] locks him-
self into the bathroom.” Those findings are unsupported by
evidence. There is no evidence that mother was intoxicated
that night. No one described mother as being intoxicated.
The only evidence is that she had “a couple shots” earlier in
the evening. Further, there is no evidence of parents physi-
cally struggling over X. There is some evidence that mother
asked father to give X to her at least once, but not that she
physically “grabbed” for X. Lastly, there is no evidence that
father went to the bathroom while arguing with mother.
The only evidence is that father either went to the bathroom
to get away from grandmother and then decided to give X a
bath, or that mother asked him to give X a bath.
The juvenile court also found that, on an unspec-
ified occasion, both mother and father “were intoxicated
when DHS showed up, and—becoming angry. That’s a pat-
tern.” There is no evidence of DHS “showing up” at parents’
home and finding mother intoxicated. To the extent that the
court may be referring to September 10, when DHS went
to parents’ home to take physical custody of X, mother and
grandmother were home—while father was at work—and
448 Dept. of Human Services v. S. G. T.
grandmother was intoxicated when DHS arrived. However,
as DHS concedes, there is no evidence that mother was
intoxicated.
The state argues that the record is legally sufficient
to support jurisdiction based on mother’s alcohol abuse, even
without the unsupported factual findings, but we cannot
agree. Certainly, with an infant to care for, it would be pref-
erable to have at least one adult in the home who is able to
refrain from drinking any alcohol, particularly when every-
one else is intoxicated, as was the case on September 6. It is
apparent that, at least prior to September 2020, mother was
unwilling or unable to stop drinking to be that person. That
is concerning, to say the least, given X’s young age. But we
cannot say that mother’s drinking—as it is documented in
this record—was at such a level in the relevant period that
it created an inherent risk of serious harm to X that was
nonspeculative and “reasonably likely” to be realized.
There is no evidence of mother drinking to the
point of intoxication on any occasion since X was born, let
alone any evidence of her failing to care for X (or lacking
the capacity to care for X) as a result of intoxication. On
this record, stripping out unsupported findings, we cannot
say that mother’s alcohol consumption, in and of itself, gives
rise to dependency jurisdiction. It is not ideal parenting by
any means, and, for all of the reasons that mother herself
recognized in her testimony, one hopes that mother will con-
tinue in treatment and break the cycle of addiction for her
children’s sake. As a legal matter, however, the evidence in
this record was legally insufficient to support dependency
jurisdiction based on mother’s alcohol use.
To the extent that the first jurisdictional basis
extends to other substances—it refers to “substance abuse,
including alcohol abuse”—the only other substance that
there is evidence that mother uses is marijuana. There is no
evidence that, since X’s birth, mother has used marijuana in
a way that endangers X, alone or in conjunction with drink-
ing alcohol. See Dept. of Human Services v. C. Z., 236 Or App
436, 443-44, 236 P3d 791 (2010) (holding that evidence of
marijuana use, without evidence of resulting danger to the
children, was insufficient to establish jurisdiction).
Cite as 316 Or App 442 (2021) 449
As for the second jurisdictional basis, that mother
subjects X to a “volatile and erratic household,” vague juris-
dictional bases can be problematic. See, e.g., Dept. of Human
Services v. L. A. K., 306 Or App 706, 719, 474 P3d 925 (2020)
(discussing “vague and amorphous” jurisdictional bases).
On this record, however, we readily conclude that the state
failed to prove that mother and father have a generally “vol-
atile and erratic household” that endangers X. There is evi-
dence of a single instance of domestic violence in January
2019—well over a year before X was born—when mother
hit father and burned him with a cigarette lighter during
an argument. Both mother and father testified that that
was an isolated incident, there is no contrary evidence, and
DHS’s concerns regarding domestic violence as a result of
that incident were fully resolved by the time X was born.
There is evidence of volatility between father and grand-
mother. It is well-established that they do not get along, the
September 6 incident speaks for itself, and father testified
that grandmother is “very violent and very rude” to him
when she drinks. But grandmother has moved out of par-
ents’ home, and there is no evidence or even suggestion that
she intends to return or would be allowed to return. The
only other evidence is that one DHS caseworker has at times
seen mother and father verbally argue at the DHS office.
The foregoing evidence does not add up to a current threat
of serious harm to X from mother subjecting X to a “volatile
and erratic household.”
Having concluded that the state failed to put for-
ward legally sufficient evidence to establish the jurisdic-
tional bases as to mother, we need not reach the jurisdic-
tional bases as to father. Dept. of Human Services v. J. D. B.,
299 Or App 511, 512 & n 2, 448 P3d 717 (2019).
Reversed.