Dept. of Human Services v. Z. M. , 316 Or. App. 327 ( 2021 )

327
Submitted March 12, reversed December 15, 2021
In the Matter of S. M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
Z. M.,
Appellant.
Deschutes County Circuit Court
20JU00101; A174686 (Control)
In the Matter of A. M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
Z. M.,
Appellant.
Deschutes County Circuit Court
20JU00099; A174687
504 P3d 1208
Father appeals juvenile court judgments taking jurisdiction over his two
children based on findings that his sexual abuse of another child and criminal
activities (related to that sexual abuse) interfered with his ability to safely par-
ent his own children. The court also took jurisdiction based on mother’s admis-
sion that she was unable to protect the children from father’s conduct because she
lacked a custody order. Father argues that the evidence was insufficient to sup-
port any of the bases for jurisdiction. Held: Department of Human Services failed
to present sufficient evidence establishing a nexus between father’s sexual abuse
of another child and related criminal conduct and a risk that he would sexually
abuse his own children, or that the purported risk was current and nonspecula-
tive. Therefore, mother’s inability to protect the children from father based on his
conduct could not provide a basis for asserting jurisdiction over the children as to
her. However, even if the Court of Appeals were to conclude otherwise, the record
was insufficient to demonstrate that mother could not protect the children from
father because she did not have custody.
Reversed.
Bethany P. Flint, Judge.
328 Dept. of Human Services v. Z. M.
Kristen G. Williams filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Philip Thoennes, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
ORTEGA, P. J.
Reversed.
Powers, J., dissenting.
Cite as 316 Or App 327 (2021) 329
ORTEGA, P. J.
The juvenile court took jurisdiction over father’s two
daughters, A and S, based on allegations that he sexually
abused another child and was involved in criminal activities
(related to the sexual abuse) that interfered with his ability
to safely parent his own children. The court also took juris-
diction based on mother’s admission of her failure to protect
the children from that conduct due to a lack of custody of
the children. Father appeals, arguing that the evidence was
insufficient to support any of the bases for jurisdiction. We
agree and reverse.
Father does not request de novo review, and this is
not a case justifying such review. See ORAP 5.40(8)(c) (only in
“exceptional cases” will we exercise our discretion to try the
cause anew). Accordingly, we review the trial court’s rulings
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 and implicit 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 find-
ings of fact * * * for any evidence, and conclusions of law * * *
for legal error.”). We state the facts consistently with those
standards.
Father has two children with mother—A (born in
2008) and S (born in 2009). Mother and father divorced
in 2011, mother moved out of the home, and the children
remained with father. Pursuant to a domestic relations
judgment, mother is allowed parenting time. Father mar-
ried stepmother in 2014, and they had a son, R, in 2018.
Stepmother has a daughter, M, from a previous relation-
ship. All of the children lived in the home with father and
stepmother.1
In March 2019, the Redmond Police Department
(Redmond PD) received information from Wisconsin law
enforcement that father and stepmother had sexually abused
a teenage girl, K. H., and an investigation was opened.
1
This consolidated appeal involves only A and S.
330 Dept. of Human Services v. Z. M.
Detective Hicks of the Redmond PD learned that father and
stepmother met K. H. in July 2016 at church when she was
15 years old. K. H. eventually began to babysit for father’s
and stepmother’s children and also cleaned houses with
stepmother. K. H. spent a lot of time with father and step-
mother and, in 2016, they began to sexually abuse her. The
abuse included both oral and vaginal sexual contact and
occurred approximately 30 times. Sometimes only step-
mother engaged in sexual contact with K. H., but otherwise
father and stepmother together abused K. H. Father and
stepmother would supply K. H. with marijuana and alcohol
during the abuse. Although A and S were home during some
of the abuse, they never observed it and were not aware that
it was occurring.
Father and stepmother told K. H. that they loved
her and wanted to have children with her someday, and they
bought her a ring and proposed a polygamous marriage.
Father, stepmother, and K. H. would send nude photos to
one another, and father and stepmother would send K. H.
love notes. Father and stepmother gave K. H. three tattoos,
including a heart tattoo that matched stepmother’s tattoo.
In February 2017, K. H. and her family moved out
of Oregon. She returned to Redmond for a month later that
year and stayed with father and stepmother, and the sexual
abuse resumed during that time. No sexual abuse occurred
after K. H. again left Oregon in about July 2017, when she
was 16 years old.
Redmond PD discovered a second victim, L. W., who
met father and stepmother at church in 2015 when she was
14. They spent time with her over a period of eight months,
and one night, when L. W. was spending the night at father’s
and stepmother’s home, they provided her with alcohol, and
they all got drunk. Stepmother kissed L. W., but then went
to the bathroom to throw up. While stepmother was in the
bathroom, father sexually penetrated L. W. They had no fur-
ther sexual contact after that incident.
In October 2019, father and stepmother were
indicted on various charges for conduct related to K. H.,
including third-degree sodomy, second-degree sexual abuse,
third-degree rape, using a child in a display of sexually
Cite as 316 Or App 327 (2021) 331
explicit conduct, furnishing alcohol to a person under 21
years of age, and allowing consumption of marijuana by a
minor. Following their arraignment and with the court’s
approval, the children remained in their custody.
Two months later, in December 2019, Department
of Human Services (DHS) learned of the allegations and
opened an investigation into whether there was a potential
threat of harm to the children. It concluded that, because
father and stepmother “were unable to speak about the
extent and circumstances of the allegations based on their
ongoing criminal involvement” and “based on the indict-
ments alone,” it was necessary to restrict the parents’ con-
tact with all four children for up to 10 days while the depart-
ment investigated. At the time, A and S were in Medford
with mother so, with DHS’s approval, they remained with
her until their scheduled return in January and then were
placed with father’s parents, where R and M were also
placed. Father and stepmother were prohibited from having
any contact with the children. Mother informed DHS that
she was prepared to become the full-time custodian for A
and S but, instead, DHS sought protective custody of all four
children, who remained with father’s parents.
About a month later, DHS arranged for A and S to
participate in a behavioral health assessment. DHS informed
the evaluator that the children did not know what was going
on and that DHS had not found any evidence of “any type
of abuse in the home.” A was diagnosed with adjustment
disorder with depressed mood because of the removal from
father’s care as a result of DHS involvement. S likewise
was diagnosed with adjustment disorder with anxiety, also
related to her removal from father’s care.
DHS concluded that it was “unknown how or if
[father’s and stepmother’s] actions would likely result in
negative impacts to the children” but also determined that
mother could safely parent A and S, so it filed for a change
in placement to have A and S returned to mother’s care.
However, father and the children opposed placement with
mother. The juvenile court ordered that, although mother
was “safe and appropriate * * * for immediate placement,” the
children should remain with grandparents so as to reduce
332 Dept. of Human Services v. Z. M.
disruption to their lives and allow them to prepare for the
new living arrangement should jurisdiction be established.
The dependency petitions alleged that “mother is
unable to protect the child[ren] from the father’s criminal
activities” and that father “is involved in criminal activities
that interfere with his ability to safely parent” A and S and
that he “has sexually abused another child which interferes
with his ability to safely parent” A and S. Mother admit-
ted that she is unable to protect the children from father’s
activities due to “the lack of a domestic relations order,” and
a jurisdictional trial was held to address the allegations
against father. For purposes of that trial and to protect his
right against self-incrimination in the pending criminal
case, father agreed that the court and the parties would
“assume that it has been established that [he] engaged in
criminal activities and sexual abuse of another child.”
The following additional evidence was admitted.
Officer Hicks explained that he did not immediately alert
DHS after father and stepmother were indicted and arrested,
because he had received no evidence or reports that they had
abused their children or exposed them to any type of crimi-
nal activity. DHS caseworker Eicher testified that, although
DHS’s assessment concluded that the presence of nega-
tive impacts on A and S were unknown, DHS nonetheless
had concerns “given the fact that [A] and [S] are not [step-
mother’s] children” and the criminal allegations involved
sexual abuse of minors.
Dr. Heavilin, the medical director of an agency that
investigates allegations of child abuse, testified for DHS
about what risks might be posed by father’s conduct. She is
trained to identify risk factors for child abuse and neglect
and explained that when a caregiver abuses substances
such as alcohol and marijuana, there is “an increased risk
of the child experiencing all forms of abuse and neglect.”
When asked if “there [is] any risk posed by a caregiver who
has abused another child,” she stated:
“I think that’s a little bit harder to say definitively. I think,
if someone has been abusing a different child, that defi-
nitely suggests that their judgment is suboptimal. But I
wouldn’t say that * * * if somebody is abusing one child,
Cite as 316 Or App 327 (2021) 333
then they’re definitely going to abuse every child they’re
around. There is just not data to support that.”
When asked to elaborate on how judgment impacts
the risk for child abuse and neglect, Heavilin testified that,
“just in general * * * impaired judgment can impact a care-
giver’s ability to identify threats, identify potential harms
to a child * * *. It’s kind of hard to quantify without * * * a
specific situation, but that’s kind of * * * what I meant by
impaired judgment. Like, making decisions that may not
necessarily prioritize the child’s safety and wellbeing.”
When asked if she knew anything about A’s case
that would put her at risk for abuse or neglect, Heavilin
offered the following explanation:
“I know that this child was in an environment where there
[are] allegations of misconduct by her parents with a minor.
And * * * I don’t know the details in terms of how old [A]
was when that would have been happening or where she
would have been in the house when that was happening.
“But, even if she wasn’t present while the concerning
contact may have occurred, we know that children who
hear things happening—abuse or violence or things like
that in the home—experience psychological maltreatment.
“And, so it’s hard to know. * * * [A] did not share any
details regarding her parents’ behavior while she was at
KIDS Center.
“But, just based on the reports regarding why she was
not in her parents’ care, that was a concern, as well.”
However, Heavilin had not examined A and could not “say
that it has happened to her specifically.”
Father called Encinas, a certified sex offender ther-
apist who had been hired to conduct a psychosexual evalua-
tion of him. She explained that she would be using a test that
would measure father’s risk of reoffending and any potential
treatment needs, based on an assessment of past history,
including convictions, mental health issues, past and cur-
rent drug use, the charges, as well as interviews. Encinas
was awaiting further documents, including from DHS, so,
not having completed her assessment, she was unable to
“deduce or measure any kind of risk to the children directly
334 Dept. of Human Services v. Z. M.
from [father].” However, based on the information she had
reviewed so far, she indicated that she was “not finding any
indicators of emotional, physical, or sexual harm being immi-
nent to these children.” She based that opinion on several
hours spent interviewing and consulting with father, as well
as her review of the police reports and charging instrument,
the video-recorded interview of K. H., the reports from DHS
and the court, behavioral health assessments of A and S,
and letters from father’s sex offender treatment therapist
and drug and alcohol counselor. Encinas also opined that
father “is amenable to treatment.”
Father had obtained a mental health assessment,
which was admitted as an exhibit, and had attended three
sex offender treatment sessions. His treatment therapist
submitted a letter stating that father
“has shown insight to his dynamic risk factors and has
been reflective in thinking distortions. [Father] is open
and engaged throughout each session and eager to utilize
treatment tools and insights. [Father] has shown progress
in each session and I believe he will continue to follow that
pattern.”
Father had also engaged in drug and alcohol counseling,
provided a negative urinalysis test from some months before
the hearing, and testified that he had not drank alcohol since
October 2019 because a condition of his release agreement
prohibits the use of alcohol. He indicated that he had sig-
nificantly reduced his drinking in 2016 and “[v]ery rarely”
drank during the past two or three years. He testified that
he drank “[v]ery little” when the children were in the home,
and never in excess when they were around, and that he last
used marijuana four years ago.
The juvenile court found that DHS had proved the
allegations in the petition related to A and S and took juris-
diction over them. In a letter opinion, the court found as
follows:
“The overwhelming evidence in this case is that [father]
and [stepmother] have engaged in a pattern of behavior
throughout approximately 2015-2017 of sexually grooming
and supplying cannabis and alcohol to adolescent/teenage
girls, and sexually abusing them. * * *
Cite as 316 Or App 327 (2021) 335
“This court is not persuaded that because [father and
stepmother] have purportedly not engaged in sex abuse of a
child after 2017, they do not continue to pose a risk of harm
sufficient for the juvenile court to exercise jurisdiction. The
proof of the chain of events points to the existence of cur-
rent risk. There is nothing to demonstrate that [father’s and
stepmother’s] thinking errors and belief systems regarding
appropriate sexual behavior and boundaries with adolescent/
teenage girls are any different now than they were in 2017,
and [A and S] * * * fall squarely within [father’s and step-
mother’s] class of victims. * * *
“Regarding [father], the * * * testing as a predictor of
recidivism based on arrests and convictions, does not sat-
isfy this Court’s concerns regarding the thinking errors
and predatory behavior of [father]. Moreover, it was not
completed as of the time of trial. And while [father] has
enrolled in a ‘sexual boundary’ curriculum of some kind,
he had not completed it as of the time of trial and it was
not clear to the court specifically what he was learning
to address the specific risks in this case. Importantly,
[father’s] testimony regarding alcohol and cannabis use
was not credible. [Father] presented during his testimony
as amused, smug, and at times, overly solicitous.
“* * * * *
“[T]he Court finds that these facts present a non-speculative
risk of harm to [A and S] of physical/sex abuse by [father
and stepmother]. It is important to note that the Court does
not need to wait for [A and S] to be actually harmed before
the Court may intervene. * * *”
(Emphases in original.)
Father filed a notice of appeal. Subsequently, father
was charged with one count of second-degree sexual abuse
and one count of furnishing alcohol to a person under 21
years of age for his conduct related to the second victim,
L. W. Pursuant to guilty pleas, father was convicted of two
counts of second-degree sexual abuse, one count of third-
degree sodomy, and one count of furnishing alcohol to a
person under 21 for his conduct related to both K. H. and
L. W. The court recommended, as reflected in the judgments,
that a condition of father’s post-prison supervision include
that he have no contact with minors with the exception of
336 Dept. of Human Services v. Z. M.
his own minor children. Later, mother was granted sole
legal custody of A and S. As a result, mother filed motions
to dismiss jurisdiction and terminate wardship. The court
granted mother’s motions and entered judgments terminat-
ing wardship over both A and S, finding that, due to mother
obtaining legal custody, she “has ameliorated the original
basis of jurisdiction.”
We must first address whether father’s appeal is
moot. DHS asserts that, as a result of the court terminating
wardship over A and S, father’s appeal is moot such that
any decision we might make will have no practical effects
on the parties’ rights. See Dept. of Human Services v. A. B.,
362 Or 412, 426, 412 P3d 1169 (2018) (providing that the
party moving to dismiss an appeal as moot must establish
that “the decision being challenged on appeal will have no
further practical effect on the rights of the parties”). Father
objects to dismissal, arguing that it was the jurisdictional
judgment that allowed mother to obtain legal custody and
that a reversal of the jurisdictional judgment could allow
father to regain custody rights to his children. See id., 362
Or at 426 (explaining that the parent must “identify any
continuing practical effects or collateral consequences that,
in the parent’s view, render the appeal justiciable”). We
agree with father that the appeal is not moot.
Father’s asserted consequence—that the jurisdic-
tional judgment could affect a court’s custody or parenting-
time decision—is a valid concern. The jurisdictional judg-
ment found that father presented a safety risk to A and S
as a result of his criminal activities, which included sexual
conduct toward other children. Therefore, the juvenile court
found that father was unable to adequately care for A and S
under ORS 419B.100.2 That conclusion could impact a court’s
custody and parenting-time decision. See Dept. of Human
Services v. K. W., 307 Or App 17, 21, 476 P3d 107 (2020),
rev den, 368 Or 347 (2021) (concluding that the juvenile
court determination that the mother was unable to care for
the child under ORS 419B.100 “could have [a] bearing on a
2
Subsequent to the pertinent events in this case, ORS 419B.100 was
amended. See Or Laws 2020, ch 14, § 27 (Spec Sess). However, because the
amendments do not affect the issues in the case, we refer to the current version
of the statute.
Cite as 316 Or App 327 (2021) 337
custody and parenting time decision” sufficient to overcome
DHS’s burden of showing that appellate decision would have
no practical effect on the parties’ rights); ORS 107.101(1)
(providing that one of the policies in approving a parenting
plan is to “[a]ssure minor children of frequent and continu-
ing contact with parents who have shown the ability to act
in the best interests of the child”); Dept. of Human Services
v. G. D. W., 353 Or 25, 30-31, 292 P3d 548 (2012) (conclud-
ing that termination of wardship did not render the appeal
moot; “the court’s custody and parenting time decision likely
was premised on the sexual abuse findings that the court
incorporated into the jurisdictional and aggravated circum-
stances judgments. If the findings and judgments were to be
vacated, father’s ability to reopen the custody and parent-
ing time judgment might be positively affected.”). Indeed,
father asserts that the juvenile court judgments that he
challenges in this case have already affected his custodial
rights. Therefore, father has identified a collateral conse-
quence sufficient to overcome DHS’s burden of showing that
the appellate decision would have no practical effect on the
parties’ rights.
DHS disagrees, arguing that father’s asserted con-
sequence is insufficient to prevent the issue from being
moot. See A. B., 362 Or at 426 (once appellant parent identi-
fies a continuing practical effect or collateral consequences
making the appeal justiciable, DHS must then “meet its
burden of persuasion [to] * * * demonstrate that the effects
or consequences that the parent identifies are either legally
insufficient or factually incorrect.” In DHS’s view, “it is hard
to imagine how a proven allegation of child abuse in a juve-
nile dependency case would have any greater detrimental
impact in a domestic relations case than a criminal convic-
tion for sexual abuse of a minor.” The dissent takes a similar
view.
We are not persuaded by DHS’s argument. First,
the criminal conduct for which father pleaded guilty did not
involve A and S; it involved different children. Second, the
dependency petitions allege that father’s criminal conduct
and sexual abuse of another child (the same conduct under-
lying father’s criminal conduct) created a risk of harm to
A and S sufficient to support dependency jurisdiction. In
338 Dept. of Human Services v. Z. M.
other words, any risk to A and S as alleged by DHS was
directly tied to father’s criminal conduct. A reversal of the
jurisdictional judgments would effectively convey to the cus-
tody court that DHS failed to meet its burden to establish
that father’s criminal conduct in fact created a risk of harm
to A and S. Thus, given the nexus between the criminal con-
duct and the alleged risk of harm to A and S as asserted in
the dependency petitions, we cannot say that reversal of the
jurisdictional judgments in this case would have no effect on
a court’s decision to modify, at a minimum, father’s parent-
ing time of A and S, or, at the other end of the spectrum, the
custody decision.
DHS also contends that any collateral consequence
associated with father’s domestic relations case is specula-
tive, noting that mother has already obtained full custody
of the children. To the extent that DHS is arguing that,
because the court has already decided custody, a reversal of
the judgment will have no practical effects on father’s cus-
todial rights, that argument has no merit. A parent may
always seek to modify custody and parenting-time judg-
ments. See ORS 107.135(1)(a) (providing court with the
authority to set aside, alter, or modify a judgment of disso-
lution of marriage regarding custody, parenting time, vis-
itation, or support of minor children). As to DHS’s specu-
lative argument, for the reasons already explained, father
met his burden to identify a consequence to his custody
case from the jurisdictional judgments. It is DHS, as the
party with the burden of persuasion, who at this point has
failed to persuade us that father’s identified collateral con-
sequence is legally insufficient or factually incorrect. See
A. B., 362 Or at 426-27 (“An appeal is not moot unless the
party moving for dismissal persuades the appellate court
that the dismissal is warranted.”); id. at 426 (“It will be up
to the appellate court to determine the existence and sig-
nificance of those effects or consequences and to decide, as
a prudential matter, whether an appeal is moot.”). Thus, we
conclude that the appeal is not moot, and we proceed to the
merits.
On appeal, father argues that DHS failed to
present sufficient evidence to establish the jurisdictional
bases asserted in the petition. A juvenile court may assert
Cite as 316 Or App 327 (2021) 339
dependency jurisdiction over a child if the child’s “condition
or circumstances are such as to endanger the welfare of the
[child] or of others.” ORS 419B.100(1)(c). To endanger the
child’s welfare, the conditions or circumstances must cre-
ate a current threat of serious loss or injury to the child
and there must be a reasonable likelihood that the threat
will be realized. Dept. of Human Services v. S. A. B. O., 291
Or App 88, 99, 417 P3d 555 (2018). “The focus must be on
the child’s current conditions and circumstances and not
on some point in the past.” Id. (internal quotation marks
omitted). DHS has the burden to prove, by a preponderance
of the evidence, that the threat is current, nonspeculative,
and causally related to the allegedly risk-causing conduct
or circumstances. Dept. of Human Services v. D. W. M., 296
Or App 109, 118, 437 P3d 1186 (2019). “The key inquiry is
whether, under the totality of the circumstances, there is a
reasonable likelihood of harm to the welfare of the child.”
Dept. of Human Services v. G. J. R., 254 Or App 436, 443, 295
P3d 672 (2013).
Beginning with the allegations related to father—
that his involvement in criminal activities and sexual abuse
of another child interferes with his ability to safely parent
A and S—father contends that the evidence was insufficient
to establish a nexus between his criminal activity and sex-
ual abuse of another child and a current and nonspeculative
risk of serious loss or injury to A and S. Further, he argues
that the evidence was insufficient to support the trial court’s
findings that A and S were in the same class as father’s
victims, who were not relatives and were several years older
at the time of the charged incidents than A and S are now.
DHS disagrees, relying primarily on State ex rel Juv. Dept.
v. Brammer, 133 Or App 544, 892 P2d 720, rev den, 321 Or
268 (1995). We agree with father.
We begin by noting that we accept the unchallenged
finding that father sexually abused K. H. and L. W. and pro-
vided them with marijuana and alcohol. Thus, our task is
to determine whether the evidence was sufficient to estab-
lish that his conduct—sexual abuse of a minor and crimi-
nal activities (sexual abuse of a minor, furnishing alcohol
to persons under 21, and providing marijuana to a minor)
created a risk of, as the juvenile court found, “physical/sex
340 Dept. of Human Services v. Z. M.
abuse” to his own children, A and S.3 We conclude that it
was not.
First, the record does not establish a nexus between
father’s sexual abuse of K. H. and L. W. and a risk of harm
to A and S. We have previously explained that “a person’s
status as a sex offender does not per se create a risk of harm
to a child.” G. J. R., 254 Or App at 445. “[T]here must be
some nexus between the nature of the prior offense and a
current risk to the child at issue.” Id. In those cases where
we have previously concluded that the record supported
a risk of harm to a child from a parent’s sexual abuse of
another child, DHS had presented some evidence estab-
lishing the existence of such a risk. See Dept. of Human
Services v. C. T., 288 Or App 593, 596, 601, 606-07, 406 P3d
191 (2017), rev den, 362 Or 545 (2018) (concluding that a
grandfather posed a risk to his 11-year-old grandson from
his sexual abuse of grandson’s seven-year-old sister, and
abuse of his own daughters 40 years earlier, where a clinical
social worker testified that the grandfather “posed a risk of
harm to any child in his home given his history”); Dept. of
Human Services v. M. H., 256 Or App 306, 308-14, 328, 300
P3d 1262, rev den, 354 Or 61 (2013) (concluding that evi-
dence was sufficient to establish that father’s prior sexual
abuse of minors created a risk of harm to his own daughter
where a certified clinical therapist testified to the risks that
untreated sex offenders pose to children and that, based on
a risk assessment of father and other records, father “has
not remediated his condition”); State ex rel Dept. of Human
Services v. L. C. J., 212 Or App 540, 546, 159 P3d 324 (2007)
(concluding that mother’s engagement to an untreated sex
offender created a risk of harm to her daughter, because he
had “previously been adjudicated of a sex offense and was
at least accused of victimizing a girl close to child’s age,”
and “according to [testimony of the mental health therapist]
3
We note that DHS does not allege that father’s failure to protect A and S
from stepmother’s conduct created a risk to them. The dependency petitions
focused solely on father’s conduct, and mother’s failure to protect the children
from that conduct, as a basis for the harm to A and S. Further, both below and
on appeal, father’s conduct remains the focus of DHS’s arguments. Therefore, we
do not consider whether the evidence would be sufficient to support jurisdiction
under the theory that father failed to protect A and S from stepmother.
Cite as 316 Or App 327 (2021) 341
* * * he would be likely to reoffend”); State ex rel Juv. Dept.
of Human Services v. T. S., 214 Or App 184, 186-87, 195-96,
164 P3d 308, rev den, 343 Or 363 (2007) (concluding that
DHS presented sufficient evidence of a reasonable likelihood
of harm to the welfare of the mother’s three sons where the
mother’s daughter (the father’s adopted daughter) accused
the father of sexually abusing her; the father was previously
investigated for sexually abusing his biological daughter
and stepdaughter; the mother did not believe any of those
allegations, including daughters’ allegation; and the mother
admitted that her sons might be at risk if the allegations
were true but nonetheless did not investigate and remained
loyal to the father).
Here, the evidence showed that A and S were pres-
ent in the home during some of the abuse but were unaware
that it was occurring and were not themselves subjected
to sexual abuse or any other criminal activity. Further,
Heavilin testified that, although a caregiver’s sexual abuse
of a minor indicates poor judgment, which can prevent the
caregiver from identifying potential threats or harms, there
is no data to support the proposition that, “if somebody is
abusing one child, then they’re definitely going to abuse
every child they’re around.” Finally, both children were
diagnosed with adjustment disorders, but related to the
removal from father’s and stepmother’s care and not father’s
and stepmother’s conduct. Absent from that evidence is any-
thing connecting father’s sexual abuse of other children to a
risk that he would sexually abuse his own children.
DHS appears to rely on a presumption that father’s
sexual abuse of minor children created a risk that he would
sexually abuse his own daughters. However, its own evi-
dence established that no data supports such a presump-
tion, and we have previously declined to apply such a pre-
sumption. See Dept. of Human Services v. B. B., 248 Or App
715, 727, 274 P3d 242, adh’d to on recons, 250 Or App 566,
281 P3d 653 (2012) (noting that “there is no presumption
that father’s failure to complete treatment some 11 years
before the jurisdictional hearing, by itself, makes father ‘an
unremediated sex offender,’ who in turn would be presumed
dangerous to his children,” and that such a “result is at odds
342 Dept. of Human Services v. Z. M.
with the proof requirement under ORS 419B.100(1)(c)”).
Further, Heavilin’s generalized statements about a care-
giver’s poor judgment are not sufficient to support an infer-
ence that the caregiver will sexually abuse a child. See
Dept. of Human Services v. A. F., 243 Or App 379, 381, 384,
387, 259 P3d 957 (2011) (concluding that the juvenile court
erred in finding that a father posed a risk to his children
from his possession of pornography; although an expert tes-
tified to general risks from possession of pornography and
that he had concerns regarding the amount of pornography
father possessed and its “ ‘potential risk,’ ” he also “empha-
sized that the fact that a person possesses pornography or
engages in behavior relating to pornography that is outside
the norm does not, in and of itself, mean that the person will
commit a sexual offense”). Likewise, Heavilin’s generalized
testimony that a child may be at an increased risk of experi-
encing all forms of abuse when a caregiver abuses alcohol or
marijuana, without more, is insufficient to connect father’s
use of alcohol and drugs to an increased risk that he would
sexually abuse A and S.
Further, although the juvenile court found that
A and S “fall squarely” within father’s class of victims,
“adolescent/teenage girls,” DHS did not present any evidence
establishing that a sexual offender’s interest in 14-, 15-, and
16-year-old girls increases the risk that the offender will
sexually abuse 10- and 11-year-old girls, nor was there any
evidence that an offender’s interest in nonrelative minors
increases the risk that the offender will sexually abuse the
offender’s own children. We have previously declined to
infer without any evidence that a parent’s abusive behav-
ior toward nonrelative teenagers means that the parents
will abuse their own younger relatives or children. See
G. J. R., 254 Or App at 441, 445 (concluding that there was
“no evidence from which a reasonable factfinder could find
that [father’s daughter] fits within the class of father’s
victims” from his past criminal conduct of masturbating
in public, including at a school); State ex rel Juv. Dept. v.
K. D., 228 Or App 506, 516 n 4, 209 P3d 810 (2009) (explain-
ing that father’s 13-year-old conviction for the statutory rape
of two girls, ages 13 and 14, “does not necessarily demon-
strate a propensity * * * to be a threat to his toddler son”);
Cite as 316 Or App 327 (2021) 343
State ex rel Dept. of Human Services v. N. S., 229 Or App 151,
153-55, 158-59, 211 P3d 293 (2009) (declining to infer that
mother’s brother, who had sexually abused a 16-year-old girl
in the past and did not complete sex offender treatment, was
a risk to mother’s, at the time of the hearing, approximately
three-year-old daughter); State ex rel SOSCF v. Burke, 164
Or App 178, 181-88, 990 P2d 922 (1999), rev den, 330 Or 138(2000) (declining to infer without evidence that the father’s
conduct of sexually abusing teenage females before the birth
of his 2- and 3-year-old daughters was a “conduct or condition
that [was] seriously detrimental” to the daughters for pur-
poses of termination of the father’s parental rights). See also
M. H., 256 Or App at 308-09, 316-17 (in a dependency case
in which the juvenile court took jurisdiction over father’s
daughter based in part on his prior sexual abuse of minor
girls, competing expert testimony was presented on the
risk that a person who sexually abuses a nonrelative minor
may pose to his own children; one opined that “bonding and
attachment are relevant to the risk and that ‘people have
very different levels of bonding and attachment to their own
children than they do to even siblings or other relatives’ ”;
another expert disagreed, opining that, “being related to a
child is ‘an inhibitor’ for most people,” but for “ ‘sex offend-
ers who have already broken boundaries, and broken severe
boundaries, it’s not a big step’ ”); B. B., 248 Or App at 727
(“[T]here is no presumption that father’s failure to complete
treatment some 11 years before the jurisdictional hearing
[related to the sexual abuse of minor children], by itself,
makes father ‘an unremeditated sex offender,’ who in turn
would be presumed dangerous to his children.”). We do not
mean to suggest that a record could not be made establish-
ing that a sex offender whose victims are adolescents and
nonrelatives poses a risk of sexual abuse to that offender’s
younger relatives. Rather, we simply conclude that there
must be some evidence from which to make the necessary
inferences.
In the end, the only evidence about a risk of harm
to A and S were their diagnoses with adjustment disorders,
and that was due to their removal from the care of father
and stepmother. Without some evidence to support how and
why A and S would fall within father’s class of victims or
344 Dept. of Human Services v. Z. M.
to suggest a risk that he would abuse them, DHS failed to
establish the necessary nexus to support jurisdiction.
The state disagrees, contending that this case is
controlled by Brammer, 133 Or App 544. There, we reversed
a juvenile court order denying jurisdiction based on the
mother’s sexual abuse of her son’s friend in her home approx-
imately 25 times when he was eight and nine years old.
Id. at 547. She would sometimes call the victim inside when
he was playing outside with other children or wake him
when he was sleeping in the living room with her son, to
sexually abuse him. Id. After eight months of the abuse,
the victim told his mother, leading to criminal charges and
DHS involvement. Id. at 547-48.
In concluding that, contrary to the juvenile court’s
determination, the evidence was sufficient to establish that
the mother was a risk to her own son as necessary to sup-
port jurisdiction, we first noted that “a child may be removed
from an abusive environment if there is evidence of abuse of
any child.” Id. at 549 (emphasis in original). In that case, we
emphasized the following:
“Mother exploited her role as [the victim’s] care giver for
the sake of her own sexual gratification. [The victim] was
her son’s best friend. The abuse took place in her chil-
dren’s home on a number of occasions over a period of eight
months, when her own children and other children were
in or around the home. We are unmoved by mother’s claim
that jurisdiction is not warranted because there is no proof
that she acted inappropriately toward her own children.
The court is not required to wait until other minors in the
home are exploited before intervening to protect them.”
Id.The state argues that Brammer establishes that
a parent’s sexual abuse of a nonrelative child can create
a reasonable likelihood of harm to the parent’s own chil-
dren, even where there is no evidence of sexual abuse of the
parent’s children. And here, according to the state, the evi-
dence established a current, nonspeculative risk of harm to
A and S where father and stepmother befriended teenage
girls at church and proceeded to abuse them in the home
Cite as 316 Or App 327 (2021) 345
while providing them with marijuana and alcohol, at times
when A and S were in the home. Further, as in Brammer,
the state argues that father and stepmother “used their role
as parents to ask K. H. * * * to babysit for their children,
only to then exploit that relationship for their own sexual
gratification.”
We do not read Brammer to control the outcome here.
We begin by noting that Brammer applied the de novo stan-
dard of review and not the one that governs this case, legal
error, where we “review the evidentiary record to determine
whether any evidence, and the inferences that reasonably
can be drawn from the evidence, supports the juvenile court’s
findings.” M. H., 256 Or App at 327. Moreover, here, unlike
in Brammer, DHS presented affirmative evidence that no
data supports a presumption that a person’s sexual abuse
of one child indicates that the person will sexually abuse
all children. Also unlike in Brammer, where the abuse was
occurring shortly before DHS intervention, 133 Or App at
547, the last incident of abuse here occurred roughly three
years before the jurisdictional trial.
To the extent that DHS reads Brammer as establish-
ing a presumption that abuse of one child always establishes
a risk to all children in the household, our more recent non-
de-novo-review cases hold otherwise. As we have explained,
there simply is no presumption that a person’s sexual abuse
of one child creates a per se risk to all children. Further,
while it is true that an abusive environment to “any child”
may create a harmful environment to other children in the
home, we have also held that the “ ‘harm to one child means
a risk to the others’ axiom is not absolute and immutable”
and must take into account the unique circumstances of
each child. State ex rel Dept. of Human Services v. Shugars,
202 Or App 302, 311-15, 121 P3d 702 (2005) (concluding that
a parent’s medical neglect of one child who had special needs
did not create a risk of harm to other children who did not
have the same special needs, where there was no evidence
that parents otherwise medically neglected them). DHS has
the burden to establish that, on the particular facts of each
case, the asserted risk is indeed present. Brammer does not
compel a different outcome.
346 Dept. of Human Services v. Z. M.
DHS also failed to establish a current, nonspecu-
lative risk of harm to A and S. The juvenile court rejected
Encina’s testimony that she did not see “any indicators of
emotional, physical, or sexual harm being imminent” to
A and S from father, and was unmoved by father’s engage-
ment in and compliance with sexual offender treatment
because the treatment was not yet completed and it was not
clear what father was learning from it. Further, the juvenile
court did not credit father’s testimony regarding his current
use of alcohol and marijuana. The juvenile court based its
finding that father posed a risk of harm to A and S on its
view that “[t]here is nothing to demonstrate that [father’s
and stepmother’s] thinking errors and belief systems
regarding appropriate sexual behavior and boundaries with
adolescent/teenage girls are any different now than they
were in 2017.”
The juvenile court’s finding lacks a sufficient basis
on this record. First, father’s “thinking errors and belief sys-
tems” which the juvenile court found were not yet remedi-
ated were related to father’s conduct against other minors—
conduct which does not, on this record, sufficiently establish
a risk that father would sexually abuse A and S. Second,
the last incident of abuse occurred three years before the
jurisdictional hearing, and DHS presented no evidence
explaining why father’s past conduct established a current,
nonspeculative risk of harm to A and S. See Dept. of Human
Services v. M. E., 255 Or App 296, 298, 305, 308, 311, 297 P3d
17 (2013) (concluding, on de novo review, that the evidence
was insufficient to establish a current risk of harm to the
child and her sister where an expert had testified that father
did not pose a risk and “[t]here is no hint in the record that
there has been any sexual behavior by stepfather toward
[the child] since the one incident [four years earlier], even
though the incident of abuse was not disclosed and, conse-
quently, there was no intervention”); B. B., 248 Or App at
719-20, 722-23, 726-28 (concluding, on de novo review, that
the record was insufficient to establish that father’s sexual
abuse of minors, viewing of child pornography, and his fail-
ure to complete treatment made him an “un-remediated”
risk of sexually abusing his own children, where the last
incident of abuse occurred 16 years before the jurisdictional
Cite as 316 Or App 327 (2021) 347
hearing, and there was no evidence that he had abused his
own children). We do not foreclose the possibility that DHS
could have presented sufficient evidence of a current risk of
sexual abuse from past sexual abuse even though no abuse
occurred within three years of the hearing; nevertheless,
“[j]urisdiction cannot be based on speculation that a par-
ent’s past problems persist at the time of the jurisdictional
hearing in the absence of any evidence that the risk, in fact,
remains.” Dept. of Human Services v. M. Q., 253 Or App 776,
787, 292 P3d 616 (2012). As we have repeatedly emphasized,
DHS “must prove that there is a current risk of harm and
not simply that the child’s welfare was endangered at some
point in the past.” Dept. of Human Services v. M. M., 277
Or App 120, 123, 370 P3d 878 (2016) (emphasis in original;
internal quotation marks omitted). Thus, even disregarding
Encina’s testimony, father’s testimony regarding his use of
alcohol and marijuana, and the evidence presented of his
engagement in and compliance with sex offender treatment,
DHS failed to establish a nonspeculative and current risk of
harm to A and S.
We therefore conclude that the record does not sup-
port a nexus between father’s sexual abuse of two teenage
girls and a risk of harm to his daughters or a risk of harm
that is current and nonspeculative.
Father next argues that the juvenile court erred in
ruling that mother’s inability to protect the children from
father’s criminal activities forms a basis for dependency
jurisdiction. Father first argues that he may challenge
jurisdiction based on mother’s admission because the juve-
nile court’s findings related to father were “dependent [on]
mother’s admission that she is unable to protect the children
from father’s criminal activities.” Further, father argues
that, even if we were to conclude that father’s criminal activ-
ities warranted juvenile court jurisdiction, mother’s admis-
sion that she could not protect the children from father’s
criminal activities due to a lack of custody is insufficient to
justify jurisdiction as to her. DHS responds that the juvenile
court correctly concluded that father’s criminal conduct and
mother’s admitted inability to protect the children from that
conduct presents a current, nonspeculative risk of harm to
348 Dept. of Human Services v. Z. M.
A and S. DHS does not otherwise respond to father’s conten-
tion that a lack of a custody order is insufficient to support
jurisdiction. We agree with father.
A parent may admit facts to support dependency
jurisdiction, but an admission is not necessarily conclusive
evidence to establish an allegation. Dept. of Human Services
v. W. A. C., 263 Or App 382, 399, 328 P3d 769 (2014) (con-
cluding that a “juvenile court can consider the admission
by one parent as a fact in determining whether DHS proved
the admitted allegation, but it cannot conclusively establish
that allegation”). Rather, the juvenile court must determine
whether, “under the totality of the circumstances, there is
a reasonable likelihood of harm to the welfare of the child.”
G. J. R., 254 Or App at 443.
Here, the record does not establish that father’s
criminal activities created a risk to the children sufficient
to support jurisdiction as previously explained; thus, moth-
er’s inability to protect A and S from father due to a lack of
a custody order cannot provide a basis for asserting jurisdic-
tion over the children as to her. However, even if we were to
conclude otherwise, the record is insufficient to demonstrate
that mother could not protect A and S because she did not
have full custody. Regarding a lack of custody, mother con-
veyed her willingness and ability to care for A and S; at the
time of DHS’s initial involvement she was caring for them,
and DHS and the court found her to be safe and appropri-
ate in February 2020. There was no evidence that father
could or would demand that mother return the children to
him if they were in her care or that, in such a situation,
his conduct would pose a risk to them in some other way.
Therefore, despite her admission, the record does not sup-
port a finding that mother was unable to protect A and S
from father’s conduct. See Dept. of Human Services v. J. R.,
274 Or App 107, 112, 360 P3d 531 (2015) (“[W]ithout evi-
dence that the fit parent is unable to protect the children,
the lack of [a] custody order is insufficient to support juris-
diction.”); Dept. of Human Services v. M. F., 294 Or App 688,
696, 432 P3d 1189 (2018) (the father’s lack of full custody
of the child was insufficient to establish jurisdiction where
there was no evidence that the mother was “in a position to
Cite as 316 Or App 327 (2021) 349
insist that father deliver child to her; nor * * * evidence that
she is likely to make such a demand or that father would
be unable to resist it”). The trial court erred in concluding
otherwise.
In summary, the evidence was insufficient to estab-
lish that father’s sexual abuse of minors or criminal activity
created a risk of harm to A and S, or that mother could not
protect children from father’s conduct due to a lack of cus-
tody. Accordingly, the evidence does not establish grounds
for jurisdiction.
Reversed.
POWERS, J., dissenting.
In my view, father’s guilty pleas to—and subse-
quent convictions of—multiple sex crimes involving minors
while this dependency proceeding was under advisement
renders this appeal moot. Because I would conclude that the
Department of Human Services (DHS) has carried its bur-
den to demonstrate that the “effects or consequences that
the parent identifies are * * * legally insufficient” to render
the appeal justiciable, Dept. of Human Services v. A. B., 362
Or 412, 426, 412 P3d 1169 (2018), I respectfully dissent.
Despite father’s contention that the jurisdictional
judgments could impact a court’s custody or parenting-time
decision, I would conclude that DHS has carried its burden
to demonstrate that those potential effects or consequences
are legally insufficient to establish justiciability. As an ini-
tial matter, the felony convictions for sex crimes against mul-
tiple minors and a separate conviction for furnishing alcohol
to a minor create similar social stigma—if not more—than
the jurisdictional judgments in this case. Similarly, it is dif-
ficult to see any possibility of the jurisdictional judgments
having any collateral consequences associated with his
domestic relations case given father’s convictions. Although
it is true that the underlying criminal conduct involves dif-
ferent, nonrelative children and not the children involved
in this dependency proceeding, father’s criminal acts none-
theless involved minors and those convictions come with
their own direct and collateral consequences. More to the
point, mother already has been awarded custody, and father
350 Dept. of Human Services v. Z. M.
has been sentenced to a significant period of incarcera-
tion followed by a period of post-prison supervision. Thus,
although it is conceivable that the dependency judgments
may be used in a proceeding where father raises a change
of circumstances to modify the existing custody order, that
potential effect is negligible in light of the criminal convic-
tions. Accordingly, because I would conclude that DHS has
carried its burden on mootness, I would dismiss this case
without reaching the merits.
I respectfully dissent.