Dept. of Human Services v. S. L.-R. , 321 Or. App. 501 ( 2022 )


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  •                                     501
    This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
    except as provided in ORAP 10.30(1).
    Argued and submitted February 10, on appellant father’s motion to strike filed
    February 4; motion to strike denied, affirmed August 31; petition for review
    allowed November 3, 2022 (
    370 Or 455
    )
    See later issue Oregon Reports
    In the Matter of L. R. R.,
    a Child.
    DEPARTMENT OF HUMAN SERVICES,
    Petitioner-Respondent,
    v.
    S. L.-R.,
    aka S. A.,
    and M. J. R., Sr.,
    Appellants.
    Washington County Circuit Court
    21JU01877; A176877
    Brandon M. Thompson, Judge.
    Joel C. Duran, Deputy Public Defender, argued the cause
    for appellant M. J. R., Sr. Also on the briefs was Shannon
    Storey, Chief Defender, Juvenile Appellate Section, Office of
    Public Defense Services.
    Kenneth A. Kreuscher argued the cause and filed the
    brief for appellant S. L.-R.
    Michael A. Casper, 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 Lagesen, Chief Judge,
    and Powers, Judge.
    ORTEGA, P. J.
    Motion to strike denied; affirmed.
    502                      Dept. of Human Services v. S. L.-R.
    ORTEGA, P. J.
    Mother and father challenge the juvenile court’s
    assertion of jurisdiction over their infant daughter, along
    with its denial of their motions to dismiss. Father addition-
    ally has moved to strike portions of the brief filed by the
    Department of Human Services (DHS), maintaining that it
    mischaracterizes the record and also that it cites to evidence
    that he successfully challenged as hearsay. We affirm the
    judgment without considering the evidence to which father
    has objected, and therefore treat father’s motion to strike as
    moot and deny it.
    The juvenile court may exercise jurisdiction over a
    child when, under the totality of the circumstances, there is
    “reasonable likelihood of harm to the welfare of the child.”
    State ex rel Juv. Dept. v. Smith, 
    316 Or 646
    , 653, 
    853 P2d 282
     (1993); Dept. of Human Services v. C. Z., 
    236 Or App 436
    , 440, 236 P3d 791 (2010); ORS 419B.100(1)(c) (providing
    for juvenile court jurisdiction for a child “[w]hose condition
    or circumstances are such as to endanger the welfare” of the
    child). “DHS bears the burden of showing that a nexus exists
    between the parent’s conduct or condition and a threat of
    harm to the child that exists at the time of the jurisdictional
    trial.” Dept. of Human Services v. C. A. M., 
    294 Or App 605
    ,
    615, 432 P3d 1175 (2018); see also Dept. of Human Services
    v. W. A. C., 
    263 Or App 382
    , 403, 328 P3d 769 (2014) (citing
    Dept. of Human Services v. C. J. T., 
    258 Or App 57
    , 62, 308
    P3d 307 (2013) (“DHS has the burden to prove that there is
    ‘a nexus between the allegedly risk-causing conduct and the
    harm to the child,’ and that the risk of harm is nonspecu-
    lative and present ‘at the time of the hearing.’ ”)). We view
    “the evidence[ ] as supplemented and buttressed by permis-
    sible derivative inferences, in the light most favorable to the
    trial court’s disposition and assess whether, when so viewed,
    the record was legally sufficient to permit that outcome.”
    Dept. of Human Services v. N. P., 
    257 Or App 633
    , 639, 307
    P3d 444 (2013). This standard includes deference to the
    trial court’s credibility findings. Dept. of Human Services v.
    A. J. G., 
    304 Or App 221
    , 230, 465 P3d 293 (2020) (“Because
    there is evidence in the record to support the court’s finding
    that child observed domestic violence, we will not, under our
    Nonprecedential Memo Op: 
    321 Or App 501
     (2022)           503
    standard of review, disturb the juvenile court’s credibility
    determination.”).
    The allegations as to mother state several bases for
    concern related to her ability to safely parent her daughter
    and are amply supported by the record. The allegations as
    to father, relating to domestic violence against mother, are a
    closer call. Though a lengthy discussion will not benefit the
    bench or bar, we write to address briefly the narrow basis
    on which we conclude that the record is legally sufficient to
    support the exercise of jurisdiction as to father.
    A year before child’s birth, mother and father were
    involved in an incident of domestic violence in which, among
    other things, father choked mother. Father was charged
    with strangulation, menacing, and fourth-degree assault,
    and ultimately pled guilty to the assault charge. He was
    sentenced to probation, the terms of which required him to
    participate in a domestic violence intervention program and
    also to have no contact with mother, who has a significant
    history of relationships involving domestic violence. The par-
    ties dispute whether the record establishes that this single
    incident of domestic violence was part of a pattern between
    mother and father; father seeks to strike the evidence which
    the state invokes in support of its arguments in that regard.
    Without resolving that dispute regarding evidence
    to support a pattern of abuse, we conclude that the single
    incident and its aftermath under the specific circumstances
    of this case are legally sufficient to support the exercise of
    jurisdiction over child. That is true because, even based only
    on the evidence the admissibility of which father does not
    dispute, both parents minimized the significance of the inci-
    dent and made no effort to comply with the terms of father’s
    probation requiring him to have no contact with mother,
    and father made only minimal efforts to comply with the
    domestic violence intervention program and participated
    in only six out of 36 sessions required. Parents persisted
    in that course of conduct even while father’s violations of
    his probation terms resulted in the imposition of several
    months of jail time, after which he continued to minimize
    the significance of the incident. The juvenile court viewed
    that minimization by both parents as concerning, and we
    504                     Dept. of Human Services v. S. L.-R.
    conclude that the court made permissible inferences from
    the evidence of parents’ inaction and minimization follow-
    ing an incident of that seriousness, particularly given the
    pattern of domestic violence in mother’s other relationships,
    that father’s conduct presented a reasonable likelihood of
    current, nonspeculative harm to child. Thus, the court did
    not err in taking jurisdiction over child.
    Accordingly, we affirm the juvenile court’s judgment
    of jurisdiction and its denial of parents’ motions to dismiss.
    Motion to strike denied; affirmed.
    

Document Info

Docket Number: A176877

Citation Numbers: 321 Or. App. 501

Judges: Ortega

Filed Date: 8/31/2022

Precedential Status: Non-Precedential

Modified Date: 10/10/2024