Dept. of Human Services v. T. B.-L. ( 2022 )

434
Submitted April 13; on respondent’s motion to dismiss filed March 23,
appellant’s response filed April 6, and respondent’s reply filed April 13, motion
to dismiss denied, reversed June 23, 2022
In the Matter of S. L.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
T. B.-L.,
Appellant.
Douglas County Circuit Court
21JU02843; A177162 (Control)
In the Matter of K. B.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
T. B.-L.,
Appellant.
Douglas County Circuit Court
21JU02844; A177163
514 P3d 131
In this consolidated juvenile dependency case, father challenges two juvenile
court judgments that established dependency jurisdiction over his children, K
and S. The juvenile court took jurisdiction over the children pursuant to ORS
419B.100(1)(c), having determined that the children’s welfare was endangered
by father and mother’s “ongoing volatile and/or unsafe relationship.” On appeal,
father raises six assignments of error, arguing that the evidence was legally insuf-
ficient to support the jurisdictional determinations as to K and S. After father
appealed, the juvenile court terminated jurisdiction and wardship over the chil-
dren; consequently, the Department of Human Services (DHS) moved to dismiss
the appeal as moot. Father responds that collateral consequences of the juris-
dictional judgments continue to have a practical effect on him. Held: Cognizant
of the collateral consequences identified by father, the Court of Appeals denied
DHS’s motion to dismiss. As to the merits, the court concluded that, although the
evidence might be sufficient to show that parents had an “ongoing volatile and/
or unsafe relationship with” each other, and that their relationship exposed the
children to some harm, the evidence was not sufficient to show that parents’ rela-
tionship posed a nonspeculative threat of serious loss or injury to the children
that is reasonably likely to occur.
Motion to dismiss denied; reversed.
Cite as 320 Or App 434 (2022) 435
Jason R. Thomas, Judge.
Shannon Storey, Chief Defender, Juvenile Appellate
Section, and Joel C. Duran, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rolf C. Moan, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Motion to dismiss denied; reversed.
436 Dept. of Human Services v. T. B.-L.
TOOKEY, P. J.
In this consolidated juvenile dependency case,
father challenges two juvenile court judgments that estab-
lished dependency jurisdiction over his children, K and S.
The juvenile court took jurisdiction over the children pur-
suant to ORS 419B.100(1)(c), having determined that the
children’s conditions or circumstances endangered their
welfare. On appeal, father raises six assignments of error,
arguing that the evidence was legally insufficient to sup-
port the jurisdictional determinations as to K and S. For the
reasons that follow, we conclude that the evidence is legally
insufficient to support the jurisdictional determinations as
to K and S; accordingly, we reverse.1
Before turning to the merits, we briefly address
whether this case is moot. After father appealed the juris-
dictional judgments, the juvenile court terminated jurisdic-
tion and wardship over the children, and the Department of
Human Services (DHS) moved to dismiss this case as moot.
Father contends that his appeal is not moot and identifies
the collateral consequences “flowing from the jurisdictional
judgments” that, he contends, continue to have a practical
effect on him—namely, the disadvantage he would face in
a subsequent DHS child-welfare investigation; his inabil-
ity to obtain agency review of any future founded disposi-
tions regarding child abuse or neglect; and the effects on
his right to custody, parenting time, and visitation in future
domestic relations proceedings. Cognizant of the collateral
consequences identified by father, we deny DHS’s motion
to dismiss. See State ex rel Juv. Dept. v. L. B., 233 Or App
360, 364-65, 226 P3d 66 (2010) (concluding that appeal from
jurisdictional judgment was not moot where “juvenile court’s
judgment continues to have [effect] with respect to any
1
The juvenile court asserted jurisdiction on two related bases: father’s
“ongoing volatile and/or unsafe relationship” with mother, and mother’s “ongoing
volatile and/or unsafe relationship” with father. Only father has appealed, but he
challenges both bases. Because the juvenile court considered parents as a unit,
and the allegations and evidence are intertwined, we conclude that both bases
are properly before us on appeal. See Dept. of Human Services v. J. J. B., 291 Or
App 226, 231-32, 418 P3d 56 (2018) (where only father appealed, jurisdictional
bases as to both parents were properly before court, as juvenile court viewed
parents “as a unit” and allegations regarding mother and father were “closely
intertwined”).
Cite as 320 Or App 434 (2022) 437
future investigation of child’s circumstances,” and juvenile
court’s finding that “child was endangered by conditions or
circumstances in the parent’s home” could negatively affect
parents’ ability to obtain agency review of “CPS founded
disposition”); see also Dept. of Human Services v. P. D., 368
Or 627, 632, 496 P3d 1029 (2021) (notwithstanding juvenile
court’s subsequent dismissal of dependency petition, appeal
was not moot where mother identified collateral conse-
quence of “prejudice [to] her in any future domestic relations
or dependency proceeding in California”).
Having considered the mootness question, we turn
to the merits—i.e., whether DHS presented legally sufficient
evidence to support the jurisdictional determinations as to
K and S.
“In reviewing the juvenile court’s jurisdictional
determination, the question is whether [DHS] has proved,
by a preponderance of the evidence, that the child’s welfare
is endangered by the parents’ conduct.” Dept. of Human
Services v. K. C. F., 282 Or App 12, 14, 383 P3d 931 (2016).
“On appeal, we view the evidence, as supplemented by per-
missible derivative inferences, in the light most favorable
to the [juvenile] court’s determination and assess whether,
when so viewed, the record was legally sufficient to permit
that outcome.” Id. In accordance with that standard, we
state the following facts.
BACKGROUND
Father has two children—K, age five, and S, age
four. Father has been in a relationship with mother for seven
years, during which time he and mother argued “on and off.”
More recently, however, the arguing had “gotten worse”; as
explained below, between December 31, 2020 and June 3,
2021, father and mother quarreled four times either in or
outside their home, leading to a police response each time.
On December 31, 2020, a police officer responded to
a “reported disturbance” between father and mother. When
the officer arrived, father explained that he and mother had
engaged in a “shoving match,” which involved “grabbing for
a phone, and pushing.” Father also stated that “he was bit
438 Dept. of Human Services v. T. B.-L.
at one point” but “didn’t want to press any charges” against
mother. The children were asleep inside the home, and when
the officer checked on them, it “appear[ed] that they had just
woken up.” The children “appeared jovial” and, in the offi-
cer’s opinion, “weren’t in any emotional distress.”
On January 24, 2021, a police officer responded
to a report from father that he had found a methamphet-
amine pipe in mother’s pocket. When father found the pipe,
“there was a little bit of a struggle,” and he “forcefully t[ook]
the pipe away from” mother, but the pipe “tumbl[ed] to the
ground.” During the struggle, mother and father fell on the
pipe and broke it. Father admitted that the children “were
inside the home and they did witness the incident.” No inju-
ries resulted from that struggle, and neither mother nor
father wanted charges brought against the other.
On May 15, 2021, a police officer responded to a call
from father, who explained that he and mother “had been
involved in a verbal dispute that turned physical.” Father
told the officer that he had tried to take from mother a box
containing “residue of what looked like marijuana,” because
“he was concerned about her using drugs,” and that, “when
[father] took the box, she jumped on his back and scratched”
his arms. Neither father nor mother wanted charges brought
against the other. At the time of the dispute, the children
“were not present at all,” as they were staying at their
maternal grandmother’s house.
On June 3, 2021, two police officers were dispatched
to father and mother’s home after a neighbor reported “a
disturbance in a vehicle.” When the officers arrived, mother
and father “weren’t actively physically fighting but they
were engaged in a yelling match at each other.” Father told
the officers that mother took something that belonged to
him and wouldn’t return it, so he took mother’s purse and
tried to leave in his car, but mother “got into the car and
there was some pushing and some shoving.” Mother told
the officers that, “during the course of th[e] confrontation,
[father] pushed her and she fell down lightly scuffing” either
her knee or elbow. The first officer saw what “appeared to be
freshly broken glass” on the front driveway, and mother told
Cite as 320 Or App 434 (2022) 439
him that “some glass had been broken during that argu-
ment.”2 The second officer saw two children in the home
“peeking their heads out the door” who did not “appear to be
injured in any way.”
After the June 3, 2021, incident, DHS filed depen-
dency petitions, alleging that the children’s welfare was
endangered by father and mother’s “ongoing volatile and/
or unsafe relationship.”3 The juvenile court held a jurisdic-
tional trial and, ultimately, took jurisdiction over K and S,
explaining:
“Wrestling around or whatever it was that actually was
the manifestation of the physicality of the conflict poses a
nonspeculative threat of harm to the children, because it
is not possible to preclude that the children could be present
and could themselves interpose[.]
“* * * * *
“Here, I think the real likelihood of harm to them, the
physical harm, would be an attempt at intervention by one
or the other of the children which is incredibly common when
children observe physical violence between the parents. The
Court does not have any serious doubt that there has been
and would continue to be some level of physical violence
between the parents[.]
“At this point, the Court agrees with [DHS] that allega-
tion (2)(b) and (2)(e) are proved to a level of preponderance
to exist. That is, subjecting * * * each child to the ongoing
volatile and unsafe relationship with the * * * other parent
* * * [i]n that it exposes [the children] to the possibility of
violence[.]”
(Emphases added.)
2
At the jurisdictional trial, father’s mother-in-law testified that “one time
* * * [father] stuck a pair of scissors in the wall.” The juvenile court explicitly
stated that “the Court did not find [mother-in-law] terribly credible,” namely with
respect to “her statements about father.”
3
DHS also alleged, as to both K and S, that “mother’s substance abuse
interferes with her ability to safely parent the child”; that “[t]he child has been
exposed to domestic violence by the mother”; that “father’s substance abuse inter-
feres with his ability to safely parent the child”; and that “[t]he child has been
exposed to domestic violence by the father.” Those allegations were dismissed by
the juvenile court.
440 Dept. of Human Services v. T. B.-L.
Father now appeals, arguing that DHS failed to
meet its burden of proving by a preponderance of the evi-
dence that the parents’ “volatile and/or unsafe relationship”
exposed the children to a current and nonspeculative risk
of serious loss or injury that is likely to be realized. DHS
responds that the evidence regarding the four incidents
between December 31, 2020 and June 3, 2021, supports the
juvenile court’s determination, because “father’s history and
pattern of physically fighting with mother places [the chil-
dren] at risk of serious physical harm.” 4
ANALYSIS
“To establish a basis for juvenile court jurisdiction
for purposes of ORS 419B.100(1)(c), the state must prove, by
a preponderance of the evidence, that a child’s welfare is
endangered because, under the totality of the circumstances,
there is a current threat of serious loss or injury to the child
that is reasonably likely to be realized.” K. C. F., 282 Or
App at 19 (internal quotation marks and citations omitted).
Additionally, “[t]here must be a nexus between the parent’s
conduct or condition and harm to the child.” Id. “[T]he state
must present evidence about both the severity of the harm
and the likelihood that it will occur,” and “the type, degree,
and duration of the harm must be such that exposure to a
reasonable likelihood of that harm justifies juvenile court
jurisdiction.” Dept. of Human Services v. S. D. I., 259 Or App
116, 121, 312 P3d 608 (2013) (emphasis added). Additionally,
“[t]he threat of serious harm to the child cannot be specu-
lative”; rather, “the child must be exposed to ‘danger’ ”—i.e.,
“conditions or circumstances that involve being threatened
with serious loss or injury.” K. C. F., 282 Or App at 20 (inter-
nal quotation marks omitted).
In this case, DHS alleged that father and mother’s
“ongoing volatile and/or unsafe relationship” endangered
the children; however, nothing in the evidence adduced at
the jurisdictional trial explicitly identifies the specific type,
degree, and duration of the harm that endangered the
children.
4
DHS also contends that father did not adequately preserve his argument
below. We reject that contention without further discussion.
Cite as 320 Or App 434 (2022) 441
The evidence shows that parents’ relationship involved
verbal disputes and pushing and shoving; that father and
mother argued or fought on at least four occasions; that
father was “bit” by mother on one of those occasions, and
his arms were scratched by her on another; that during the
June 2021 incident, father “pushed” mother and she “fell
down lightly scuffing” her knee or elbow, and there was
“some broken glass” in the driveway; and that, on at least
two of the four occasions, the children witnessed parents’
fighting.
Though that evidence might be sufficient to show
that parents had an “ongoing volatile and/or unsafe relation-
ship with” each other, and that their relationship exposed
the children to some harm, we do not think it is sufficient
to show that parents’ relationship posed a nonspeculative
threat of serious loss or injury to the children that is rea-
sonably likely to occur. See K. C. F., 282 Or App at 20 (“[I]t
bears emphasizing that a court cannot take jurisdiction
over a child based solely on a risk of some harm.” (Emphasis
in original.)).
Relatedly, we have identified nothing in the record
that leads us to conclude that the children were ever the
object of parents’ “volatile and/or unsafe” conduct, or that
they were ever in such close proximity to parents’ fighting
so as to be “endangered” by it. See S. D. I., 259 Or App at 117(“Endanger connotes exposure to ‘danger’ ”—i.e., “the state
of being threatened with serious loss or injury.” (Emphasis
added; internal quotation marks omitted.)). The evidence
does show that, during the January 2021 incident, the chil-
dren were in the home and observed father’s “struggle” with
mother regarding her meth pipe. Yet, this does not lead us
to conclude that that incident posed a threat of “serious” loss
or injury to the children that was reasonably likely to be
realized. The same is true of the other three incidents: The
record shows that, during the December 2020 incident, the
children had been asleep in another room, and appeared
“jovial” and not “in any emotional distress” upon waking up;
that during the May 2021 incident they “were not present
at all”; and that, during the June 2021 incident, they were
inside their home, while parents were outside the home,
either in father’s car or in the driveway.
442 Dept. of Human Services v. T. B.-L.
DHS contends, however, that jurisdiction is appro-
priate even if the parents’ fighting was not directed at the
children, and even if the children and parents were in dif-
ferent rooms during the fighting. In support of that conten-
tion, DHS points to several cases from our court—namely,
Dept. of Human Services v. A. J. G., 304 Or App 221, 465 P3d
293, rev den, 366 Or 826 (2020); Dept. of Human Services
v. T. J., 302 Or App 531, 462 P3d 315 (2020); and State v.
S. T. S., 236 Or App 646, 238 P3d 53 (2010). But each of those
cases involved significant facts relating to the vulnerability
of the child or risks of serious harm that are not present
in this case. See A. J. G., 304 Or App at 229-30 (affirming
jurisdiction where child was “particularly vulnerable * * *
given his need for structure and developmental services and
low IQ,” and child observed “ongoing incidents of domestic
violence,” including father “strangling” mother); T. J., 302
Or App at 533, 539 (affirming jurisdiction over “vulnera-
ble four-month-old infant,” where children witnessed father
“striking [mother’s] face and head, causing a one-inch bleed-
ing laceration for which mother received staples,” and father
“attempted to punch the five-year-old” sibling of infant);
S. T. S., 236 Or App at 649-50 (affirming jurisdiction over
four-year-old child exposed to parents’ “high-conflict rela-
tionship,” where father “threw a diaper bag at mother, which
gave her a black eye” and “had hit or kicked” mother while
she was pregnant with second child). Consequently, we are
not persuaded that those cases support dependency jurisdic-
tion over the children in this case.
In arguing that the evidence was legally sufficient
to support jurisdiction in this case, DHS also points to the
juvenile court’s comment that “the children could be pres-
ent and could themselves interpose” in parent’s fighting.
(Emphases added.) Yet we have identified nothing in the
record that leads us to conclude that the children had in the
past, or would in the future, intervene in parents’ fighting.
Moreover, we have said that the “threat of harm cannot be
found based on speculation,” and “[i]t is not sufficient for the
state to prove that a parent’s conduct could negatively affect
the child.” K. C. F., 282 Or App at 20 (emphasis in original).
Similarly, DHS points to the juvenile court’s com-
ment that “an attempt at intervention * * * is incredibly
Cite as 320 Or App 434 (2022) 443
common when children observe physical violence between
the parents.” It might be true, as a general matter, that a
child’s attempt at intervening when parents fight is “incred-
ibly common.” But a juvenile court may not assert jurisdic-
tion by relying on generalizations and assumptions; instead,
it must rely on evidence of the children’s “specific conditions
and circumstances.” Cf. Dept. of Human Services v. J. J. B.,
291 Or App 226, 237-39, 418 P3d 56 (2018) (“[T]he juvenile
court asserted jurisdiction based on generalizations * * *
rather than relying on evidence of [child’s] specific conditions
and circumstances,” but “[g]eneralizations and assumptions
* * * are insufficient to establish jurisdiction.”). But again,
we have identified nothing in the record that leads us to
conclude that these specific children had, or would, attempt
to intervene during parents’ fighting; rather, the evidence
in the record relevant to these specific children points to the
opposite—i.e., that on the occasions where the children were
even present or aware of parents’ fighting, the children did
not attempt to intervene. Thus, on this record, the threat of
harm based on the possibility that the children could inter-
vene in parents’ fighting is impermissibly speculative.
In sum, we conclude that, though there is evidence
on this record of father and mother’s “ongoing volatile and/
or unsafe relationship,” the evidence is legally insufficient
to support the court’s determination that parent’s relation-
ship posed a present, nonspeculative risk of “serious” loss
or injury to the children that is reasonably likely to be real-
ized. Accordingly, we reverse.
Motion to dismiss denied; reversed.