Dept. of Human Services v. A. H. ( 2022 )

511
Argued and submitted October 13, 2021, affirmed June 29, 2022
In the Matter of L. W. H.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
A. H.
and J. A. H. Sr.,
Appellants.
Josephine County Circuit Court
18JU04203; A175426 (Control)
In the Matter of C. M. H.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
A. H.
and J. A. H. Sr.,
Appellants.
Josephine County Circuit Court
18JU04204; A175427
In the Matter of M. R. D. H.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
and
M. R. D. H.,
Respondent,
v.
A. H.
and J. A. H. Sr.,
Appellants.
Josephine County Circuit Court
18JU04205; A175428
514 P3d 121
512 Dept. of Human Services v. A. H.
In this consolidated juvenile dependency case, mother and father appeal
from a judgment denying mother’s motions to dismiss jurisdiction and terminate
the court’s wardships over their three children. In her motion, mother argued
that there was insufficient evidence to establish that the welfare of her chil-
dren was endangered while they were in her care. The trial court disagreed,
concluding that the original bases for jurisdiction continued to pose a threat of
serious loss or injury to the children. On appeal, mother renews her arguments
from below. Specifically, she asserts that the trial court erred when it based its
decision on evidence that was extrinsic to the adjudicated jurisdictional bases.
She also argues that the original jurisdictional bases did not provide her with
constitutionally adequate notice that she must overcome a codependent relation-
ship with father or otherwise learn to protect her children from father. Held: The
Court of Appeals concluded that the jurisdictional bases are about the abuse and
neglect of mother’s children, whatever the underlying cause or whoever the pri-
mary abuser. Mother was given notice that she needed to ameliorate the concerns
involved with the neglect and abuse of her children. The record supports that
mother failed to do so.
Affirmed.
Sarah E. McGlaughlin, Judge.
Kristen G. Williams argued the cause and filed the briefs
for appellant A. H.
Shannon Storey, Chief Defender, Juvenile Appellate
Section, and Sarah Peterson, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant
J. A. H., Sr.
Jona J. Maukonen, Assistant Attorney General, argued
the cause for respondent Department of Human Services.
Also on the brief were Ellen F. Rosenblum, Attorney General,
and Benjamin Gutman, Solicitor General.
Christa Obold Eshleman argued the cause for respondent
M. R. D. H. Also on the brief was Youth, Rights & Justice.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
ORTEGA, P. J.
Affirmed.
Cite as 320 Or App 511 (2022) 513
ORTEGA, P. J.
In this consolidated juvenile dependency case, mother
and father appeal from a judgment denying mother’s motions
to dismiss jurisdiction and terminate the court’s wardships
over their three children, C, L, and M. Father did not sepa-
rately file motions to dismiss and instead supported mother’s
motions, arguing that the bases for jurisdiction were amelio-
rated by mother.1 For the reasons set forth below, we affirm
the juvenile court’s denials of mother’s motions to dismiss.
We review the juvenile court’s denials of mother’s
motions to dismiss for errors of law. Dept. of Human Services
v. G. E., 243 Or App 471, 478, 260 P3d 516, adh’d to as mod-
ified on recons, 246 Or App 136, 265 P3d 53 (2011). However,
“[w]e are bound by the juvenile court’s findings of historical
fact as long as there is any evidence to support them.” Id. We
have previously set out the historical facts relative to these
children and do not repeat them here. See Dept. of Human
Services v. A. H., 317 Or App 697, 699-703, 505 P3d 1064
(2022). For purposes of this appeal, we need only focus on
the juvenile court’s bases for jurisdiction of the children and
its decision on mother’s motions to dismiss.
The juvenile court took jurisdiction over C, L, and
M in September 2018 after concluding that the Department
of Human Services (DHS) proved the following bases in the
amended petition for each child:2
“a) That on or about but not limited to 05/14/2018, in
Josephine County, said child’s mother failed to provide for
the child’s sibling’s basic daily needs of: education, medical
care, and nutritional requirements.
“b) Further, the child’s sibling suffered malnutrition
while in the care of the mother.
1
After the court denied mother’s motions to dismiss, the court changed the
children’s plans from reunification to guardianship for C and L, and to adoption
for M. Mother separately appealed those decisions, and we affirmed. See Dept. of
Human Services v. A. H., 320 Or App 65, 511 P3d 1133 (2022); Dept. of Human
Services v. A. H., 317 Or App 697, 505 P3d 1064 (2022).
2
The petition concerning L used different letters for some of the paragraphs,
but the substance of the proven allegations was exactly the same as for the other
two children.
514 Dept. of Human Services v. A. H.
“c) Further the child’s sibling suffered malnutrition while
in the care of the father.
“d) Further, the father failed to provide for the child’s
sibling’s basic daily needs of: education, medical care, and
nutritional requirements.
“* * * * *
“f) The mother has another child for whom she is not a
parental resource and the conditions or circumstances that
were the basis for the mother not having custody of that
child, which include abuse and neglect, have not changed
or been ameliorated and interfere with her ability to safely
parent the child.
“* * * * *
“h) While in the custody of mother the child’s sibling suf-
fered a non-accidental injury that is at variance with the
explanation given by the mother.
“i) The mother’s parental rights previously have been
terminated to a child in Hawaii and the conditions and
circumstances giving rise to the prior termination, which
include physical abuse and neglect have not changed or
been ameliorated.
“* * * * *
“l) While in the custody of the father the child’s sibling
suffered a non-accidental injury that is at variance with
the explanation given by the father.”
The court determined that L was within its jurisdiction on
two additional bases: “the mother is unable and/or unwill-
ing to provide for the educational needs for the child” and
“the father is unable and/or unwilling to provide for the edu-
cational needs for the child.”
In a form attached to the jurisdictional judgment,
the court also ordered parents to complete a psychological
evaluation and any recommended services, a mental health
evaluation and any recommended services, a parenting pro-
gram and any recommended services, and in-home safety
and reunification services and any recommended services.
About two years after entry of that judgment,
mother moved to dismiss dependency jurisdiction over C,
Cite as 320 Or App 511 (2022) 515
L, and M. She argued “that there is insufficient competent
evidence to establish that [her children’s] welfare is endan-
gered while in her care.” The court held a hearing on moth-
er’s motions and concluded that the “original bases for juris-
diction continues to pose a threat of serious loss or injury to
the children which is reasonably likely to be realized should
the children be returned to their mother’s care.” The court
stated:
“In short, over a period of years, the parents have exhib-
ited a pattern of abuse and neglect with each of the eldest
children. Despite that, mother is unable or unwilling to
identify the behavior or circumstances that have led to the
abuse and neglect of two of her five children, including the
non-accidental injury of one of the children while in her
care and the persistence of conditions and circumstances
of physical abuse and neglect that led to her first child’s
removal.
“Mother does not necessarily need to acknowledge past
abuse to prevent future abuse. If she were truly separated
from father (the suspected abuser), that would neutralize
the threat of harm. She may also undergo extensive coun-
seling to address the codependency that apparently blinds
her to the abusive and neglectful conduct inflicted on the
two eldest children. Because mother has not done either,
there is a current threat of serious loss or injury to the
three children if they were returned to her care.”
The court went on to conclude:
“In summary, based on the testimony of the psychol-
ogists and the quality of mother’s testimony, the court
finds it extraordinarily unlikely that mother truly intends
to separate or even attempt to independently parent her
children. It is apparent to the court that mother does not
understand how father presented a safety threat to the
children before, or how he would do so again. Despite one
of the jurisdictional bas[e]s being that [children’s sibling,
J,] suffered a non-accidental injury in mother’s care, and
another basis being the persistence of conditions and cir-
cumstances of physical abuse and neglect that led to her
first child’s removal, mother has not shown any awareness
as to how her or father’s behavior endangered her children.
Mother does not necessarily have to take full accountability
for the abuse and neglect of her elder two children, nor does
516 Dept. of Human Services v. A. H.
she have to separate from her husband in order to show
that the safety threat has been ameliorated. However, she
has not undergone the type of counseling that would allow
her to achieve the independence and clarity necessary to
protect her children. For these reasons, mother’s motions
to dismiss are denied.”
On appeal, mother asserts that the evidence sub-
mitted by DHS was insufficient to support continuing depen-
dency jurisdiction based on the alleged and proven allega-
tions. Mother contends that the court erred because it based
its decision on evidence that was extrinsic to the adjudicated
jurisdictional bases. In mother’s view, the “bases for juve-
nile court jurisdiction do not include mother’s codependency
or any mental health conditions as posing a risk of serious
harm to L, C or M.” Rather, mother contends that the bases
for jurisdiction were about mother’s own conduct and not a
failure to protect the children from father. Moreover, mother
contends that the original jurisdictional bases did not pro-
vide her with constitutionally adequate notice that she must
overcome a codependent relationship with father or other-
wise learn to protect C, L, and M from father. Father also
argues that the juvenile court erred in denying mother’s
motions to dismiss dependency jurisdiction by relying on
facts extrinsic to the adjudicated jurisdictional bases and
that mother lacked adequate notice of a different basis for
jurisdiction.
DHS responds that the juvenile court properly
denied mother’s motions to dismiss. DHS asserts that par-
ents “view the jurisdictional grounds too narrowly[.]” Rather,
in DHS’s view, the jurisdictional grounds fairly implied
a pattern of abuse perpetrated while children were in
mother’s care. DHS asserts that the evidence established
that mother had not ameliorated the conditions leading to
that pattern of abuse and that mother had sufficient notice
about those conditions.
M, the only child who appears in this appeal, con-
tends that mother was given reasonable notice that she
needed to correct the underlying conditions and character-
istics that caused her children to be abused and neglected
in her home. According to M, that notice came from the alle-
gations as well as the orders in the jurisdictional judgment
Cite as 320 Or App 511 (2022) 517
that mother must, among other things, complete a psycho-
logical evaluation and follow any recommended treatment,
and complete a parenting program and follow any recom-
mendations. M points to the fact that, despite the services
offered, mother still denied any abuse had ever occurred,
remained married to father (who had undisputedly made
insufficient progress), and likely would coparent with him
if the children were returned. In M’s view, those facts are
not extrinsic to the jurisdictional judgment because they are
underlying causes of the proven abuse and neglect in moth-
er’s care. M asserts that the juvenile court must consider
the jurisdictional bases in their totality and that, even if
there was no evidence that mother, if acting alone, would
perpetrate further abuse or neglect, the juvenile court per-
missibly found that mother’s claim that she would parent
independently from father was not credible. M argues that,
because mother’s parenting was still intertwined with
father, who undisputedly presented the greater danger,
mother had not ameliorated the threat of harm stemming
from all the jurisdictional bases.
We begin our analysis with a brief discussion of the
statutory provisions governing jurisdiction and wardship to
provide context. The juvenile court has jurisdiction over a
child who is under 18 years old and “[w]hose condition or cir-
cumstances are such as to endanger the welfare of the per-
son or of others[.]” ORS 419B.100(1)(c). “A child’s welfare is
‘endangered’ * * * if the child is exposed to a ‘current threat
of serious loss or injury’ and that threat is ‘reasonably likely
to be realized.’ ” T. W. v. C. L. K., 310 Or App 80, 88, 483 P3d
1237, rev den, 368 Or 515 (2021) (quoting Dept. of Human
Services v. G. J. R., 254 Or App 436, 443, 295 P3d 672 (2013)).
In a petition alleging jurisdiction, DHS “must set forth in
ordinary and concise language * * * the facts that bring the
child within the jurisdiction of the court, including sufficient
information to put the parties on notice of the issues in the
proceeding.” ORS 419B.809(4)(b) (emphasis added).
A juvenile court may not continue a wardship if the
jurisdictional facts on which it is based have ceased to exist.
State v. A. L. M., 232 Or App 13, 16, 220 P3d 449 (2009). A
juvenile court also may not continue a wardship based on
facts that were not alleged in a jurisdictional petition. ORS
518 Dept. of Human Services v. A. H.
419B.809(4)(b). Only “the petition or the jurisdictional judg-
ment” can provide a parent with adequate notice. G. E., 243
Or App at 481. As a result, a juvenile court cannot base a
jurisdictional decision on facts that depart from the petition
or jurisdictional judgment when neither the petition nor the
jurisdictional judgment would put a reasonable parent on
notice of what the parent must do to prevent the state from
asserting or continuing jurisdiction over the child. Id.; see
also Dept. of Human Services v. N. T., 247 Or App 706, 717-
18, 271 P3d 143 (2012) (reversing judgments changing per-
manency plans that were based, in part, on facts related to
the father’s conduct not explicitly stated in or fairly implied
by the jurisdictional judgment). Whether a particular fact
is extrinsic to the jurisdictional bases is determined by
“whether [the] parents received adequate notice” of what
would allow the state to continue to assert jurisdiction.
C. L. K., 310 Or App at 91. “In determining whether a par-
ent was on notice that his or her progress would be assessed
based upon particular facts, we look to the petition, the
jurisdictional judgment, and documentation attached to the
jurisdictional judgment providing the parent notice as to
the conditions for reunification.” Dept. of Human Services v.
C. E., 288 Or App 649, 656-57, 406 P3d 211 (2017).
Here, DHS proved that the grounds for jurisdiction
persisted and that the current risk was based on parents’
history and pattern of physically abusing at least two chil-
dren without taking sufficient steps to end that pattern of
behavior. Mother was provided adequate notice that she
needed to ameliorate the underlying conditions and charac-
teristics that led to the abuse and neglect in her home. That
notice came from the allegations as well as the orders in
the jurisdictional judgment that mother must, among other
things, complete a psychological evaluation and follow any
recommended treatment, and complete a parenting program
and follow any recommendations. Jurisdiction was based
on severe abuse and neglect of the basic needs of the two
other siblings of the children while in mother’s and father’s
care. The court opined that, for mother to ameliorate the
underlying conditions and characteristics that led to the
abuse and neglect, she “does not necessarily have to take
full accountability for the abuse and neglect of her elder two
Cite as 320 Or App 511 (2022) 519
children, nor does she have to separate from her husband in
order to show that the safety threat has been ameliorated.”
The court, however, explained that mother has not “under-
gone the type of counseling that would allow her to achieve
the independence and clarity necessary to protect her chil-
dren.” In fact, mother’s own testimony at the hearing did not
exhibit “any awareness as to how her or father’s behavior
endangered her children.”
The record supports the court’s findings. Mother
made no apparent progress towards ameliorating the under-
lying causes of neglect and abuse of her children. Not only
did mother refuse to acknowledge her role in the removal of
her children, but she also declined services offered to her,
exhibited a pattern of not being forthcoming and denying
the abuse of her two oldest sons, scapegoating one of her
sons, and not meaningfully engaging in the services she did
participate in.
Mother’s argument on appeal does not take account
of the totality of the circumstances here and narrowly
focuses on the fact that she did not have specific notice to
ameliorate her codependency to father. That argument
ignores that the jurisdictional bases are about abuse and
neglect of her children, whatever the underlying cause (or
whoever the primary abuser). In fact, the court explicitly
stated that mother did not necessarily have to separate
from her husband to show that the safety threat had been
ameliorated. The court’s ruling was not based merely on
her codependency issues with father; the court also found
that mother did not make any progress in ameliorating the
underlying causes of the abuse and neglect. Mother suggests
that that conclusion could allow for “jurisdiction to continue
if the underlying causes of the abuse and neglect were found
to be a result of a parent’s substance abuse[,]” for example,
even if the allegations make no mention of substance abuse.
We disagree. Mother was given notice that she needed to
ameliorate the concerns involved with the neglect and abuse
of her children. The court did not order a drug and alco-
hol assessment; it ordered that she engage and participate
in a psychological evaluation and parenting program, and
any of the recommended services. Thus, it is fairly implied
520 Dept. of Human Services v. A. H.
that codependency or a personality disorder were conditions
mother would need to address with regard to her role in the
abuse and neglect of her children.
Affirmed.