Dept. of Human Services v. K. W. ( 2023 )

206
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted January 17; in Case No. 22JU00073, reversed and remanded for
entry of a judgment omitting allegation 3G as a basis for jurisdiction, otherwise
affirmed; in Case Nos. 21JU02750, 21JU02751, and 21JU02752, affirmed
April 5, 2023
In the Matter of S. C., a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
K. W.
and S. E. C.,
Appellants.
Marion County Circuit Court
21JU02750; A179268 (Control)
In the Matter of P. C., a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
K. W.
and S. E. C.,
Appellants.
Marion County Circuit Court
21JU02751; A179269
In the Matter of E. C., a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
K. W.
and S. E. C.,
Appellants.
Marion County Circuit Court
21JU02752; A179270
Nonprecedential Memo Op: 325 Or App 206 (2023) 207
In the Matter of A. M. C., a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
K. W.
and S. E. C.,
Appellants.
Marion County Circuit Court
22JU00073; A179271
Tiffany Underwood, Judge pro tempore.
Christa Obold Eshleman and Youth, Rights & Justice
filed the brief for appellant K. W.
Shannon Storey, Chief Defender, Juvenile Appellate
Section, and Holly Telerant, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant
S. E. C.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Emily N. Snook, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
SHORR, P. J.
In Case No. 22JU00073, reversed and remanded for
entry of a judgment omitting allegation 3G as a basis for
jurisdiction; otherwise affirmed. In Case Nos. 21JU02750,
21JU02751, and 21JU02752, affirmed.
208 Dept. of Human Services v. K. W.
SHORR, P. J.
In this consolidated juvenile dependency appeal,
mother and father appeal from jurisdictional judgments
entered in July 2022 regarding their four children: A (six
months old), E (one year old), P (two years old), and S (four
years old). Mother raises four assignments of error and
father raises 16 assignments of error.1 Both parents request
that we reverse the judgments as to each child, and, in the
alternative, to reverse as to individual allegations that were
not supported by sufficient evidence in the record. We agree
with parents that the juvenile court erred in asserting
jurisdiction on the basis that father had pending criminal
charges and would therefore not be a custodial resource for
A. As to the other bases on which the juvenile court took
jurisdiction, having reviewed the record, we conclude that
the court did not err.
We review the sufficiency of the evidence support-
ing dependency jurisdiction by “view[ing] the evidence, as
supplemented and buttressed by permissible derivative
inferences, in the light most favorable to the trial court’s
disposition and assess[ing] 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).
The Department of Human Services (DHS) removed
E, P, and S from parents’ care after E presented at the hos-
pital in June 2021 with serious brain injuries. In December
2021, the juvenile court entered judgments taking juris-
diction over those three children after ruling that father
had caused E’s injuries by shaking her. Mother and father
had another child, A, in January 2022; DHS immediately
removed A and filed a petition alleging that she was within
the court’s dependency jurisdiction. DHS also filed new
dependency petitions regarding E, P, and S.
1
Mother and father use different organizational structures to assert their
assignments of error. Mother alleges one assignment for each child and father
alleges one assignment for each challenged jurisdictional basis. In the end, each
parent challenges the 16 jurisdictional bases (seven regarding A and three each
regarding the other three siblings) on which the juvenile court asserted jurisdic-
tion over their children.
Nonprecedential Memo Op: 325 Or App 206 (2023) 209
In its amended petition as to A, DHS alleged, in
part, that
“[3]A. The mother exposed the child to unsafe
person(s).
“[3]B. The mother lacks the parenting skills necessary
to safely and appropriately parent the child.
“[3]C. The mother’s mental health problems interfere
with her ability to safely parent the child.
“[3]D. Despite having been offered services to address
the safety threats posed by mother that interfere with
her ability to safely parent the child, the mother has been
unable to remedy the safety threats posing a risk of harm
to this child.
“[3]E. The mother has other children for whom she is
currently not a custodial resource and the conditions and
circumstances giving rise to their removal, which include
exposure to unsafe persons, have not been changed or
ameliorated.
“[3]F. The father caused serious physical injury to this
child’s sibling by shaking that child.
“[3]G. The father is incarcerated for charges of assault
in the first degree and two counts of criminal mistreat-
ment in the first degree, and unavailable to be a custodial
resource.
“[3]H. The father has other children for whom he is
currently not a custodial resource, and the condition and
circumstances that brought those children into care have
not been remedied or ameliorated and presents a risk of
harm to this child.”
In the second petitions regarding E, P, and S, DHS
alleged, in part:
“[4]F. The mother lacks the parenting skills necessary
to safely and appropriately parent the child.
“[4]G. The mother’s mental health problems interfere
with her ability to safely parent the child.
“[4]H. Despite having been offered services to address
the safety threats posed by mother that interfere with
her ability to safely parent the child, the mother has been
210 Dept. of Human Services v. K. W.
unable to remedy the safety threats posing a risk of harm
to this child.”
Mother and father contested those allegations, and
the juvenile court held a hearing over three days. Because
father had been released from jail pending a criminal trial
and was no longer incarcerated, allegation 3G was amended
at the conclusion of the hearing to state, “The father is
charged with assault in the first degree and two counts of
criminal mistreatment in the first degree, and unavailable
to be a custodial resource.” The juvenile court took the mat-
ter under advisement. The court shortly thereafter held
a hearing at which it explained its findings and the basis
for those findings, and asserted jurisdiction based on all of
the allegations, except for allegation 3A, over the four chil-
dren. In July 2022, the juvenile court entered judgments of
jurisdiction and disposition for each of the children. Parents
appeal those judgments.
As noted above, having reviewed the record, we con-
clude that the juvenile court properly asserted jurisdiction
based on allegations 3B, 3C, 3D, 3E, 3F, 3H, 4F, 4G, and 4H.
However, we agree with parents as to allegation 3G, which
relates to father’s unavailability as a custodial resource.
Father had argued below that the fact that he was
facing criminal charges was not in and of itself sufficient to
give rise to jurisdiction. When addressing allegation 3G, the
juvenile court stated, in part:
“So I will find that the State has proven this allegation,
I think it’s important to note that although a grand jury
has indicted father on these charges, the allegations them-
selves are insufficient to establish the jurisdiction, as the
fact that he was indicted is only an accusation and does not
by itself provide any new facts about any risk that [A] is
exposed to, but based on the charges, he is not available as
a custodial resource for [A] and has not made any arrange-
ments for [A] to be cared for during this time of unavail-
ability, so based on this lack of arrangement to provide
necessary care for an infant child, I will find that father’s
unavailability to be a custodial resource poses a current
risk of harm to [A].”
Father notes on appeal that the juvenile court correctly
stated that the pending charges themselves did not give rise
Nonprecedential Memo Op: 325 Or App 206 (2023) 211
to jurisdiction.2 However, father argues that DHS did not
offer any evidence to demonstrate that father was likely to
engage in similar criminal behavior again or to be arrested,
held in custody, and become unavailable to care for A in the
future. And therefore, according to father, the juvenile court
erred in ruling that A was at risk of a serious loss or injury
as a result of father’s criminal charges that was reasonably
likely to occur in the absence of juvenile court jurisdiction.
See Dept. of Human Services v. R. D., 316 Or App 254, 256,
502 P3d 1183 (2021) (“A child is endangered if the child is
exposed to conditions or circumstances that present a cur-
rent threat of serious loss or injury.” (Internal quotation
marks omitted.)).
In response, DHS argues that “in addition to father’s
conduct presenting a threat of harm, his ongoing criminal
charges and the impact it had on his residence and ability to
contact the children contributed to or enhanced the already
existing harm and prevented him from being a resource
for [A].” DHS relies on evidence in the record that father
initially had a “no contact” order that prevented him from
having contact with E, siblings, or mother, but acknowl-
edges that father’s release agreement from shortly before
the dependency hearing only prohibited him from having
contact with E. In addition, DHS argues that father was
staying with friends and did not provide an address to DHS,
and also that he did not present a plan to care for A.3
We agree with father that the evidence in the record
is insufficient to support the juvenile court’s finding that the
pending criminal charges involving E caused father to be
unavailable as a custodial resource for A. Our conclusion is
a narrow one. There is sufficient evidence in the record to
determine that father’s conduct presented a threat of harm
for all of the children, which relates to other jurisdictional
2
Mother does not specifically address allegation 3G, but generally asserts
that the juvenile court erred by determining that A was within the juvenile
court’s jurisdiction based on each of the seven adjudicated allegations, which
includes 3G.
3
Mother and father lived together prior to father’s arrest. Mother continued
to live in the townhouse they previously shared. Father testified at the hearing
that he was currently residing at his “mother’s address” and that he did not have
a current phone number.
212 Dept. of Human Services v. K. W.
bases, and there is evidence in the record that father’s
incarceration prior to his release and the pending charges
prevented him from participating in services; however, the
record lacks evidence that the fact that there were pending
charges made father unavailable as a custodial resource.
See Dept. of Human Services v. L. L. S., 290 Or App 132,
139, 413 P3d 1005 (2018) (acknowledging that typically the
risk of harm posed by a parent’s incarceration is that no one
is available to care for the child). Here, although father may
not be a custodial resource for other reasons, the pending
charges themselves do not make him physically unavail-
able in the sense that incarceration would.4 Under the cir-
cumstances of this case, the juvenile court erred in taking
jurisdiction over A based on allegation 3G. Accordingly, we
reverse and remand the jurisdictional judgment in Case No.
22JU00073 for the juvenile court to enter a judgment estab-
lishing jurisdiction over A based on allegations 3B, 3C, 3D,
3E, 3F, and 3H, but omitting allegation 3G as a ground for
jurisdiction. We affirm the judgments regarding the other
three children.
In Case No. 22JU00073, reversed and remanded for
entry of a judgment omitting allegation 3G as a basis for
jurisdiction; otherwise affirmed. In Case Nos. 21JU02750,
21JU02751, and 21JU02752, affirmed.
4
We also note that there is no evidence in the record that, as of the time of the
hearing, the pending charges prevented father from having contact with A—in
fact, the record contains evidence that father had had a supervised visit with A.