Dept. of Human Services v. P. M. ( 2023 )

600
This is a nonprecedential memorandum opinion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 March 13, affirmed April 26, petition for review denied
July 20, 2023 (371 Or 308)
In the Matter of B. H.-M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
P. M.,
Appellant.
Linn County Circuit Court
19JU08932; A178943
Michael B. Wynhausen, Judge.
Aron Perez-Selsky and Michael J. Wallace filed the brief
for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
Nonprecedential Memo Op: 325 Or App 600 (2023) 601
ORTEGA, P. J.
Father appeals the juvenile court judgment asserting
jurisdiction over his child, H, pursuant to ORS 419B.100
(1)(c).1 He challenges three of the four bases for the court’s
decision. In one assignment of error, father contends that
the court’s judgment was based on an erroneous finding
that H’s “condition or circumstances” presented a reason-
able likelihood of harm to H. In particular, father argues
that the evidence was insufficient to support that finding.
Father asks us to review this case de novo, as we are autho-
rized to under ORS 19.415(3)(b). The Department of Human
Services (DHS) argues that father’s case does not warrant
de novo review and that the evidence in the record supports
the court’s decision. We agree with DHS and, upon review-
ing father’s claim for errors of law, we find no error by the
juvenile court and affirm its judgment.2
We provide some background and recount those
facts necessary to explain our ruling. Father was awarded
custody of H when H was 10 months old. When H was nine
years old, he was removed from father’s home—where he
lived with father, stepmother, three half-siblings, and step-
mother’s child—and was placed into foster care, based on
suspicion that he had been abused under father’s care.
Prior to his removal, the police had reported other incidents
involving H and his family, including an occasion when H
had run away from home. Following his removal, H was
diagnosed with multiple psychological disorders, including
post-traumatic stress disorder (PTSD) and attention defi-
cit hyperactivity disorder (ADHD). DHS filed a petition for
jurisdiction that included the following allegations.
“3D. * * * [F]ather has physically abused [H].
“3E. * * * [F]ather is unable to meet [H’s] special emo-
tional, behavioral, or mental health needs * * *.
1
ORS 419B.100(1)(c) provides that, except for certain specific circumstances
not applicable to this case, “the juvenile court has exclusive original jurisdiction
in any case involving a person who is under 18 years of age and * * * [w]hose con-
dition or circumstances are such as to endanger the welfare of the person or of
others[.]”
2
Mother admitted to the jurisdictional allegations against her and is not a
party to this appeal.
602 Dept. of Human Services v. P. M.
“3F. [H] has been subjected to a pattern of abuse by
* * * father and/or members of * * * father’s household.
“3G. [Father] subjected [H] to excessive discipline
resulting in physical and/or emotional harm to [H].”
During the related proceedings, several witnesses
testified, including H, father, stepmother, H’s therapist,
the social worker involved in the case, forensic interviewer
Esther Friedman who interviewed H, and three clinical psy-
chologists—Robert Basham, who evaluated H after he was
removed from father’s care; Wendy Bourg, who reviewed H’s
forensic interview; and Landon Poppleton, who evaluated
father. Some of those witnesses testified that H disclosed
that he had been subjected to punishments under father’s
care, including being locked in his room without food, about
which H also testified at trial. Father denied all abuse alle-
gations but acknowledged that he had “restrained” H to
keep H from hurting himself. Stepmother testified, con-
firming that she had used vinegar to discipline H. Basham,
who had diagnosed H’s PTSD and other disorders, testified
that PTSD was “more likely” due to a “history of physical
abuse,” which Basham asserted to be typically caused by a
“sequence of events,” “almost always * * * cumulative over
a result of multiple stressors or traumas,” that can include
deprivation of food as punishment. Friedman testified about
H’s statements regarding how father and stepmother treated
H, including withholding food from him. Bourg noted issues
in H’s forensic interview, including some inconsistencies and
lack of detail, but agreed that H’s disclosures were sponta-
neous. Poppleton testified that father had not “quite recog-
nized that there [wa]s a problem” so as to be able to address
it.
Based on the testimonial evidence introduced, the
court concluded that DHS had proved all four allegations
in its petition. In doing that, the court first found that H,
H’s therapist, the social worker, Friedman, Basham, and
other witnesses who testified for DHS, as well as Bourg and
Poppleton who testified for father, were credible, and that
father and stepmother were not credible.
On the substantive issue, the court found, among
other things, that H’s diagnoses were “clinically consistent”
Nonprecedential Memo Op: 325 Or App 600 (2023) 603
with H’s disclosures of “punishments with regard to use of
vinegar, physical abuse, emotional abuse, [and] punishment
[in the form of] food deprivation” while living in father’s
household. It also found that in disciplining H, “[f]ather
intentionally engaged” in conduct that result in “a mental
injury” to H, and that H’s “condition and circumstances [we]re
a substantial impairment to his mental or psychological
ability to function,” which “ha[d] been caused by cruelty
to [H].” Relying on Dept. of Human Services v. L. E. F., the
court concluded that, despite not rising to the level of physi-
cal injury, father’s conduct nevertheless constituted physical
abuse. 307 Or App 254, 476 P3d 119 (2020), rev den, 367 Or
559 (2021).3 According to the court, the fact that father had
“no acknowledgment or insight * * * that he ha[d] essentially
done anything wrong, nor ha[d] he made any effort to develop
the tools necessary to address [H]’s special needs[,]” was an
indication that a risk of serious harm to H remained. The
court then determined that H was within its jurisdiction.
On appeal, father assigns error to the court’s con-
clusion regarding allegations 3D, 3F, and 3G.4 He begins by
asking us to review his case anew, arguing that such review
is appropriate because the juvenile court’s decision did not
“comport[ ] * * * with uncontroverted evidence in the record.”
ORAP 5.40(8)(d). He seeks de novo review particularly as
to the court’s factual finding that he and/or members of his
household had physically abused or excessively disciplined
H. According to father, evidence suggesting that there were
issues with H’s forensic interview indicated that, among
other things, H had not suffered physical abuse.
We begin with father’s de novo review request and
are unpersuaded. See ORAP 5.40(8)(c) (limiting de novo
review to “exceptional cases”); ORS 19.415(3)(b) (granting us
“sole discretion” regarding de novo review). As DHS argues
and the record shows, “the juvenile court made express
3
L. E. F. indicated that physical force used to discipline a child can consti-
tute “abuse” where “the discipline results in * * * ‘any mental injury to a child,
which shall include any observable and substantial impairment of the child’s
mental or psychological ability to function caused by cruelty to the child[.]’ “ 307
Or App at 260 (citing ORS 419B.005(1)(a)(A), (B)).
4
Father’s appeal does not challenge the court’s conclusion concerning allega-
tion 3E.
604 Dept. of Human Services v. P. M.
factual findings, including demeanor-based credibility find-
ings,” and its ultimate decision “comports with [those] fac-
tual findings”; the court was “aware of the disputed factual
issue”—including observations by Bourg, whom the court
found credible—“and its importance to the * * * disposition
of the case”; and the evidence does not “strongly favor[ ] a
different outcome.” Dept. of Human Services v. T. H., 313
Or App 560, 562, 496 P3d 704, rev den, 368 Or 637 (2021)
(declining to review the case de novo). We thus decline to
review the record anew and review the juvenile court’s deci-
sion for errors of law to determine whether the evidence,
as supplemented and buttressed by permissible derivative
inferences and viewed in the light most favorable to the juve-
nile court’s disposition, was legally sufficient to permit that
outcome. Dept. of Human Services v. N. P., 257 Or App 633,
639, 307 P3d 444 (2013); see also Dept. of Human Services v.
E. M., 264 Or App 76, 78, 331 P3d 1054 (2014) (explaining
that standard in detail).
We turn to father’s assignment of error asserting
that the juvenile court erred in establishing jurisdiction over
H under ORS 419B.100(1)(c) based on a finding that DHS
had proved that there was a current, nonspeculative risk to
H regarding physical abuse or harm. According to father,
that finding affected the three disputed bases of jurisdiction
in this case. He argues that the evidence was insufficient to
establish a current, nonspeculative risk of harm by him or
any members of his household because there was inconsis-
tent evidence that H had suffered physical abuse and H’s
behavioral problems persisted and increased after H was
removed from father’s care. Father further argues that, even
if abuse was proved, the evidence was insufficient to estab-
lish that such risk was then current and nonspeculative or
that father’s actions were connected to ongoing harm to H.
Father ultimately asks us to reverse the court’s judgment as
to allegations 3D, 3F, and 3G—concerning abuse and exces-
sive discipline—and to remand for the court to review its
judgment.
We again find father’s arguments unpersuasive.
After reviewing the record for legal error, we are satisfied
that the evidence that the court found credible—and the
court’s explanation for finding it so—was sufficient under
Nonprecedential Memo Op: 325 Or App 600 (2023) 605
N. P. to support the court’s decision concerning all three
bases of jurisdiction. 257 Or App at 639. That includes evi-
dence that H’s diagnosis was “clinically consistent” with
H’s disclosures regarding being subject to the use of vine-
gar, physical abuse, emotional pressures, and punishment
in the form of food deprivation in father’s household. That
evidence, as well as evidence of father’s lack of action to
address H’s situation and father’s denial of issues involv-
ing H, was sufficient to support the court’s inference that
H had been “exposed to conditions or circumstances that
present[ed] a * * * threat of serious loss or injury” to H and
which amounted to physical abuse. L. E. F., 307 Or App
at 258, 260 (internal quotation marks omitted). In all, the
evidence supported the court’s conclusion that the totality
of the circumstances showed that there was a “reasonable
likelihood of harm to [H’s] welfare.” State ex rel Juv. Dept.
v. T. S., 214 Or App 184, 193, 164 P3d 308, rev den, 343 Or
363 (2007). Accordingly, there was no error in the juvenile
court’s judgment of jurisdiction.
Affirmed.