Dept. of Human Services v. W. M. ( 2020 )

384
175 of Human Services v. W. M.
Dept. 303 8,
April Or2020
App
Argued and submitted December 6, 2019, reversed April 8, 2020
In the Matter of A. P. J. M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
W. M.,
Appellant.
Jefferson County Circuit Court
19JU00729; A171773
463 P3d 572
Father appeals the juvenile court’s judgment taking jurisdiction over his
child, A. Father contends that the Department of Human Services (DHS) failed
to present sufficient evidence that father’s substance abuse and parenting skills,
either individually or collectively, exposed A to a nonspeculative risk of serious
loss or injury at the time of the dependency hearing, and, therefore, the juvenile
court erred when it took jurisdiction on those bases. Held: DHS failed to carry its
burden to demonstrate that father’s alleged substance abuse or deficits in parent-
ing skills posed a current risk of loss or serious injury to A. Therefore, the trial
court erred in taking jurisdiction on those bases.
Reversed.
Daina A. Vitolins, Judge.
Shannon Flowers, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Shannon Storey,
Chief Defender, Juvenile Appellate Section, Office of Public
Defense Services.
Sean McKean, Certified Law Student, argued the cause
for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Christopher A. Perdue, Assistant Attorney General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
TOOKEY, J.
Reversed.
Cite as 303 Or App 384 (2020) 385
TOOKEY, J.
In this juvenile dependency case, father appeals
from the juvenile court’s judgment taking jurisdiction over
his child, A.1 In his first through third assignments of error,
father asserts that the Department of Human Services (DHS
or the department) failed to present sufficient evidence that
father’s substance abuse and parenting skills, either indi-
vidually or collectively, exposed A to a nonspeculative risk of
serious loss or injury at the time of the dependency hearing.
Accordingly, father contends that the juvenile court erred in
taking jurisdiction on those bases. We agree with father and
reverse.2
Neither party requests that we exercise our discre-
tion to review this case de novo, and we decline to do so.
ORAP 5.40(8)(c). Therefore, we “view the evidence, as supple-
mented and buttressed by permissible 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). We state
the following facts in accordance with that standard.
I. BACKGROUND
This case concerns father’s child, A, who was two
years old at the time of the dependency jurisdiction trial.
DHS filed a dependency petition alleging, in pertinent part,
that father’s “substance abuse, which includes the use of
methamphetamine, interferes with his ability to safely par-
ent [A],” and that “father needs the assistance of DHS and
the court to develop the skills necessary to safely parent
[A].” We confine our discussion to the facts pertinent to the
bases on which the juvenile court took jurisdiction.3
1
Mother admitted to several of the alleged bases for taking jurisdiction over
A, and she does not appeal the judgment taking jurisdiction over A.
2
In his fourth assignment of error, father contends that the “trial court
erred in ordering father to submit to a psychological evaluation” as part of the
treatment necessary to correct the circumstances underlying the juvenile court’s
establishment of jurisdiction over A and to prepare father to be reunified with A.
Our reversal of the jurisdictional judgment obviates the need to address father’s
fourth assignment of error.
3
DHS also alleged that A was endangered because father exposed A to
domestic violence. At the dependency hearing, DHS withdrew its allegation that
386 Dept. of Human Services v. W. M.
Father lived in Mississippi where father had two
adult children and a teenager from a previous relation-
ship whom he had helped to raise. Father met mother in
Mississippi, and they used methamphetamines together.
In 2016, mother became pregnant, and father and mother
moved to Oregon. When A was born in November of 2016,
father was “somewhat involved” in A’s upbringing and, for
the most part, “was able to do the * * * basic [things to] * * *
take care of * * * what [A] needed” like changing diapers
and helping with food. Although father was able to provide
“basic care” for A, it was difficult for father to engage in cer-
tain physical activities with A because father has scoliosis
that remained untreated when he was growing up and, as
a result, he had “been dealing with pain for years.” Father
lived with mother and A until November 2017 when mother
and father ended their relationship.
From November 2017 to June 2018, father was
homeless and living in a shelter in another city, making vis-
its with A sporadic and difficult. In May 2018, father started
voluntarily participating in a mental health and substance
abuse treatment program at Best Care and was able to find
housing through that program. Although he was no longer
on good terms with mother, father obtained toys, clothes, and
a bed for A, and was able to visit with A at his apartment a
couple times a week for a few hours at a time. Father’s drug
treatment providers also gave father permission to have A
move into the apartment that he obtained through the hous-
ing program after his drug counselor had been present for
visits between A and father at his apartment.
In August 2018, DHS became involved with mother
and A because of reports of substance abuse and domestic vio-
lence between mother and her boyfriend, Horton. Following
reports from father and father’s counselor about their con-
cerns for A’s safety, in September 2018, the police and DHS
investigated a possible burn from a cigarette lighter that
A had gotten when Horton was watching A while mother
was at a neighbor’s apartment. From the shape of the burn,
it appeared that someone had heated up the metal top of a
father’s exposure of A to domestic violence created a nonspeculative risk of seri-
ous loss or injury to A.
Cite as 303 Or App 384 (2020) 387
lighter and “put [it] onto [A’s] arm.” Mother did not report
to the police that A had been burned by a lighter. Shortly
thereafter, father filed for custody of A because he was con-
cerned that A “was in trouble.”
In November 2018, father had “major back surgery”
to deal with the complications from his untreated scoliosis.
The surgery entailed putting a “rod, screws, and bolts,” in
father’s back, and he was in a significant amount of pain
afterwards.
In January 2019, the department planned to
“implement an in-home plan” with father caring for A. On
January 22, 2019, father provided a urine sample (UA) at
the treatment facility, and the sample tested positive for
methamphetamine. Father denied using methamphet-
amine but admitted to his drug and alcohol counselor that
he “drank a couple of beers” to numb his back pain. Because
the department’s protective services worker believed she
could not assess father’s ability to parent A when he denied
drug use, she removed A (who had been living with mother
and her half-siblings) from mother’s care, placed A in foster
care with A’s maternal aunt and uncle, and moved forward
with filing a dependency petition. On January 28, 2019, DHS
filed a dependency petition alleging that father’s substance
abuse and lack of parenting skills endangered A’s welfare.
Father continued in substance abuse and mental
health treatment, but his attendance became more sporadic
after his surgery. Father had complications from the sur-
gery that caused him a lot of pain from the “disk [in his]
back with the rod and screws and bolts just shifting” and
father went to the emergency room several times as a result.
Father also had issues with transportation to his treatment
classes and visits with A because he could not walk that far.
At father’s annual assessment for substance abuse treat-
ment in mid-April, it was recommended that father needed
a “low level of care,” to “develop[ ] a relapse prevention plan,”
have “some monitoring for abstinence,” and to “just build[ ]
his support network.” But father’s counselor clarified that he
always recommends some sort of relapse recovery or support
network plan to anyone who has undergone substance use
treatment, “[e]ven if they’ve been sober for 20 years.”
388 Dept. of Human Services v. W. M.
Father’s substance abuse counselor noted that
father had not been ordered by the court to attend treat-
ment and that father’s motivation to engage in treatment
was to obtain stable housing and to be a better parent to
A. There was also no indication that father’s substance use
ever involved A, or that father had used drugs in front of A.
Father had expressed “his concern for other people using
drugs around” A and stated that he would take A “away
from people [who] were using drugs around her” and “do
anything to keep her safe.” The counselor observed that
father is aware that exposing A to drugs is unsafe and that
father “recognizes the strengths that he is gaining as a
result of him being engaged in treatment.” Additionally, a
clinician, who coordinated father’s mental health and sub-
stance abuse treatment plans at Best Care, reported that
father was “progressing well” and had developed “new cop-
ing skills.” The clinician had “observed positive changes”
with regard to father’s desire to become a better parent,
such as a “list of clean urine” tests. Given father’s participa-
tion in, compliance with, and progression in mental health
and substance abuse treatment, the clinician did not have
any concerns about father’s ability to safely parent A if she
were immediately returned to father’s care.
In March 2019, father moved into a one-bedroom
apartment that required climbing steep exterior stairs.
Father was unable to move all of A’s belongings into his new
home, so he put them in storage. DHS’s “primary reason” for
filing the allegation of parenting issues was because of its
concern “that [father] may not be able to safely parent [A]
due to his physical inabilities.” Specifically, DHS was con-
cerned that father would be physically unable to help A by
holding her hand on the steep stairs or that A could get out
of the front door to the stairs because the only “barrier” to
prevent A from opening the front door was a lock. A DHS
worker also observed that a piece of wood flooring in the
kitchen was raised up “a little bit higher than the rest of
the flooring, so it was not even” and “would pose a tripping
hazard.”
To support its concern about father’s ability to safely
parent A, DHS pointed to two supervised visits at DHS: (1) a
visit in which A found and picked up scissors on a countertop
Cite as 303 Or App 384 (2020) 389
in the DHS “play room” before father took them away, and
(2) a visit where A passed through an unlocked door and
ran back to an adjacent room where she had just visited
with her mother and her siblings before father could stop
her. Although the DHS workers had concerns about father’s
parenting skills, they also observed that A was excited to
see father during visits and was “easy going” when she was
around father, and that A and father had a “clear bond.”
Father did not have any UAs after January 2019
that tested positive for methamphetamines and, on May 1,
2019—14 days before the jurisdictional hearing—father had
a clean UA. Furthermore, at an unscheduled visit to father’s
home on May 10, 2019, father had adequate food, and there
were no signs of drug use or paraphernalia.
The hearing began on May 15, 2019, and DHS
adduced evidence to support the facts described above. The
juvenile court concluded that DHS had proved that father’s
substance abuse and lack of parenting skills presented a
current threat of serious loss or injury to A at the time of
the hearing. The trial court found (1) that father was “over-
whelmed” due to his many appointments and therefore
“shuts down” and lacks engagement with A; (2) an “absolute
lack of a relationship” because father did not know A’s date
of birth, clothing size, and whether she was toilet trained;
(3) father lacked the skills necessary to parent A as evinced
from his testimony that he “would politely talk” with A if A
cries or throws a temper tantrum; (4) father has “none of the
basics that she would need in terms of housing, of bedding,
of no high chair, no ability to feed” A; (5) father’s failure to
sign up for a parenting class that was offered to him; (6) that
father misses treatment appointments and visitations with
A due to his tendency to shut down; (7) father’s inattentive-
ness as evinced by A escaping a room to see her mother. As
for father’s substance abuse, the court stated:
“I also find that his ongoing substance abuse presents a
risk to [A] for these reasons. As indicated by Ms. Parsons,
the fact that he won’t admit that he relapsed, and it’s clear
from [DHS] that he did. And his counselor also testified
that he relapsed on—by using alcohol as well. He won’t
admit that, and he testified that he goes to treatment
because he needs the housing.
390 Dept. of Human Services v. W. M.
“Then there’s no ability to assess whether or not he is a
risk to [A], and that becomes a risk because, as Ms. Parsons
said, we don’t know when he uses or who he uses around or
how often he does that and whether or not that would—I
mean, I find that that would present a risk to [A], the fact
that we don’t know what’s going on with him.
“* * * * *
“And so I do find that the State has met their burden on
allegation—hold on just a moment. On [allegation] E, that
his substance abuse, which includes the use of metham-
phetamine, interferes with his ability to safely parent [A]
* * *.”
II. CURRENT RISK OF HARM
ORS 419B.100(1)(c) provides that a juvenile court
has jurisdiction in a dependency case when a child’s “condi-
tion or circumstances are such as to endanger the welfare”
of the child.
“A child is endangered if the child is exposed to conditions
or circumstances that present a current threat of seri-
ous loss or injury. The burden of proof rests with DHS to
establish that the threat is current and nonspeculative.
Importantly, it is not sufficient for [DHS] to prove that the
child’s welfare was endangered sometime in the past. And,
there must be a reasonable likelihood that the threat will
be realized. DHS has the additional burden of proving a
connection between the allegedly risk-causing conduct and
the harm to the children.”
Dept. of Human Services v. F. Y. D., 302 Or App 9, 19, 459 P3d
947 (2020) (internal quotation marks and citations omitted).
A. Parenting Skills
DHS contends that “[l]egally sufficient evidence
supported the juvenile court’s finding that there was a rea-
sonable likelihood of harm to A if she were to be placed in
father’s care because of father’s lack of parenting skills or a
relationship with A.” DHS relies primarily on the evidence
of father being in “[p]ain and overwhelmed” after his sur-
gery, which resulted in him becoming less engaged in his
voluntary treatment program, and points to the two “spe-
cific instances” mentioned above where father was visiting
Cite as 303 Or App 384 (2020) 391
A at DHS to support its contention that “father’s tendency
to ‘shut down’ created a risk of harm to A.” More specifi-
cally, the department relies on the visit in which A found
and picked up scissors on the countertop in the DHS “play
room” before father took them away, and another visit at
DHS where A had passed through an unlocked door and ran
back towards an adjacent room where she had just visited
with her mother and her siblings before father could stop A.
DHS contends that that evidence shows that “father’s pat-
tern of shutting down posed a risk to A because she was
likely to run down the stairs outside father’s apartment or
into the street.”
We conclude that the risks identified by DHS relat-
ing to father’s alleged deficits in parenting skills are too
speculative to support jurisdiction. As we discuss in more
detail below with regard to the allegation of father’s sub-
stance abuse, the fact that father chose to become disen-
gaged in his voluntary treatment program following back
surgery does not demonstrate that father would be inatten-
tive to A’s needs, because there is “no evidence of a mate-
rial relationship” between father’s alleged substance abuse
and his willingness or ability to attend to A’s needs. Dept.
of Human Services v. J. J. B., 291 Or App 226, 239, 418 P3d
56 (2018). Likewise, father getting “overwhelmed” after his
back surgery and missing other voluntary appointments
does not demonstrate that father would not engage with A,
or that father’s lack of engagement in those other aspects of
his life would pose a risk of serious loss or injury to A. See
Dept. of Human Services v. M. F., 294 Or App 688, 698, 432
P3d 1189 (2018) (observing that “evidence that father has
taken a less-than-optimal approach to working with DHS
and service providers does not equate to proof that it is rea-
sonably likely that child will suffer harm if returned to his
care”). As we explain, in this case, DHS offered no evidence
of how A had been affected by father’s purported deficits
in parenting skills, much less how those purported deficits
exposed A to a current nonspeculative risk of serious loss or
injury.
We have recognized that “every young child has
needs that require focused caregiving, and a juvenile court
cannot assert jurisdiction over a child simply because it is
392 Dept. of Human Services v. W. M.
concerned that a parent might not be sufficiently attentive.”
Id. at 699. In other words, “DHS does not prove a basis for
dependency jurisdiction merely by establishing that one
cannot be certain that a child’s mother or father will be up
to the task of parenting.” Id. When DHS relies on a parent’s
purported parenting deficits as a basis to petition for juris-
diction, “DHS must come forward with evidence sufficient
to establish that the parent in fact has parenting deficits
that create a current threat of serious loss or injury to the
child that is reasonably likely to be realized.” Id. (emphasis
in original; internal quotation marks omitted).
In this case, with respect to the instance when A
found scissors in the DHS play room, DHS offered no evi-
dence that father had maintained his home as the depart-
ment maintained its play rooms, namely by leaving scissors
or other sharp items within A’s reach, or that father would
do so in the future. When the DHS worker performed an
unscheduled visit at father’s apartment five days before the
jurisdictional hearing, there were no drugs, drug parapher-
nalia, or “knives available, willy-nilly.” Moreover, we do not
know if the scissors that A picked up were unsafe for a tod-
dler to use under adult supervision, and the department did
not demonstrate that father’s response of taking the scissors
away from A was inappropriate, or that it came too late so
as to place A at risk of serious loss or injury. On this record,
it is speculative to infer from father’s failure to prevent A
from picking up a pair of scissors in a DHS play room that
A would be injured by household items if she was placed in
father’s care, or that father would fail to recognize circum-
stances around his home that would expose A to a serious
risk of injury. Indeed, when asked by the court if father had
“any concerns about the safety of [his] apartment to meet
[A’s] shelter needs,” father explicitly recognized the danger
that the steep stairs in front of his apartment would pose to
a toddler—the very danger DHS contends that father would
fail to recognize and mitigate—and father had also taken
steps with his treatment provider to find housing that would
be more suitable.
With regard to the evidence that A had passed
through an unlocked door during a visit with father at DHS
and ran back towards an adjacent room where she had just
Cite as 303 Or App 384 (2020) 393
visited with her mother and her siblings, that evidence does
not support a nonspeculative inference that A would leave
father’s apartment unnoticed and be exposed to dangerous
conditions outside. At that visit, A was running back to a
familiar room where she had just visited with her mother
and her other siblings and, although father got up to stop
A, A “was definitely faster” and was able to escape the
unlocked room. A never ran to any other part of the build-
ing, and no evidence was presented that father had ever left
A unsupervised or that A had ever left father’s home or any
other place without him noticing. Again, DHS offered no evi-
dence that father maintained his home as the department
maintained its play rooms, that father was unaware that A
left the room, or that father’s response was inappropriate
or exposed A to a risk of harm. Father had a lock on his
front door, and the department offered no evidence that the
lock would not prevent A from leaving the apartment before
father could stop her, that father did not use the lock, or
that he was likely to fail to use the lock if A was placed in
his care. See M. F., 294 Or App at 697 (concluding that evi-
dence of the child twice leaving the father’s home unnoticed
two years before the dependency hearing was insufficient
to prove that the father needed the assistance of the court
and the state to meet the child’s needs, because no similar
incidents occurred after the father installed child-proof door
locks, and, thus, the record would not support a determi-
nation that the child “currently would be at risk if returned
to father’s care” (emphasis in original)). Moreover, with
regard to father’s physical limitations, father had a plan in
place with the support of A’s maternal relatives to watch A
if father was “having a down day and weren’t as active or
able to watch [A] as good as [he] could.” Under those circum-
stances, the fact that A ran through an unlocked door to an
adjacent room where A knew that her mother and siblings
were located before father could stop her, does not support a
nonspeculative inference that father would be unable to pre-
vent serious harm from befalling A if she were to be placed
in his care.
Likewise, we find the court’s reliance on father’s
inability to provide specific details about A, such as her
clothing size and toilet-training status, misplaced. A was
394 Dept. of Human Services v. W. M.
not toilet trained at the time of the hearing, and the fact
that father did not think that A was toilet trained, but was
unsure, does not establish that there was a current threat
of serious loss or injury to A at the time of the hearing. We
agree with father that many parents like himself, “who
have not been their child’s primary caretaker, do not at
any given time, know such details about their child but can
easily learn them.” As father notes, although he may have
to familiarize himself with the day-to-day details of being
A’s primary caregiver by, for example, taking A shopping
or by going to the doctor with A and asking questions, the
evidence does not demonstrate that father would fail to do
so, or that father’s current lack of knowledge in that sphere
posed a threat of serious loss or injury to A. See M. F., 294
Or App at 698 (concluding that, although the father’s lack
of communication and involvement with the mother and
the child for two years was “less than optimal,” it did “not
provide a basis for inferring that he would not meet child’s
needs if she lived with him”).
We also reject the department’s contention that
father’s plan to “get close to [A] and try to calm her down” by
“[p]olitely talk[ing] with her” if she throws a temper tantrum
exposed A to a nonspeculative risk of harm. The department
did not offer any evidence that A had special needs, that
A threw uncontrollable temper tantrums, or that father’s
planned response would be inadequate to address any tan-
trums that A might have, much less that getting close to A
and politely talking to A would give rise to a nonspeculative
threat of serious loss or injury. To the contrary, as one of the
DHS worker’s observed, A was excited to see father during
visits, was “easy going” when she was around father, and A
and father had a “clear bond.” Because DHS failed to pres-
ent evidence sufficient to prove that father would be unable
to familiarize himself with A’s basic needs or respond to A
appropriately without state intervention, we conclude that
father’s lack of familiarity with raising A on a day-to-day
basis was not a circumstance that created a current threat
of serious loss or injury to A that was likely to be realized if
A were to be placed in father’s care.
In sum, most of the “threats” to A’s safety that DHS
identified were generic household hazards, such as the steep
Cite as 303 Or App 384 (2020) 395
stairs outside of father’s apartment or the uneven floorboards
in father’s home. The department’s evidence that father took
away scissors that A found in a DHS “play room” and was
unable to prevent A from getting out of an unlocked door in
the DHS play room does not demonstrate that father would
be unable to mitigate common household hazards in his own
home, let alone that he would fail to do so in a manner that
exposed A to a nonspeculative “current threat of serious
loss or injury that is likely to be realized.” Dept. of Human
Services v. A. W., 276 Or App 276, 278, 367 P3d 556 (2016).
Likewise, in this case, father’s unfamiliarity with some of A’s
day-to-day needs was not a circumstance that created a cur-
rent threat of serious loss or injury to A that was likely to be
realized if A were to be placed in father’s care. See Dept. of
Human Services v. D. M., 248 Or App 683, 687-88, 275 P3d
971 (2012) (concluding that there was no current threat of
serious loss or injury to the child from the mother’s failure to
provide adequate supervision because, although the mother
“may not have been an ideal parent,” the “[e]xposure to a par-
ent’s unconventional but not unlawful lifestyle * * * and an
unspecified amount of unsupervised access to the Internet
do[es] not justify state intervention into a parent’s fundamen-
tal right to the care, control, and custody of their children”).
Although father’s parenting skills may have been
a little rusty and less than ideal, the law does not require
ideal parenting. In other words, DHS “merely * * * estab-
lish[ed] that one cannot be certain that * * * father will be up
to the task of parenting,” and “a juvenile court cannot assert
jurisdiction over a child simply because it is concerned that
a parent might not be sufficiently attentive.” M. F., 294 Or
App at 699. Hence, the state failed to prove that father’s
parenting skills were so inadequate that it created a cur-
rent threat of serious loss or injury to A that was likely to
be realized. Because the evidence does not support a non-
speculative inference that father’s parenting skills put A at
risk of serious harm or injury, the court erred when it took
jurisdiction on that basis.
B. Substance Abuse
As an initial matter, the problem with the connec-
tion between father’s drug use and the harm to A becomes
396 Dept. of Human Services v. W. M.
apparent when we take into account the trial court’s find-
ing that, on this record, “we don’t know when he uses or
who he uses around or how often he does that.” On appeal,
DHS acknowledges, and we agree, that the juvenile court
erred to the extent that it asserted jurisdiction when there
was a lack of evidence about whether father currently used
methamphetamine, or how that use, if any, posed a current
threat of serious loss or injury to A.
Nevertheless, DHS contends that “the trial court
correctly found that father’s substance abuse created a rea-
sonable likelihood of harm to A,” because the risk of father
“parenting while taking methamphetamine is so obvi-
ous that it hardly needs to be described.” In essence, DHS
argues that it is obvious that, because father has a history
of using methamphetamine, father is likely to use meth-
amphetamine in the future and “disengage and stop pay-
ing attention to A.” But without any evidence about “when
[father] uses or who he uses around or how often he does” use
methamphetamine, the record cannot support a nonspecu-
lative inference that father’s historical methamphetamine
use presented a current threat of serious loss or injury to A.
As discussed above, the last UA that father took that
tested positive for methamphetamines was in January—
nearly five months before the hearing—and, although he
missed several UAs and treatment classes after his back
surgery, the UAs were not court ordered and his participa-
tion in treatment was voluntary. Furthermore, father did
not test positive for drugs when he voluntarily took a UA
two weeks before the hearing. See A. W., 276 Or App at 280(concluding that the evidence supporting DHS’s allegation
of substance abuse was insufficient to justify jurisdiction
because, although the mother tested positive for metham-
phetamine on one occasion and admitted to other use, there
was no evidence that the mother used drugs while caring
for the child or that the mother’s drug use had any effect
on her parenting); Dept. of Human Services v. E. M., 264 Or
App 76, 82-83, 331 P3d 1054 (2014) (concluding that the evi-
dence was insufficient to show that the mother’s substance
abuse interfered with her ability to safely parent the child;
although the mother had tested positive for drug use while
pregnant with the child, the mother had tested negative for
Cite as 303 Or App 384 (2020) 397
drug use after the child’s birth, and there was no evidence
of any problematic drug use by the mother at the time of the
hearing that put the child at a nonspeculative risk of seri-
ous loss or injury). Father’s historical drug use, combined
with his sporadic participation in voluntary drug treatment
following his back surgery, is insufficient to establish that
father was currently using controlled substances in a way
that posed a current threat of serious loss or injury to A at
the time of the hearing. See J. J. B., 291 Or App at 239 (the
“fact of substance abuse alone is insufficient to create juris-
diction under well-established case law”). Accordingly, the
trial court erred when it asserted jurisdiction over A based
on father’s substance abuse.
C. Parenting Skills and Substance Abuse Considered
Together
DHS contends that, “[e]ven if the evidence support-
ing either allegation, standing alone, were insufficient, the
evidence supporting both allegations, viewed in their total-
ity, was sufficient for the trial court to establish jurisdiction
over A.” “DHS is correct that we do not view each allegation
in a dependency petition in isolation, but must consider each
allegation in connection with any other allegations because
sometimes two allegations together present a more com-
pelling case than either alone.” Dept. of Human Services v.
G. J. R., 254 Or App 436, 443, 295 P3d 672 (2013) (emphasis
added; internal quotation marks omitted). However, we have
also observed that “the sum is not always greater than the
whole of its parts,” and that “[a]sserting multiple bases for
jurisdiction does not lessen DHS’s burden of proof.” J. J. B.,
291 Or App at 239-40.
Here, because there is “no evidence of a material
relationship” between father’s alleged substance abuse and
his ability to attend to A’s needs, the evidence is insufficient
to prove that father’s substance abuse contributed to the
overall risk that father would be inattentive to A’s needs.
Id. at 239. For example, DHS offered no evidence that father’s
failure to stop A from picking up scissors or running out of
the room to find her mother and siblings during visitations
was due to father being in a drug-affected state. See Dept. of
Human Services v. M. Q., 253 Or App 776, 786-87, 292 P3d
398 Dept. of Human Services v. W. M.
616 (2012) (concluding that, although the father’s excuses
for missing a UA would support a determination that he
was not credible, it would not support an inference that the
father continued to use drugs where the UAs were voluntary
and the father had never been seen in a drug-affected state
during his visitations with the child). Nor did DHS offer evi-
dence that father used drugs in front of A or that he exposed
A to dangerous people or situations because of his drug use.
To the contrary, father reported his concerns about mother’s
drug use and the potential physical abuse A was suffering
while in her mother’s care. Perhaps on a more developed
record, DHS might be able to prove that father’s drug use—
if it is continuing—endangers A because it makes father
more inattentive to A’s needs, but, as noted above, “the fact
of substance abuse alone is insufficient to create jurisdic-
tion under well-established case law.” J. J. B., 291 Or App at
239; see id. at 239-40 (concluding that it was not “reasonable
to infer a meaningful connection between substance abuse
and domestic violence based on a single incident of father
getting upset with mother when they may have been under
the influence of methamphetamine”).
Because the evidence does not support a nonspecu-
lative inference that father’s substance abuse affected his
parenting skills in a way that put A at risk of serious harm
or injury, this is not a case in which two interrelated alle-
gations have a synergistic effect that is sufficient to estab-
lish jurisdiction. Whether we view the allegations alone or
together, we conclude that the juvenile court erred when it
asserted jurisdiction over A.
III. CONCLUSION
In sum, DHS failed to carry its burden to demon-
strate that father’s alleged substance abuse or deficits in
parenting skills posed a current risk of loss or serious injury
to A. Therefore, the trial court erred in taking jurisdiction
on those bases.
Reversed.