Dept. of Human Services v. A. J. G. ( 2020 )

221
Argued and submitted July 29, 2019; reversed and remanded with instructions
to enter a jurisdictional judgment omitting allegations three and four in the
second amended petition as a basis for jurisdiction, otherwise affirmed
May 13; petition for review denied August 27, 2020 (366 Or 826)
In the Matter of A. B.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
A. J. G.,
Appellant.
Klamath County Circuit Court
18JU09211; A170407
465 P3d 293
Father appeals from a juvenile court judgment asserting jurisdiction over his
child, arguing that there is insufficient evidence to support the four allegations
in the dependency petition that formed the basis of the juvenile court’s judgment.
The Department of Human Services (DHS) concedes that the juvenile court erred
in asserting jurisdiction with respect to the third allegation involving substance
abuse, which the Court of Appeals accepted, and argues that there is sufficient
evidence in the record on the remaining allegations. Held: The trial court did not
err by asserting jurisdiction over child based on the first two allegations involv-
ing exposure to domestic violence but it did err by asserting jurisdiction on the
fourth allegation involving the failure to maintain an adequate mental health
regimen.
Reversed and remanded with instructions to enter a jurisdictional judgment
omitting allegations three and four in the second amended petition as a basis for
jurisdiction; otherwise affirmed.
Marci Warner Adkisson, Judge.
Shannon L. Flowers, Deputy Public Defender, argued the
cause for appellant. On the brief were Tiffany Keast, Deputy
Public Defender, and Shannon Storey, Chief Defender,
Juvenile Appellate Section, Office of Public Defense Services.
Inge D. Wells, Assistant Attorney General, argued the
cause for respondent. On the brief were Judy C. Lucas,
Assistant Attorney General, Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
222 Dept. of Human Services v. A. J. G.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.*
POWERS, J.
Reversed and remanded with instructions to enter a
jurisdictional judgment omitting allegations three and four
in the second amended petition as a basis for jurisdiction;
otherwise affirmed.
______________
* Shorr, J., vice Mooney, J.
Cite as 304 Or App 221 (2020) 223
POWERS, J.
In this juvenile dependency case, father appeals
from a juvenile court judgment asserting jurisdiction over
his child, arguing that there is insufficient evidence to sup-
port the allegations in the dependency petition. The peti-
tion alleged four bases for jurisdiction: (1) child’s exposure
to domestic violence between father and mother; (2) mother’s
failure to protect child although mother knew of the domes-
tic violence allegations against father; (3) father’s substance
abuse issues; and (4) father’s failure to adequately maintain
mental health appointments and medication regimen. The
juvenile court took jurisdiction over child, who was eight
years old at the time of the hearing, concluding that the
Department of Human Services (DHS) proved each of the
allegations in the petition and that child’s circumstances
were such as to endanger his welfare. On appeal, the state
concedes that the juvenile court erred in asserting juris-
diction with respect to the third allegation involving sub-
stance abuse, and we accept that concession. As explained
below, we reject father’s arguments that the court erred in
asserting jurisdiction under the first and second allega-
tions, but we agree that the court erred in asserting juris-
diction under the fourth allegation involving father’s mental
health appointments and medication regimen. Accordingly,
the jurisdictional judgment is reversed and remanded for
an entry of a judgment establishing dependency jurisdiction
that is not based on the allegations of father’s substance
abuse and failure to adequately maintain mental health
appointments and a medication regimen.
The juvenile court made its jurisdictional determi-
nation under ORS 419B.100(1)(c).1 Father has not requested
1
ORS 419B.100 provides, in part:
“(1) Except as otherwise provided * * * the juvenile court has exclusive
original jurisdiction in any case involving a person who is under 18 years of
age and:
“* * * * *
“(c) Whose condition or circumstances are such as to endanger the wel-
fare of the person or others.”
ORS 419B.100 has been amended since the juvenile court asserted jurisdiction
over the child in February 2019. See Or Laws 2019, ch 594, § 8. Because that
amendment does not affect our analysis, we refer to the current version of the
statute in this opinion.
224 Dept. of Human Services v. A. J. G.
de novo review, and this is not an exceptional case in which
such review would be appropriate. Thus, our task in review-
ing the jurisdictional judgment is to determine whether
“the record permit[ted] the juvenile court to determine that
the child’s condition or circumstances gave rise to a current
threat of serious loss or injury to the child and that there
is a reasonable likelihood that the threat will be realized.”
Dept. of Human Services v. N. P., 257 Or App 633, 639, 307
P3d 444 (2013) (internal quotation marks omitted). When a
juvenile court makes a jurisdictional determination under
ORS 419B.100(1)(c), we:
“(1) assume the correctness of the juvenile court’s explicit
findings of historical fact if these findings are supported
by any evidence in the record; (2) further assume that, if
the juvenile court did not explicitly resolve a disputed issue
of material fact and it could have reached the disposition
that it reached only if it resolved that issue in one way,
the court implicitly resolved the issue consistently with
that disposition; and (3) assess whether the combination of
(1) and (2), along with nonspeculative inferences, was
legally sufficient to permit the trial court to determine that
ORS 419B.100(1)(c) was satisfied.”
N. P., 257 Or App at 639-40. We recite the facts consistent
with those standards.
This case involves parents’ child, who was eight
years old at the time of the jurisdictional trial.2 DHS has
had contact with the family on 16 prior occasions to follow
up on referrals of concern since 2008. Besides child, mother
has two other biological children: E and J. Father is child’s
biological father, and E and J’s step-father. Child’s IQ is
“around 50,” and he “requires a lot of one-on-one attention,
a lot of structure, [and] a lot of additional services that need
to be followed up on.” DHS had assigned a caseworker spe-
cific to high-needs children to the family, and child was
receiving services tailored to children with developmental
disabilities.
2
The jurisdictional trial also involved mother’s other two children, E and J.
Although we refer to E and J to provide context for father’s arguments, the juve-
nile court’s determinations as to those children are not at issue in this appeal.
Additionally, mother does not appeal the jurisdictional judgments and is not a
party to this appeal.
Cite as 304 Or App 221 (2020) 225
In 2017, father was released from prison and placed
on post-prison supervision until August 2020. In May 2018,
mother agreed to participate in DHS’s strengths and needs
program and also agreed to an assessment.3 She did not fol-
low through on the assessment, became difficult to contact,
and failed to secure her children’s recommended mental
health counseling.
While the family was living together in the fall of
2018, DHS received a referral of concern for the children
because mother had applied for a domestic violence grant from
DHS. The next day, October 19, mother filed for a restrain-
ing order against father. In her petition for a restraining
order, mother alleged two previous domestic violence inci-
dents involving herself and father: one from October 7 when
father “strangled [mother] at the motel, [and] left bruises
from holding [her] down while strangling” her; and one from
about a week later on October 15 when father “used his palm
and knee to push [mother] down.” Father was arrested for
the latter incident. The court granted the restraining-order
petition on October 19 and granted temporary physical cus-
tody of child to mother. The court also mandated that father
have no contact with mother or the children.
Also on October 19, a DHS caseworker visited child
and his siblings at school. During that meeting, child dis-
closed that father “had to leave the home because he had
hit his mother and choked her.” Then, using his hands,
child demonstrated what choking was on his own throat.
Child’s sibling, J, disclosed that father had to leave the home
because he was “pushing” mother and that J had seen it
happen. Child’s other sibling, E, later told the caseworker
that she did not want father to return home and that she
was scared of him returning home.
Father twice violated the restraining order by hav-
ing contact with mother on October 25 and 28. He was found
3
A DHS caseworker explained that the strengths and needs program
involves a “life coach” that,
“gets engaged with the family[,] * * * identifies the strengths of the family
to help them know what they’re doing positively and make sure that they
continue doing those positive actions, but also identifies the weaknesses or
needs of the family so that they can make it a much more suitable living
environment for the children.”
226 Dept. of Human Services v. A. J. G.
in contempt of court for both of those violations. Later, on
November 13, mother moved to dismiss the restraining
order, asserting that child wanted to see father, which the
juvenile court granted.
On November 13, DHS received another referral
of concern because the children were having contact with
father after mother had moved to dismiss the restrain-
ing order. According to DHS, father “was deemed to be an
unsafe person to be around the children until he completed
his services.” A caseworker visited mother and father that
day and they told the caseworker that father had not been
seeing the children. While mother and father were speaking
with the caseworker, however, the children arrived at the
residence and informed the caseworker that they had been
in contact with father. DHS removed the children that day,
and the juvenile court issued a shelter order for all three of
the children on November 14.
DHS then petitioned the juvenile court to assert
jurisdiction over child based on three allegations relating
to domestic violence between father and mother and father’s
substance abuse problem. A jurisdictional trial was held on
February 14, 2019, in which mother, father, three DHS case-
workers, and father’s post-prison supervision officer testi-
fied. Near the end of the trial, DHS moved to amend the
petition to add a fourth allegation based on the testimony
developed at trial, which the court granted. Thus, the sec-
ond amended petition alleged, in part:
“1. * * * [Father] engaged in an incident of domestic vio-
lence with * * * [mother], exposing the child to domestic vio-
lence, and he has not successfully engaged in treatment for
this conduct or addressed his violent behavior. This condi-
tion places the child under a threat of harm.
“2. * * * [Mother] failed to protect the child in that she is
aware of the allegations against * * * [father]; however, she
does not believe he poses a risk to the child. This condition
places the child under a threat of harm.
“3. * * * [Father] has a substance abuse problem which is
not ameliorated and hinders his ability to adequately and
appropriately parent and protect the child. This condition
places the child under a threat of harm.
Cite as 304 Or App 221 (2020) 227
“4. * * * [Father] has failed to maintain his mental health
appointments and medication [regimen], resulting in mood
swings and unstable behaviors. This condition places the
child under a threat of harm.”
DHS’s theory on the fourth allegation, as we understand it,
was that father’s failure to maintain his medication regi-
men put child at a risk of harm because there was evidence
that, if father did not take his medication, then he would
suffer from mood swings and irritability, which would lead
to arguments between mother and father, and their argu-
ments would escalate to violence.
At trial, mother testified that she did not view father
as a threat to the children, that she was living with father
at the time of the trial, and that she planned to continue
living with him. Yet, mother described in her restraining
order petition that father “is very mentally and emotionally
abusive.” Mother then testified at the trial that father “is
like that when he is off his pills.” Further, she testified that
she moved to dismiss the restraining order because father
was back on his pills and that the pills were “the only thing
that was keeping him stable.”
Additionally, mother testified that, when father
is not taking his medication, he gets “mood swings,” “gets
irritated really easily,” and “starts yelling.” Father testified
that he was not taking his medication for the three weeks
preceding the domestic violence incident on October 7, the
day that he strangled mother. Father testified that the chil-
dren were at the residence with both parents that morning,
but that their grandparents took the children out of town
before mother and father began fighting.
When mother was contacted by a DHS caseworker
on October 18, she was made aware of DHS’s concerns. A
DHS caseworker testified that mother “stated her ability
to protect and her willingness to protect” her children and
the caseworker also explained that, because mother had
a restraining order that restricted father’s contact with
mother and the children, DHS did not intervene at that time.
Another DHS caseworker testified that “[h]ad [mother] kept
the restraining order and abided by the restraining order,
228 Dept. of Human Services v. A. J. G.
there is a high likelihood that [DHS] would not have picked
up the children.”
The juvenile court, however, found each parent’s tes-
timony incredible “because of the cobweb of their testimony.”
Specifically, mother’s and father’s testimony was incredible
with respect to their descriptions of domestic violence and
the number of domestic violence incidents that occurred.4
The court explained:
“[W]hat I heard specifically from the testimony was at
least two incidents of domestic violence from each of them,
even though [the parents] tried to back pedal and make it
only one. And then the children’s clear disclosures to the
caseworkers in regard to what they observed * * * and even
though that’s not what [the parents] admitted, it makes it
more clear to me that there has been ongoing incidents of
domestic violence and inappropriate behavior with each
other that the children have observed.
“* * * * *
“So when [father] makes the argument that the only two
people who said that the children weren’t present are the
parents, that is not reliable testimony to me. They have a
self-interest here, their stories aren’t straight, they create
things as they’ve gone along through their testimony.”
Ultimately, the juvenile court determined that DHS proved
by a preponderance of the evidence each allegation relating
to father and mother and asserted jurisdiction over child.
Father now appeals, arguing that the juvenile court erred
by asserting jurisdiction under each allegation.
Father asserts that the juvenile court erred in tak-
ing jurisdiction over child under the first allegation, which
stated that father engaged in domestic violence with mother,
which exposed child to domestic violence and placed him at a
4
To the extent that the parties dispute the juvenile court’s credibility deter-
minations, we readily conclude that there is evidence to support the court’s find-
ings. As described above, we defer to a court’s findings if there is any evidence
to support them. See N. P., 257 Or App at 639. There is evidence to support the
court’s finding that the parents’ testimony was inconsistent regarding the num-
ber of domestic violence incidents and that the parents were not honest when
asked by a DHS caseworker whether child had had contact with father. Moreover,
father does not separately assign error to the court’s credibility determinations.
Accordingly, we see no reason to disturb those findings.
Cite as 304 Or App 221 (2020) 229
risk of harm. Father contends, among other arguments, that
the juvenile court’s jurisdictional determination was specu-
lative, and that DHS did not establish a nexus between an
exposure to domestic violence and threat of harm to child.
Father also challenges the juvenile court’s assertion of juris-
diction under the second allegation pertaining to mother’s
failure to protect child from father. Conversely, DHS main-
tains that there was legally sufficient evidence for the court
to determine that child had been exposed to domestic vio-
lence and that that exposure to domestic violence presents
a threat of harm to child. DHS further asserts that the evi-
dence was legally sufficient for the juvenile court to assert
jurisdiction based on those allegations.
We conclude that the juvenile court did not err in
asserting jurisdiction over child on the basis of the first
two allegations in the petition relating to domestic violence.
Mother filed for a restraining order against father, listing
father as the perpetrator in two incidents of domestic vio-
lence. In one of those incidents, she described father stran-
gling her. Although father claimed that the children were
not present, the juvenile court found otherwise and there is
evidence in the record to support the court’s finding.
As noted above, the juvenile court found that “there
has been ongoing incidents of domestic violence and inap-
propriate behavior” by both father and mother “that the
children have observed.” Both child and J told a DHS case-
worker that father had to leave the family home because
of domestic violence. Specifically, child said that father hit
and strangled mother and demonstrated “with two hands
to his throat that that’s what choking was.” The caseworker
explained:
“You don’t usually get that detailed of a disclosure from
a child regarding choking, and [child] specifically said,
[father] choked my mom like this, and that was completely—
I did not guide him through that, he just spontaneously
showed me what that looked like. So my concerns were the
exposure to domestic violence.”
Further, J told the caseworker that she had seen father push
mother and that that was why father had to leave home. That
evidence combined supports a reasonable inference that
230 Dept. of Human Services v. A. J. G.
child was present during the incident and exposed to domes-
tic violence. Additionally, father’s own testimony admitted
that the family was living together on October 7, but he
claimed that the children were not present for the domestic
violence incident because mother’s parents had picked them
up in the morning and returned the children later that day
after the incident. Because there is evidence in the record to
support the court’s finding that child observed domestic vio-
lence, we will not, under our standard of review, disturb the
juvenile court’s credibility determination that disbelieved
father about the children not being in the home during the
October 7 incident.
Moreover, DHS established a nexus between the
exposure to domestic violence and a current threat of harm.
As noted earlier, child, who has high needs, observed “ongo-
ing incidents of domestic violence and inappropriate behav-
ior.” A DHS caseworker testified that children exposed to
domestic violence can be “physically harmed in that instance
and they can also be emotionally and mentally affected by
those situations that can affect their developmental status.”
As we recently explained, a child “need not be physically
harmed by or even aware of the domestic violence surround-
ing the child to be at risk.” Dept. of Human Services v. T. J.,
302 Or App 531, 538-39, 462 P3d 315 (2020) (citation, inter-
nal quotation marks, and brackets omitted). Here, there was
sufficient evidence for the juvenile court to assert jurisdic-
tion over child, who is particularly vulnerable to domestic-
violence exposure given his need for structure and develop-
mental disability services, and low IQ. See T. J., 302 Or App
at 539 (observing that, unlike the teenage child involved in
Dept. of Human Services v. D. W. M., 296 Or App 109, 437
P3d 1186 (2019), a four-month-old infant is more vulnerable
to exposure to domestic violence); see also State v. S. T. S.,
236 Or App 646, 655-56, 238 P3d 53 (2010) (concluding that,
although newborn child had never lived with parents together,
the evidence presented satisfied the “low any-evidence
standard” supporting juvenile court jurisdiction where evi-
dence in the record shows that the older child was scared of
the parents when they argued and that, “according to the
county mental health specialist, when there is physical vio-
lence in the home, a child may suffer an inadvertent injury”).
Cite as 304 Or App 221 (2020) 231
Finally, as noted above, mother testified that she
was living with father and would remain living with him.
That testimony also establishes that, at the time of the trial,
child was at a current risk of harm. See Dept. of Human
Services v. K. V., 276 Or App 782, 791, 369 P3d 1231, rev den,
359 Or 667 (2016) (“DHS has the burden to prove that there
is a nexus connecting the parent’s allegedly risk-causing
conduct and the harm to the child and also that the risk of
harm is present at the time of the hearing and not merely
speculative.” (Internal quotation marks omitted.)). Therefore,
there was legally sufficient evidence for the juvenile court to
assert jurisdiction over child under those allegations.
Next, father challenges the allegation that pertains
to his medication regimen. He argues that DHS failed to
establish a nexus between father’s failure to take his medi-
cation and a current, nonspeculative risk of harm to child.
We conclude that, assuming that DHS proved a
nexus between father’s failure to properly medicate and a
risk of harm to child, DHS failed to prove that there was a
current threat of harm to child at the time of the jurisdic-
tional trial.
As noted above, DHS has the burden to prove that
the threat of harm to child was current. See K. V., 276 Or
App at 791. DHS argues that because father had been off his
medication for three weeks at the time of the motel incident
and because he had missed his doctor appointments, the
juvenile court could reasonably infer that father would not
adhere to his medication regimen in the future, which would
create a risk of harm to child. We disagree. DHS has not
pointed to any evidence in the record that established that
the threat of harm resulting from father’s failure to remain
properly medicated was current at the time of the trial. It is
undisputed that father had resumed taking his medication
after the October domestic violence incidents and DHS has
not pointed to any evidence that his prior episode of miss-
ing his medications and appointments was indicative of a
pattern of behavior. Accordingly, we conclude that the court
erred in asserting jurisdiction based on the fourth allega-
tion in the second amended petition.
232 Dept. of Human Services v. A. J. G.
Lastly, we reject father’s argument that the juve-
nile court erred by asserting jurisdiction over child at all.
We have explained that “the key inquiry in determining
whether conditions or circumstances warrant jurisdiction is
whether, under the totality of the circumstances, there is a
reasonable likelihood of harm to the welfare of the child.”
Dept. of Human Services v. C. Z., 236 Or App 436, 440, 236
P3d 791 (2010) (internal quotation marks and brackets omit-
ted). Although the juvenile court erred in asserting juris-
diction under the third and fourth allegations in the second
amended petition, which involved father’s substance abuse
and father’s failure to follow a medication regimen, we hold
that, considering the totality of the circumstances, the juve-
nile court did not err in asserting jurisdiction based on the
remaining allegations.
Reversed and remanded with instructions to enter
a jurisdictional judgment omitting allegations three and
four in the second amended petition as a basis for jurisdic-
tion; otherwise affirmed.