Dept. of Human Services v. N. L. B. ( 2020 )

93
Argued and submitted July 8; judgments in case numbers 19JU05936 and
19JU05937 reversed and remanded, judgments in case numbers 18JU04934
and 18JU04939 affirmed August 19; petition for review denied November 5,
2020 (367 Or 220)
In the Matter of J. B.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
N. L. B.
and D. C. B.,
Appellants.
Clackamas County Circuit Court
18JU04934; A173092 (Control)
In the Matter of E. B.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
N. L. B.
and D. C. B.,
Appellants.
Clackamas County Circuit Court
18JU04939; A173093
In the Matter of J. B.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
N. L. B.
and D. C. B.,
Appellants.
Clackamas County Circuit Court
19JU05937; A173094
94 Dept. of Human Services v. N. L. B.
In the Matter of E. B.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
N. L. B.
and D. C. B.,
Appellants.
Clackamas County Circuit Court
19JU05936; A173095
473 P3d 610
In 2018, the juvenile court took jurisdiction over two children, E and J, based
on mother’s and father’s stipulations that E suffered life-threatening injuries
while in their care. In 2019, father was charged with assault and criminal mis-
treatment for causing E’s injuries. DHS then filed new petitions asserting as an
additional basis for jurisdiction that father had been criminally charged and
mother failed to appreciate the risk he poses as a result. Mother and father each
filed motions to dismiss, arguing that the record no longer supports maintaining
jurisdiction on the bases asserted in 2018 and that the new 2019 petitions fail to
allege facts sufficient to support taking jurisdiction. The trial court denied their
motion and they both appeal renewing the same arguments. Held: The record
supports the trial court’s continuance of jurisdiction on the bases asserted in
2018. Little more than a year ago E suffered life-threatening injuries which doc-
tors concluded were “consistent with abusive head traumas.” To date, parents
have not explained how those injuries occurred or taken steps to address what
caused them. However, the allegations in the 2019 petition are insufficient to
establish jurisdiction. The fact that father was indicted is only an accusation—it
provides no new facts about any risk the children are exposed to.
Judgments in case numbers 19JU05936 and 19JU05937 reversed and
remanded; judgments in case numbers 18JU04934 and 18JU04939 affirmed.
Ann M. Lininger, Judge.
George W. Kelly argued the cause and filed the brief for
appellant N. L. B.
Ginger Fitch filed the brief for appellant D. C. B.
Erin K. Galli, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
Cite as 306 Or App 93 (2020) 95
KAMINS, J.
Judgments in case numbers 19JU05936 and 19JU05937
reversed and remanded; judgments in case numbers
18JU04934 and 18JU04939 affirmed.
96 Dept. of Human Services v. N. L. B.
KAMINS, J.
In this juvenile dependency case, mother and father
appeal from 2018 and 2019 judgments in which the juvenile
court asserted dependency jurisdiction over their children,
E and J. The juvenile court took jurisdiction over both chil-
dren in 2018, in two separate judgments, when E suffered
unexplained, life-threatening injuries while in her parents’
care. In 2019, the state filed second dependency petitions,
one for each child, alleging two additional bases for juris-
diction over the children: that father had been indicted for
assaulting and criminally mistreating E and that mother
failed to appreciate the risks father posed as a result.
Mother and father each filed motions to dismiss
both the 2018 cases and the pending 2019 petitions, arguing
that the Department of Human Services (DHS) had failed
to prove that the parents presented a current threat to the
children’s safety. The juvenile court denied each motion, con-
cluding that DHS had met its burden. On appeal, we agree
that DHS produced sufficient evidence to satisfy its burden
with respect to the 2018 bases for jurisdiction. However, we
conclude that the juvenile court erred in granting DHS’s
2019 petitions to add two additional bases for jurisdiction.
Accordingly, we reverse and remand the juvenile court’s
2019 judgments, but affirm the 2018 judgments.
Neither mother nor father requests that we exercise
our discretion to engage in de novo review, and we decline to
do so. ORS 19.415(3)(b); ORAP 5.40(8)(c) (we conduct de novo
review only in “exceptional” cases). Accordingly, in deter-
mining whether asserting jurisdiction was warranted, we
assess whether the record was legally sufficient to permit
the outcome that was reached. Dept. of Human Services v.
S. R. C., 263 Or App 506, 508, 328 P3d 814, rev den, 356
Or 397 (2014). In doing so, we view the evidence, as supple-
mented and buttressed by permissible derivative inferences,
in the light most favorable to the juvenile court’s ruling.
Dept. of Human Services v. J. E. F., 290 Or App 164, 166, 421
P3d 415, rev den, 362 Or 794 (2018). We state the facts in
accordance with that standard.
In May 2018, three-month-old E experienced six
days of projectile vomiting. Mother and father took her to
Cite as 306 Or App 93 (2020) 97
their medical provider, but the provider was unable to iden-
tify the cause of the problem. After the visit, the issues sub-
sided for some time but returned again the following month.
E also began experiencing seizures lasting anywhere from
six to ten minutes. An MRI revealed that E had two chronic
subdural hematomas, one on either side of her head, and one
subdural hematoma on the right side of her brain that was
“of newer origin.” Further testing also revealed significant
hemorrhaging in E’s right eye. To treat the hematomas, sur-
geons had to drill burr holes into E’s skull and drain the
blood around her brain.
When asked how E had been injured, mother and
father suggested that E’s two-and-a-half-year-old brother J
had caused the injuries by dropping E onto a pillow, throw-
ing toys at her, or punching her in the face. Doctors dis-
agreed, however, concluding that E’s injuries were most
likely nonaccidental and were “consistent with abusive head
traumas.” Following a DHS investigation, both E and J were
removed from mother and father’s home and placed in rela-
tive foster care.
In June 2018, DHS filed dependency petitions
requesting that the juvenile court take jurisdiction over
both E and J. In September 2018, the court took jurisdiction
over E, based on mother’s and father’s stipulations that E
“was diagnosed with child physical abuse, traumatic sub-
dural hemorrhage, and retinal hemorrhage in the right eye”
while in the care of her parents. The court also took jurisdic-
tion over J on the basis of E’s injuries.
In the months following the assertion of juvenile
court jurisdiction, mother and father remained unforthcom-
ing with information about how E was injured. At one point,
they suggested that E’s injuries may have been the result of
a genetic condition, though genetic testing later ruled that
out as a possibility.
In March 2019, father was criminally charged with
first-degree assault, third-degree assault, and first-degree
criminal mistreatment based on the injuries to E. Because
his pretrial release agreement provided that he was to have
no contact with E, apart from visits supervised by DHS,
father moved out of the family home. Several months later,
98 Dept. of Human Services v. N. L. B.
DHS filed second dependency petitions. Those petitions
alleged an additional basis for jurisdiction against father
for each child: that he had been indicted for first-degree
assault, third-degree assault, and criminal mistreatment
for the injuries to E. The 2019 petitions also added a juris-
dictional basis against mother that she failed to appreciate
the risk father poses in light of his charges.
Shortly thereafter, mother and father each filed
motions to dismiss both the 2018 and 2019 cases. With
respect to the 2018 bases for jurisdiction, mother and father
argued that DHS failed to satisfy its ongoing burden of
proving that the children’s circumstances posed a danger to
their welfare. Furthermore, mother and father argued that,
even if the facts in the 2019 petitions were taken as true,
they would not satisfy DHS’s burden.
The juvenile court rejected both arguments.
Beginning with the 2018 bases, the court explained that
the evidence demonstrated that E had suffered extremely
severe injuries consistent with child abuse while in moth-
er’s and father’s care. Despite these “extremely concerning”
events, however, the court observed that neither mother or
father had taken steps to ameliorate the risk that an injury
could happen again. On the 2019 petitions, the court con-
cluded that jurisdiction was warranted because the evidence
showed a “present risk of serious[ ] loss or injury in a nexus
between the parents[’] risky conduct and that risk of harm.”
Mother and father each appeal, assigning error to
the juvenile court’s conclusions regarding both the 2018 and
2019 bases for jurisdiction. For the reasons that follow, we
affirm the juvenile court’s decision regarding the 2018 bases
but reverse with respect to the 2019 petitions.1
Under ORS 419B.100(1)(c), jurisdiction is proper
over a child “[w]hose condition or circumstances are such
as to endanger the [child’s] welfare.” A child’s welfare is
endangered when the child “is exposed to conditions or cir-
cumstances that present a current threat of serious loss or
1
We decline to address mother’s unpreserved argument relating to a psycho-
logical evaluation. See Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823
P2d 956 (1991) (discussing factors for exercising plain error review).
Cite as 306 Or App 93 (2020) 99
injury.” Dept. of Human Services v. E. M., 264 Or App 76,
81, 331 P3d 1054 (2014) (internal quotation marks omitted).
In assessing whether jurisdiction is proper, we look to the
totality of the circumstances to determine whether 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). DHS bears the burden of proving that a
risk of harm is present and nonspeculative at the time of
the hearing and that there is a nexus between that risk-
causing conduct of the parents and harm to the child. Dept.
of Human Services v. C. J. T., 258 Or App 57, 62, 308 P3d 307
(2013).
Once jurisdiction has been established, so long as
the permanency plan remains reunification, DHS bears the
burden of demonstrating that the original bases for jurisdic-
tion continue to pose a threat of serious loss or injury. Dept.
of Human Services v. T. L., 279 Or App 673, 687, 379 P3d 741
(2016). We evaluate motions to dismiss ongoing jurisdiction
according to a two-part inquiry. Id. at 684. First, we deter-
mine whether the original bases for jurisdiction continue to
pose a threat of serious loss or injury. Id. at 685. If so, we
then assess the likelihood that the risk of loss or injury will
be realized. Id.
We begin with the 2018 bases for ongoing jurisdic-
tion. Both parents argue that, although the injuries E suf-
fered in their care may at one point have provided a basis
for jurisdiction, the record no longer supports a conclusion
that E’s and J’s welfare are endangered. In her case, mother
argues that DHS personnel’s own statements demonstrate
that she poses no serious risk of harm to the children.
Indeed, the testimony at trial indicated that the DHS case
worker believed that mother is able to meet the children’s
basic needs, that she is bonded and attached to her children,
and that DHS had observed no safety concerns while the
children are in mother’s care. Given that testimony and the
fact that, in her view, DHS never articulated a specific risk
of harm that she presents, mother argues that dismissal is
appropriate.
Likewise, father argues that, during the five months
that he was living in the home with a safety supervisor,
100 Dept. of Human Services v. N. L. B.
there was no evidence that he posed any risk to the chil-
dren’s welfare. Further, since the issuance of the no-contact
order, he argues that he has complied with all conditions of
his pretrial release order and that his supervised visits with
the children have been positive.
We reject these arguments. When viewed in the
light most favorable to the juvenile court’s decision, the
record supports the conclusion that the children are at risk
of serious harm. Little more than a year before the hearing,
E suffered serious, life-threatening injuries on more than
one occasion. Doctors concluded that her injuries were con-
sistent with “abusive head trauma” and having been “shaken
aggressively.” When asked about the injuries, mother and
father could not, and still cannot, provide an explanation
consistent with the physical evidence.
Although we recognize that “it is not sufficient for
the state to prove that the child’s welfare was endangered
sometime in the past,” Dept. of Human Services v. F. Y. D.,
302 Or App 9, 19, 459 P3d 947 (2020), the injury here was
recent and affirmatively diagnosed as child physical abuse.
Additionally, parents stipulated that the child suffered
the injury while in their care. As a DHS case worker tes-
tified, without parents’ understanding as to how the injury
occurred to an infant in their sole custody and care, the
bases for jurisdiction have not been addressed or amelio-
rated. Moreover, as the juvenile court recognized, during
the entirety of the relatively brief time since the injuries to
E were discovered, the family has been under a DHS safety
plan which could alone explain the fact that the children
have not suffered additional injuries.
For the same reasons, the record was sufficient to
permit the juvenile court to conclude that the risk is likely
to be realized. We have previously observed that one import-
ant measure of whether a risk is likely to be realized is
whether parents have taken steps to ameliorate the original
bases for jurisdiction. T. L., 279 Or App at 685. Here, the
record contains no evidence of any steps that either mother
or father has taken to address the fact that their infant
child sustained life-threatening injuries in their care with-
out explanation. The record allows for the inference that,
Cite as 306 Or App 93 (2020) 101
to date, mother and father do not appear to recognize the
importance of the safety protocols, nor have they partici-
pated in any services specifically tailored toward preventing
the injury from happening again.
Indeed, mother testified that her reason for continu-
ing safety protocols would be “[b]ecause my family is under
scrutiny and * * * [m]y husband is under scrutiny from the
DA’s Office and from the DHS office and I do not want to do
anything that is going to result in DHS taking custody back
of my children.” From mother’s response, the trial court
could have inferred that mother’s primary motivation is
avoiding further scrutiny, not mitigating the risk to E’s and
J’s safety. For these reasons, we conclude that the record
contained sufficient evidence to support the juvenile court’s
continued exercise of jurisdiction on the bases asserted in
2018.
Next, we turn to the 2019 additional bases for juris-
diction. In evaluating the juvenile court’s decision to add a
basis for jurisdiction, “we examine whether sufficient evi-
dence exists, from which a reasonable factfinder could con-
clude by a preponderance of the evidence, either that a cur-
rent risk of harm to [the child] exists from the additional
allegation standing alone, or that the additional allegation
contributes to or enhances the risk associated with the
already established bases of jurisdiction.” Dept. of Human
Services v. S. A. B. O., 291 Or App 88, 99, 417 P3d 555 (2018)
(quoting S. R. C., 263 Or App at 511).
DHS contends that the indictment meaningfully
enhances the 2018 bases by showing that father is facing
serious criminal charges for E’s injuries and that mother has
failed to acknowledge the risk he presents to the children as
a result. Additionally, DHS argues that the no-contact order
issued as a result of the charges contributes to the risk to
the children by rendering father unable to parent them.
We reject DHS’s argument. The district attorney’s
issuance of an indictment does not enhance the 2018 bases
for jurisdiction. As mother and father point out, an indict-
ment is merely an accusation that a named individual has
committed a crime. An indictment alone does not establish
102 Dept. of Human Services v. N. L. B.
any facts about a case or provide any new information about
how the individual charged poses a risk of harm to others.
Although the criminal charges did include a no-contact
order restricting father’s ability to parent his children, we
have some difficulty seeing how this would enhance any
risk of serious loss or injury for the children. The record
contains no evidence to suggest that mother is incapable of
meeting the children’s needs without father. Indeed, DHS’s
reports appear to support the opposite conclusion. If any-
thing, the no-contact order’s strict restrictions on father’s
interactions with the children supports an inference that
the order reduces the children’s risk of harm. DHS has failed
to meet its burden of proving any nexus between the indict-
ment and any harm to the children whether the indictment
is viewed alone or in connection with the established bases
for jurisdiction. Accordingly, we conclude that the juve-
nile court erred in concluding that the allegations in the
2019 petitions were sufficient to establish jurisdiction over
E and J.
In sum, the record supports the juvenile court’s
determination that jurisdiction remains warranted on the
bases asserted in 2018 but does not support its determi-
nation that the bases alleged in the 2019 petitions provide
grounds for dependency jurisdiction.
Judgments in case numbers 19JU05936 and
19JU05937 reversed and remanded; judgments in case
numbers 18JU04934 and 18JU04939 affirmed.