Dept. of Human Services v. T. G. H. ( 2020 )

783
Argued and submitted June 15, affirmed August 12, 2020
In the Matter of E. S. H.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
T. G. H.,
aka T. G. H.,
Appellant.
Lincoln County Circuit Court
19JU04618; A172381 (Control)
In the Matter of W. A. E.,
aka W. E., a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
T. G. H.,
aka T. G. H.,
Appellant.
Lincoln County Circuit Court
19JU04620; A172382
In the Matter of M. L. H.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
T. G. H.,
aka T. G. H.,
Appellant.
Lincoln County Circuit Court
19JU04621; A172383
473 P3d 591
Father appeals from a judgment of the Lincoln County juvenile court assum-
ing jurisdiction over father’s three children, who are Native American. Father
contends that the court erred in rejecting his argument that DHS’s jurisdictional
784 Dept. of Human Services v. T. G. H.
petition is barred by issue preclusion as a result of an earlier jurisdictional pro-
ceeding in the Douglas County juvenile court in which the court had not assumed
jurisdiction. Father also asserts that the court erred in denying his motion
in limine to exclude from the court’s consideration evidence that had previously
been considered by the Douglas County juvenile court in evaluating the earlier
jurisdictional petition. Father contends, in the alternative, that the evidence does
not establish sufficient grounds for dependency jurisdiction. Held: The Lincoln
County juvenile court did not err in rejecting father’s contention that DHS’s juris-
dictional petition is barred by issue preclusion, because the Lincoln County peti-
tion included new allegations that were based on new substantial material facts
that were not considered by the Douglas County court. The trial court also did not
err in denying father’s motion in limine to exclude evidence that had been consid-
ered previously by the Douglas County court, because, in determining whether
DHS had met its burden to establish the new allegations by clear and convincing
evidence, the Lincoln County juvenile court was required to evaluate the totality
of the circumstances, including the present effects of past events on the children’s
condition. Finally, the juvenile court’s judgment assuming jurisdiction is sup-
ported by legally sufficient evidence in the record.
Affirmed.
Amanda R. Benjamin, Judge pro tempore.
Christopher W. Peterman argued the cause and filed the
brief for appellant.
E. Nani Apo, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
TOOKEY, J.
Affirmed.
Cite as 305 Or App 783 (2020) 785
TOOKEY, J.
This juvenile dependency case is subject to the
Indian Child Welfare Act (ICWA), because it involves three
children who, with their mother, are enrolled members of the
Oglala Sioux Tribe. In this proceeding, the Lincoln County
juvenile court assumed jurisdiction of the children based on
allegations in a petition filed by the Department of Human
Services (DHS) under ORS 419B.100(1)(c) (juvenile court has
original jurisdiction over any case involving a child “whose
condition or circumstances are such as to endanger the wel-
fare” of the child), that father, with whom they were living,
had exposed them to violence and lacked the parenting skills,
including disciplinary skills, to safely parent the children.
Father challenges the jurisdictional judgment, contending
that the juvenile court erred in denying his motion in limine
to exclude from the court’s consideration evidence that had
previously been considered by the Douglas County juvenile
court in evaluating an earlier jurisdictional petition. Father
contends, further, that the Lincoln County petition should
be dismissed based on issue preclusion, because the current
allegations are nearly identical to those that were previously
litigated and rejected by the Douglas County juvenile court.
Father contends, in the alternative, that the evidence does
not establish sufficient grounds for dependency jurisdiction.
We conclude that the Lincoln County juvenile court did not
err in denying father’s motion in limine and that the juvenile
court’s judgment is supported by legally sufficient evidence
in the record; accordingly, we affirm.
Father has not requested that we exercise our
discretion to review de novo, ORS 19.415(3)(b), and this is
not an exceptional case in which de novo review would be
appropriate. See ORAP 5.40(8)(c) (we review de novo “only
in exceptional cases”). Accordingly, in reviewing the juve-
nile court’s judgment, 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 are
bound by the juvenile court’s explicit and implied findings of
786 Dept. of Human Services v. T. G. H.
historical fact, if any evidence in the record supports them.
Id. at 639-40.
Mother and father have been separated for five or
six years, and father had legal custody of the children in
Douglas County. Mother lives in Lincoln County. The chil-
dren, two boys, ages 12 (W) and 8 (E), and a girl, age 10
(M), were taken into DHS’s custody in Douglas County on
January 10, 2019, based on “founded” allegations of abuse
and neglect by father, and DHS filed jurisdictional petitions
in Douglas County. The petitions alleged:
“A. The father has used inappropriate discipline upon
the child and/or the child’s sibling;
“B. The father has caused physical injury and/or men-
tal and emotion [sic] harm to child;
“C. The father has neglected the child’s basic needs;
“D. The mother is unable to protect the child from
father’s abuse.”
Before the jurisdictional hearing, DHS decided not to pro-
ceed, because it concluded that mother was a fit parent; but
mother and the two boys adopted the petitions and requested
that the court take jurisdiction. See ORS 419B.809 (allow-
ing “[a]ny person” to file a petition alleging that a child is
within the jurisdiction of the juvenile court). The two boys
remained in mother’s custody. The 10-year-old girl did not
adopt the petition and returned to father’s home. Because
the boys were in DHS’s care, DHS remained a party to the
Douglas County proceeding, ORS 419B.875(1)(a)(G), but it
did not participate or argue for jurisdiction.
Because this case is subject to ICWA, in order to
establish jurisdiction and remove the children from father’s
custody, the allegations of the petition had to be shown by
clear and convincing evidence and demonstrate that contin-
ued custody by father was likely to result in serious emo-
tional or physical injury to the children. ORS 419B.340(7).
(When an Indian child is involved, “[f]oster care placement
may not be ordered in a proceeding in the absence of a deter-
mination, supported by clear and convincing evidence, * * *
that the continued custody of the Indian child by the parent
or Indian custodian is likely to result in serious emotional or
Cite as 305 Or App 783 (2020) 787
physical injury to the Indian child.”). Among other evidence
presented at the Douglas County jurisdictional hearing,
the children testified, describing father’s disciplinary style,
which included hard labor and corporal punishment.
In ruling from the bench on May 21, 2019, the
Douglas County juvenile court declined to say whether
father’s discipline was inappropriate. The court questioned
some of W’s testimony, believing that it might have been col-
ored by his particular goal to no longer live with father. The
court believed that father had been spanking the children
with a stick but concluded that father was not inflicting
“lasting injury.” Ultimately, the court determined that the
legal standard for taking jurisdiction had not been met.
While the Douglas County jurisdictional proceeding
was pending and with DHS’s consent, mother arranged for
the boys to be counselled by Pierce, a child therapist with the
Lincoln County Health and Human Services Department.
Pierce saw the children and mother together weekly begin-
ning in mid-March 2019 and provisionally diagnosed
both boys with post-traumatic stress disorder (PTSD). On
May 17, 2019, just a few days before the conclusion of the
Douglas County proceedings, W shared with Pierce that
he feared the possibility of returning to father’s house
because he believed that father would shoot him as a result
of the information he had disclosed in the Douglas County
proceeding.
Pierce was not called to testify in the Douglas
County proceeding, and the boys’ sessions with her were
not a part of the record in the Douglas County proceeding.1
Pierce reported W’s concern to Lincoln County’s health
department. All three children were interviewed by a
Lincoln County social services specialist. W again shared
his fear that if he returned to father’s home, father would
shoot him, and both W and E described other incidents that
had caused them to be afraid of father. They described inci-
dents of physical abuse by father through inappropriate cor-
poral punishment with a stick and an incident in which they
1
The record does not show why Pierce did not testify in the Douglas County
proceeding.
788 Dept. of Human Services v. T. G. H.
were forced to watch the killing of the family’s pet dog and
to assist in the disposal of the dog’s body on a burn pile. The
boys recounted an incident in which father had once threat-
ened another driver with a firearm while driving with the
children on a freeway in Salem. When they were told that
the Douglas County petitions had been dismissed, both boys
expressed fear of father, and M appeared to be fearful of
talking about father and would not talk when asked about
abuse.
On May 26, 2019, DHS filed jurisdictional petitions
for all three children in Lincoln County. DHS removed M
from father’s home and placed her with mother. A week later,
mother obtained a Family Abuse Prevention Act (FAPA)
order against father, which gave her custody of the children.
Because mother now had custody of the three children, DHS
withdrew its jurisdictional petition.
But, mother and the children became frightened
when father was twice seen driving past the apartment com-
plex where mother and the children were living in Lincoln
County, and DHS filed new petitions. W expressed concern
that father would come to his counseling sessions and shoot
somebody. All three petitions alleged that the children had
been exposed to violence from father and that mother was
unable to protect them from father’s violence. Mother admit-
ted that allegation.
At the shelter hearing, father made an oral motion
in limine to exclude evidence of events that had occurred
before May 21, 2019, the date of the Douglas County court’s
judgment, on a theory of “issue preclusion.” Father con-
tended that much of the evidence that would support the
new allegations had been or could have been presented in
the Douglas County proceeding. Father contended that the
evidence should therefore be excluded. Father did not move
to dismiss the petitions; however, the juvenile court inter-
preted father’s motion in limine as a motion to dismiss the
allegations that were based on the same evidence as those
that had been rejected by the Douglas County juvenile court.
DHS responded that the Douglas County judgment
declining jurisdiction based on the record then before the
court did not preclude the Lincoln County juvenile court
Cite as 305 Or App 783 (2020) 789
from considering the previous evidence as well as new evi-
dence in evaluating the new and different allegations of the
current petition. The earlier evidence was relevant, DHS
contended, because “it’s a stacking of events that leads DHS
to have concerns about a family.”
The juvenile court agreed with DHS:
“I agree that when evaluating whether jurisdiction is
appropriate, that prior circumstances may not have war-
ranted a jurisdictional finding; however, condition[s] and
circumstances can be cumulative or have a cumulative
effect on a child. Again, this can’t be understood in a vac-
uum, if you will, when we’re talking about families or other
allegations. I’m not going to limit this particular hearing
to only conditions or circumstances that are alleged to have
occurred since May 21st.”
The Lincoln County juvenile court denied father’s motion
in limine but ruled before the jurisdictional hearing that
two of the allegations in the Lincoln County petition (alle-
gations of father’s failure to provide adequate food for the
children and father’s physical abuse of the children) should
be dismissed, because they had been addressed and rejected
by the Douglas County court on the identical factual record.
After the shelter hearing, the juvenile court awarded tem-
porary custody of the children to DHS, with placement with
mother.
The Lincoln County jurisdictional petition went to
hearing on five allegations relating to all three children:
“The mother was subjected to domestic violence by the
father and the mother is unable to protect the child from
exposure to father’s violence.
“The mother failed and/or is unable to protect the child
from the father’s violence.
“The child has been exposed to violence by the father.
“The father’s mental health problems, including anger
control problems, interfere with his ability to safely parent
the child.
“The father lacks skills necessary to safely parent the
child, including knowledge of appropriate disciplinary
practice.”
790 Dept. of Human Services v. T. G. H.
Two additional allegations related only to W and E:
“The father has subjected the child to mental, ver-
bal, and/or emotional abuse resulting in impairment of
the child’s psychological and/or emotional well-being and
functioning.
“The child is fearful of the father, does not feel safe in
the father’s care, and is a suicide or runaway risk if placed
in the father’s care.”
Father filed a written motion before the beginning
of the jurisdictional hearing seeking to exclude evidence of
events that occurred before the Douglas County’s May 21,
2019, judgment. After the jurisdictional hearing, in a
thoughtful and thorough written opinion, the juvenile court
addressed father’s issue preclusion argument.2 The court
turned for guidance to this court’s opinion in State ex rel
Juv. Dept. v. Newman, 49 Or App 221, 227, 619 P2d 901(1980), rev den, 290 Or 449 (1981). In that case, the juvenile
court had terminated a father’s parental rights to his three
children, but this court reversed, determining that the evi-
dence was insufficient. The state then sought and obtained
a second termination judgment. The father contended on
appeal that the second termination proceeding was barred
by “collateral estoppel” or “res judicata”3 and that facts that
were or could have been considered in the first termination
proceeding could not be reconsidered in the second proceed-
ing. Id. at 224. In rejecting the father’s argument, we said
in Newman:
“Although we do not accept the father’s argument, we do
not go so far as to hold that collateral estoppel may never
preclude relitigation of a fact in controversy in the first ter-
mination proceeding with respect to which there has been
a final factual finding. As in other litigation, there must
2
As previously noted, father did not explicitly request dismissal of the alle-
gations; his motion in limine only requested the exclusion of evidence. Ordinarily,
we would conclude on that basis that the issue of dismissal had not been pre-
served. However, because the juvenile court assumed that father’s motion
in limine implicitly included a request for dismissal and also ruled on it, we defer
to the juvenile court’s interpretation of father’s contentions and conclude that the
question is sufficiently preserved.
3
Claim preclusion and issue preclusion were formerly referred to by the
courts as “res judicata” and “collateral estoppel.” Drews v. EBI Companies, 310 Or
134, 139, 795 P2d 531 (1990).
Cite as 305 Or App 783 (2020) 791
come a time when factual disputes reach a state of final
[repose]—sound public policy demands it. But we need not
pursue the extent to which collateral estoppel may be appli-
cable to this type of proceeding because the father here
takes the extreme view that if the second proceeding may
be maintained at all, only facts arising subsequent to the
first proceeding may be considered in the second one, and
that position we reject.
“Termination of parental rights proceedings generally
arise out of a continuing and cumulative set of circum-
stances, in which the child is within the juvenile court’s
jurisdiction and, often, is subject to agency custody or super-
vision. An order denying a petition to terminate parental
rights seldom leads directly to the termination of wardship
or of agency involvement. It is one thing to say that such
an order bars a second termination proceeding when there
has been no change in the operative facts which led to the
initiation of the first proceeding; it is very different—and
clearly wrong—to contend that, if new substantial material
facts come into existence which justify the filing of a new
termination proceeding, evidence and facts which were or
could have been considered in the earlier proceeding can-
not be considered or reconsidered in the later one.”
Id. at 225-26.
In Newman, we found guidance in the Supreme
Court’s opinion in Greisamer and Greisamer, 276 Or 397,
401, 555 P2d 28 (1976), a child custody dispute. There, the
Supreme Court said that the primary consideration in a
child custody proceeding is “the best interests of the child.”
In light of that, the court in Greisamer concluded that evi-
dence relating to a parent’s “custodial qualifications exist-
ing at the time of the first proceeding are an essential ingre-
dient in the second proceeding in determining what would
best serve the children’s interests.” Id.Citing Greisamer, we reasoned in Newman that, in
termination cases, as in child custody matters, the primary
concern is the best interests of the child. We concluded:
“[W]hen a second termination proceeding is not itself
barred, the proof is not limited by res judicata or collateral
estoppel principles to facts or evidence which was not con-
sidered in, or which came into being after, the first proceed-
ing. Here, a new substantial material fact or facts existed;
792 Dept. of Human Services v. T. G. H.
the second proceeding was not barred by the fact of the
first, and evidence and facts available or adduced at the
time of the first proceeding could be considered in the later
proceeding.”
49 Or App at 227-28. Thus, in Newman, although we did
not hold that a second termination proceeding could never
be barred, we said that, when “a new substantial material
fact or facts exist,” a second proceeding will not be barred
by claim or issue preclusion. Id. And, at least in the context
of termination, we held that evidence of conduct that had
been available or adduced in the first proceeding could be
considered in the second. Id.The juvenile court here reasoned that Newman’s
analysis of the preclusion issue carries over to the jurisdic-
tional context. Relying on Newman, the court concluded that
new “substantial material facts” will support the filing of a
new petition.4
The juvenile court then analyzed each of the cur-
rent allegations in light of Newman and the factors iden-
tified by the Supreme Court in Nelson v. Emerald People’s
Utility Dist., 318 Or 99, 104, 862 P2d 1293 (1993), in deter-
mining whether any of the new allegations were precluded.
The court compared the current allegations and the evidence
presented in support of them with the allegations and evi-
dence in the Douglas County proceeding. Some of the new
allegations, the court concluded, “are substantially the same
as those previously dismissed and resulted in presentation
of nearly identical testimony and evidence.” Those allega-
tions could not be reconsidered, the court reasoned, because
disregarding a different circuit court’s final decision on an
identical issue or claim would be illogical and “contrary to
long-held legal doctrine and contrary to public policy.”
However, several of the allegations, the court rea-
soned, involved new substantial material facts. As to W
and E, the court focused in particular on the allegation
4
The juvenile court rejected DHS’s contention that any new evidence could
support the filing of a new jurisdictional petition. The court explained: “If DHS’s
position is correct, with the assertion of a single new fact, DHS could repeatedly
file and litigate the exact same allegations against parents in the hope of a more
favorable overall decision.”
Cite as 305 Or App 783 (2020) 793
that “father has subjected the child to mental, verbal, and/
or emotional abuse resulting in impairment of the child’s
psychological and/or emotional well-being and functioning.”
Pierce, the boys’ Lincoln County therapist, testified in the
Lincoln County proceeding regarding the psychological and
emotional effects of father’s discipline.5 The court found
that Pierce’s testimony was “substantial new material” that
demonstrated that the two boys had suffered harm:
“Since the jurisdictional hearing in Douglas County,
[W] and [E] have each engaged in mental health coun-
seling on a weekly basis. Each child has been diagnosed
with Post-Traumatic Stress Disorder related specifically to
their Father’s care or treatment of them. The mental health
counselor testified that treating the children takes time
because first rapport and trust have to be established and
the children have to stabilize before treatment can begin.
[E] took so long to open up to his counselor that a trauma
screen was not performed until July. The true or full psy-
chological and emotional impact of any violence or abuse
experienced by the children in this case was not known to
the parties at the time of the Douglas County jurisdictional
hearing. The evidence presented by [E] and [W]’s counselor
constitutes a substantial new material fact and presents
new potential safety threats to these children.”
Also with respect to W and E, the court found that the evi-
dence substantiated the new allegation that the boys’ fear of
father had resulted in a risk of running away or suicide if
faced with the possibility of returning to father’s care.
The court concluded that the allegation that “father
lacks skills necessary to safely parent the child, including
knowledge of appropriate disciplinary practice” was new
and, although it was supported by some of the same evi-
dence that had been presented in Douglas County, there
5
Pierce testified in the Lincoln County proceeding that the traumatic event
that triggered W’s symptoms was a punishment in which he was not allowed into
the house to eat or sleep over a period of two days until he finished stacking 200
hay bales. Pierce testified that W’s PTSD caused him to feel sad, worthless, and
hopeless; caused him to have psychosomatic symptoms, including sweating, a
racing heartbeat, and shaking hands; and caused him to be paranoid and believe
that “everybody is out to get him.” The triggering event for E was being forced
to watch a friend of his father shoot the family dog. E’s PTSD was evidenced
through external symptoms, including self-harming behaviors such as hitting
himself, scratching himself, and trying to choke himself with his hands.
794 Dept. of Human Services v. T. G. H.
were also “new material facts” that were relevant in deter-
mining whether father’s parenting skills presented a safety
threat to the children. The court found that allegation par-
ticularly relevant to M, who had not yet been shown to have
experienced serious harm by father, but who the court found
was nonetheless at a substantial risk of harm because of
father’s lack of parenting skills. Ultimately, the court found
the following allegations to have been established by clear
and convincing evidence as to all three children:
(1) Mother failed and/or is unable to protect the chil-
dren from the father’s violence.
(2) The children have been exposed to violence by the
father.
(3) Father lacks skills necessary to safely parent the
children, including knowledge of appropriate disciplinary
practice.
As to W and E, the court found two additional allegations
to have been established by clear and convincing evidence:
(1) Father had subjected W and E to mental, verbal,
and/or emotional abuse resulting in impairment of the
children’s psychological and/or emotional well-being and
functioning.
(2) W and E are fearful of the father, do not feel safe
in the father’s care, and are a suicide or runaway risk if
placed in the father’s care. The court assumed jurisdiction
of all three children based on those allegations.
On appeal, father challenges the trial court’s denial
of his motion in limine and contends further that the court
erred in failing to dismiss the Lincoln County allegations
altogether based on issue preclusion. We review the trial
court’s ruling rejecting father’s issue preclusion arguments
for errors of law. City of Portland v. Huffman, 264 Or App
312, 315, 331 P3d 1105 (2014).
Issue preclusion, a doctrine of judicial finality, is a
branch of “preclusion by former adjudication” that is based,
first, on the “protection of private litigants against the
harassing necessity of litigating more than once the same
issue or cause of action” and, second, on “the protection of
the public’s interest in preventing relitigation of matters
Cite as 305 Or App 783 (2020) 795
once decided.” Bahler v. Fletcher, 257 Or 1, 6, 474 P2d 329(1970) (describing policy underpinnings of doctrine of “col-
lateral estoppel,” now known as “issue preclusion”). Issue
preclusion arises in a subsequent proceeding when an issue
of ultimate fact or law has been determined by a valid and
final determination in a prior proceeding. Drews v. EBI
Companies, 310 Or 134, 140, 795 P2d 531 (1990) (“Issue
preclusion applies to an issue of either fact or law.”). Issue
preclusion will preclude a subsequent determination of the
same facts or issue when (1) the issue in the two proceed-
ings is identical; (2) the issue was actually litigated in the
first proceeding and was essential to a final decision on the
merits; (3) the party that sought to be precluded had a full
and fair opportunity to be heard on the issue; (4) the party
sought to be precluded was a party or was in privity with a
party to the prior proceeding; and (5) the prior proceeding
was the type of proceeding to which a court will give preclu-
sive effect. Nelson, 318 Or at 104.
Claim preclusion, also a branch of preclusion by for-
mer adjudication, is broader than issue preclusion. It may
bar litigation of an issue that could have been raised, even if
that issue was not actually raised, in an earlier proceeding.
Drews, 310 Or at 140.6
In appropriate contexts, preclusion by former adju-
dication can apply in dependency cases. For example, in
State ex rel. Juv. Dept. v. Gates, 96 Or App 365, 372, 774
P3d 484, rev den, 308 Or 315 (1989), we held that an order
of a juvenile court assuming dependency jurisdiction is a
final appealable determination that cannot be reconsidered
by another court. We did not explicitly cite claim or issue
preclusion in support of our conclusion. But the opinion’s
6
Father characterizes his argument as “issue preclusion.” But father’s asser-
tions that the allegations of the petition are barred and that evidence that could
have been presented in the Douglas County proceeding could not be presented in
the Lincoln County proceeding would seem to bear on claim preclusion, not issue
preclusion. Id. (Under the doctrine of claim preclusion, “[w]here there is an oppor-
tunity to litigate the question along the road to the final determination of the
action or proceeding, neither party may later litigate the subject or question.”);
see Troutman v. Erlandson, 287 Or 187, 197, 598 P2d 1211 (1979) (describing com-
ponents of “res judicata,” now known as “claim preclusion,” to include whether all
matters that were subject to the second case could have been litigated in the first
case).
796 Dept. of Human Services v. T. G. H.
significance is its holding that, although a court’s continuing
juvenile dependency jurisdiction is subject to reevaluation
based on changed circumstances, a determination assum-
ing dependency jurisdiction is a final, appealable, judgment
that cannot be relitigated. Id. (“A wardship cannot continue
if the jurisdictional facts on which it is based have ceased to
exist. * * * However, that determination does not include a
retrial of the original allegations.” (Citation omitted.)).
In contrast, in Newman, described above, we held
that a second proceeding for termination of parental rights
was not precluded by a prior proceeding when there are “new
substantial material facts.” 49 Or App at 225. Similarly, in
D.H.S. v. S. S., 283 Or App 136, 388 P3d 1178 (2016), we
held that a 2014 permanency decision not to change a per-
manency plan to adoption did not preclude the court’s subse-
quent change of plan to adoption, as permanency plans are
statutorily subject to reevaluation and change.
As father points out, the requirements for the juve-
nile court’s continuing involvement in permanency and ter-
mination proceedings, where the court is continually reas-
sessing the appropriate disposition in light of evolving facts,
distinguishes those cases from the dependency jurisdiction
context. See S. S., 283 Or App at 144 (citing court’s statu-
tory obligation to reassess circumstances every 18 months
once jurisdiction is taken); Newman, 49 Or App at 226(“Termination of parental rights proceedings generally arise
out of a continuing and cumulative set of circumstances.”).
When a juvenile court declines to take jurisdiction, the
court has no further involvement. We held in Gates that a
judgment in which the juvenile court assumes jurisdiction is
a final, appealable judgment, but we have never addressed
the precise issue presented here—whether, when a court
has once declined to take jurisdiction, the court is in any
way precluded from subsequently assuming jurisdiction. We
conclude that the answer is, sometimes.
As a general rule, when a petition alleges jurisdic-
tional facts that are substantially similar to allegations that
have been previously litigated, and the evidence in proof of
those allegations is no different from evidence the court has
previously considered, then the policies of finality, judicial
Cite as 305 Or App 783 (2020) 797
economy, and fairness embodied in the doctrines of issue and
claim preclusion should prevail and preclude relitigation. As
the juvenile court here expressed, parties should not be free
to relitigate the same facts in the hopes of obtaining a more
favorable outcome. In this case, the juvenile court dismissed
two allegations based on that rationale.
Beyond that circumstance, dependency cases involve
policy considerations that may supersede the policies of judi-
cial finality and fairness underlying claim and issue preclu-
sion. In Newman, we cited the best interests of the child as
a rationale for deviating from the standard rules guiding
application of “collateral estoppel” or “res judicata” in the
termination context. 49 Or App at 227-28. In a jurisdictional
proceeding, the primary considerations are analogous. The
welfare of the child is the focus of the court’s determination,
and the state’s purpose in initiating such a proceeding is
to intervene as necessary to protect the child. State ex rel.
Dept. of Human Services v. W. L. P., 345 Or 657, 664, 202
P3d 167 (2009); see ORS 419B.100(1)(c) (juvenile court “has
exclusive original jurisdiction” in any case involving a child
“[w]hose condition or circumstances are such as to endanger
the welfare of the [child] * * *”); ORS 419B.331 (permitting
court to place child under protective supervision “[w]hen
the court determines it would be in the best interest and
welfare of a ward”). When the best interests or welfare of a
child are implicated, the interests protected by claim and
issue preclusion may be relegated to a secondary position.
See Drews, 310 Or at 141 (“Claim and issue preclusion are
subject to a number of exceptions.”); Restatement (Second)
of Judgments § 26 comment f (1982) (claim preclusion may
be disregarded in appropriate circumstances when the pol-
icies favoring preclusion of a second action are trumped by
other significant policies). Those policies, depending on the
circumstances, may negate strict adherence to the classic
formula for application of issue preclusion, as set forth in
Nelson.
What types of facts might justify that deviation? In
Newman, we referred to “new substantial material facts.”
49 Or App at 225. That terminology is still apt. When, as
here, there are new jurisdictional allegations, or even simi-
lar allegations that are based on “new substantial material
798 Dept. of Human Services v. T. G. H.
facts,” (i.e., facts that were either not available or not pre-
sented and that likely would have been material to the juve-
nile court’s determination), then the welfare of the child
must prevail over the policy underpinnings of claim and
issue preclusion that would otherwise bar relitigation. Here,
the Lincoln County juvenile court based its jurisdictional
determination on evidence concerning the effects of father’s
discipline on the children’s psychological and emotional wel-
fare that had not been presented to or considered by the
Douglas County juvenile court. Had that evidence been pre-
sented to the Douglas County juvenile court, it likely would
have been material to the Douglas County juvenile court’s
determination. However, the evidence was not presented to
the Douglas County juvenile court, and the court therefore
did not consider it when it made its determination regard-
ing jurisdiction. In view of those circumstances, we conclude
that the Douglas County judgment can have no preclusive
effect on the consideration of any evidence relevant to the
allegations considered by the Lincoln County juvenile court
based on those new substantial material facts.7
We also reject father’s contention that issue preclu-
sion barred the Lincoln County juvenile court from consider-
ing evidence of events that had occurred before the Douglas
County juvenile court issued its judgment on May 21, 2019.
In view of our holding that the Douglas County judgment has
no preclusive effect as to the allegations on which jurisdiction
was found, there could be no basis for excluding the prior evi-
dence, if relevant. But our conclusion is also based on an addi-
tional reason. In determining whether DHS had met its bur-
den to establish the new allegations by clear and convincing
7
As previously noted, although DHS remained a party in the Douglas
County proceeding as required by ORS 419B.875(1)(a)(G), its position then was
that jurisdiction was not warranted, because the children were in mother’s care,
and she could safely parent them. DHS did not attempt to establish in that pro-
ceeding that father posed a risk of serious harm to the children, because it had
concluded that the children were with a fit parent. In the Lincoln County pro-
ceeding, DHS’s position had changed due to significant new evidence from Pierce
that DHS had had time to consider. Because it asserted then that mother could
not protect the children from father, it then had reason to establish the risks of
harm that father posed to the children. We need not address and do not preclude
other circumstances in which DHS’s participation in an earlier juvenile jurisdic-
tional proceeding might balance in favor of application of claim or issue preclu-
sion in a subsequent proceeding.
Cite as 305 Or App 783 (2020) 799
evidence, the Lincoln County juvenile court was required to
evaluate the totality of the circumstances. See Dept. of Human
Services v. W. A. C., 263 Or App 382, 394, 328 P3d 769 (2014)
(ORS 419B.100(1)(c) “requires the court to consider all of the
facts in the case before it and to consider whether, under the
totality of the circumstances, the child’s welfare is endan-
gered.”). As the juvenile court said, “condition[s] and circum-
stances can be cumulative or have a cumulative effect on a
child.” The totality of the circumstances includes the present
effects of past events on the children’s condition. Even if those
earlier events were determined by the Douglas County juve-
nile court to be insufficient, in and of themselves, to provide
clear and convincing evidence in support of jurisdiction, they
were relevant in the second proceeding if they had any bear-
ing on the children’s present circumstances and welfare in
relation to the allegations of the Lincoln County petition. The
trial court was not free to exclude them.
Father’s final contention is that the evidence is
insufficient to support the juvenile court’s jurisdictional
determination. ORS 419B.100(1)(c) provides that a juvenile
court may assert dependency jurisdiction over a child whose
“condition or circumstances are such as to endanger the wel-
fare of the [child] or of others.” As we recently said in Dept.
of Human Services v. C. L. R., 295 Or App 749, 754, 436
P3d 92 (2019), “That kind of endangerment exists when the
child’s condition or circumstances ‘create a current threat of
serious loss or injury to the child’ and there is ‘a reasonable
likelihood that the threat will be realized.’ ” (Quoting Dept.
of Human Services v. S. P., 249 Or App 76, 84, 275 P3d 979
(2012) (internal quotation marks and citations omitted)). In
making that determination, the juvenile court must focus
“on the child’s current condition and circumstances, not on
some point in the past.” Dept. of Human Services v. E. R.,
295 Or App 749, 754, 436 P3d 92 (2019). “The pertinent con-
ditions or circumstances need not involve the child directly
but may be found harmful because they create a harmful
environment for the child.” G. A. C. v. State ex rel. Juv. Dept.,
219 Or App 1, 9, 182 P3d 223 (2008).
The trial court here made extensive findings. The
court’s findings with respect to W and E were based pri-
marily on evidence about the connection between certain
800 Dept. of Human Services v. T. G. H.
past conduct—father’s discipline—and the boys’ present
psychological conditions. The court found that father’s disci-
pline, which included hitting or spanking the children with
a stick, was not reasonable discipline and had had a clearly
negative effect on the children, and that if the children were
to return to father’s home, they would be exposed to a risk
of serious loss or injury.8 The court found that, although M
had not experienced discipline to the same extent as her
brothers and had not yet been diagnosed with psychologi-
cal harm, her return to father’s home would expose her to a
risk of serious harm. See G. A. C., 219 Or App at 14 (a court
is authorized to assume jurisdiction under ORS 419B.100
(1)(c) not only when a child has suffered actual harm, but to
protect the child from a substantial risk of harm).
We have reviewed the record and conclude that the
court applied the correct legal standards in evaluating the
evidence and that the record is legally sufficient to support
the court’s findings as well as the allegations of jurisdiction
as to each child.
Affirmed.
8
The court found credible W’s testimony that father hit him with a stick
four to five times a week and left marks and bruises that hurt. W also testified
that father hit him with his fist and his open hand and threw him around. The
court found credible M’s testimony that all the children were punished with the
stick for not finishing their chores or for getting into cereal or junk food without
permission.