Dept. of Human Services v. R. D. ( 2021 )

254
Argued and submitted September 21, reversed December 8, 2021
In the Matter of G. D.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
R. D.,
Appellant.
Baker County Circuit Court
20JU05446;
A175450 (Control), A175501, A175553
In the Matter of N. D.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
R. D.,
Appellant.
Baker County Circuit Court
20JU05448;
A175451, A175502, A175554
502 P3d 1183
Father appeals from judgments establishing dependency jurisdiction over his
two teenaged children, G and N. The juvenile court found jurisdiction based on
father’s incarceration and criminal history. Father challenges jurisdiction and
certain court ordered services. G and N lived with father during periods of time
when he was not incarcerated. When he was incarcerated, father made plans for
his mother—G and N’s grandmother—to care for them. Eventually, G and N’s
mother resumed their care. DHS later intervened due to reports that mother
had left G and N alone for extended periods of time. Because mother objected to
G and N being returned to their grandmother’s care, father suggested that they
be placed with his brother—G and N’s paternal uncle. DHS considered the uncle
to be an appropriate placement for G and N, but it nevertheless placed G and
N in nonfamily, substitute care due to concern that it could not prevent mother
from removing G and N from their uncle’s care in the absence of a custody order
between mother and father. Held: The juvenile court erred in finding jurisdiction
over G and N. Father acted as a custodial resource by arranging care for his chil-
dren with an appropriate caregiver when he could not provide that care himself.
Evidence of father’s criminal history, without more, was insufficient to support a
nonspeculative inference that father placed G and N at risk of harm at the time
of the fact-finding hearing. The lack of a custody order was not alleged as a basis
Cite as 316 Or App 254 (2021) 255
for jurisdiction and, even if it had been, the lack of such an order is not alone
sufficient to establish jurisdiction. It was not necessary for the Court of Appeals
to reach the last three assignments of error.
Reversed.
Matthew B. Shirtcliff, Judge.
Elena Stross, 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.
Christopher Page, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
MOONEY, J.
Reversed.
256 Dept. of Human Services v. R. D.
MOONEY, J.
Father appeals from judgments establishing depen-
dency jurisdiction over his children, G and N. G and N’s
mother failed to appear for the jurisdictional hearing,
and the court found, after presentation of evidence in her
absence, that the Department of Human Services (DHS) had
proved the allegations against her. Father appeared, and,
after a full fact-finding hearing, the court found that DHS
had established that father was incarcerated and unable to
be a custodial resource for his children and that his crimi-
nal behavior compromised his ability to safely parent them.
In his first six assignments of error, father challenges the
court’s exercise of dependency jurisdiction over G and N. In
his last three assignments, he disputes the validity of the
juvenile court’s orders requiring him to submit to a men-
tal health assessment, a drug and alcohol evaluation, and
a batterer’s intervention assessment. We conclude that the
juvenile court erred in exercising jurisdiction over G and N,
and, therefore, we do not reach the final three assignments
of error. We reverse.
Father does not request, and we do not exercise
our discretion to conduct, de novo review. ORS 19.415(3)(b);
ORAP 5.40(8)(c). Instead, we “view the evidence, as supple-
mented and buttressed by permissible derivative inferences,
in the light most favorable to the [juvenile] court’s disposi-
tion 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).
Under ORS 419B.100(1)(c), the juvenile court has
“exclusive original jurisdiction” over any case involving
a child “whose condition 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 serious loss or injury.” Dept. of
Human Services v. A. L., 268 Or App 391, 397, 342 P3d 174
(2015) (quoting Dept. of Human Services v. C. J. T., 258 Or App
57, 61, 308 P3d 307 (2013)). “The burden of proof rests with
DHS to establish that the threat is current and nonspecu-
lative.” Dept. of Human Services v. F. Y. D., 302 Or App 9,
19, 457 P3d 947 (2020). And “there must be a reasonable
Cite as 316 Or App 254 (2021) 257
likelihood that the threat will be realized.” Dept. of Human
Services v. A. F., 243 Or App 379, 386, 259 P3d 957 (2011).
DHS has the additional burden of proving a connection
between the allegedly risk-causing conduct and the harm to
the children. C. J. T., 258 Or App at 62. The juvenile court
considers “the totality of the circumstances” in determin-
ing dependency jurisdiction. State ex rel Juv. Dept of Lane
County v. Smith, 316 Or 646, 652-53, 853 P2d 282 (1993).
The pertinent facts are not disputed. G and N, both
teenagers at the time of the jurisdictional hearing, had lived
with both of their parents for some unknown period of time
in their early years. Father was incarcerated for a two to
three-year period of time approximately 10 years before
the jurisdictional hearing.1 G and N were cared for during
that period of incarceration by father’s mother and sister.
Father resumed the day-to-day care of G and N when he
was released from prison. He continued to parent them for
the next two years until he was again incarcerated after
being convicted of aggravated battery, for stabbing his for-
mer girlfriend. That crime took place when father was G
and N’s custodial parent, although there is no evidence in
the record about where the crime was committed, whether G
and N were nearby at the time it occurred, or whether they
were placed at risk of harm themselves. Father remained
incarcerated for nearly six and one-half years at the time of
the jurisdictional trial. Paternal grandmother resumed care
of G and N when father was incarcerated, and after approx-
imately one year, she “permitted mother to take them” and
resume their care.
In 2020, DHS became involved with the family
after receiving reports that mother was leaving the children
unsupervised for extended periods of time. Mother objected
to the caseworker’s suggestion that G and N be placed with
their paternal grandmother or aunt. Father requested that
G and N be placed with his mother. As an alternative, he
requested placement with his brother, who G and N had
lived with at some point in the past. DHS offered no evidence
that the uncle was an unsafe or inappropriate caregiver for
1
There is no evidence in the record that identifies the crime or crimes for
which father was incarcerated during that two to three-year period.
258 Dept. of Human Services v. R. D.
G and N. Ultimately, however, DHS placed the children in
substitute care due to its concern that, in the absence of a
formal custody order between the parents, DHS could not
ensure that mother would not remove G and N from their
uncle’s care. Father was still in prison at the time of the
jurisdictional hearing, with an expected release date three
weeks later.
The lack of a custody order does not by itself sup-
port jurisdiction. Dept. of Human Services v. R. L. F., 260
Or App 166, 172, 316 P3d 424 (2013). And it is important to
note that DHS did not allege, and the court did not find, that
the lack of a custody order placed G and N at risk of harm.
In fact, the evidence establishes that when father began
serving his six and one-half year sentence, paternal grand-
mother worked out an arrangement with mother where
mother had to be sober for a year, obtain housing and other-
wise prepare for the return of her children. Mother complied
with those requests, and paternal grandmother thereafter
permitted her to resume care of G and N. There is no evi-
dence that mother ever unilaterally removed—or attempted
to remove—the children from anyone’s care, and there is no
evidence that she intended to do so in the future.
Not long before the jurisdictional trial, father
arranged for G and N to stay with his brother, where father
intended to be paroled upon his release from prison. At the
time of the hearing, father was in the process of obtaining
the appropriate paperwork to delegate his parental author-
ity over G and N to his brother. His brother was willing
to have G and N come live with him; mother testified that
she “would never” attempt to remove G and N from their
uncle’s care; and G and N told the juvenile court that they
wished to stay with their uncle. DHS offered no evidence
that the uncle posed a risk of harm to G and N and, in fact,
offered testimony through the caseworker that she does
“not believe that [the uncle] will not be an adequate safety
service provider.” DHS nevertheless argued that father’s
“alternative family plan” was “not sufficient to provide for
the health, safety, and well-being of the children and that
jurisdiction would be needed in this case to provide for the
children.”
Cite as 316 Or App 254 (2021) 259
The juvenile court relied on F. Y. D., in its decision
to establish jurisdiction, stating that:
“This Court can take jurisdiction even when there’s a third-
party caregiver potentially there for the children, but the
inquiry is the totality of the circumstances regarding the
current risk of loss or injury. * * *. In [F. Y. D., 302 Or App
9, the] father was to be released in a short period of time,
the court said four to five months. The Court of Appeals
found four to five months as a short period of time coming
up for release and the Court said it was clear from the trial
court’s findings that the father’s entrustment of the child
to a third party was not a long—not on a long-term basis
and the court found that there was some risk, current risk,
nonspeculative risk of harm because of it * * *.
“* * * * *
“* * * [Father is] going to be out very soon, but much less
than the four to five months that was cited in the F. Y. D.
case that the court still found was a very short period of
time dealing with a third-party delegation.”
But F. Y. D., does not hold that a third-party care-
giver arrangement must be long-term to be protective and
safe for a child. Instead, we concluded in that case that
jurisdiction was appropriate because the father intended
to resume his child’s care immediately upon release from
prison and that, given his “poor judgment and decision mak-
ing,” he was not a safe parent. Id. at 11. It was the father
who posed the risk of harm to his child, not the third-party
caregiver.
Here, DHS did not establish that G and N would be
at risk of harm in their uncle’s care. To the contrary, the evi-
dence from DHS was that he was an appropriate placement
for the children. Father’s plan to entrust G and N to the care
of their uncle while father finished serving his incarcerative
sentence squarely addresses the allegation that he is unable
to be a “custodial resource” for G and N due to his incar-
ceration. He arranged for his children to be cared for in the
home of his brother who is willing to care for and protect G
and N in father’s absence and who has a safe home that will
accommodate them. When father arranged for G and N to
live with his brother while he remained in prison, he was
260 Dept. of Human Services v. R. D.
acting as a responsible parent and “custodial resource” for
them. The juvenile court erred when it concluded otherwise.
See A. L., 268 Or App at 400 (holding that jurisdiction was
not warranted where the parents had delegated primary
caregiving responsibilities of their child to a relative who
did not present a risk of serious loss or injury to the child).
With respect to the allegation that father’s “crim-
inal behavior compromises his ability to safely and ade-
quately parent his children,” DHS relies on father’s crimi-
nal history and argues that it provides a “reasonable basis
to predict that he could engage in criminal behavior in the
future leading to incarceration and his removal as a par-
enting resource for the children.” But a prediction of what
“could” happen and what that might lead to is speculative.
Without doubt, the most recent criminal episode relied upon
by DHS was serious—it involved father stabbing his for-
mer girlfriend. But there is no evidence that G and N were
placed at risk of harm when that crime was committed. And
although father’s sentence was significant, by the time of
the jurisdictional trial, he had served all but three weeks
of it. He had taken anger management classes and engaged
in other programming and recovery groups while in prison.
When father’s criminal history is considered along with that
more recent history, the prediction that he might engage in
more crimes remains an unknown. Dept. of Human Services
v. L. L. S., 290 Or App 132, 140, 413 P3d 1005 (2018) (hold-
ing that a parent’s incarceration can only be the basis for
jurisdiction over a child if there is a reasonable likelihood
that harm will occur as a result of the incarceration). The
burden to establish that father poses a current risk of harm
to G and N based upon his criminal history is on DHS, and
it has not met that burden.
The evidence does not establish that father or his
brother pose a current risk of harm to G and N. Father made
appropriate arrangements for his teenaged children when
that became necessary. The record is legally insufficient to
support jurisdiction.
Reversed.