State v. A. L. M. , 232 Or. App. 13 ( 2009 )

EDMONDS, P. J.

In this juvenile dependency proceeding, mother appeals a judgment vacating the commitment of her child, N, to the Department of Human Services but continuing the child as a ward of the court. The order implicitly provides for the continuing jurisdiction of the juvenile court over N based on the allegations contained in the amended petition. The allegations are that “[t]he circumstances and conditions of [N] are such as to endanger her own welfare” because (1) she had been subjected to the threat of harm of neglect because mother left her with inappropriate caregivers; (2) father was unable to protect N because he did not have a custody judgment; and (3) father’s substance abuse, if untreated, presented a threat to N. Mother asserts, in part, that “the reasons for wardship over this child no longer exist” and, therefore, the juvenile court erred in “retaining wardship over the child[.]” On de novo review, ORS 419A.200(6)(b),¹ we agree with mother and, accordingly, reverse and remand the case to the juvenile court with instructions to terminate the wardship over N.

At the permanency hearing, mother notified the juvenile court that she contested its continued jurisdiction over N. She asserted that “if jurisdiction is established] under [ORS] 419B.100, and those reasons continue to exist, then wardship can be continued. But here, those reasons no longer continue to exist * * Nevertheless, the court ruled that jurisdiction would continue, that father was awarded physical custody of N, and that any visitation by mother with N would be determined by father.

Pursuant to ORS 419B.100(1)(c), the juvenile court has jurisdiction over a child “[w]hose condition or circumstances are such as to endanger the welfare of the [child] * * *.” “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.” State ex rel Juv. Dept. v. Vanbuskirk, 202 Or App 401, 405, 122 P3d 116 (2005). It is axiomatic that a juvenile court may not continue a wardship “if the jurisdictional facts on which it is based have ceased to exist.” State ex rel Juv. Dept. v. Gates, 96 Or App 365, 372, 774 P2d 484, rev den, 308 Or 315 (1989) (decided under former ORS 419.476(1)(c), repealed by Or Laws 1993, ch 33, § 373, which was materially indistinguishable from ORS 419B.100(1)(c)).

Based on all the evidence and argument presented in this case, the only allegation of the amended petition that appears to still be present is father’s lack of a custody order with respect to N. However, without some evidence that mother is a present danger to N’s welfare, the lack of a custody order alone is not sufficient for jurisdiction pursuant to ORS 419B.100.

The dissent interprets the record differently in its de novo review. According to the dissent, “mother did not argue to the juvenile court that her conditions had changed or that the court was obligated to make findings about her current relationship with N[,]” and the “evidence is sufficient, in the circumstances of this case, to support the conclusion that N still needs the protection from mother that would be allowed by continuing the wardship.” 232 Or App at 18 (Sercombe, J., dissenting).

To the extent that the dissent contends that, pursuant to ORAP 5.45, mother failed to properly preserve the issue that we address herein, it concedes that mother objected in writing “to the need to continue wardship because N was no longer in physical custody of DHS.” 232 Or App at 21-22 (Sercombe, J., dissenting). It also concedes that mother made that objection orally, at the hearing. Id. On those procedural facts, we have no difficulty in concluding that the issue of whether wardship of N should be continued after DHS was relieved of legal custody was squarely before the juvenile court. Furthermore, as set forth above, mother also specifically raised before the juvenile court her assertion that “the reasons [to continue the wardship] no longer continue to exist[.]” Under the circumstances, the issue of whether the juvenile court could continue the wardship was properly preserved for purposes of appeal under ORAP 5.45.

As to the sufficiency of the evidence issue regarding whether wardship should continue, the dissent relies on the following evidence:

“The juvenile court earlier found that grounds for jurisdiction over N existed because mother was neglectful of N, father’s alcohol use endangered N’s welfare, and father was unable to protect N from mother because he lacked custody of N. The caseworker reported that mother continued to be assessed to be an unfit parent inasmuch as her oldest child had been made a ward of the court three months previously, and her youngest child was taken into custody at birth six months earlier. Mother was in the midst of termination of parental rights proceedings for two other children at the time of N’s review hearing. Mother was not operating under a case plan for reunification with N and had very little personal interaction with N. Mother presented no evidence and made no contention to the court that the dependency jurisdiction facts about her had changed. The caseworker reported in her affidavit that ‘[father] does not have a legal custody judgment.’ ”

232 Or App at 27-28 (Sercombe, J., dissenting).

What is noticeably lacking from the above recitation is any evidence that, at the time of the review hearing, N’s welfare was endangered by his present circumstances or that there was a reasonable likelihood that mother’s existing circumstances presented a threat of harm to his welfare. See Vanbuskirk, 202 Or App at 405. Jurisdiction over N was originally assumed by the court because mother left the child with inappropriate caregivers and because of father’s alcoholism and lack of a custody order. Father’s alcohol issues have been rectified so that they no longer endanger N’s welfare. Father now has physical custody of N, and mother’s act of leaving the child with inappropriate caregivers in the past was not a circumstance that authorized continuing jurisdiction over N in the absence of a continued reasonable likelihood of harm to the child.² The juvenile court heard no additional evidence that mother continued to represent a threat to N’s welfare in light of father’s changed circumstances. The facts that mother is involved in other termination proceedings, that she has no case plan for reunification with N, and that she has had little contact with N do not ipso facto demonstrate that she represented a threat to N’s welfare at the time of the review hearing. Accordingly, in the absence of any evidence in this case that conditions and circumstances existed at the time of the review that presented a reasonable likelihood of harm to the child, the juvenile court erred in continuing the wardship over N.³

Reversed and remanded with instructions to terminate the wardship.

1 ORS 419A.200 was amended by Oregon Laws 2009, chapter 231, section 6. Because the notice of appeal in this case was filed before the effective date of those amendments, they are inapplicable in this case.

2 The record does not demonstrate that, if the wardship is dissolved, mother would use her legal custody of N to remove the child from father’s physical custody and place the child with inappropriate caregivers.

3 If father perceives a need for court-ordered custody and an order restraining mother from having contact with N, the circuit courts provide a forum to make such a request, and such a procedure will provide both parties an opportunity to be heard on those issues based on their circumstances that exist at the time of such a request. If father had initiated a domestic relations proceeding and N’s legal or physical custody was simultaneously at issue in a dependency proceeding, the actions could be consolidated pursuant to ORS 419B.806(2).