Dep't of Human Servs. v. D. W. M. (In re K. R. M.), 296 Or. App. 109

Background

Child (14) disclosed that father sexually abused her when she was ~7–8 and that he had sexually abused her older sister; father admitted touching the sister and was arrested. DHS petitioned for juvenile dependency alleging sexual abuse, father’s domestic violence (in child’s presence), and father’s substance abuse interfering with parenting; the court admitted jurisdiction on domestic violence and substance abuse but dismissed the sexual-abuse allegation for lack of present risk.
Child and sister both testified with specific details of prior sexual abuse; child also described subsequent sexualized conduct by father (looking while she dressed, asking to see her in a towel) and psychological effects (cutting, anxiety/depression, counseling).
Evidence established frequent parental drinking, some marijuana use (not around child), episodic pushing/shoving, isolated severe episodes (chokehold, punching wall), and incidents of aggression toward child and property; mother admitted exposure to domestic violence and substance issues.
DHS caseworker testified about concerns for child’s anxiety, depression, school problems, and possible ongoing self-harm, but provided limited clinical detail tying those conditions to parental conduct.
Juvenile court found father perpetuated domestic violence and had substance-abuse problems supporting present risk, but dismissed sexual-abuse-based jurisdiction as speculative because abuse had not recurred recently and the court saw no evidence of current risk.
On appeal the court took de novo review because the juvenile court’s findings (including that father sexually abused the daughters) were inconsistent with its dismissal of sexual-abuse jurisdiction and because express factual findings allowed credibility inferences.

Issues

Issue	DHS/Child (Plaintiff) Argument	Father (Defendant) Argument	Held
Whether father’s domestic violence and alcohol use created present, nonspeculative risk to child supporting dependency jurisdiction	Parents’ drinking contributed to domestic violence; child was exposed to physical fights and fearful; father hasn’t taken services—thus a present risk of physical/psychological harm	Evidence lacks proof child was ever physically at risk during fights; no clear link between domestic violence/alcohol and serious injury or child’s self-harm or mental-health symptoms	Reversed jurisdiction on these bases: record insufficient to show present, nonspeculative risk or nexus to child’s serious harm
Whether father’s prior sexual abuse of child (and sister) supports present risk for dependency jurisdiction	Past sexual abuse plus continued sexualized behavior, lack of offender treatment, and sister’s abuse beginning at the current child’s age shows child remains in the class of victims; psychological harm (cutting, anxiety) supports present risk	Past abuse alone, without recent reoffending, doesn’t demonstrate current risk; emotional harms may not be attributable to sexual abuse	Reversed juvenile court: sexual-abuse allegation supports jurisdiction—DHS proved present risk by preponderance given admissions, uncontroverted testimony, continued sexualized conduct, and lack of treatment
Sufficiency of evidence tying child’s psychological harm (depression/anxiety/cutting) to father’s conduct	Child’s self-harm and school/mental-health problems are effects of sexual abuse and domestic environment supporting risk	Caseworker’s limited observations insufficiently specific; child did not tie cutting to domestic violence/alcohol; harms could stem from other events (DHS intervention, incarceration)	Court found DHS failed to show nexus between domestic violence/alcohol and psychological harm here; but sexual abuse was tied to child’s self-harm and supported risk assessment

Key Cases Cited

Dept. of Human Services v. A. F., 243 Or. App. 379 (discusses "threat of serious loss or injury" standard for ORS 419B.100(1)(c))
Dept. of Human Services v. E. M., 264 Or. App. 76 (DHS must prove nexus between conduct and harm)
Dept. of Human Services v. M. Q., 253 Or. App. 776 (nexus requirement explained)
Dept. of Human Services v. S. C. S., 253 Or. App. 319 (preponderance standard for dependency jurisdiction)
Dept. of Human Services v. S. D. I., 259 Or. App. 116 (need evidence of type, degree, duration of harm)
Dept. of Human Services v. G. J. R., 254 Or. App. 436 (status as sex offender or lack of treatment alone insufficient)
Dept. of Human Services v. C. M., 284 Or. App. 521 (proximity evidence can support physical-harm risk from domestic violence)
Dept. of Human Services v. K. C. F., 282 Or. App. 12 (exposure to emotional abuse insufficient without proof of present, serious risk)
Dept. of Human Services v. D. S. F., 246 Or. App. 302 (intoxication effects alone do not create jurisdiction)
Dept. of Human Services v. J. H., 292 Or. App. 733 (recognizes risk from prolonged exposure to domestic conflict can support jurisdiction)
Dept. of Human Services v. R. L. F., 260 Or. App. 166 (bad parenting alone does not justify state intervention)
Fitts v. Case, 243 Or. App. 543 (appellate de novo review still gives weight to trial court credibility findings)
Turner and Muller, 237 Or. App. 192 (appellate standards for de novo review)