Department of Human Services v. A. F.
243 Or. App. 379
| Or. Ct. App. | 2011Background
- DHS petitioned juvenile court alleging the children’s welfare was endangered; initial jurisdiction based on father’s abusive treatment of the mother leading to threat of mental injury and neglect.
- In March 2010, DHS sought broader bases for jurisdiction, including sexually inappropriate behaviors involving children by the father.
- Mother turned two computers to police in July 2009; police found child pornography on one computer (three still images as thumbnails and six videos) and numerous adult images.
- A detective and a second expert testified the child-pornography was downloaded around 2005 and last accessed in 2007, with access potentially automated or incomplete due to peer-to-peer downloads.
- Expert Gilbert testified about risks from pornography use but emphasized need for more information to determine actual risk; the petition was amended to allege possession of sexually inappropriate materials endangering the children; juvenile court took jurisdiction under ORS 419B.100(1)(c).
- The appellate court later reversed, finding insufficient evidence that possession of pornography by the father created a current, reasonably likely risk to the children.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does possession of pornography by father create a current risk to the children? | DHS argues possession endangers welfare by creating risk to exposure and potential abuse. | A.F. argues lack of current, specific evidence of risk to children. | Jurisdiction not supported; lack of current, actionable risk. |
| Is there sufficient evidence that father’s pornography possession endangers the children, based on expert Gilbert’s testimony? | DHS contends expert opinion shows risk based on volume and nature of pornography. | A.F. argues expert needed more information to conclude actual risk. | Insufficient evidence to show a reasonable likelihood of harm; reversed. |
Key Cases Cited
- State ex rel. Dept. of Human Services v. Shugars, 202 Or.App. 302 (2005) (endangerment requires current threat, not past)
- State v. S.T.S., 236 Or.App. 646 (2010) (must prove a current risk of harm to welfare)
- State ex rel. Juv. Dept. v. Vanbuskirk, 202 Or.App. 401 (2005) (reasonable likelihood of harm under totality of circumstances)
- C. Z., 236 Or.App. 436 (2010) (parental factors like substance use require evidence of endangering welfare)
- State ex rel. Dept. of Human Services v. D.T.C., 231 Or. App. 544 (2009) (parental behavior must endanger welfare, not merely deviate from norms)