Department of Human Services v. D. M.
248 Or. App. 683
| Or. Ct. App. | 2012Background
- In March 2010, DHS filed a dependency petition for I (9) and A (3).
- The court granted DHS legal custody and placement in mother's care, then assumed wardship based on mother's stipulations to inadequate supervision and potential impairment from substance abuse.
- A July 2011 review hearing before a referee denied termination of wardship, a decision later affirmed by a judge.
- DHS relied on evidence about the mother's supervision, not on ongoing substance abuse.
- The record showed concerns such as I receiving gifts from an adult man, I hugging her therapist, and limited Internet monitoring, with no proven unlawful activity by the mother.
- The appellate court reversed, holding no evidence supported continuing wardship or the risk of current harm to the children.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether wardship may continue where jurisdictional facts no longer exist. | DHS argues Smith standard requires 'reasonable likelihood of harm' to sustain wardship. | Mother contends current threat must be shown under Smith and A.F. standards. | Wardship reversed; no current threat established. |
| Whether the proceeding complied with the correct legal standard for ongoing wardship. | DHS asserts need to show current risk under Smith/A.F. formulation. | Mother asserts no current risk; supervision concerns do not justify wardship. | Court applied correct standard and found no substantial risk. |
| Whether the record supports continued supervision based on alleged supervision failures. | DHS points to concerns about boundaries and gifts as evidence of risk. | Mother argues such factors do not establish a current threat of harm. | Evidence fails to show a reasonable likelihood of harm sufficient for wardship. |
Key Cases Cited
- State ex rel. Dept. of Human Services v. Shugars, 202 Or.App. 302 (2005) (defines 'endanger' and the current-threat requirement for jurisdiction)
- State v. S.T.S., 236 Or.App. 646 (2010) (requires current risk of harm and likelihood of realization)
- State ex rel. Juv. Dept. v. Vanbuskirk, 202 Or.App. 401 (2005) (key inquiry: likelihood of harm under total circumstances)
- Gates, 96 Or.App. 365 (1989) (role of review hearing to determine ongoing wardship)
- State ex rel. Juv. Dept. v. Smith, 316 Or. 646 (1993) (establishes current threat or risk standard for jurisdiction)
- A.F., 243 Or.App. 379 (2011) (discusses the standard for continuing wardship and current threat)
- C.Z., 236 Or.App. 436 (2010) (review of wardship; evidence of historical facts limited to past conditions)