Department of Human Services v. B. B.
248 Or. App. 715
| Or. Ct. App. | 2012Background
- DHS petitioned to take jurisdiction over K., E., and S. under ORS 419B.100(1)(c) based on alleged current endangerment and two grounds against father: unremediated history of inappropriate sexual contact and failure to complete sex offender treatment.
- Father had a long history including 1994 physical abuse of minors leading to conviction; diagnosed as predatory sex offender during supervision in 1996; admitted sexual acts with young children.
- Father undertook sex offender treatment but disengaged; he stopped treatment in 1999, and in 1999-2000 the family moved to Ohio; DHS and Ohio authorities had past contact but Ohio case eventually closed with no ongoing supervision requirements for father.
- Mother supervised father’s contact with the children during Ohio years and later until two years before trial; Ohio records indicated risk awareness, but DHS did not establish current risk at the jurisdiction hearing.
- In Oregon after returning in July 2010, DHS presented testimony from Shannon (treatment provider) and Bergey (parole officer) about past concerns; both had little current direct knowledge of father’s behavior.
- Juvenile court found jurisdiction for father and concluded mother failed to protect, but on appeal the court reversed, holding the evidence insufficient to prove current endangerment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did DHS prove current endangerment under ORS 419B.100(1)(c) for father? | DHS argues unremediated history shows current risk to children. | Father contends history alone, especially long past acts, does not establish current risk. | No; evidence insufficient to prove current endangerment. |
| Did the evidence establish that mother exposed or failed to protect children from father? | DHS argues mother knew risk and failed to protect. | Mother contends she acted to supervise and evidence does not show she failed to protect. | No; findings insufficient to support endangerment by mother. |
| Was de novo review appropriate given the trial court's findings? | DHS argues trial court findings were inconsistent and de novo review is warranted. | Parents contend de novo review is unwarranted without request and not required here. | Court exercised de novo review notwithstanding no request. |
Key Cases Cited
- Dept. of Human Services v. C.Z., 236 P.3d 791 (2010) (current risk must be shown under 419B.100(1)(c))
- A.F., 259 P.3d 957 (2011) (reliance on current risk standard in dependency cases)
- State ex rel. Juv. Dept. v. S.A., 214 P.3d 851 (2009) (agency must allege a current risk of harm)
- State ex rel. Juv. Dept. v. Smith, 853 P.2d 282 (1993) (do not treat failed treatment as per se enduring condition)
- D.T.C., 219 P.3d 610 (2009) (evidence that failed treatment alone is not sufficient)
- Lerch, 677 P.2d 678 (1984) (distinguishes expert vs lay testimony in relevance to risk)