Department of Human Services v. N. P.
255 Or. App. 51
Or. Ct. App.2013Background
- T, born June 16, 2009, was initially cared for by father but mother took custody; father suspected T unsafe with mother and reported concerns to DHS.
- DHS investigated, found bruising on T, removed him from mother, then T was placed with father; later father damaged mother's residence while under methamphetamine influence, and T was placed with paternal grandmother.
- August 2011: dependency petition alleged for mother unexplained injuries to half-siblings and for father that his substance use impaired parenting and that he engaged in violent, tumultuous behavior toward mother; court dismissed violence but took jurisdiction for substance-use issue; T remained with paternal grandmother.
- Father promptly addressed substance abuse and, by December 2011, completed drug/alcohol counseling, parenting classes, obtained housing, and prepared a plan for T’s return.
- December 13, 2011 jurisdictional hearing for mother; father became agitated and hostile toward department personnel; DHS caseworker Lawrence reported concern that father’s anger and lack of focus would affect T and led to restricting unsupervised visits to department offices.
- Over the following two months, father largely ceased visits, later resumed with some missed or unexplained visits; department amended petition alleging father’s mental health and/or anger issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supports current threat of serious loss or injury. | Father argues evidence is insufficient to show current threat. | Department contends father’s anger/frustration and past substance history meet threat standard. | Reversed in part; insufficient evidence to support current threat based on past substance use. |
| Whether court erred by basing risk on past substances when at hearing there was no active substance problem. | Father asserts no ongoing substance issue; risk cannot be predicated on past problem. | Court relied on coupled anger/frustration with past substance history as risk. | Remanded; court erred by relying on past substance abuse to establish risk when none existed at hearing. |
| Whether amendment of petition affected reliance on grounds for jurisdiction. | Amendment changed grounds but court relied on extrinsic allegations. | Department argues grounds remained relevant; need not repeat original grounds. | Not necessary to decide; remand to address grounds properly. |
Key Cases Cited
- Dept. of Human Services v. J. H., 248 Or App 118 (2012) (to continue wardship, must prove current threat of serious loss or injury)
- Dept. of Human Services v. C. Z., 236 Or App 436 (2010) (requires preponderance showing current threat to child)
- State v. A. L. M., 232 Or App 13 (2009) (jurisdictional facts must continue to exist)
- State ex rel Juv. Dept. v. Gates, 96 Or App 365 (1989) (jurisdictional authority based on ongoing conditions)
- Dept. of Human Services v. G. E., 243 Or App 471 (2011) (older grounds may not support continued wardship if not tied to current facts)