Department of Human Services v. M. E.
255 Or. App. 296
| Or. Ct. App. | 2013Background
- DHS petitioned MA and MI under ORS 419B.100(l)(c) alleging past abuse by stepfather and mother's disbelief plus negative comments creating risk to the twins' welfare.
- The juvenile court found a one-time sexual abuse of MI by stepfather four years earlier and that mother did not believe it, plus negative maternal comments toward MA.
- Colistro’s psychosexual risk assessment stated stepfather posed no risk to any child, and DHS later allowed stepfather to return home.
- The court held jurisdiction based on a current threat of harm to the girls, including alleged ongoing risk from stepfather and maternal attitudes, despite evidence of no ongoing abuse.
- The appellate court conducted de novo review of the stepfather’s risk and concluded the totality of circumstances did not establish a current threat to MA and MI; wardship over the other children was dismissed.
- Wardship over MA and MI was reversed; the case proceeded on MA and MI only, with ongoing dispositional proceedings unaffected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is a current danger to MA and MI under ORS 419B.100(l)(c). | State: past abuse with no ongoing risk may still endanger welfare. | Mother’s disbelief and stepfather's lack of risk show no present danger. | No current threat; jurisdiction reversed. |
| Whether mother's negative comments to MA amount to risk of serious loss or injury under ORS 419B.100(l)(c). | Negative comments create present risk to MA’s welfare. | No proven physical or emotional injury; response to issues was appropriate. | Not shown to endanger MA presently. |
| Whether the court properly applied de novo review to evaluate risk posed by stepfather. | De novo review warranted by error in trial court’s finding on risk assessment. | Standard review would suffice given record; no de novo required. | Court did de novo review and found insufficient nexus for risk. |
Key Cases Cited
- Dept. of Human Services v. S. R., 249 Or App 76 (2012) (sets the current-threat standard for jurisdiction under ORS 419B.100(l)(c))
- A. F., 243 Or App 379 (2011) (standard that risk must be current and reasonably likely to occur)
- G. J. R., 254 Or App 436 (2013) (sex-offender status alone does not establish current risk to a child)
- B. B., 248 Or App 722 (2011) (unremediated risk must be shown by nexus between past conduct and present threat)
- S. R, State ex rel DHS v., 249 Or App 76 (2012) (reiterates totality-of-circumstances approach to endangerment)