Department of Human Services v. R. L. F.
260 Or. App. 166
Or. Ct. App.2013Background
- Father appeals from a jurisdictional order under ORS 419B.100(1)(c), arguing DHS failed to prove a current risk of serious loss or injury to A.
- DHS petition cited bases E, F, G, H, and I: father unable to protect A from mother’s violence, lack of sole legal custody, father's substance abuse, unsafe housing, and father’s status as A’s legal father.
- Before the hearing, father ended his relationship with mother, obtained a restraining order, sought sole legal custody, and moved to a sober housing facility after housing issues arose due to marijuana.
- DHS presented evidence about domestic violence history, past custody issues, father’s intoxication during the DV incident, and father’s alcohol/marijuana use with limited current usage data.
- A’s behavioral concerns were noted by foster parents, but DHS connected them loosely to father’s conduct with respect to protections and housing rather than direct causation.
- The juvenile court found some bases proven but not H, and suggested returning A to father if he obtained sober housing, prompting father to challenge jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did DHS prove a current risk of harm to A due to father’s conditions? | Father contends no current risk; conditions are not shown to endanger A now. | DHS contends present risk exists through father’s DV history, lack of sole custody, and potential substance abuse. | No current, nonspeculative threat established; jurisdiction reversed. |
| Does lack of sole custody alone establish jurisdiction? | Father argues lack of sole custody without evidence of inability to protect is insufficient. | DHS asserts custody status contributes to risk of harm to A. | Lack of custody alone does not support jurisdiction without evidence of current risk. |
| Is there a nexus between father’s housing/substance use and risk to A? | Father maintains housing issues and past substance use do not show current risk or nexus to harm. | DHS argues housing instability and substance use threaten parenting and safety. | Evidence failed to demonstrate a nexus; not sufficient to sustain jurisdiction. |
| Did the court improperly base jurisdiction on unalleged housing facts? | Jurisdiction relied on housing facts not alleged, exceeding petition scope. | DHS contends housing conditions reflect risk factors relevant to protection. | Court erred by grounding jurisdiction on housing facts not alleged in the petition. |
Key Cases Cited
- Dept. of Human Services v. C. J. T., 258 Or App 57 (2013) (requires nexus between risk-causing conduct and potential harm; current risk required)
- Dept. of Human Services v. D. S. F., 246 Or App 302 (2011) (threat of harm must be current, not speculative)
- Dept. of Human Services v. A. F., 243 Or App 379 (2011) (examines whether parent’s behavior creates reasonable likelihood of harm)
- State v. A. L. M., 232 Or App 13 (2009) (absence of present danger to welfare requires more than lack of custody order)
- Dept. of Human Services v. J. R. L., 256 Or App 437 (2013) (jurisdictional basis must be within petition; unsupported grounds error)