Department of Human Services v. E. M.
264 Or. App. 76
Or. Ct. App.2014Background
- DHS petitioned for juvenile-court jurisdiction over infant E based principally on parents’ substance abuse; petition also alleged father was an untreated sex offender.
- Mother had positive UAs for amphetamine and THC in Feb 2013 and THC again four days before E’s April 2013 birth; E tested negative at birth.
- After birth, mother provided two voluntary clean UAs in April, missed one requested UA in May, and moved to Alaska with E against DHS’s instruction; DHS later took E into protective custody.
- At the August 2013 jurisdictional hearing DHS presented evidence of mother’s prior drug use, lack of treatment, and family circumstances; mother denied current use.
- Juvenile court found by a preponderance that both parents’ substance abuse interfered with safe parenting and made E a ward of the court; it dismissed other allegations.
- Mother appealed, arguing DHS failed to prove current substance abuse or a non-speculative nexus between any substance use and a present risk of serious harm to E; the court of appeals agreed and reversed.
Issues
| Issue | Mother’s Argument | DHS’s Argument | Held |
|---|---|---|---|
| Whether DHS proved mother’s substance abuse persisted at the time of the jurisdictional hearing | DHS failed to prove current use; clean UAs after birth and no other evidence of recent use | Court could infer mother was not credible and therefore still using given prior positive tests, missed UA, and lack of treatment | Reversed: record legally insufficient to show mother was using at time of hearing; credibility doubts alone are not affirmative evidence of current use |
| Whether DHS proved a nexus between mother’s substance abuse and a present, nonspeculative risk of serious loss or injury to E | No evidence that mother’s past use harmed E or impaired her parenting; no evidence of current impairment | Infant’s age and mother’s violation of the safety plan could support finding of risk under totality of circumstances | Reversed: DHS presented no evidence specific to mother showing her substance use created a nonspeculative risk to E |
| Whether a jurisdictional judgment can stand as to one parent when only the other parent’s deficiencies are proven | Mother argued jurisdiction should not be asserted if one parent is fit | DHS did not address severing jurisdiction as to mother | Reversed as to overall jurisdiction: with one fit parent and no link between mother’s fitness and father’s problems, jurisdiction under ORS 419B.100(1)(c) was not shown |
| Appropriate remedy when allegation against one parent is unsupported but the other parent remains adjudicated | Mother sought reversal of the jurisdictional judgment as to her | DHS relied on the intact judgment; father did not appeal | Court reversed entire jurisdictional judgment because a child’s jurisdiction requires assessing the totality of circumstances and a fit appearing parent defeats jurisdiction absent proof both parents cannot safely care for the child |
Key Cases Cited
- Dept. of Human Services v. N. P., 257 Or. App. 633, 307 P.3d 444 (court of appeals 2013) (standard for appellate review of juvenile court findings)
- Dept. of Human Services v. M. Q., 253 Or. App. 776, 292 P.3d 616 (court of appeals 2012) (credibility disbelief is not affirmative proof of current drug use)
- Dept. of Human Services v. C. Z., 236 Or. App. 436, 236 P.3d 791 (court of appeals 2010) (parental substance abuse alone does not automatically establish risk to child)
- Dept. of Human Services v. C. J. T., 258 Or. App. 57, 308 P.3d 307 (court of appeals 2013) (definition of endangered welfare and requirement of current threat)
- Dept. of Human Services v. R. L. F., 260 Or. App. 166, 316 P.3d 424 (court of appeals 2013) (need for evidence that substance use affects parenting or daily functioning to establish risk)
- Dept. of Human Services v. W. A. C., 263 Or. App. 382, 328 P.3d 769 (court of appeals 2014) (jurisdiction cannot be entered when a fit parent appears and allegations against the other parent are unresolved)
- Dept. of Human Services v. C. F., 258 Or. App. 50, 308 P.3d 344 (court of appeals 2013) (jurisdiction requires focusing on child’s circumstances at time of hearing)