Department of Human Services v. J. V.-G.
277 Or. App. 201
Or. Ct. App.2016Background
- G was born in 2013 testing positive for heroin and meth; DHS took protective custody and petitioned for juvenile dependency based on father’s substance use, criminal activity, instability, and domestic violence history.
- Father failed to appear at the initial jurisdiction hearing; court entered judgment and established jurisdiction.
- Father was later deported to Mexico, made limited contacts with DHS, provided one negative UA, completed a paternity test, and asked to reunify. DHS requested services (substance treatment, domestic-violence assessment, visits) which father largely did not complete.
- DHS obtained a social/psychological study from Mexico’s DIF reporting mixed but concerning findings about father’s emotionality, coping, family support, and parenting capacity. DIF report was included in Exhibit 1 and considered at a permanency hearing; father did not object at that time.
- Father moved to change the permanency plan (seeking return to parent) and separately moved to dismiss jurisdiction. The juvenile court denied the permanency motion and later denied the motion to dismiss, expressly relying on the DIF report.
- On appeal father argued the DIF report was inadmissible hearsay at the motion-to-dismiss hearing (OEC 802) and that admission was reversible error; DHS argued any error was harmless because other evidence supported continued jurisdiction.
Issues
| Issue | Father’s Argument | DHS’s Argument | Held |
|---|---|---|---|
| Whether the DIF report was admissible at the motion-to-dismiss hearing (hearsay rule applies) | DIF report is inadmissible hearsay; rules of evidence apply to a motion to dismiss; father timely objected | Report was already in Exhibit 1 from the permanency hearing and court relied on it; any objection was untimely | Court: Rules of evidence (including OEC 802) apply to motion to dismiss; DIF report was hearsay and admission was erroneous (objection timely) |
| Whether the admission was harmless error (did improperly admitted DIF report affect outcome) | Admission was not harmless because the juvenile court relied on the DIF report and did not state whether remaining evidence alone sustained jurisdiction | Even without DIF report, father hadn’t engaged in treatment and only had one negative UA and self-report—insufficient proof of addressed risk, so error harmless | Court: Error was not harmless; record doesn’t show the court would have reached same result without the DIF report; remand for reconsideration of motion to dismiss |
Key Cases Cited
- Dept. of Human Services v. J. B. V., 262 Or. App. 745 (discusses evidentiary standards and applicability of rules of evidence to jurisdictional hearings)
- Dept. of Human Services v. A. F., 243 Or. App. 379 (continued jurisdiction requires a current, non-speculative threat of serious loss or injury)
- Dept. of Human Services v. A. R. S., 258 Or. App. 624 (relevant inquiry: whether conditions that justified original jurisdiction persist)
- Dept. of Human Services v. W. A. C., 263 Or. App. 382 (courts must assess the totality of the circumstances when deciding continued wardship)
- State v. Davis, 336 Or. 19 (harmless error standard: affirm despite evidentiary error only if little likelihood the error affected the verdict)