459 P.3d 947
Or. Ct. App.2020Background
- Infant T was born with methadone exposure; mother later gave T methadone, causing a near-fatal overdose while father was present.
- Father had prior drug-related convictions and was on probation that barred alcohol use and contact with mother; he violated probation by drinking and allowing contact with mother. He performed CPR and helped save T; father was arrested and jailed for the probation violation.
- DHS filed a dependency petition adding allegations that father’s criminal behavior, probation noncompliance, and permitting unsupervised contact with mother endangered T.
- Father had executed a six-month power of attorney (to his sister Ivanez) to care for T while he was incarcerated; Ivanez was certified as a DHS foster parent and willing to care for T temporarily (and possibly permanently).
- At the jurisdiction hearing the juvenile court found father had exercised very poor judgment, that he was likely to resume primary parenting upon release (about 4–5 months away), and that such resumption posed a current risk to T; the court took jurisdiction under ORS 419B.100(1)(c).
- Father appealed, arguing DHS failed to prove a current, nonspeculative threat because his sister’s temporary custody made T safe during his incarceration. The appellate court affirmed.
Issues
| Issue | DHS (Plaintiff) Argument | Father (Defendant) Argument | Held |
|---|---|---|---|
| Preservation: Did father preserve the argument that aunt’s availability negated a current risk? | Father did not preserve because he focused on mother as the risk and didn’t object to the court relying on future risk at release. | Father argued at trial that incarceration alone is not a threat when a safe relative is available and introduced power-of-attorney and certification evidence showing aunt as caregiver. | Preserved: Court held father preserved the argument; trial record showed his defense centered on aunt as temporary primary caregiver. |
| Sufficiency / current risk under ORS 419B.100(1)(c): Could DHS prove a current, nonspeculative threat despite aunt’s temporary care? | Father’s poor judgment, probation violation, permitting unsupervised contact with mother, and the likelihood he would resume parenting on release created a present, nonspeculative risk. | Aunt’s temporary custody (power of attorney) meant T was safe now and no current risk existed; jurisdiction improper. | Held for DHS: Court affirmed jurisdiction—temporary nature of the aunt’s custody and evidence father would resume primary care and likely repeat poor judgment supported a current, reasonably likely threat. |
Key Cases Cited
- Dept. of Human Services v. A. L., 268 Or App 391 (2015) (entrustment to relatives can negate jurisdiction if relatives pose no current threat)
- Dept. of Human Services v. A. B., 271 Or App 354 (2015) (child’s adequate care by relative does not bar jurisdiction if totality of circumstances shows current risk; DHS must show parents likely to resume caregiving)
- Dept. of Human Services v. N. P., 257 Or App 633 (2013) (appellate review views evidence in light most favorable to juvenile court disposition)
- Dept. of Human Services v. M. Q., 253 Or App 776 (2012) (state must prove threat is current and not solely past endangerment)
- Dept. of Human Services v. A. F., 243 Or App 379 (2011) (threat must be reasonably likely to be realized)
- Dept. of Human Services v. C. J. T., 258 Or App 57 (2013) (DHS must show nexus between alleged conduct and harm to child)
- State v. Walker, 350 Or 540 (2011) (preservation rule purpose and application)