Dept. of Human Services v. A. J. G.
304 Or. App. 221
Or. Ct. App.2020Background
- Child was eight years old with an IQ around 50 and special needs; DHS had 16 prior contacts with the family and assigned a high-needs caseworker.
- In October 2018 mother sought and obtained a temporary restraining order after alleging at least two domestic-violence incidents by father (including choking); children reported seeing or describing the violence (child demonstrated choking).
- Father twice violated the restraining order, and DHS removed the children in November 2018 after learning the children had contact with father.
- DHS’s second amended dependency petition alleged four bases for jurisdiction: (1) exposure to domestic violence by father; (2) mother’s failure to protect despite knowing the allegations; (3) father’s substance abuse; and (4) father’s failure to maintain mental health appointments/medication.
- The juvenile court found all four allegations proved and asserted jurisdiction under ORS 419B.100(1)(c). DHS conceded on appeal that allegation (3) (substance abuse) was improperly used as a basis for jurisdiction.
- The Court of Appeals affirmed jurisdiction based on (1) and (2) (domestic-violence exposure and mother’s failure to protect) but reversed as to (3) and (4) (substance abuse and medication noncompliance) and remanded with instructions to enter a jurisdictional judgment omitting allegations three and four.
Issues
| Issue | DHS's Argument | Father's Argument | Held |
|---|---|---|---|
| Whether exposure to domestic violence (allegation 1) supported jurisdiction | Children’s disclosures and mother’s restraining-order petition show father engaged in violence and child was exposed, creating current risk | Evidence was speculative and lacked nexus between exposure and current threat | Affirmed: evidence (children’s reports, credibility findings, child’s vulnerability) supported jurisdiction |
| Whether mother’s failure to protect (allegation 2) supported jurisdiction | Mother knew of allegations, dismissed restraining order, and continued to live with father, creating current risk | Mother did not pose a risk; her dismissal negates protective failure claim | Affirmed: mother’s conduct and plan to remain with father supported present risk |
| Whether father’s substance abuse (allegation 3) supported jurisdiction | DHS maintained substance issues impaired parenting and posed risk | Insufficient evidence of current, nonspeculative risk from substance use | DHS conceded error; basis for jurisdiction reversed |
| Whether failure to maintain mental health appointments/meds (allegation 4) supported jurisdiction | Noncompliance led to mood swings that could escalate to violence; prior noncompliance showed future risk | No evidence the medication lapse posed a current threat at trial; father had resumed meds | Reversed: DHS failed to prove a current, nonspeculative threat from medication noncompliance |
Key Cases Cited
- Dept. of Human Services v. N. P., 257 Or App 633 (2013) (sets standard for reviewing ORS 419B.100(1)(c) jurisdictional findings).
- Dept. of Human Services v. T. J., 302 Or App 531 (2020) (a child need not be physically harmed or even aware of domestic violence to be at risk).
- Dept. of Human Services v. D. W. M., 296 Or App 109 (2019) (comparative discussion of child vulnerability to domestic-violence exposure).
- State v. S. T. S., 236 Or App 646 (2010) (evidence of parental violence can support jurisdiction under the low any-evidence standard).
- Dept. of Human Services v. K. V., 276 Or App 782 (2016) (DHS must prove a nexus between parental conduct and a present risk of harm).
- Dept. of Human Services v. C. Z., 236 Or App 436 (2010) (totality-of-circumstances test for reasonable likelihood of harm).