Dep't of Human Servs. v. T. L. H. S. (In re J. M. S.)Dep't of Human Servs. v. T. L. H. S. (In re J. M. S.)
Lead Opinion
On appeal of a jurisdictional judgment, we determine whether, on the record before it, the juvenile court erred in making the statutorily prescribed determination. Dept. of Human Services v. N. P. ,
In 2009, mother, who has a history of alcohol abuse and mental health issues, gave birth to J. As a result of mother's alcohol abuse, father was awarded sole custody of J. Mother was given two days of parenting time each week. Otherwise, J lived with father and his parents.
When J was seven years old, J told mother in early February that "some weird things" had happened at father's house. After mother urged her to explain what she meant,
When J came back to mother's house the following week, mother asked J whether she had told her teacher. J said that she had not. At that point, mother made a video recording of J describing what father had done. Mother again told J to tell her teacher, but she still did not call the police herself, and she again returned J to father's house according to the custody schedule. The record is silent as to whether any abuse occurred after J's initial disclosure to mother.
On February 21, J reported father's sexual abuse to a teacher. The school contacted DHS. While DHS and the police investigated, J was placed with mother. Mother was depressed and upset about everything that was happening. A few days after J was placed with mother, while J was playing at a neighbor's house, mother drank alcohol and took Benadryl in an apparent suicide attempt. Mother was admitted to the hospital for treatment. She told a DHS caseworker that "everything that was going on regarding the child welfare and criminal investigation pertaining [to father] was too much for her to handle." At that point, DHS placed J with her maternal grandparents. Around the same time, the state instituted criminal charges against father, which resulted in a no-contact order as a condition of father's pretrial release, and DHS filed a petition for the juvenile
Mother has a difficult relationship with her own mother (grandmother). On June 30, mother and grandmother exchanged text messages. Grandmother used profanity and criticized mother for lacking motivation and having
The jurisdictional hearing took place in August 2017. Father stipulated that he was unavailable as a custodial resource due to the no-contact order and pending criminal charges, at which point the other jurisdictional allegations regarding father were dismissed. As for mother, DHS alleged three bases of jurisdiction: (A) mother's mental health problems, if left untreated, interfere with her ability to safely parent;
DHS called three witnesses, each of whom testified only briefly. Roeder, a DHS caseworker, testified that she received the case after J disclosed abuse to her school and that, after mother's hospitalization in February, mother told Roeder that she drank alcohol and took Benadryl to cope with anxiety related to J's abuse. Fessler, a DHS caseworker who took over the case from Roeder, testified about mother's positive engagement with mental health services and parenting classes, mother's strained relationship with her own mother, and "very recent" concerns about domestic violence
The juvenile court stated repeatedly during the hearing that it did not consider five or six months of sobriety and mental health counseling and a twelve-week parenting course a "magic wand" that solved everything. During mother's testimony, the court told mother that she needed to earn the court's trust and that, although it recognized that she was working on her mental health, "life is a journey and like you just don't take one pill, just don't take one set of classes and say, ho ho, ollie, ollie, I'm free, I'm okay." Mother agreed and explained that that was why she had been working on her mental health for the past five or six months and that she was doing much better than she had been. During the DHS caseworker's testimony, the court asked whether it could take a very long time for mother to come to terms with her own history of sexual abuse and "unwind the rest of the ball of yarn that comprises her life," and the caseworker said yes. Asked by the court if that was why DHS wanted to stay involved, the caseworker again said yes, and the court commented, "It's really not that complicated."
At the conclusion of the hearing, the juvenile court concluded that DHS had proved the allegations. It explained its assertion of jurisdiction as follows:
"This is a cycle that has been ongoing for a long time for which mom has not really fully followed through with anything that first brought her into the court system. She never successfully completed the stuff required by driving under the influence. She continued to drive. She had a judgment in the custody case where she got less than a third of the time as a parent. Never really came back to the court to show that other things had been done, that she should have more or ask for changes like that. A couple of contempt proceedings associated with failure to pay child support.
"And the very unfortunate pervasive obvious issue with regard to the mental health was that mom gets brought to the hospital by her boyfriend of three years, who I wouldn't give him any hard time about being angry with her forbeing drunk on her off time. Low self-esteem in many respects. Life is really hard. A lot of feel sorry for myself kind of I hear coming out of that, and that somebody owes her something. And then when things don't go her way by gosh, darn, I'm going to talk about ending my life. You watch it's a wonderful life too many times.
" * * * * *
"The ongoing situation is the mental health problems that are deep seated and you know they are, we've talked about it, the complexity, need to be peeled back a little better, or really gotten a better hold of. And that interferes with your ability to safely parent.
"Those mental health issues Ms. Fessler brought up were part and parcel of mom's failure to protect. And they are capable of being repeated, I believe, in relatively short order. You have been on and off the alcohol and drugs for a fairly lengthy period of time. I don't want you to get back on. I'd just as soon you stay on the wagon. Okay?
"But I'm going to find that [J] is within the jurisdiction of the Court as to allegations 2A and 2C. And then whatever you want to put those stipulating to the requirements. I just want her to stay clean."
The juvenile court has jurisdiction over a child whose "condition or circumstances are such as to endanger the [child's] welfare." ORS 419B.100(1)(c). For the court to take jurisdiction, DHS must present evidence "sufficient to support a conclusion that the child's condition or circumstances expose the child to a current threat of serious loss or injury that is likely to be realized." Dept. of Human Services v. A. W. ,
The two challenged jurisdictional bases are intertwined, so we discuss them together. Mother does not contest that she failed to protect J in February when J disclosed that father, who had sole custody of J, had sexually abused her. Mother also does not contest that her untreated mental health condition, along with her own history of sexual abuse, contributed to her reaction in February. Mother argues, however, that, at the time of the jurisdictional hearing, the evidence was that her mental health had substantially improved as a result of regular counseling, prescribed medication, and alcohol abuse treatment and that she would handle the situation much differently if it ever arose again. DHS responds that, notwithstanding the change in J's circumstances vis-à-vis mother, mother's history of depression, anxiety, and substance abuse "affects her ability to respond appropriately to child's circumstances" and that "it is clear that mother would still be unable to respond appropriately to J's future requests for help."
On this record, we agree with mother that the evidence was insufficient for the juvenile court to conclude that, at the time of the jurisdictional hearing, mother's current mental health condition and her failure to protect J six months earlier exposed J to a current threat of serious loss or injury that was likely to be realized. Juvenile dependency proceedings are not punitive in nature. Their sole purpose is to protect children. Although the conduct, condition, or circumstances of one or both parents is often what gives rise to jurisdiction over a child, the juvenile court's focus at the jurisdictional hearing must be "on the child's conditions or circumstances at the time of the hearing and whether the totality of those circumstances demonstrates a reasonable likelihood of harm to the welfare of the child." Dept. of Human Services v. W. A. C. ,
Here, DHS's failure to identify the specific "type, degree, and duration" of the harm that it sought to establish complicates our review. Id . The harm at issue is a fundamental part of DHS's case and is important both to the juvenile court's analysis and to our review. See K. C. F. ,
In this case, based on the allegations in the petition and the circumstances giving rise to the petition as described at the hearing, we understand that DHS sought to prove that, absent dependency jurisdiction, J would be exposed to ongoing risk of abuse from which mother would fail to protect her, in part due to mother's mental health issues.
In Dept. of Human Services v. D. M. ,
By contrast, in Dept. of Human Services v. T. S. ,
Unlike the mother in T. S. , there is no evidence that mother ever disbelieved J. She took some steps to stop further abuse, albeit woefully inadequate steps. Because of the inadequacy of mother's response, which was driven in part by her untreated mental health issues, the burden was improperly put on a young girl to disclose sexual abuse to a second adult, and J was exposed to two to three weeks of unnecessary risk of an extremely serious harm. At the time of the jurisdictional hearing, however, J's circumstances had changed. Mother had stopped drinking, which resulted in DHS dropping the jurisdictional allegation regarding substance abuse. Mother also had taken substantial steps to improve her mental health, including fully engaging in therapy and taking medication, which is especially significant because the jurisdictional basis was that "mother's mental health problems, if left untreated , interfere with her ability to safely parent." (Emphasis added.) Finally, mother expressed remorse about how she had handled the situation in February and testified that she would call the police or DHS immediately if a similar situation arose in the future. Meanwhile, father was out of the picture for the foreseeable future (and possibly the rest of J's childhood), and DHS did not identify anyone else in J's life as posing a risk of abuse. The juvenile court did not find that mother was not credible-rather, it indicated only that it wanted to see her sustain her success for a longer period of time.
It is always possible that someone who makes a mistake once will repeat it in the future. On this record, however, there was insufficient evidence to establish the alleged bases for jurisdiction. Regarding allegation (C), the evidence
Finally, we briefly address the dissent. On a single occasion, mother recognized but failed to adequately protect J from a very specific type of serious harm, due in part to her untreated mental health condition and her own history of that exact type of harm. The dissent takes that basic fact, couples it with an express assumption that all young children are inevitably exposed to unidentified "dangerous situations,"
Reversed.
Notes
Due to the record's silence as to what J told mother, it is also unclear how likely it appeared to mother that further abuse would occur if not reported immediately.
When asked her opinion of how she was doing with her mental health treatment, mother responded, "I think I'm doing really good. I know I need to still engage it, but I'm not depressed. I don't have anxiety. And I think it's because I'm engaged. So I think if I stopped, then maybe I'd have issues, but right now, I don't have any." Mother then reaffirmed that her engagement included medication and regular counseling. A few minutes later, in the context of discussing a text message exchange with grandmother in June, mother was asked whether her mental health was still in the process of improving. She eventually answered, "No, I'm good. I mean, obviously, if I stop. I won't you know. But I'm not going to stop. I'm going to continue my therapy. I'm not depressed. I don't think about killing myself. Like I'm in a really good place, and I've worked really hard to get to where I am. And [grandmother] doesn't understand that." (Emphasis added.) The dissent focuses on mother's statement, "No, I'm good," and characterizes that testimony as mother having "denied that she had ongoing mental health issues."
Regarding allegation (A), the petition originally alleged that "mother's mental health problems interfere with her ability to safely parent," but the parties later stipulated to the court modifying that allegation to include "if left untreated."
We disagree with the dissent's position that the harm at issue was a more generalized inability of mother to recognize danger to J and protect her from it. Jurisdictional basis C, failure to protect, was specifically limited to sexual abuse by father. As for jurisdictional basis A, mental health, there was evidence that mother's own past sexual abuse made it more difficult for her to respond appropriately to J's disclosure of sexual abuse by father. There was no evidence, however, that mother's mental health conditions-depression and anxiety-caused her to be unable to recognize abuse, sexual or otherwise; indeed, it is undisputed that she immediately recognized that J was disclosing sexual abuse. Nor was there any evidence that mother's mental health conditions affected her ability to respond to threats to J other than sexual abuse.
Nonetheless, in its brief on appeal, the state summarily asserts in support of the jurisdictional judgment that mother is "unable to recognize evidence of domestic violence in her current relationship." DHS did not allege domestic violence as a basis for asserting jurisdiction over J, and there is no evidence that J was ever exposed to domestic violence, let alone that J was abused, in mother's home. When the state began questioning mother about domestic violence at the hearing, her attorney objected, and the juvenile court allowed the questions only for one limited purpose: as evidence of mother's own "victimology," as an aspect of her mental health, because there "is a whole dynamic associated with people [who] are victims of domestic violence." Otherwise, the court stated that it was "not worried about her domestic violence" and did not "care whether it is domestic violence." In response to questioning, mother denied that her boyfriend was violent, but she acknowledged that she had previously said yes when asked if he had ever ripped an article of clothing off her. The only other testimony regarding domestic violence was testimony by Fessler that, although DHS was not concerned about domestic violence when it filed the jurisdictional petition, one reason that it was reluctant to return J to mother was a "very recent" concern that mother does not "recognize" domestic violence. In context, it is clear that what Fessler meant is that mother did not agree with Fessler's definition of domestic violence. We ourselves have recognized that there is no single definition of "domestic violence." Dept. of Human Services v. J. J. B. ,
Moreover, the dissent acknowledges that we are bound by the trial court's fact findings, but it fails to explain why, when the court has expressly or implicitly treated a factual dispute as irrelevant, we are permitted (or, in the dissent's view, even obligated) to make fact findings on those issues ourselves to reach an affirmance. For example, the dissent essentially finds that mother's text message to grandmother in June reflected suicidal ideations rather than a typo,
Dissenting Opinion
Dissenting Opinion
Before explaining why I reach a different conclusion than the majority, I pause to observe that the majority and I agree on at least two critically important points. First, as the majority states, "dependency proceedings are not punitive in nature."
I turn back to this case. As the majority states, mother appeals from a dependency judgment in which the juvenile court asserted jurisdiction over mother's eight-year-old child on three bases, two of which are pertinent on appeal: first, that mother's mental health problems, if left untreated, interfere with her ability to safely parent the child and, second, that mother "became aware of allegations against the father and failed to protect the child placing the child at risk of harm." On appeal, mother argues that DHS failed to prove that the alleged conditions and circumstances exposed child to a risk of serious loss or injury at the time of the jurisdictional trial.
In my view, proper resolution of this appeal depends on faithful application of the standard of review. In Dept. of Human Services v. N. P. ,
As those standards from N.P. indicate, our primary task is not to assess the merits of the juvenile court's expressed reasoning. Rather, we must "assume that, if the juvenile court did not explicitly resolve a disputed issue of material fact and it could have reached the disposition that it reached only if it resolved that issue in one way, the court implicitly resolved the issue consistently with that disposition."
No law requires a juvenile court to make detailed on-the-record factual findings to support its exercise of dependency jurisdiction (the "disposition," in N. P. terms).
Accordingly, I set out the facts in the light most favorable to the juvenile court's exercise of jurisdiction, not limiting myself to those facts that the juvenile court discussed when it announced its ruling and not focusing on that court's expressed rationale for its decision. I describe the facts in some detail because the majority opinion downplays certain evidence (such as some of mother's trial testimony about her current mental-health status and the evidence of domestic violence in her home) that I believe must be considered when undertaking to view the record in the light most favoring the juvenile court's disposition.
At the time of the trial, mother was 27 years old and lived separately from father. Father had sole custody of child as a result of what mother described as her life falling apart. Under a custody agreement in place before DHS became involved, mother had parenting time two days each week, and child divided the rest of her week between father and father's parents. In very early February 2017, child told mother about "some stuff happening at her dad's house," which involved allegations of sexual abuse. Mother was shocked; she later testified that her "whole body just
Despite child's disclosure, mother returned child to father's care under the terms of their custody agreement. The week after child's initial disclosure, mother asked child if she had talked with her teacher; child said she had not. Mother still did not contact the teacher herself, report the abuse to anybody else, or file for custody. For about three weeks after her disclosure to mother, child had ongoing contact with father. At some
Later in February, DHS received a call about allegations of sexual abuse involving father. The record does not reveal who made that call. On February 22, DHS caseworker Roeder contacted mother and informed her about the allegations. Roeder next saw mother on March 2 at a hospital, where she had been admitted after attempting suicide. Two days later, mother told Roeder that she had consumed "too much alcohol and had taken too much Benadryl as a means of coping with all the information that she had recently been given." She "basically indicated that everything that was going on regarding the child welfare and criminal investigation pertaining to the father was too much for her to handle." Mother disclosed her own history of childhood sexual abuse and said "that was something that made it very difficult for her to know how to effectively process." Based on that conversation, Roeder understood that mother had not effectively engaged in any mental-health services.
During the March 4 conversation, mother acknowledged that child had told her at the beginning of February about "some stuff happening at her dad's house." Roeder decided at that point to remove child from mother's home because she did not "have confidence in mom's mental health
DHS remained concerned about mother's mental health, however, particularly in light of events that occurred in late June and July. On June 30, grandmother sent text messages to mother that mother perceived "being malicious to [mother]" and not letting her take a breath. In responsive messages, mother made statements about having been crying all day, how being alive is all that matters, and how child "would be even sadder if I'm dead, so please stop." Mother also sent a message saying, "I don't ever want to be awake right now," although she testified at trial that "ever" was meant to be "even" in that text message, and she was indicating only that she wanted to go back to bed. During a team meeting held on July 17-two weeks before the jurisdictional trial-mother denied that those text messages included threats of self-harm, but "she made it very clear that [she was] really struggling" and that it was "really difficult for her to maintain her mental health."
At the August 2 jurisdictional trial, Fessler testified that DHS's original concerns had centered around mother's failure to protectively intervene when child disclosed sexual abuse, as well as mother's suicide attempt. Fessler testified that she was not prepared to return child to mother's home "today," in part because of "concerns about the home environment and how it could affect [mother's] mental health." In particular, Fessler was concerned that child's continuing disclosures about the abuse she had suffered would be "very triggering for [mother's] own mental health" and that mother would not process that appropriately. Mother needed therapy so she could "continue processing why she failed to intervene on her child's behalf," with the hope that "she wouldn't fail to intervene to protect her child in the future."
Mother testified at trial and explained that she now understands that she should have reported the sexual abuse herself "and not put it on" child, although she thought she was doing the right thing at that time. Mother does not know why she did not realize at the time that telling child to report the abuse to her teacher was not the right thing to do. Mother testified that she understands that she can call 9-1-1 to report a crime and that sex abuse is a crime. She said that she would now reach out for help if a situation arose and she did not know what else to do. With respect to the domestic violence involving the boyfriend with whom she lives, mother testified that the statements she made previously about her boyfriend's violence in the home related to situations months earlier, when she had still been drinking and would initiate fights.
When asked if she was still in the process of working on her mental health, mother responded, "No. I'm good." She acknowledged being sad because child is not at home but denied being depressed or having feelings of hurting or
DHS made a brief closing statement, in which it argued that, as long as mother's mental health problems remained unresolved, "failure to take protective actions, remains a safety threat."
The juvenile court found child to be within its jurisdiction based on its determination that mother's mental-health problems were complicated, had not yet been resolved in the few months that mother had been involved in services, and left mother at risk of failing to protect her child:
"The ongoing situation is the mental health problems that are deep seated and you know they are, we've talked about it, the complexity, need to be peeled back a little better, or really gotten a better hold of. And that interferes with your ability to safely parent.
"Those mental health issues Ms. Fessler brought up were part and parcel of mom's failure to protect. And they are capable of being repeated, I believe, in relatively short order."
The court therefore entered a judgment finding child within its jurisdiction based on the allegations related to mother's mental health and her failure to protect child from father.
On appeal, as I explain above, this court's task is to determine whether the record-viewed in the light most favoring jurisdiction-permitted "the juvenile court to determine that 'the child's condition or circumstances' gave rise to a current 'threat of serious loss or injury to the child' and that there is a 'reasonable likelihood that the threat will be realized.' " N. P. ,
Mother's mental health struggles are significant and she acknowledges on appeal that those problems led to her failure to protect child when child disclosed having been sexually abused. The record amply supports a finding that mother's difficulties persisted at the time of trial. Mother's response to DHS becoming involved with the family was to attempt suicide. Nearly four months later, despite having begun engagement with mental health services, mother sent text messages to grandmother that the juvenile court reasonably could interpret as conveying thoughts of self-harm. Two weeks before trial, mother still struggled to maintain her mental health. Nonetheless, in her testimony-as contrasted with her legal arguments-mother denied that she had any ongoing mental health issues, essentially asserting that she was "good" and would remain so as long as she remained in therapy and took her medication. The juvenile court could infer from that evidence that mother's mental
More significantly for purposes of this appeal, the juvenile court also could find that mother had not yet gained the kind of insight or tools that would prompt her-notwithstanding her mental health challenges-to affirmatively intervene to protect child from danger. At trial, mother could not explain why she had thought that the best way to respond to her young child's report of being sexually abused by her father was to tell that child to report the abuse to a teacher. Although she said that she would call 9-1-1 in the future, she could not explain why she did not think to do that when child disclosed abuse; nor did she explain why she had not thought to call a lawyer, even though she had called lawyers to seek advice in other situations. Given that lack of insight, the juvenile court could permissibly find that mother had not gained the ability, in the few months preceding trial, to act protectively toward child in the future.
The remaining question is whether DHS met its burden to prove that mother's continuing inability to act protectively presented a threat of serious harm to child at the time of the jurisdictional trial that was reasonably likely to be realized. Given the totality of the circumstances, I would hold that DHS proved its case.
First, it matters that this child was only eight years old at the time of the jurisdictional trial; we may safely assume that any such young child at some point will encounter potentially dangerous situations (or even people) from which the child needs protection. Second, it matters that mother demonstrated an extraordinary inability or unwillingness to protect this child from the terrible harm of being sexually abused by her father. Mother's failure to protect child from that harm was not momentary; it did not exist only when mother did not take immediate action upon hearing child's disclosure of abuse. Rather, mother took no meaningful steps to protect child over the next three weeks, as child continued to spend time in father's home. We do not know how long that dangerous situation might have continued had DHS not learned, somehow, what child had
Given the totality of those circumstances, I would hold that DHS met its burden to prove that the child's condition and circumstances at the time of trial presented a serious risk of harm that was reasonably likely to be realized. True, the record in this case does not include specific information about the nature and frequency of the domestic violence in mother's home. Under ordinary circumstances, the lack of such evidence could be fatal to a dependency petition. See , e.g. , Dept. of Human Services v. S. A. B. O. ,
I respectfully dissent.
As used in N. P. , the word "disposition" refers generally to the juvenile court's resolution of the case; it does not refer to "disposition" as that term is sometimes used more specifically in the juvenile-dependency context to refer to the child's placement once dependency jurisdiction has been established. See ORS 419B.325(2) (referring to "proper disposition of the ward").
Other provisions of the juvenile code do require the court to make findings. See, e.g. , ORS 419B.340(1), (2) (requiring a juvenile court that has awarded custody to DHS to include in that part of its order certain determinations and "a brief description of what preventive and reunification efforts were made and why further efforts could or could not have prevented or shortened the separation of the family"); ORS 419B.476(2)(d) (requiring the juvenile court, at a permanency hearing, to "[m]ake the findings of fact under ORS 419B.449(3)," which requires findings on a variety of topics); ORS 419C.355 (requiring the juvenile court to "make a specific, detailed, written finding of fact to support" certain determinations about a youth who is being waived into circuit court for prosecution as an adult). Neither ORS 419B.100 nor the part of chapter 419B that sets out the procedure for dependency hearings (ORS 419B.305 -ORS 419B.340 ) includes a similar requirement regarding the juvenile court's determination that a child is within its dependency jurisdiction.
Of course, when a juvenile court does make express findings, its ultimate ruling must be consistent with those findings. See, e.g. , State v. L. P. L. O. ,
In this case, the juvenile court made no express findings that are inconsistent with its exercise of jurisdiction or that would limit our consideration of evidence in the record. Nor, in my view, did the juvenile court exclude any evidence (specifically, evidence about domestic violence) or rule that the evidence was admissible for only a limited purpose. Thus, unlike the majority (see
As the majority notes, mother made those statements in the context of describing additional details about her ongoing mental health treatment and her assertion that she planned to continue that treatment indefinitely.
Contrary to the majority's accusation, I do not deem DHS's argument to the juvenile court or the bases on which the court asserted jurisdiction to be "largely irrelevant."
As the majority accurately notes,