DHS and child cross-appeal, challenging the juvenile court's dismissal of DHS's allegation that father's sexual abuse of child endangers her welfare.
In a dependency case, we have discretion to "try the cause anew upon the record or make one or more factual findings anew upon the record." ORS 19.415(3)(b). However, we exercise that discretion only in exceptional cases. ORAP 5.40(8)(c). Here, although none of the parties request de novo review, we view this as an exceptional case for several reasons. First, we conclude that the juvenile court's decision that father does not pose a current risk of sexual abuse to child does not comport with its express factual findings that father sexually abused child and her older sister in the past, or with the uncontroverted evidence in the record that father continued to treat child in a sexualized manner after he stopped sexually abusing her. ORAP 5.40(8)(d)(ii) (a relevant consideration for the appellate court in determining whether to take de novo review is whether the "trial court's decision comports with its express factual findings or with uncontroverted evidence in the record"). Second, the juvenile court made express factual findings, and those express findings allow us to infer the juvenile court's implicit findings
On de novo review, we independently assess and evaluate the evidence and reweigh the facts and reassess the persuasive force of the evidence. Turner and Muller ,
As we explain below, we agree with father that DHS failed to establish a sufficient nexus between father's abuse of alcohol and domestic violence and a nonspeculative risk of serious loss or injury to child and, therefore, we reverse the judgment taking jurisdiction based on those allegations. On the cross-appeal, we agree with DHS and child that the evidence was sufficient to find that father posed a current risk of serious loss or injury to child based on his prior sexual abuse of child and, accordingly, we reverse the juvenile court's ruling rejecting that as a basis for jurisdiction.
Mother and father have been in an intimate relationship for 28 years but they are not married. They have two biological daughters, child, who is 14 years old and a freshman in high school, and child's sister, who is 24 years old and no longer lives in the family home. The parents have separated on and off over the years, but their longest period
On July 31, 2017, while child was present in the house, mother and father got into a verbal altercation. At some point during the altercation, father disclosed to mother (and child overheard) that he had touched child's sister inappropriately. Mother later asked child's sister whether father had touched her, but child's sister would not talk to mother about it. Mother also asked child if father had ever touched her, but child denied that he had. Eventually, child admitted to mother's friend, and later to mother, that father had sexually abused her. After child's disclosure, child's sister finally confirmed to mother that father had sexually abused her as well. Father was arrested on September 1, 2017, based on allegations of sexual abuse against child and child's sister.
About three weeks later, DHS petitioned the juvenile court to take dependency jurisdiction
The juvenile court took evidence over two days and heard from a number of witnesses, including child. Child testified that she has been aware of father's drinking her whole life, and that her parents drink half a bottle of whiskey every night. She described seeing her parents drunk every night, and observing them stumbling and slurring their words. However, she stated that "by the time they were drunk, it was mainly about an hour before I would go to bed, so I didn't really have to deal with it." In child's estimation, her parents' drinking had "kind of slowed * * * down" within
Child also described the parents' fighting. She testified that they would argue "a lot," and that they would also get into fights that involved "pushing and shoving." Child's testimony about how frequently the physical fights occurred was inconsistent, but indicated that the pushing and shoving occurred either once a month or once every other month. Later, child referred to altercations that were sometimes physical between her parents that would occur at night in their bedroom once or twice a week. She described one incident from several years earlier when she heard mother screaming and found that father had mother in a chokehold. He rebuffed child's efforts to get him to let mother go, expressing that mother "need[ed] to learn a lesson." He then grabbed mother's phone and threw it into a wall. Child described another fight to a local agency, Kids First (an investigative agency), in which she witnessed father punching a hole into a wall.
Child also described fights between father and child and between father and child's sister. She testified that "[h]e used to spank me * * * and he always threatened to slap me if I * * * did something wrong * * *." Child described another incident to Kid's First in which father "grabbed [her] hand and held it really, really, really tight." She testified about a recent incident in which father slammed her dog's body and head into the dryer "about seven times." She said that she "grabbed his shirt and ripped it, and screamed, 'Stop!' " Father chased her upstairs, but she escaped and locked herself in her room and did not come out for the rest of the night. She did not know whether father intended to hit her or whether he had been drinking, but she was scared of him that night. She also described an altercation between father and child's sister when child's sister was in high school in which father "ripped" child's sister's door "apart" while child's sister was inside her room "screaming and crying."
In addition to the domestic violence and substance abuse, child also testified that father sexually abused her when she was seven or eight years old. Father would touch her vagina, which occurred "maybe four" times. Child did not remember exactly when the touching stopped, but she knew it stopped by the time she was in the third or fourth grade, which was around the first time that she had disclosed the abuse to a friend.
Child also described incidents when father would look at her in a sexual way:
"Sometimes it was just looking rather than touching, like, looking while I'd get dressed or looking while I was taking ashower. He would go in and say, 'Boo,' but he just came in to, like, watch, and he would ask me about the soap and stuff."
Child then went on to describe another incident that occurred in either 2015 or 2016 when she walked out of the bathroom in a towel and into her bedroom to get dressed. When she came back out in her clothes, her father asked to see her in the towel again. She also recalled that, once the touching stopped, "it turned more into talking" and "[w]here he would look at me, and I could see it, you know, when like a guy's checking you out, you can tell."
Child testified that she had never reported the abuse because she "thought it was normal." Child finally disclosed the abuse to mother sometime in the month before father's arrest after she overheard the July 31 fight between her parents in which father admitted touching child's sister inappropriately. When asked how father's touching her had affected her, child responded that she had started cutting herself, which lasted for three years. She admitted that there were other reasons that she would cut herself, but she did not elaborate on what those reasons were. Child also
Child's sister also testified at the hearing. Child's sister moved out of the house when she was 18, but she moved back in with her boyfriend and daughter from October 2016 until January 2017. During that period, she witnessed her parents fighting "three times a week, maybe." She described the fights as "yelling" and "simple marriage bickering that was just loud and vocal." Child's sister did, however, witness a serious altercation where her boyfriend had to step in and stop her father from punching her mother. She indicated that her boyfriend and father were intoxicated at the time.
Child's sister testified that father had also sexually abused her. The sexual abuse had started when she was a freshman in high school, and stopped when she was 17 and a senior. Father would come into her bedroom in the mornings and he would "play with [her] with his finger down below." He finally stopped touching her because she told him "no" and that she wanted it to stop. Child's sister also made father promise that he would never do the same thing to child, but she did not recall ever asking child whether father had touched her. She indicated that she finally disclosed the abuse to mother when she learned that child had disclosed father's abuse and that mother did not believe her.
Mother testified that father has a drinking problem, and also acknowledged that physical fights occurred between her and father when they were both drinking, though she minimized how much child was exposed to physical fights. Mother's acknowledgement of father's sexual abuse was more equivocal, but she did testify that father told her that he had touched child's sister's breast.
DHS caseworker Denney testified about the effects of father's actions on child. Denney opined that, based on meeting child, supervising one visit with mother, reviewing the notes of six or seven other supervised visits, and observing mother's and child's body language, child is very
After the presentation of evidence, the juvenile court took jurisdiction as to father based on its finding that DHS had met its burden to prove by a preponderance of the evidence that father perpetuates domestic violence against mother and that his substance abuse interferes with his ability to safely parent.
With regard to the domestic violence and substance abuse allegations, the juvenile court made few express findings other than to note that the evidence was sufficient to prove the allegations and that there was a present risk of harm. In dismissing the sexual abuse allegation, the court made these findings:
"[T]here's not really any dispute about the daughters acknowledging and admitting that there was sexual abuse at some time in the past.
"The problem is, * * * I don't have any evidence or testimony that there's a present-day risk * * * of that conduct occurring in a * * * non-speculative way if the Court didn't intervene today."
The juvenile court later continued,
"I do think that abuse that's admittedly occurred at age seven, possibly eight, that hasn't repeated itself, and the [c]hild's now fourteen, a freshman in high school, I think that you still have to prove there's some current-day risk. And I don't think that [DHS has] met that burden by a preponderance of the evidence."
Under ORS 419B.100(1)(c), jurisdiction is warranted if a child's "condition or circumstances are such as
Because we conclude that sexual abuse is the only basis for jurisdiction as to father that is supported on this record, we begin with the cross-appeal. DHS and child contend that the evidence was sufficient to establish that father posed a current risk of harm to child for a number of reasons. First, they argue, the juvenile court expressly found that father had sexually abused child and child's sister. Second, even though father had not sexually abused child in several years, child was the same age as child's sister was when father began sexually abusing child's sister. Third, there was evidence that father continued to treat child in a sexualized manner, including asking to see her naked and making inappropriate sexual comments. Fourth, father had not completed any sex offender treatment. Lastly, as a result of father's sexual abuse in the past, child began cutting herself and continues to suffer from anxiety and depression.
Father responds that a finding that he sexually abused child and child's sister years before the jurisdictional hearing did not establish a risk that he would sexually abuse child in the future. Father further contends that the juvenile court did not have to credit evidence that he continued to treat child in a sexualized manner or that doing so exposed her to serious loss or injury. He also contends
First, we find that DHS proved by a preponderance of the evidence that father sexually abused child and child's sister. Child and child's sister testified to details of the sexual abuse, and that evidence was uncontroverted. The juvenile court implicitly found
Unlike the juvenile court, however, we conclude that DHS established a current threat of harm by a preponderance of the evidence. A person's status as a sex offender does not alone justify state intervention, nor does the fact that a sex offender is untreated create a presumption of risk to the child. See Dept. of Human Services v. G. J. R. ,
DHS responds that father's drinking and domestic violence are intertwined and that father's substance abuse created a risk of harm to child because it contributed to the domestic violence. DHS emphasizes some of the worst incidents in which child tried to intervene and notes that child is scared of father and suffers from anxiety and depression and that father has not engaged in domestic violence services.
Like the juvenile court, we find that father perpetuated domestic violence against mother; indeed, the parents at trial disputed only the severity and frequency of the violence between them, which is not determinative in this case. We also find that child was exposed to domestic violence, based on child's testimony that she frequently hears and sees physical fights between her parents and her description of incidents when she observed father's aggressive behavior. Further, like the juvenile court, we find ample support in the record that father abuses alcohol. However, the evidence in the record does not persuade us that either of those problems presents a current risk of serious loss or injury to child, nor does it establish a nexus between those problems and any perceived harm, sufficient to support juvenile court jurisdiction.
As we have previously explained, "[e]vidence that a child has been exposed to a parent exhibiting the adverse effects of intoxication is not, in and of itself, a basis for juvenile court jurisdiction."
We have found a risk of physical harm to a child as a result of proximity to domestic violence where the record contains evidence specific to that child to support such a finding. See , e.g. , Dept. of Human Services v. C. M.,
Moreover, there is no evidence that father injured or assaulted child during her parents' fights. Child testified that father would spank her or threaten to slap her, and that he grabbed her hand tight one time, but such conduct, although far from ideal, does not establish a risk of injury to child sufficient to support jurisdiction. Likewise, aggressive behavior such as slamming child's dog's head into the dryer and "ripping" child's sister's door apart is alarming, but does not establish a serious risk of physical harm to child. Although it may be that a record of such a risk could be made in a case such as this one, without evidence of an actual assault of the child, by means of other evidence establishing how the child was put at physical risk, such a record was not made in this case.
DHS also asserts that child is at risk of psychological harm because child suffers from depression and anxiety and was harming herself. However, DHS presented scant evidence of the "type, degree, and duration" of the emotional harm. See K. C. F. ,
Even assuming the evidence was sufficient to establish a risk of serious harm to child, DHS failed to establish, on this record, a nexus between the depression, anxiety or cutting and father's domestic violence and drinking. Denney testified that she believed child was suffering from depression, but she
We do not mean to suggest that a record of a serious risk of harm to a child from prolonged exposure to abuse of alcohol and domestic violence could not be made under these circumstances. See Dept. of Human Services v. J. H. ,
The judgment of the juvenile court dismissing the sexual abuse allegation as to father is reversed and remanded, and the judgment finding jurisdiction based on father's substance abuse and domestic violence is also reversed.
On appeal, reversed; on cross-appeal, reversed and remanded.
Notes
Child adopts DHS's answering brief and DHS's opening brief on cross-appeal. Therefore, when referring to DHS's arguments made on appeal, we are necessarily including child's arguments on appeal.
The petition also alleged that "father's mental health condition interferes with his ability to safely parent" and that "father's criminal behaviors and attendant consequences interfere with his ability to safely parent." The juvenile court dismissed those claims, and DHS and child do not appeal that ruling.
Mother is not a party to this appeal.
She distinguished those incidents from the times he would go into the bathroom when she was in the shower, which she said "he didn't do * * * anymore."
The juvenile court's determinations as to mother are not before us.
Father asserts that DHS failed to preserve its arguments that evidence that he treated child in a sexualized way and that child suffered psychological harm from his conduct established a current risk of harm. We reject those arguments as to preservation without further written discussion.