In this juvenile dependency case, father appeals the judgment assuming jurisdiction over his child, D, pursuant to ORS 419B.100(l)(c). The juvenile court took jurisdiction based on its determination that D’s conditions or circumstances endangered his welfare because (1) mother placed D under a threat of harm by exposing him to domestic violence in the home; (2) mother failed to engage in services offered to her to help ensure D’s safety and continued to allow contact between father and D despite father’s imрulsive and dangerous behavior; and (3) father exposed D to domestic violence, placing D at a threat of harm. On appeal, father raises five assignments of error. He challenges all three bases for the court’s jurisdiction over D, arguing that there is insufficient evidence to establish jurisdiction, and also asserts that the court erred in admitting hearsay testimony from the Department of Human Services (DHS) caseworker.
Father does not request de novo review, and this is not an exceptional case warranting such review. See ORAP 5.40(8)(c) (we exercise our discretion to review de novo only in exceptional cases). Accordingly, “we view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court’s disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome.” Dept. of Human Services v. N. P.,
“(1) assume the correctness of the juvenile court’s explicit findings of historical fact if these findings are supported by any evidence in the record; (2) further assume that, if the juvenile court did not explicitly resolve a disputed issue of matеrial factand 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; and (3) assess whether the combination of (1) and (2), along with nonspeculative inferences, was legally sufficient to permit the trial court to determine that ORS 419B.100(l)(c) was satisfied.”
Id. at 639-40. We state the relevant facts in accordance with that standard.
Father and mother have one child together, D; mother also has a daughter, K, who is not relаted to father.
On January 16, 2016, father came home in the evening, found the door locked, and yelled to be let inside. Mother unlocked the door, and father entered, tackled mother to the floor, and began to choke her with both hands. The struggle lasted for approximately 20 to 30 seconds. After mother asked K for help and K said that she was going to call the police, father jumped up and knоcked her cell phone away. Mother stood up and tried to get between father and K. Father pushed K away, hitting her in the face in the process; K, in turn, swung at father and struck him in the face.
That same evening, DHS caseworkеr Estes, a second DHS caseworker, and police officers spoke with mother outside of the residence. Father and D remained inside, and mother refused to allow the caseworkers or police to enter the home. After about an hour of talking, mother agreed to go into the home, get D, and stay with him at a motel for the night. After they arrived at the motel, Estes spoke to mother about a safety plan. Estes asked mother not to allow contact between the children and father, causing mother to become very upset. Mother refused to sign a written safety plan providing for no contact between the children and father, but eventually gave Estes her verbal assurance that she would not allow that contact. Mother also agreed to meet at a shelter on the following day.
Although mother met with Estes’s coworker and a person from the shelter to finalize a safety plan, mother did not keep father away from D as she agreed to do at that meeting. Mother also did not immediately rеturn phone calls from DHS. When mother ultimately called DHS, she left a voice message stating that she was back in the family home and that the children were at D’s grandparents’ house. After receiving community reports that the children had, instead, been seen at their own house when father was home, DHS attempted—again unsuccessfully—to contact mother. DHS was concerned that mother’s decisions were placing the children at risk and, therefore, sought court authorization for DHS to take the children into protective custody. The court signed an order authorizing protective custody on January 27, 2016. DHS found D at home with both father and mother and immediately removed him from their care. At that time, police officers were also at the home to arrest father on a warrant.
On January 29, the juvenile court held a shelter hearing and granted temporary custody of D to DHS. DHS placed D in nonrelative foster care along with his half-sister, K. DHS petitioned for jurisdiction over D, alleging the following bases:
“A. The mother’s *** substance abusе hinders her ability to adequately and appropriately parent and protect her child and places the child under a threat of harm.
“B. The mother *** has placed her child under a threat of harm by exposing the child to domestic violence in the home.
“C. The mother *** has failed to engage in services offered to her to help ensure the safety of the child. [Mother] continues to allow contact between the father * * * and the child, despite his impulsive and dangerous behavior.
“D. The mother *** suffеrs from Mental Health conditions that hinder her ability to safe[l]y parent the child placing the child under a threat of harm.
“E. The father *** has exposed the child to domestic violence, placing the child at a threat of harm.
“F. The father * * * has a history of violence and impulsive behavior and a pattern of domestic violence while children are present. This places the child under a t[h]reat of harm.
“G. The father ⅜⅝* has addictive behaviors regarding gambling and alcohol abuse which hinders his ability to safe[l]y рarent the child. This places the child under a threat of harm.”
The juvenile court held a jurisdictional hearing on March 2, approximately six and a half weeks after the physical altercation between father and mother in mid-January. The court heard from a number of witnesses, including mother; Albertson, who had witnessed the January 16 incident; Estes, the DHS caseworker; and others. DHS presented testimony regarding both the incident and father and mother’s ongoing fighting.
Mother admitted that she and father have arguments that sometimes beсome very heated and that their relationship has been stormy over the past year. Mother also testified that she had been attempting to save money so that she could get a train ticket and leave father. Mother stated, “I have had thoughts and plans of getting away because, you know, to make things better for us.” She also said that she had some funds set aside to remove herself and the kids if she and father could not work things out—“to get [her] kids into a healthy, non-fighting environment.” On the weekend of the January 16 incident, mother did not have access to her car because father had given it to his employees for their use. She testified that if she had had the car, she “would have loved to have left that weekend.”
Mother was not the only person to testify about the arguments she had with father. D’s paternal grandmother testified that mother and father fight and “yell at each other,” but denied that it was often. A neighbor also testified that she had heard mother and father argue before.
Estes testified that, before the January 16 incident, she had personally done multiple assessments on the family regarding domestic violence and substance abuse; those reports, however, were deemed unfounded or “unable to determine.” Estes also had spoken with father about his relationship with mother, and she testified that father blamed himself for the tension and fighting in the home and that he took “responsibility for the fighting and the incident that had happened that night [.] ”
Estes also testified that, in her view, the threat of harm to D from the January incident was “significant,” and explained thаt “[t]he parents were not in their right state of mind to take considerations of their children’s safety, one child had to leave the home, the 4-year-old didn’t have that option.” Estes also stated that “[t]he physical risk that children are in during domestic violence is that they can be in the middle” and that “[D] would be at risk of harm. He was physically present, he could have been harmed, and that is the risk to the child.” Estes further testified without objection that K had told her that, when father pushed her, she was pushed into the recliner where her brother was sleeping.
At the conclusion of the hearing, the court informed the parties of its decision without providing a detailed explanation. The court took jurisdiction over the child on the domestic violence-related allegations of the petition stating, “I will take jurisdiction on 8(B), the mom and domestic violence; (C), mom failed to engage in services; and (E) father and
Under ORS 419B.100(l)(c), jurisdiction is appropriate “when a сhild’s condition or circumstances endanger the welfare of the child.” Dept. of Human Services v. C. J. T.,
We begin with father’s first and third assignments of error, in which he asserts that the court erred in taking jurisdiction over D on the bases contained in paragraphs 8(B) and 8(E) of the petition: Mother and father exposed D to domestic violence, placing him under a threat of harm.
In response, DHS argues that the fact that D was asleep throughout the incident does not mean thаt D was not exposed to domestic violence; DHS further contends that D’s exposure to domestic violence created a reasonable likelihood of harm to him. We agree with DHS, and conclude that DHS presented sufficient evidence from which the juvenile court could find that father and mother exposed D to domestic violence and that that exposure endangered him. We further conclude that those findings support the court’s ultimate determination that there exists a current risk of harm to D.
First, having taken jurisdiction on the basis of the domestic violence allegations in the petition, the juvenile court implicitly found that domestic violence had occurred, and there is evidence in the record to support that finding. Albertson, who was an eyewitness to the January 16 incident, testified that father had tackled mother to the floor and put both hands around her throat and choked her, and that mother had asked for help from her 14-year-old daughter, K. Albertson also testified that father had knocked a cеll phone
Second, there is sufficient evidence to support the court’s implicit finding that D was exposed to that domestic violence. As noted, DHS argues that a child does not have to be awake to be “exposed” to domestic violence. DHS contends that “exposed,” as alleged in the petition, should be given its ordinary meaning. Citing Webster’s Third New Int’l Dictionary 802 (unabridged ed 2002), DHS contends that “exposed” simply means “not shielded or protected : so situated as to invite оr make likely an attack, injury, or other adverse development.” We see no reason to give any different meaning to the term. And, in this case, there was no evidence that anyone shielded or otherwise protected D from the domestic violence unfolding around him. Although there was testimony by those present that D slept through that violence, there is no dispute that D was in a chaotic and physically threatening environment. The incident involved father tackling mother and choking her, striking K, knocking K’s cell phonе out of her hand and across the room, and shoving her into the recliner where D slept. That evidence readily supports the juvenile court’s finding that D was exposed to domestic violence by his physical presence.
Third, there is evidence to support the court’s implicit determination that there was a nexus between the exposure to domestic violence on that occasion and a risk of harm to D in general. Estes testified that, in her view, the threat of harm to children is significant whenever they are present for domestic violence. Specifically to this case, she stated that “[t]he parents were not in their right state of mind to take considerations of their children’s safety” and that “ [D] would be at risk of harm. He was physically present, he could have been harmed, and that is the risk to the child.” As we have just explained, there is sufficient evidence to support the court’s determination that D was put at risk by the events immediately surrounding him even though he was not physically harmed or even aware of thosе events. See Dept. of Human Services v. C. F.,
Further, to the extent that father contends that, because there was only a single еpisode of domestic violence in this case, the juvenile court could not find a current threat of harm, we disagree. The altercation on January 16 not only posed an immediate threat to D’s safety, it also provided grounds for the juvenile court to determine whether D’s circumstances in general put him at a risk for harm. There was evidence that father attacked mother without any apparent regard for the emotional or psychological impacts that his behavior might have on D.
Finally, there is evidence in the record to support the court’s implicit determination that the risk to D was current at the time of the jurisdictional hearing, which took place a little over six weeks after the domestic violence incident. Although mother had agreed to leave the home with D on the night of the incident, she returned to the home with him at some point thereafter, even though father was there. Mother also appeared to avoid DHS in the weeks after the incident, which, in light of mother’s eаrlier reluctance to keep
We conclude that the juvenile court’s implicit factual findings were legally sufficient to support its determination that exposure to domestic violence put D at risk of serious loss or injury. Accordingly, the court did not err in concluding that D’s conditions or circumstances endangered him аnd properly took jurisdiction on the bases alleged in paragraphs 8(B) and 8(E) of the dependency petition.
We turn to father’s second assignment of error, in which he contends that the juvenile court erred by asserting jurisdiction over D on the basis of allegation 8(C) of the petition: Mother failed to engage in services offered to help her ensure the safety of D and continued to allow contact between father and D despite his impulsive and dangerous behavior. Father argues on appеal that, because the juvenile court had not yet taken jurisdiction when DHS offered services to mother, she was under no obligation at that point to accept their services. Thus, father reasons, her failure to do that cannot support a finding of jurisdiction.
DHS argues in response that father failed to preserve his second assignment of error. DHS asserts that father did not argue to the trial court (1) that DHS lacked the authority to require mother to engage in services or (2) that mother had not, in fact, failed tо engage in services. The record reflects only that father argued that the evidence was insufficient to support a finding of jurisdiction—not that the jurisdictional allegations of paragraph 8(C) were legally insufficient. We therefore decline to consider father’s second assignment of error. ORAP 5.45(1) (“No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court.”); see also State v. Wyatt,
Finally, we address father’s fifth assignment of error, in which he asserts that the juvenile court erred by not excluding hearsay testimony from the DHS caseworker regarding a statement that D reportedly made to the caseworker.
Estes testified that, on the day she went to the residence to remove D and his half-sister, she asked D “if he was okay, what he thought about what was going on, and without really any prompting or any *** questions, he said [that] Mommy and Dad fight a lot and the police come.” Father objected to the admission of D’s statement, and the juvenile court overruled his objection. Father asserts on appeal that it was erroneous for the court to admit D’s statement. He argues that the statement was hearsay and was not admissible because it was not offered under OEC 803(4) (hearsay exception for statement made for purposes of medical diagnosis or treatment). Father also cites Dept. of Human Services v. J. G.,
DHS asserts that father’s argument is unpreserved, but also argues that, if we reach father’s argument and conclude that the juvenile court erred, we should also conclude that the error was harmless because there is little likelihood that the statement affected
From our review of the record, we conclude that father sufficiently raised an objection to the admission of D’s hearsay statement to preserve it for our review, and we reject DHS’s preservation argument without further discussion. We further conclude, however, that, even assuming that the court erred in admitting D’s statement, that error was harmless. “Evidentiary error is considered harmless and is not a basis for reversal ‘if there is little likelihood that the particular error affected the verdict.’” Dept. of Human Services v. G. D. W.,
Affirmed.
Notes
In his fourth assignment of error, father asserts that the juvenile court erred in failing to include in the amended judgment a dismissal of the allegations in paragraph 8F of the petition even though the transcript of the proceeding reflects such a dismissal by the court. However, the juvenile court signed a corrected amended judgment on August 16, 2016, dismissing the allegations in paragraph 8F. That assignment of error is therefore moot, and we do not address it further.
Mother is not a party to this appeal.
The exact sequence of the physical interaction between father and K is not clear from the record.
Fathеr assigns error to the admission of K’s statement as hearsay; however, that argument is unpreserved and therefore we do not consider it.
As noted above, mother has not appealed. Nonetheless, father assigns error to the court taking jurisdiction over D on the bases that mother (1) exposed D to domestic violence and (2) failed to engage in services and continued to allow contact between father and D. He contends that it is appropriate for him to appeal those jurisdiсtional bases under our decisions in Dept. of Human Services v. E. M.,
Given that father does not dispute our standard of review, we do not consider his assertion that there is no “credible” evidence of that fact to suggest that we should weigh the evidence anew. Instead, consistent with the standard articulated above, we consider only whether there is any evidence to support the juvenile court’s express and implicit findings of fact, including its finding that D was “exposed” to domestic violence.
Father does not suggest that he relied on the happenstance that D was asleep at the time to protect D from the nonphysical consequences of domestic violence.
In that assignment of error, father also challenges the court’s failure to exclude an out-of-court statement by K. However, as noted, that contention is unpreserved, and we do not address it.