Dept. of Human Services v. D. L.Dept. of Human Services v. D. L.
Reversed and remanded for correction of reasonable efforts determination; otherwise affirmed.
Audrey J. Broyles, Judge.
Shannon Flowers, Deputy Public Defender, argued the cause for appellant. Also on the opening and reply briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services. D. L. filed the supplemental brief pro se.
Beth Andrews, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and Powers, Judge, and Kamins, Judge.
LAGESEN, P. J.
Reversed and remanded for correction of reasonable efforts determination; otherwise affirmed.
Mother appeals a juvenile court judgment taking dependency jurisdiction under
Psychological evaluation. We start with mother‘s assignment of error challenging the juvenile court‘s order directing mother to undergo a psychological evaluation. Mother did not preserve that assignment of error, making our review for plain error. But in Dept. of Human Services v. L. J. W., 302 Or App 126, 460 P3d 540 (2020), we recently held that a claim identical to mother‘s did not constitute plain error. Id. at 132. That holding forecloses mother‘s claim of plain error.
Jurisdiction. We next address mother‘s challenge to the sufficiency of the evidence supporting the juvenile court‘s determination that it has dependency jurisdiction over A under
Mother described her conduct differently at the jurisdictional hearing in a way that minimized its abusive nature and diverged from the truth (as the juvenile court found it to be). Mother said that she had “tapped” A with her foot, and then “haphazardly” tossed a few things at A—things, according to mother, that A had thrown at mother. One of the items was a “wooden block” (not a stool) that, to mother‘s astonishment, hit A in the eye and bruised her. Mother told A to seek treatment from the school nurse but to tell the nurse that she had fallen rather than the truth.
The juvenile court determined that those facts were sufficient to demonstrate that A faced a current threat of serious loss or injury likely to be realized absent DHS involvement. The court explained that mother‘s dishonesty—her “minimization and untruths“—played a significant role in its determination, noting that it might have reached a different conclusion if mother had been honest about what she had done to injure A.
On appeal, mother argues that the evidence on which the court relied was insufficient to support its determination that A faced a “current” risk at the time of the hearing, even if she had faced a risk at the time mother threw the stool. Mother characterizes the stool-throwing incident as an isolated one and contends that, whatever risk might have been present at that time, the record does not allow for the inference that A remained at risk by the time of the hearing. Mother also contends, as a separate matter,
We disagree. Although this record is not one that would have compelled the juvenile court to conclude that A faced a risk of serious loss or injury reasonably likely to be realized at the time of the jurisdictional hearing, it is one that allows for that determination. Viewed in the light most favorable to the juvenile court‘s determination, the record shows that mother‘s frustration with A caused her to physically assault her in two different ways and that, as of the time of the hearing, mother was unable to admit that she had injured A and otherwise be truthful about what she had done to A. Mother‘s inability at the hearing to acknowledge how she had physically injured her daughter with a heavy wooden stool allows for the reasonable inference that, at the time of the hearing, A remained at risk from mother. That is because mother‘s “minimization and untruths” about her injurious conduct permit the inference that it is reasonably likely that mother will repeat that conduct, having not grasped fully the nature of her conduct and the risk of physical injury that it caused to A—a risk that was, in fact, realized.
With respect to mother‘s particular contention that the record does not support a finding that she has issues with anger and impulse control, A‘s testimony about mother‘s behavior allows for that finding.
Reasonable efforts. The remaining question is whether the juvenile court‘s “reasonable efforts” determination under
Reversed and remanded for correction of reasonable efforts determination; otherwise affirmed.