In the Matter of S. L., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. T. B.-L., Appellant. In the Matter of K. B., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. T. B.-L., Appellant.
Douglas County Circuit Court 21JU02843; A177162 (Control); Douglas County Circuit Court 21JU02844; A177163
Court of Appeals of Oregon
June 23, 2022
320 Or App 434 | 514 P3d 131
In this consolidated juvenile dependency case, father challenges two juvenile court judgments that established dependency jurisdiction over his children, K and S. The juvenile court took jurisdiction over the children pursuant to
Motion to dismiss denied; reversed.
Shannon Storey, Chief Defender, Juvenile Appellate Section, and Joel C. Duran, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.
TOOKEY, P. J.
Motion to dismiss denied; reversed.
In this consolidated juvenile dependency case, father challenges two juvenile court judgments that established dependency jurisdiction over his children, K and S. The juvenile court took jurisdiction over the children pursuant to
Before turning to the merits, we briefly address whether this case is moot. After father appealed the jurisdictional judgments, the juvenile court terminated jurisdiction and wardship over the children, and the Department of Human Services (DHS) moved to dismiss this case as moot. Father contends that his appeal is not moot and identifies the collateral consequences “flowing from the jurisdictional judgments” that, he contends, continue to have a practical effect on him—namely, the disadvantage he would face in a subsequent DHS child-welfare investigation; his inability to obtain agency review of any future founded dispositions regarding child abuse or neglect; and the effects on his right to custody, parenting time, and visitation in future domestic relations proceedings. Cognizant of the collateral consequences identified by father, we deny DHS‘s motion to dismiss. See State ex rel Juv. Dept. v. L. B., 233 Or App 360, 364-65, 226 P3d 66 (2010) (concluding that appeal from jurisdictional judgment was not moot where “juvenile court‘s judgment continues to have [effect] with respect to any
Having considered the mootness question, we turn to the merits—i.e., whether DHS presented legally sufficient evidence to support the jurisdictional determinations as to K and S.
“In reviewing the juvenile court‘s jurisdictional determination, the question is whether [DHS] has proved, by a preponderance of the evidence, that the child‘s welfare is endangered by the parents’ conduct.” Dept. of Human Services v. K. C. F., 282 Or App 12, 14, 383 P3d 931 (2016). “On appeal, we view the evidence, as supplemented by permissible derivative inferences, in the light most favorable to the [juvenile] court‘s determination and assess whether, when so viewed, the record was legally sufficient to permit that outcome.” Id. In accordance with that standard, we state the following facts.
BACKGROUND
Father has two children—K, age five, and S, age four. Father has been in a relationship with mother for seven years, during which time he and mother argued “on and off.” More recently, however, the arguing had “gotten worse“; as explained below, between December 31, 2020 and June 3, 2021, father and mother quarreled four times either in or outside their home, leading to a police response each time.
On December 31, 2020, a police officer responded to a “reported disturbance” between father and mother. When the officer arrived, father explained that he and mother had engaged in a “shoving match,” which involved “grabbing for a phone, and pushing.” Father also stated that “he was bit
On January 24, 2021, a police officer responded to a report from father that he had found a methamphetamine pipe in mother‘s pocket. When father found the pipe, “there was a little bit of a struggle,” and he “forcefully t[ook] the pipe away from” mother, but the pipe “tumbl[ed] to the ground.” During the struggle, mother and father fell on the pipe and broke it. Father admitted that the children “were inside the home and they did witness the incident.” No injuries resulted from that struggle, and neither mother nor father wanted charges brought against the other.
On May 15, 2021, a police officer responded to a call from father, who explained that he and mother “had been involved in a verbal dispute that turned physical.” Father told the officer that he had tried to take from mother a box containing “residue of what looked like marijuana,” because “he was concerned about her using drugs,” and that, “when [father] took the box, she jumped on his back and scratched” his arms. Neither father nor mother wanted charges brought against the other. At the time of the dispute, the children “were not present at all,” as they were staying at their maternal grandmother‘s house.
On June 3, 2021, two police officers were dispatched to father and mother‘s home after a neighbor reported “a disturbance in a vehicle.” When the officers arrived, mother and father “weren‘t actively physically fighting but they were engaged in a yelling match at each other.” Father told the officers that mother took something that belonged to him and wouldn‘t return it, so he took mother‘s purse and tried to leave in his car, but mother “got into the car and there was some pushing and some shoving.” Mother told the officers that, “during the course of th[e] confrontation, [father] pushed her and she fell down lightly scuffing” either her knee or elbow. The first officer saw what “appeared to be freshly broken glass” on the front driveway, and mother told
After the June 3, 2021, incident, DHS filed dependency petitions, alleging that the children‘s welfare was endangered by father and mother‘s “ongoing volatile and/or unsafe relationship.”3 The juvenile court held a jurisdictional trial and, ultimately, took jurisdiction over K and S, explaining:
“Wrestling around or whatever it was that actually was the manifestation of the physicality of the conflict poses a nonspeculative threat of harm to the children, because it is not possible to preclude that the children could be present and could themselves interpose[.]
“*****
“Here, I think the real likelihood of harm to them, the physical harm, would be an attempt at intervention by one or the other of the children which is incredibly common when children observe physical violence between the parents. The Court does not have any serious doubt that there has been and would continue to be some level of physical violence between the parents[.]
“At this point, the Court agrees with [DHS] that allegation (2)(b) and (2)(e) are proved to a level of preponderance to exist. That is, subjecting *** each child to the ongoing volatile and unsafe relationship with the *** other parent *** [i]n that it exposes [the children] to the possibility of violence[.]”
(Emphases added.)
ANALYSIS
“To establish a basis for juvenile court jurisdiction for purposes of
In this case, DHS alleged that father and mother‘s “ongoing volatile and/or unsafe relationship” endangered the children; however, nothing in the evidence adduced at the jurisdictional trial explicitly identifies the specific type, degree, and duration of the harm that endangered the children.
Though that evidence might be sufficient to show that parents had an “ongoing volatile and/or unsafe relationship with” each other, and that their relationship exposed the children to some harm, we do not think it is sufficient to show that parents’ relationship posed a nonspeculative threat of serious loss or injury to the children that is reasonably likely to occur. See K. C. F., 282 Or App at 20 (“[I]t bears emphasizing that a court cannot take jurisdiction over a child based solely on a risk of some harm.” (Emphasis in original.)).
Relatedly, we have identified nothing in the record that leads us to conclude that the children were ever the object of parents’ “volatile and/or unsafe” conduct, or that they were ever in such close proximity to parents’ fighting so as to be “endangered” by it. See S. D. I., 259 Or App at 117 (“Endanger connotes exposure to ‘danger‘—i.e., ‘the state of being threatened with serious loss or injury.‘” (Emphasis added; internal quotation marks omitted.)). The evidence does show that, during the January 2021 incident, the children were in the home and observed father‘s “struggle” with mother regarding her meth pipe. Yet, this does not lead us to conclude that that incident posed a threat of “serious” loss or injury to the children that was reasonably likely to be realized. The same is true of the other three incidents: The record shows that, during the December 2020 incident, the children had been asleep in another room, and appeared “jovial” and not “in any emotional distress” upon waking up; that during the May 2021 incident they “were not present at all“; and that, during the June 2021 incident, they were inside their home, while parents were outside the home, either in father‘s car or in the driveway.
In arguing that the evidence was legally sufficient to support jurisdiction in this case, DHS also points to the juvenile court‘s comment that “the children could be present and could themselves interpose” in parent‘s fighting. (Emphases added.) Yet we have identified nothing in the record that leads us to conclude that the children had in the past, or would in the future, intervene in parents’ fighting. Moreover, we have said that the “threat of harm cannot be found based on speculation,” and “[i]t is not sufficient for the state to prove that a parent‘s conduct could negatively affect the child.” K. C. F., 282 Or App at 20 (emphasis in original).
Similarly, DHS points to the juvenile court‘s comment that “an attempt at intervention *** is incredibly
In sum, we conclude that, though there is evidence on this record of father and mother‘s “ongoing volatile and/or unsafe relationship,” the evidence is legally insufficient to support the court‘s determination that parent‘s relationship posed a present, nonspeculative risk of “serious” loss or injury to the children that is reasonably likely to be realized. Accordingly, we reverse.
Motion to dismiss denied; reversed.