GAC v. State Ex Rel. Juv. Dept.GAC v. State Ex Rel. Juv. Dept.
Three children appeal from separate judgments dismissing the state‘s petitions for establishment of juvenile dependency jurisdiction over them on the ground that the state and the children had not proved that mother subjected the children to physical abuse or inappropriate discipline, thereby placing the children at risk of harm.1
The following facts were either undisputed in the record or established by a preponderance of the evidence. See
Mother admitted to Mawdsley that she had struck V with a wooden spoon and that she probably “took it too far.” Police officers took pictures of V‘s upper arm and upper rear thigh that showed red welts and bruising. There were no signs of physical injury to G or A. Officer Zohner, who assisted in the investigation, testified that mother‘s demeanor during police questioning was “very relaxed * * * [a]lmost nonchalant.” Zohner testified that the home was “almost immaculate,” and he had the impression that if anything was out of place “it would have been an issue.”
Zohner was present while V was questioned. V reported that mother accused V of losing an Oregon Trail food stamp card and was dissatisfied with the way that she had cleaned the bathroom. Mother told V that she had better find the card, but V could not find it. V told police that mother stated that V was going to get a spanking and directed her to “go over to the stair.” V testified that the blows hurt “pretty bad,” rating the pain an eight or eight and a half on a scale from one to ten. V asked mother to stop, but mother refused. V told Silbernagel that she did not feel safe in the home. V had raised
A told Silbernagel that she also gets hit with the wooden spoon but that V gets it more. A later denied that mother hits her and stated that mother had questioned her about her earlier statements to the caseworker.
G told the caseworkers that mother “spanks” V and A with a wooden spoon, that such spankings had occurred “many times,” with mother sometimes, but not always, making the girls take off their pants and underwear, bend over, and put their hands on the couch. G said that mother used the spoon only for spanking, and he described it as being two and one-half feet long. According to G, something like this happened once or twice a week. Mother rarely explained why she was hitting. G also testified that mother previously had “knock[ed][V] upside the head or something.” G told a police officer that mother used to spank G until they were involved in a fight, and G was arrested and placed in a juvenile detention facility. On that occasion, mother scratched G on the chest and shoulders to the point of bleeding and kneed him a couple of times in the genitals. G stated that, since then, mother no longer challenged him.
According to G, mother is quick to anger and has mood swings. G did not want to live with mother; he had run away from home the previous summer because he did not feel safe and did not want things to “escalate” in the way that had led to his previous involvement with the juvenile court. G acknowledged that he had been caught bringing girls into his bedroom when mother was not at home and that he had not brought his weekly grade reports home as mother had requested.
V testified that mother previously had spanked her with her clothes off. Mother had hit her with an open and closed hand and had hit her on the head. According to V, mother would hit her because “I‘m in trouble — because I didn‘t do something right.” Once or twice, mother also had pinched V‘s throat. However, V testified that mother hit her with the spoon “every time” she got in trouble. Mother also had given V and A bloody noses by hitting them on separate occasions in the past. Once, mother told V “before you call the cops, call the hospital to tell them there‘s a dead Mexican in the house.” V testified that she understood that “the dead Mexican” referred to the person who had called the police to report what was happening in the home. V felt threatened by mother and did not want to return to her home.
During questioning by police on March 30, mother‘s demeanor changed from confrontive, combative, and aggressive, to passive and silent. Mother had difficulty focusing, answering questions, and tracking information. In Zohner‘s experience, “most people” are “more concerned” than mother appeared when questioned about alleged child abuse.
Mother admitted that she had caused V‘s injuries by hitting her with a wooden spoon. Mother testified that she hit V “about three times; what I felt was necessary.” Mother testified that she told V to place her hands on the stair rail. Mother then “drew back” to hit V three times and twice V turned around. The first time she grabbed V‘s arm and put her back on the stair rail. V turned around again and “that‘s how I got her on the arm twice.” Mother described this as “an accident.” She then “made contact” with the back of V‘s thigh. Mother testified that she initially told a case worker that she might have “gone overboard” in hitting V, but at trial she did not believe that she had done so because previous discipline, including grounding V, locking her out of the computer, and taking away her cell phone, had not worked.
Mother acknowledged that she previously had hit V and has had trouble with V cleaning her room. She testified that, after taking
Mother testified that she had “spanked” V and A with the wooden spoon on previous occasions. She denied hitting G recently, although she admitted that in the past she had struck G with a “strapper.” When asked whether she wanted to continue spanking her children, mother testified that, although she hoped not to spank V in the future, “I know it‘s become necessary with [V] in dire circumstances like we came to after a series of events.” Mother also testified that “I don‘t think I‘m qualified any more to help [V] with all the psychological issues that she has.” According to mother, V had been molested and raped “a couple times” when they were living in a home where drugs were manufactured and sold.
All three children were removed from mother‘s home on March 30 and placed in temporary foster care. As noted, the state filed dependency petitions seeking juvenile court jurisdiction over the children. As pertinent here, the state alleged that the children were within the jurisdiction of the juvenile court under
“Except as otherwise provided in subsection (6) of this section and
ORS 107.726 , the juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and:“* * * * *
“(c) Whose condition or circumstances are such as to endanger the welfare of the person or of others[.]”
Specifically, the petitions alleged that “mother has subjected the child[ren] to physical abuse or inappropriate discipline, which places the child[ren] at risk of harm.” Father admitted that the children were within the court‘s jurisdiction based on the further allegation that he had failed to protect them from mother‘s actions. However, after the evidentiary hearing, the trial court dismissed the petitions against mother.2 The trial court made no express credibility findings but, given the relative consistency between mother‘s and the children‘s testimony with regard to the nature of mother‘s actions, it does not appear that credibility was a significant factor in the court‘s decision. The best clues to the court‘s reasoning appear in two portions of the record. First, near the end of closing arguments, the court made the following statement:
“I know that in — there are those in our culture who believe that any physical force on a child is abuse, and inappropriate. And, there are those that believe corporal punishment far beyond this is reasonable. Some of that is cultural, some of it can be religious. And that — I know that our statutes have attempted to accommodate that to a reasonable degree. Obviously, you‘re not entitled to attack your child with a knife or a gun or something like that, to discipline them for some infraction. But, Oregon is not a state that has outlawed spanking, for instance. You‘re not allowed to spank your child to the point where you‘re breaking bones or — [h]as Oregon outlawed spooning? Does it matter how big the spoon is? Probably hitting with a 2x4 is probably beyond anybody‘s definition of reasonable, but at what point — at
what point does the law step in? I don‘t — I‘m not aware of any law on this[.]”
The court then took the cases under advisement.
Second, in a later hearing after the court had entered the judgments dismissing the petitions, the court stated that it had not found “evidence of jurisdiction” for G or A other than “derivative from their sister” and concluded that “the State doesn‘t really have any business meddling with this family.” From the foregoing excerpts, we infer that the trial court did not believe that mother‘s conduct with respect to V was serious enough to warrant taking jurisdiction as to her and that the evidence pertaining to G and A was merely derivative of the evidence as to V and, therefore, insufficient. With respect, we disagree.
In this case, mother attempted to justify her actions as discipline that was necessary as a last resort, because nothing else had sufficed to deter the children from misbehavior. Before considering whether the evidence supports mother‘s assertion, we examine the statutory framework that provides context for that analysis.
“It is the policy of the State of Oregon to recognize that children are individuals who have legal rights. Among those rights are the right to:
“* * * * *
“(B) Freedom from physical, sexual or emotional abuse or exploitation[.]
“* * * * *
“(b) Parents and guardians have a duty to afford their children the rights listed in paragraph (a) of this subsection. Parents and guardians have a duty to remove any impediment to their ability to perform parental duties that afford these rights to their children. When a parent or guardian fails to fulfill these duties, the juvenile court may determine that it is in the best interests of the child to remove the child from the parent or guardian either temporarily or permanently.”
In counterpoint,
“It is the policy of the State of Oregon to guard the liberty interest of parents protected by the
Fourteenth Amendment to the United States Constitution and to protect the rights and interests of children, as provided in subsection (2) of this section. The provisions of this chapter shall be construed and applied in compliance with federal constitutional limitations on state action established by the United States Supreme Court with respect to interference with the rights of parents to direct the upbringing of their children, including, but not limited to, the right to:“* * * * *
“(c) Discipline their children.”
Thus, although the dependency jurisdiction statute,
A related statute,
We have not identified a case concerning juvenile court jurisdiction directly addressing the question of what constitutes lawful discipline. Cf. State ex rel Dept. of Human Services v. Shugars, 208 Or.App. 694, 715, 145 P.3d 354 (2006) (Shugars II) (recognizing authority of DHS to impose limits on physical discipline). The key inquiry in determining whether “condition or circumstances” jurisdiction is warranted is whether, under the totality of the circumstances, “there is a reasonable likelihood of harm to the welfare of the child[.]” Smith, 316 Or. at 652-53, 853 P.2d 282. The cases treat it as axiomatic that the physical abuse of a child endangers the child‘s welfare and, thus, furnishes a basis for the exercise of dependency jurisdiction. See, e.g., State ex rel. Dept. of Human Services v. Meyers, 207 Or.App. 271, 274-75, 284-85, 140 P.3d 1181, rev. den., 341 Or. 450, 143 P.3d 773 (2006) (relying, in part, on physical abuse of child as ground for termination of parental rights); State ex rel. DHS v. Kamps, 189 Or.App. 207, 213-14, 74 P.3d 1123 (2003) (physical abuse of a child constitutes a circumstance that endangers the child‘s welfare under
In sum, we conclude that
We need not decide whether mother‘s conduct toward V constituted a criminal assault. As discussed, where juvenile dependency jurisdiction is concerned, conduct that endangers a child‘s welfare is not limited to criminal conduct, and the evidentiary standard is one of preponderance, not the absence of reasonable doubt. If a parent causes physical injury to a child by nonaccidental means, the parent has physically abused the child, and such abuse cannot constitute lawful discipline. Mother in this case caused physical injury to V by other than accidental means. V suffered raised red welts and bruising on her arms and thigh that caused her substantial pain, according to her testimony, at a level of eight or eight and a half on a scale of one to ten. The photographs of V‘s injuries are consistent with her testimony. Because mother abused V by causing her physical injury, which, in turn, endangered V‘s welfare, V was within the juvenile court‘s jurisdiction under
The question remains whether the court properly dismissed the petitions as to A and G on the ground that those cases were “derivative” of V‘s. We have held that a child may be removed from an abusive environment if there is evidence of abuse of any child. See, e.g., Brammer, 133 Or.App. at 549, 892 P.2d 720; State ex rel. Juv. Dept. v. Miglioretto, 88 Or.App. 126, 129, 744 P.2d 298 (1987). Recently, we have clarified that the axiom that “‘harm to one child means a risk to others’ is not absolute and immutable.” State ex rel Dept. of Human Services v. Shugars, 202 Or.App. 302, 311, 121 P.3d 702 (2005) (Shugars I). In Shugars I, the court found that the “particularized nature” of one child‘s condition and circumstances warranted dependency jurisdiction over her but did not support the exercise of jurisdiction over her two siblings. Id. In that case, the older child, unlike the other children, had special needs, including serious medical problems, that the parents had been unable to address. We held:
“The postulate that ‘harm to one child presents a risk of similar or related harm to other children in the same household’ makes a great deal of sense — common sense — particularly in cases involving sexual or physical abuse. But it is not a universal solvent that automatically justifies the blanket imposition of dependency jurisdiction, without differentiation among the circumstances of each child. Rather, and particularly, where, as here, jurisdiction with respect to one child is based on a failure to be responsive to that child‘s special needs and other children in the same household do not have similar special needs, we must be especially careful to assess each child‘s individual circumstances: Is this child at risk? In this context, at least, ‘one size fits all’ approaches are illusory, and potentially dangerous.”
Id. at 315, 121 P.3d 702 (emphasis in original).
In this case, although it was mother‘s conduct toward one child that precipitated state intervention, the evidence supports establishment of jurisdiction for all three children. In light of the ordinary nature of V‘s conduct on March 30 — losing something and inadequate housekeeping — it is reasonable to infer that the circumstances leading to the abuse that day are likely to recur. Mother gave little indication in her testimony that she would handle things differently in the future. Unlike in Shugars I, the evidence here did not differentiate the risk of harm to V from risks to the other children. See Imus, 179 Or.App. at 35, 39 P.3d 213 (evidence supported jurisdiction of the juvenile court over two children based on the allegation that younger child was subjected to physical abuse by way of severe facial bruising caused by a nonaccidental physical blow). Although V was the victim of mother‘s conduct on March 30, all three children have been similarly struck at different times. Both A and G testified that mother has hit them with her hands and with objects when they are “in trouble.” Although mother may have stopped hitting G, that change was recent and was a consequence,
Reversed and remanded with instructions to enter judgments finding that children are within jurisdiction of juvenile court based on allegations in paragraph 1 of petitions.