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In re T.P.

Court of Appeals of Oregon

July 24, 2013

In the Matter of T. P., a Child.
N. P., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

Resubmitted en banc May 7, 2013.

Clackamas County Circuit Court 110849J Douglas V. Van Dyk, Judge. Petition Number 110849J02

On respondent's petition for reconsideration filed March 6, 2013; and on appellant's petition for reconsideration filed March 18, 2013, and respondent's response to appellant's petition for reconsideration filed March 18, 2013. Opinion filed February 6, 2013. 255 Or.App. 51, 296 P.3d 606.

Peter Gartlan, Chief Defender, and Valerie Colas, Deputy Public Defender, Office of Public Defense Services, for appellant's petition.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, for respondent's petition and response to appellant's petition.

Before Haselton, Chief Judge, and Armstrong, Wollheim, Schuman, Ortega, Sercombe, Duncan, Nakamoto, Hadlock, and Egan, Judges.

En Banc


In Dept. of Human Services v. N. P., 255 Or.App. 51, 296 P.3d 606 (2013), we reversed and remanded a juvenile court judgment that denied father's motion to terminate wardship and dismiss jurisdiction over his two-year-old child, T. Both parties petition for reconsideration, urging us to clarify whether our decision both terminated the wardship and dismissed jurisdiction, or only dismissed jurisdiction. Father also requests reconsideration of our use of an "any evidence" standard of review in determining that the evidence presented by the Department of Human Services (the department) was sufficient to establish that father's anger management and manifestations of frustration created a current threat of serious loss or injury to T. We allow reconsideration, clarify our disposition, and, as clarified, adhere to our former opinion.

The following facts are taken from N. P., 255 Or.App. at 53-56. In 2011, the department filed a dependency petition regarding T, alleging (as relevant) that father's use of controlled substances made him incompetent to parent. Father conceded that allegation, and it served as the basis for the juvenile court's subsequent assertion of jurisdiction over T on August 25, 2011. Father then addressed his substance abuse problem, and, by December 2011, he had successfully completed drug and alcohol counseling. Two months later, in February 2012, the department filed an amended dependency petition, alleging that T was within the jurisdiction of the court because "[t]he father has ongoing mental health and/or anger and frustration problems that impair his ability to competently parent the child." That petition did not allege substance abuse problems. After a hearing on the petition, the court in April 2012 found that father no longer had a substance abuse problem and his mental health did not impair his ability to adequately parent, but that jurisdiction was nonetheless justified because, "[v]iewed in light of the risk that is represented by his use of controlled substances, father's anger and frustration represent a condition that, without treatment, impairs his ability to parent." Id. at 55.

On appeal, father argued that the court erred in denying his motion to terminate the wardship and to dismiss jurisdiction over T. The arguments were combined pursuant to ORAP 5.45(6). We first noted that the department presented sufficient evidence to establish that father's anger, frustration, intemperance, and immaturity created a current threat of serious harm to T.[1] Id. at 56. We went on to note, however, that the court did not base its judgment on father's anger and frustration; in fact, the court expressly held, "I'm not finding that there is a mental health problem." Rather, the court determined that the evidence of father's personality, "taken together" with "the recognized issue that father has had in the past with drugs and alcohol represent a condition that represents a threat to the child." Id. at 57. Reasoning that the court relied on father's past substance abuse and his risk of relapse, and noting that the court cannot assert jurisdiction based on facts that have ceased to exist or for which there is no evidence, we held that the court erred. We therefore reversed and remanded. Id.

In a petition for reconsideration, the department asks us to "clarify whether [we] intended to reverse the denial of father's motion to dismiss jurisdiction and terminate wardship, or only reverse the April 26, 2012[, ] judgment taking jurisdiction over [T] based on a second petition." Father agrees that "the parties need clarification."

T became a ward of the court as a result of the August 25, 2011, judgment. Wardship continues until the court enters a judgment terminating it. Dept. of Human Services v. D. M., 248 Or.App. 683, 685, 275 P.3d 971 (2012). Further, if the department files a new or amended petition when the child is already a ward of the court, and the court enters a judgment asserting jurisdiction over the child, and that judgment is reversed, in some circumstances the wardship established in the original judgment continues. Those circumstances do not exist here. Father's appeal clearly challenged the court's denial of his petition to terminate wardship and its April 2012 judgment asserting jurisdiction based on the February 2012 petition. The court found that the allegation underlying the 2011 determination of wardship--father's substance abuse--was no longer present. Based on that finding, we held that the 2011 judgment establishing wardship could not be sustained. And, although the court found that the 2012 allegation justified jurisdiction, we reversed. Thus, that judgment no longer obtains. To be clear, our disposition was intended to encompass, and did encompass, a reversal of the 2012 judgment and a remand with the (unfortunately implicit) instruction that, on remand, the court would terminate the wardship.

Father also takes issue with our assertion that the question of whether a parent's condition creates a current threat of serious loss or injury is a question of fact and, therefore, subjected to a deferential "any evidence" standard of review. Father argues that the question is legal in nature, and we should therefore review for legal error. We acknowledge that our treatment of this issue since the legislature in 2009 made denovo review optional instead of mandatory[2] has not been a model of clarity. In State v. S.T. S., 236 Or.App. 646, 238 P.3d 53 (2010), we expressly treated the question as factual and, ...

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