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In re A. D. I.

Court of Appeals of Oregon

October 23, 2013

In the Matter of A. D. I., a Child.
v.
S. D. I., aka S. D. S., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

Argued and submitted on September 06, 2013.

Lake County Circuit Court 120003JV Petition Number 120003A Lane W. Simpson, Judge.

Sarah Peterson, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Cecil A. Reniche-Smith, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.

DUNCAN, J.

The juvenile court took jurisdiction over mother's daughter A, pursuant to ORS 419B.100(1)(c), on the ground that, because mother had been absent from A's life for several years, there was a risk that A would be psychologically damaged if she were immediately transferred to mother's custody without a transition process. Mother appeals, arguing that (1) the juvenile court erred in admitting the opinion testimony of A's caseworker that it was likely that A would be psychologically damaged if she were immediately transferred to mother's custody, (2) the state presented insufficient evidence to prove its factual allegation that mother required the assistance of the Department of Human Services (DHS) to establish a meaningful relationship with A, and (3) even if the evidence was sufficient to prove that factual allegation, the state failed to prove that immediately transferring A to mother's custody would endanger A's welfare. For the reasons explained below, we conclude that the state failed to prove that immediately transferring A to mother's custody would endanger A's welfare; that is, the state failed to prove that such a transfer could cause psychological or emotional harm to A of the severity required for juvenile court jurisdiction, much less that there was a reasonable likelihood of such harm. We therefore reverse.

The juvenile court has exclusive original jurisdiction in any case involving a minor "[w]hose condition or circumstances are such as to endanger the welfare of the [minor] or of others." ORS 419B.100(1)(c). In an appeal from a juvenile court judgment taking jurisdiction over a child pursuant to ORS 419B.100(1)(c), "[t]he question on the merits is whether DHS proved by a preponderance of the evidence that [the child's] welfare is endangered" by the parent's conduct. Dept. of Human Services v. S. C. S., 253 Or.App. 319, 325, 290 P.3d 903 (2012), rev den, 353 Or 428 (2013). As we explained in Dept. of Human Services v. A. F., 243 Or.App. 379, 385-86, 259 P.3d 957 (2011),

"'[e]ndanger connotes exposure to "danger, " which generally involves "the state of being threatened with serious loss or injury[.]''' State ex rel Dept. of Human Services v. Shugars, 202 Or.App. 302, 321, 121 P.3d 702 (2005) (quoting Webster's Third New Int'l Dictionary 573 (unabridged ed 2002)). Thus, for the juvenile court to have jurisdiction over a child pursuant to ORS 419B.100(1)(c), the child's condition or circumstances must give rise to a threat of serious loss or injury to the child. The threat must be current * * * [and] there must be a reasonable likelihood that the threat will be realized."

We view the evidence "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." D. H. S. v. N. P., 257 Or.App. 633, 639, 307 P.3d 444 (2013). We state the facts in accordance with that standard.

Mother gave birth to A in Washington state in November 1999. Mother and father divorced a few years later. At that time, mother was struggling with an addiction to methamphetamine, and father assumed legal custody of A. Mother participated in some supervised visits with A but stopped visiting her in 2003 or 2004. Some time thereafter, father moved with A to Oregon.

In 2006, mother gave birth to another daughter, J. Mother's continuing methamphetamine use prompted Washington's child-welfare authorities to remove J from her care in 2009. Mother successfully completed drug treatment, parenting, and counseling services and obtained stable housing by moving in with her mother. Washington child-welfare authorities returned J to mother's care in June 2012.

In February 2012, the state removed A from father's care and placed her with local paternal relatives whom she has known her entire life. On November 9, 2012, the state filed a second amended dependency petition requesting that the juvenile court take jurisdiction over A with respect to mother. The petition alleged that A was within the jurisdiction of the court with respect to mother for the following reasons:

"4. [Mother] has a history of substance abuse which resulted in her losing custody of her daughter, [A]. [Mother] currently has an opened case ...

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