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In re A.B.F.

Court of Appeals of Oregon

December 18, 2013

In the Matter of A.B.F., a Child.
v.
R. L. F., Jr., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

Argued and submitted on September 13, 2013.

Washington County Circuit Court, No. J130067, Petition Number 01J130067 Eric Butterfield, Judge.

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

Judy C. Lucas, 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 Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

EGAN, J.

In this juvenile dependency case, father appeals from the judgment taking jurisdiction--pursuant to ORS 419B.100(1)(c)[1]--over his child, A. Father argues that the juvenile court erred in taking jurisdiction over A, contending that the evidence presented by the Department of Human Services (DHS)--that father used marijuana and alcohol and was unable to protect A because father was subjected to domestic violence by mother and lacked sole legal custody--was insufficient to prove that those conditions and circumstances exposed A to a current risk of serious loss or injury that was likely to be realized. We agree with father and reverse the judgment.

The parties do not request that we exercise our discretion to review this case de novo, ORS 19.415(3)(b), and we decline to do so. See ORAP 5.40(8)(c) (we exercise de novo review "only in exceptional cases"). Accordingly, "we view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's [determination] and assess whether, when so viewed, the record was legally sufficient to permit that outcome." Dept. of Human Services v. N. P., 257 Or.App. 633, 639, 307 P.3d 444 (2013).

We recite the facts consistently with the juvenile court's expressed and implied findings. When A was 23 months old, mother physically assaulted father in A's presence. Mother was arrested following the assault, and father informed police that he had consumed several alcoholic beverages that evening. Due to mother's arrest and father's apparent intoxication, DHS immediately placed A in nonrelative foster care. DHS petitioned the juvenile court to assert jurisdiction over A, pursuant to ORS 419B.100(1)(c), on the following bases relating to father:

"E. The father was subjected to domestic violence by the mother and the father is unable to protect the child from exposure to mother's violence.
"F. The father of the child does not have sole legal custody of the child and is unable to protect the child from the mother's abusive and neglectful behavior.
"G. The father's substance abuse interferes with his ability to safely parent the child.
"H. The father leaves the child with unsafe caregivers.
"I. [The father] is said child's legal father as he is listed on said child's birth ...

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