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In re F.I.K.

Court of Appeals of Oregon

March 26, 2014

In the Matter of F. I. K., a Child.
v.
R. S., Appellant DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

Argued and submitted: February 12, 2014.

Douglas County Circuit Court. 1000169. Petition Number 10JU114. William A. Marshall, Judge.

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

Erin K. Galli, Senior Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Judy C. Lucas, Senior Assistant Attorney General.

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

OPINION

[261 Or.App. 816] LAGESEN, J.

Mother appeals a judgment of the juvenile court establishing a guardianship under ORS 419B.366 for her minor child. Her first assignment of error asserts that " [t]he juvenile court erred in denying mother's motion to terminate the wardship." However, a review of the record demonstrates that mother did not move to terminate the wardship, or otherwise properly place the continuing jurisdiction of the court at issue. Instead, mother used the guardianship hearing to attack the court's initial jurisdictional determination.

For example, in her initial memorandum opposing the guardianship, mother argued:

" In this case the [Department of Human Services (DHS)] has asserted that [mother] has an alcohol and substance abuse problem, but has been unable to show that the alleged problem affects her parenting of [child]. The agency asserted jurisdiction based on the speculation that if [mother] had an alcohol or substance abuse problem then it would affect [child]. The agency has kept [child] in foster care because [mother] has failed to satisfy the agency with regard to her behavior, without ever establishing that [child] was in fact in danger. "

(Emphases added.) Specifically, mother pointed to the fact that she had never been arrested for conduct related to the use or possession of alcohol or drugs. She asserted that, although DHS may have a " moral or political position that possession or use of illegal drugs or use of alcohol should disqualify a parent from parenting a child," that position " do[es] not establish that a child is in danger or in the jurisdiction of the juvenile court."

Mother's post-hearing memorandum further confirms her intent to collaterally attack the initial jurisdictional determination, rather than to contest the continuing jurisdiction

Page 573

of the juvenile court. As mother framed the issue after the hearing,

" The continuing problem here is that [DHS] has assumed that [mother] has a substance abuse and alcohol abuse problem which she will not address, without the agency ever ...

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