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In re J.S.

Court of Appeals of Oregon

March 26, 2014

In the Matter of J. S., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
I. S., Appellant. In the Matter of B. S., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
I. S., Appellant

Submitted February 11, 2014.

Klamath County Circuit Court. 0400120JV3. Petition Number 1300235M. Klamath County Circuit Court. 0400120JV2. Petition Number 1300235M. Roxanne B. Osborne, Judge.

Peter Gartlan, Chief Defender, and Shannon Storey, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Erin K. Galli, Senior Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 487

[261 Or.App. 733] NAKAMOTO, J.

In this consolidated juvenile dependency appeal, father appeals a judgment finding jurisdiction over his two children under ORS 419B.100(1)(c), on the basis that father had done nothing to assert legal custody of his children despite his awareness that mother could not safely parent them. On appeal, father argues that the Department of Human Services (DHS) was required to prove that father's lack of a custody order exposed the children to a risk of serious loss or injury and that it failed to meet that burden. Accordingly, father argues that the juvenile court erred in finding jurisdiction over his children on that basis.[1] We agree and reverse the judgment finding jurisdiction over the children as to father.

None of the parties request de novo review, and we decline to conduct such a review in this case. See ORS 19.415(3)(b) (in nontermination cases, we have discretion to exercise de novo review). Accordingly, " we view the evidence, as supplemented and buttressed by permissible derivative inferences, 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." Dept. of Human Services v. N. P., 257 Or.App. 633, 639, 307 P.3d 444 (2013). In other words, " our function is limited to determining whether the evidence was sufficient to permit the challenged determination." Id. at 640. We

Page 488

state the facts consistently with that standard.

Mother and father have two children, who were ages 12 and 13 at the time of the jurisdictional hearing. DHS first became involved with the family in 2002 and, since then, has offered services to the family and performed numerous assessments. Mother and father have not lived together for [261 Or.App. 734] a number of years. Father lived and worked out of state, though he would periodically return to Oregon to visit the children. As a result of that arrangement, the children lived primarily with mother, though for at least two years they had lived with father in Nevada. Mother and father had no formal agreement or judgment governing their custody of the children.

Mother has a history of substance abuse problems, with cycles of sobriety followed by relapse. On two occasions, father removed the children from mother's custody, once when she had relapsed and " more or less just kind of left," and again when he thought that mother's boyfriend was " not okay." In late February or early March of 2013, when father was in Oregon, he met with a DHS employee to discuss his concerns about mother's recent behavior. When DHS had first made contact with the family in 2002, one of its recommendations was that father obtain custody. At the 2013 meeting, father said that he wanted to know more about obtaining custody of his children. Father expressed an interest in obtaining custody because he was concerned that mother had been using illegal substances, that she was associating with people that were " concerning," and that the children had not been attending school regularly. Despite having shared those concerns with the DHS employee, shortly thereafter, father returned to Nevada for work. Father testified that mother was " clean," or not using drugs, at that point, and the children remained with mother.

Mother then relapsed. According to father, her relapse occurred unexpectedly, because usually when she got clean she would " stay clean for a long while." In May 2013, DHS removed the children from mother's custody, placed them in substitute care, and filed a petition seeking jurisdiction over the children as to both mother and father pursuant to ORS 419B.100(1)(c). As to mother, DHS alleged that jurisdiction was proper based on her substance abuse problem, her inability to safely parent the children, her failure to provide for the educational needs of the children, her failure to maintain them in school, and her involvement in criminal activities. In July 2013, the juvenile court held a jurisdictional hearing as to the allegations against mother and, based only on the allegations as to mother, the court [261 Or.App. 735] entered a jurisdiction and disposition judgment making the children wards of the court.

Father, meanwhile, had quit his job and moved back to Oregon in July and was actively seeking a job and a place where he could live with the children. Father still ...


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