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In re C. W.

Court of Appeals of Oregon

April 2, 2014

In the Matter of C. W., a Child.
v.
J. M. and A. M. W., Appellants DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

Argued and submitted March 6, 2014.

Washington County Circuit Court. J120144. Petition Number 01J120144. Eric Butterfield, Judge.

Holly Telerant, Deputy Public Defender, argued the cause for appellant J. M. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Megan L. Jacquot argued the cause and filed the brief for appellant A. M. W.

Michael R. Salvas, Assistant Attorney General, argued the cause for respondent. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

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

OPINION

LAGESEN, J.

[262 Or.App. 135] Mother and father (parents) appeal a permanency judgment that changed the permanency plan for their daughter from reunification to adoption. They each assign error to the juvenile court's ruling that parents could not present expert testimony and other evidence at the permanency hearing identifying the cause of the " unexplained physical injury" that resulted in the juvenile court's initial assumption of jurisdiction over parents' then-infant daughter, C.[1] The juvenile court excluded the evidence on the ground that it was not relevant to the issues at the permanency hearing but, instead, represented an attempt by parents to relitigate the original jurisdictional findings. We review the juvenile court's relevancy determination for legal error, State v. Carreiro, 185 Ore.App. 19, 22, 57 P.3d 910 (2002), and reverse.[2]

Page 36

This case arose when, at a routine pediatric exam, the pediatrician observed a small bruise on the cheek of then-two-month-old C. Concerned about the potential for abuse, the pediatrician ordered a skeletal survey of C. The x-rays were " concerning for a probable healing metaphyseal corner fracture in [C's] distal right tibial metaphysis," that is, a possible fracture of C's tibia.[3] Doctors opined that the fracture was indicative of nonaccidental trauma.

Concerned that C had been abused, the Department of Human Services (DHS) removed C from parents' care and placed her with a foster family. A few months later, parents admitted to facts giving rise to the juvenile court's jurisdiction. Specifically, each parent admitted that his or her " lack of parenting skills" impaired his or her " ability to provide minimally adequate care" for C. Each parent also admitted that C " sustained an unexplained physical injury to include[ ] distal tibial metaphyseal fracture in the child's tibia [262 Or.App. 136] while in the care of * * * mother and father." [4] Based on those admissions, the juvenile court assumed jurisdiction over C in August 2012.

In the ensuing months, DHS provided an array of services and classes to parents, in which parents participated fully. Parents also participated in regular, twice-weekly supervised visits with C. However, DHS determined that parents were not making sufficient progress toward reunification with C, and requested that the juvenile court change the permanency plan for C from reunification to adoption.

In discovery for the permanency hearing, DHS provided C's x-rays to parents for the first time. According to father's lawyer, the x-rays had not been provided to father's lawyer in earlier discovery, even though she had " made a request for all discovery at the beginning of this case." Father's lawyer, " not being medically trained, was not aware that all medical information had not been provided." Upon receiving the x-rays, father promptly had the images examined by a medical expert, Gabaeff. Gabaeff, based on his review of the x-rays and other medical information about C, opined that the injury to C's tibia resulted from infantile rickets, and not from " abusive fractures."

Before the hearing, DHS moved in limine to exclude Gabaeff's testimony and any reports. In DHS's view, in attempting to introduce Gabaeff's opinion about the cause of C's fracture, " parents [were] attempting to relitigate the jurisdictional basis at the permanency hearing" and were attempting to introduce evidence that was not relevant to the two issues at the permanency hearing: whether DHS had made reasonable efforts to reunify the family, and whether parents had made sufficient progress toward making ...


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