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In re S.L.

Court of Appeals of Oregon

May 7, 2014

In the Matter of S. L., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
T. L., Appellant. In the Matter of N. L., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
T. L., Appellant. In the Matter of A. L., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
T. L., Appellant. In the Matter of A. L., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
T. L., Appellant

Argued and Submitted March 13, 2014

Marion County Circuit Court. J110575. Petition Numbers. 071113LAN1, 073113LAN1, Marion County Circuit Court. J110576 Petition Numbers. 071113LAN2, 073113LAN2, Marion County Circuit Court. J110577. Petition Numbers. 092611LAN3, 073113LAN3, Marion County Circuit Court. J110578. Petition Numbers. 071113LAN4, 073113LAN4, Thomas M. Hart, Judge.

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

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

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

OPINION

Page 1220

[262 Or.App. 625] DUNCAN, P. J.

Father appeals the juvenile court's jurisdictional judgments, which made his four children wards of the court and suspended his visitation with them. As we explain below, father's appellate arguments are not preserved and, therefore, we affirm.

As relevant here, the juvenile court took jurisdiction over the children, as to father, based on father's substance abuse, prostitution activities, and domestic violence.[1] Specifically, the court found that, as alleged by the Department of Human Services (DHS), the children's conditions and circumstances were such as to endanger them because (1) " father's substance abuse interferes with his ability to safely parent," (2) " father has engaged in the ongoing behavior of seeking and inviting strangers into the child[ren's] home for the purpose of exchanging sexual favors for money and controlled substances, often encouraging those strangers to be under the influence of controlled substances[,]" and (3) " father uses violence against the child[ren's] mother." See ORS 419B.100(1)(c) (the juvenile court has jurisdiction over children whose " condition[s] or circumstances" endanger their welfare).

Page 1221

In his first assignment of error, father asserts that the juvenile court erred in finding that DHS had proved the second allegation.[2] In support of that assignment, father argues that DHS did not prove that the alleged prostitution activities endangered the children. Specifically, he argues that DHS failed to prove that the children were endangered by any prostitution activities that may have occurred in the past because " there was no evidence presented that the [262 Or.App. 626] children were actually exposed to any sex acts," and that DHS failed to prove that the children were at risk of harm from any future prostitution activities because " [f]ather was not in a current relationship with [m]other" and " there was no evidence that [solicitation of sexual acts] was likely to recur absent [m]other's 'participation.'"

Father's argument is unpreserved. ORAP 5.45(1) (" No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court * * *." ). In the juvenile court, father admitted that he and mother had participated in sexual activities with strangers, but denied that he had known that mother had received money and drugs in exchange for their participation. In other words, father denied having knowingly participated in prostitution. Father asked the court to dismiss the prostitution allegation, asserting that " the Court has a 'he sad she said' situation," and that mother was not credible. The court expressly rejected father's argument that he did not knowingly participate in prostitution.[3] At no point did father make an alternative argument that the alleged prostitution activities did not endanger the children.[4] Thus, DHS did not have an opportunity to respond to that argument and the trial court did not have an opportunity to address it. Davis v. O'Brien, 320 Ore 729, 737, 891 P.2d 1307 (1995) (Preservation ensures that " parties are not taken by surprise, misled, or denied opportunities to meet an argument." ); State v. Wyatt, 331 Ore 335, 343, 15 P.3d 22 (2000) (" [A] party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify [262 Or.App. 627] its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted." ). As a result, we will not address it.

In his second assignment of error, father asserts that the juvenile court erred in suspending his visits with the children. During the jurisdictional hearing, the family's DHS case worker testified that, if the parents had traumatized the children, " then ongoing contact isn't going to help [the children] until they have appropriate therapeutic support." She also testified that she believed that the children needed " time to stabilize and have appropriate intervention for the trauma that they are exhibiting." For his part, father testified, in ...


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