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In re H.C.

Court of Appeals of Oregon

June 4, 2014

In the Matter of H. C., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
W. A. C., Appellant. In the Matter of M. C, a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
W. A. C., Appellant

Argued and Submitted March 7, 2014

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Washington County Circuit Court Nos. J120453, J120454, Petition No. 01J120453M, Eric Butterfield, Judge.

Christa Obold-Eshleman argued the cause and filed the brief for appellant.

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 Inge D. Wells, Senior Assistant Attorney General.

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


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[263 Or.App. 384] NAKAMOTO, J.

In this consolidated juvenile dependency appeal, father challenges (1) a March 2013 judgment asserting jurisdiction over his two children, and (2) an order of the juvenile court denying his motion to set aside an earlier, October 2012, judgment in which the court had asserted jurisdiction over father's children based on mother's admissions to allegations in the petitions. As explained below, we conclude that the juvenile court abused its discretion in denying father's motion to set aside the October 2012 judgment; further, we agree with father that the evidence was legally insufficient to support jurisdiction over his children. Accordingly, we reverse and remand.


We briefly describe the family and the undisputed facts leading to the family's involvement with the Department of Human Services (DHS) and then describe the procedural history of the dependency cases below, as well as father's two appeals. Later, as we consider each of father's assignments of error, we discuss other relevant facts in light of applicable standards of review.

We take the following facts from the record. Mother and father, who began their relationship in 2003 when they were living in Texas, have two children, H and M. Mother gave birth to H in 2004, and mother and father married later that year. M was born in 2008. The family continued to live in Texas until 2010, at which point father moved to Oregon in search of employment. Mother remained in Texas with the children until 2011, when she and the children joined father in Oregon. DHS first became involved with the family in August 2012 after receiving information that a domestic violence incident between the parents had occurred while M was home; H was not home at the time of the incident. Father was later arrested and charged in connection with the incident.

DHS filed petitions in September 2012 alleging that the children were within the jurisdiction of the juvenile court under ORS 419B.100(1)(c). In the amended petitions, [263 Or.App. 385] DHS alleged that the children were within the court's jurisdiction on the following grounds:

" A. The mother was subjected to domestic violence by the father and the mother is unable to protect the child from exposure to father's domestic violence without DHS intervention.
" B. The mother is aware of the allegation against the father, that they [ sic ] cannot safely parent the child, but has done nothing to assert custody of her child.
" C. The father * * * has a pattern of domestic violence against his current partner, which he has committed in front of said child and if left untreated, interferes with his ability to safely parent said child.
" D. The child's sibling has been exposed to domestic violence by the father.
" E. The father has engaged in a pattern of domestic violence with others with whom he has had a relationship, he has not successfully engaged in treatment of this conduct, and he is currently in a relationship with the child's mother.
" F. [The father] is said child['s] legal father as he is listed on said child's birth certificate."

The juvenile court held a shelter hearing, after which it granted DHS temporary custody of the children. The shelter order directed the parties to appear at a status conference in October 2012; the court scheduled the contested jurisdictional hearing for November

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2012. In the meantime, DHS placed the children with mother.

Both mother and father appeared with counsel at the October 2012 status conference. DHS informed the court that mother was prepared to resolve her allegations through admissions. As to father, DHS alerted the court that father's criminal case was pending and that his trial was scheduled for early November 2012. Accordingly, DHS represented that it and father had agreed to request that the court convert the November 2012 contested jurisdictional hearing to a second status conference, explaining that " depending on how the criminal case--if it goes to trial, and depending on the resolution of that, that would impact how the juvenile [263 Or.App. 386] case would resolve." After confirming that all of the parties agreed to convert father's contested jurisdictional hearing date to a second status conference, the court granted the parties' request.

The focus of the status conference then turned to mother's admissions. DHS told the court that mother was admitting allegations A and B, as well as a new allegation, G, which stated that " Mother has mental health issues [which,] if left untreated[,] [a]ffects her ability to parent child." After accepting mother's admissions, the court asked DHS about disposition and then found the children within the jurisdiction of the court. In the judgment, the court placed the children in the legal custody of DHS and in the physical custody of mother and ordered mother to comply with the conditions set forth in her action agreement. The October 2012 judgment did not address the allegations against father. The judgment directed that there would be a review hearing held under ORS 419B.449 on February 25, 2013; a permanency hearing under ORS 419B.476 was scheduled for September 2013. At DHS's encouragement, mother moved with the children back to Texas in mid-November 2012.

Father's contested jurisdictional hearing was not held until March 2013. Between the October 2012 status conference and the March 2013 contested hearing, father was acquitted of the criminal charges associated with the August 2012 incident. At the time of the contested hearing, mother was still living in Texas, but Texas Child Protective Services (Texas CPS) had removed the children from her care and placed the children with their maternal grandmother, who also lived in Texas. Both mother and the maternal grandmother testified telephonically at the hearing. In its opening statement, DHS expressed that " [t]his case is about domestic violence, and the issue is whether or not the domestic violence presents a current threat of harm to these children." After the first day of the hearing, however, DHS filed amended petitions adding allegation H, which alleged that " Father is aware of mother's mental health issues which if left untreated [a]ffects her ability to parent her children and has failed to protect said child and said child's sibling from mother." At the close of the evidence, DHS moved to [263 Or.App. 387] dismiss allegation E, which alleged that father engaged in a pattern of domestic violence with others with whom he has had a relationship. Accordingly, DHS's closing argument focused on allegations C, D, and H relating to domestic violence and father's protection of the children.[1]

At the end of the hearing, the juvenile court indicated that it was asserting jurisdiction over the children again, stating that " we'll establish the jurisdiction over the children as to father on F and H only." The court concluded that DHS had failed to prove allegations C, D, and E, which had alleged that father had a pattern of domestic violence against mother and other partners, and that the children were exposed to domestic violence by father. Before adjourning to allow the parties to discuss a recommended disposition, the court stated:

" Just for purposes of your conversations, so that you have some idea of where I am coming from, it's appalling to me that [father] has allowed his children to be affected, to the degree that they have, by their mother. But that's it."

After the recess, the court held a dispositional hearing. The court then ordered that

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the children remain in substitute care in Texas and ordered father to participate in parenting classes, " with a focus on mental health issues and domestic violence issues." The court stated, " I understand that the findings from the Court were that domestic violence allegations weren't proven. ...

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