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In re T. A.

Court of Appeals of Oregon

June 18, 2014

In the Matter of T. A., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
B. A. and B. O., Appellants

Argued and Submitted March 11, 2014.

Jackson County Circuit Court. 13JU00498. Lisa C. Greif, Judge.

Shannon Storey, Senior Deputy Public Defender, argued the cause for appellant B. A. 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 B. O.

Matthew J. Lysne, Senior 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 Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION

Page 48

[263 Or.App. 677] TOOKEY, J.

Mother and father separately appeal from a judgment of the juvenile court taking jurisdiction over their two-year-old daughter, T, under ORS 419B.100(1)(c),[1] based on allegations that (1) mother has unresolved substance abuse that presents a danger to the child; and (2) father lacks an order granting him sole legal custody of T and is therefore unable to protect T from mother.

Parents live together. They admitted at the hearing that mother is an alcoholic, that that condition presents a potential risk to T if she is left alone with mother, and that father lacks a custody order that would prevent mother from asserting control over T. Parents asserted, however, that they have voluntarily implemented a safety plan that prevents mother from parenting T alone and, for that reason, there is no risk of harm to T.

In assuming jurisdiction over T and establishing the wardship, the juvenile court found that mother's unresolved substance abuse presents a danger to T, and found further that, although father " has taken appropriate protective actions to not allow mother to be alone with the child," in the absence of an order granting father sole legal custody of T, he is unable to protect T from mother. See ORS 419B.100(1)(c) (juvenile court has exclusive jurisdiction in any case involving a person who is under 18 years of age and " [w]hose condition or circumstances are such as to endanger the welfare of the person or of others[.]" ); but see Dept. of Human Services v. R. L. F., 260 Or.App. 166, 172, 316 P.3d 424 (2013) (lack of a custody order alone does not provide a basis for jurisdiction, without evidence that one parent is unable to protect the child from the other parent or that the child will suffer some risk of actual harm because one parent lacks sole legal custody).

[263 Or.App. 678] On appeal, parents challenged the juvenile court's determinations. The state now advises the court that father has obtained an order granting him sole legal custody of T and that, on the state's motion, the juvenile court has dismissed jurisdiction and terminated the wardship. The state seeks to dismiss the appeal, asserting that the juvenile court's dismissal of jurisdiction and termination

Page 49

of the wardship renders moot any claim raised on appeal with respect to the underlying jurisdictional judgment. For the reasons explained herein, we agree with the state that the ...


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