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In re A.B.

Court of Appeals of Oregon

June 25, 2014

In the Matter of A.B., a Child.
v.
R.B., fka R. J., aka J.J., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, In the Matter of C.B., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
R.B., fka R.J., Appellant

Submitted April 8, 2014

Page 788

Lincoln County Circuit Court. 118055J1. Petition Number 118055, 138079J1. Paulette E. Sanders, Judge.

Lincoln County Circuit Court. 118055J2. Petition Number 118055. Paulette E. Sanders, Judge.

Peter Gartlan, Chief Defender, and Holly Telerant, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Judy C. Lucas, Senior Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION

Page 789

[263 Or.App. 737] HADLOCK, J.

In this dependency case, mother appeals from judgments entered after a consolidated permanency hearing and jurisdictional adjudication. The issues on appeal concern the permanency plan for mother's two daughters and the juvenile court's assumption of jurisdiction based on a new allegation.

In September 2011, the juvenile court took jurisdiction over the two girls, A and C, now ages eight and three, pursuant to ORS 419B.100(1)(c),[1] based on admitted allegations that (1) " [mother's] behavior is impulsive or she cannot or will not control her behavior thereby making the * * * children unsafe" ; and (2) mother's behavior " exemplif[ies] her lack of parenting knowledge, skills, and motivation necessary to ensure her children's safety thereby making the * * * children unsafe." [2] For two years, the permanency plan for the children was reunification. However, after a hearing in September 2013, the juvenile court changed the permanency plan from reunification to adoption. On appeal mother asserts that the record does not support the juvenile court's change in the permanency plan, specifically, its determination that mother has not made sufficient progress to allow the children to safely return home. ORS 419B.476(2)(a).

Before the permanency hearing, in July 2013, the Department of Human Services (DHS) filed a second dependency petition, alleging that the children are within the jurisdiction of the juvenile court under ORS 419B.100(1)(c), because " mother * * * suffers from a mental illness, emotional illness, or mental impairment that interfere[s] with her ability to safely parent" the children.[3] At the hearing, the juvenile court considered evidence addressing the new [263 Or.App. 738] allegation and, in addition to changing the permanency plan to adoption, the court made findings and entered judgments assuming jurisdiction over the children based on the new allegation. Mother separately appeals from that jurisdictional judgment, contending that DHS did not prove the new allegation. She also asserts that, to the extent that the juvenile court based its " reasonable efforts" and " sufficient progress" determinations on the

Page 790

new allegation, the court erred. We affirm on both matters, which have been consolidated for appeal.

Mother has not requested that we exercise our discretion to take de novo review, ORS 19.415(3)(b), and we decline to do so. See ORAP 5.40(8)(c) (we exercise de novo review " only in exceptional cases" ). Accordingly, in reviewing the juvenile court's judgments, 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). We are bound by the juvenile court's findings of historical fact as long as there is " any evidence" to support them. State v. S. T. S., 236 Or.App. 646, 655, 238 P.3d 53 (2010). We review the juvenile court's conclusions for legal error. Id. When the juvenile court does not make findings on disputed issues of fact, but the evidence supports more than one factual conclusion, we presume that the court decided those issues in a manner consistent with its ultimate conclusion. Id. We state the facts consistently with those standards.

Before moving to Oregon in 2011, the family lived in Montana. Beginning in 2009 and continuing through January 2011, mother had contact on multiple occasions with the Child and Family Services Division of the Montana Department of Public Health and Human Services. Mother and father are married, but they were separated for a while in Montana and, during that time, mother had a brief relationship with Hagel, with whom she had a child in 2009 that she gave up for adoption. The Montana agency investigated allegations of abuse of mother by both Hagel and father, and allegations of sexual abuse of A by Hagel and a family friend. [263 Or.App. 739] In Montana, A's physician referred her for a psychological assessment, and a report in the record shows diagnoses of attention deficit/hyperactivity disorder (ADHD), post-traumatic stress disorder, and sexual abuse.

The family moved to Oregon in February 2011, and mother initiated contact with DHS in May 2011, reporting concerns about domestic violence and substance abuse by father. Mother also reported to DHS that father smoked marijuana in A's presence and was attempting to treat A's ADHD with marijuana smoke. Shortly thereafter, father moved away, and mother did not follow up with services offered by DHS. Because the caseworker believed that mother was able to keep the children safe, DHS did not intervene at that time.

On June 30, 2011, mother brought A to the DHS office in Newport, seeking a voluntary placement because she was unable to manage A's behavior (the triggering event having been A spilling cereal on the floor and telling mother to " go to hell" ). DHS took A into custody at that time under a voluntary placement agreement. At a home visit the next day, the caseworker developed concerns about the safety of the home, as well as mother's mental health and her care of the children. The caseworker observed that C, then age nine months, seemed to be at the developmental level of a four-month-old child, was ...


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