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In re S.F.H.

Court of Appeals of Oregon

October 8, 2014

In the Matter of S. F.-H., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
H. H. and R. F., Appellants. In the Matter of H. F.-H., a Child

Argued and Submitted: August 21, 2014.

Page 930

2012811991, Petition Number 109587M. Multnomah County Circuit Court. Katherine E. Tennyson, Judge.

2012811992, Petition Number 109587M. Multnomah County Circuit Court. Katherine E. Tennyson, Judge.

Laura S. Anderson argued the cause and filed the brief for appellant H. H.

George W. Kelly argued the cause and filed the brief for appellant R. F.

Michael Casper, Senior Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General.

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

OPINION

Page 931

[266 Or.App. 198] LAGESEN, J.

Mother and father (collectively, parents) each appeal a juvenile court judgment taking jurisdiction over their sons, S and H, under ORS 419B.100(1)(c). The court took jurisdiction of the children based on its determination that their condition and circumstances endangered their welfare because (1) father had caused a nonaccidental injury to H that amounted to child abuse and resulted in " significant adverse consequences" for H; and (2) mother refused to acknowledge father's role in injuring H and, for that reason, was not capable of protecting the children from father. On appeal, mother and father each assign error to the juvenile court's finding that H's injury was nonaccidental; mother also contends that, even if the injury was nonaccidental, the juvenile court erred in finding that the children's circumstances endangered them. Both parents also assert that they have made a sufficient showing of inadequate assistance of counsel before the juvenile court so as to warrant a remand under State ex rel Juv. Dept. v. Geist, 310 Or. 176, 796 P.2d 1193 (1990), for an evidentiary hearing on the adequacy of their lawyers' performances. We affirm the judgment of the juvenile court and decline to exercise our discretion to remand the case for an evidentiary hearing on parents' claim of inadequate assistance of counsel.[1]

I. BACKGROUND

Mother and father have been in a relationship since approximately 2008. Their two sons, S and H, were [266 Or.App. 199] born in 2010 and 2012, respectively. Father is a commercial fisherman who regularly is away from home for periods of approximately two months. Mother has advanced degrees in counseling and psychology and, before having children, worked as a mental-health counselor, a school counselor, and a school psychologist. She stopped working outside the home at some point after her children were born.

When H was approximately three weeks old, he suffered his first injury while in father's care: a broken femur. According to father, the injury occurred while father was holding H in one arm and reaching up for a bottle for H with the other arm. H squirmed out of father's grasp, and father caught H by the leg as he fell, causing the child's leg to break. Father took H to the emergency room, where doctors treated the break with a Pavlik harness. Although long-bone injuries are generally concerning for child abuse in nonambulatory children under the age of 14 months, the ...


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