In the Matter of W. C., a Child.
L. C., Appellant. In the Matter of E. C., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, In the Matter of S. C., a Child
Argued and Submitted September 30, 2014
Hood River County Circuit Court. Nos. J1304001, J1304101, J1304201. John A. Wolf, Judge.
Sarah Peterson, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Inge D. Wells, Assistant Attorney in Charge, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Lagesen, Judge, and De Muniz, Senior Judge.
[267 Or.App. 733] DUNCAN, P. J.
In this consolidated juvenile dependency case, mother appeals the juvenile court's judgment continuing jurisdiction over her three children, W, E, and S. As detailed below, the court initially asserted jurisdiction over the children based on father's domestic violence and the family's homelessness. At the time, W was three years old, E was two years old, and S was nine months old. After the court took jurisdiction, mother and the children moved into a domestic violence shelter, where mother participated in a support group for victims of domestic violence. Several months later, mother and the children moved into their own home. Approximately one month after that, mother made a motion to dismiss the court's jurisdiction. The court denied the motion on the ground that continued state supervision of the family was necessary because mother and father planned to reunite the family if and when allowed to do so. As explained below, we conclude that the court erred in denying the motion because the record does not contain sufficient evidence that, at the time of the hearing on the motion, the factual bases for jurisdiction persisted to the degree that they posed a current threat of serious loss or injury that was reasonably likely to be realized; specifically, the record does not contain sufficient evidence that it was reasonably likely that mother would fail to protect the children from serious loss or harm from domestic violence. Therefore, we reverse and remand.
HISTORICAL AND PROCEDURAL FACTS
Although we have discretion to exercise de novo review in this case, neither party requests that we exercise that discretion, and we decline to do so. ORAP 5.40(8)(c) (stating that we exercise de novo review only in " exceptional" cases). Accordingly, " we view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition." Dept. of Human Services v. N.P., 257 Or.App. 633, 639, 307 P.3d 444 (2013). Stated in accordance with that standard, the relevant facts are as follows.
Mother and father are married and have three children, W, E and S. On June 11, 2013, father pleaded guilty [267 Or.App. 734] to one count of fourth-degree assault constituting domestic violence for causing physical injury to mother and, at sentencing on June 18, 2013, he was placed on probation.
Approximately three months later, on September 7, 2013, mother called the Department of Human Services (DHS) and told an on-call worker that father had thrown a game piece at her head, causing bleeding and swelling. Mother also told the caseworker that she and the children had left the family home in order to give father a chance to calm down and that they were safe at a friend's home. The worker told mother to remain where she was until a deputy could interview her. Mother did. After speaking with mother and a probation officer, the deputy issued father a citation to appear in court.
During the following week, DHS investigated the family. DHS caseworkers interviewed mother and father, among others. According to a DHS report, both parents initially " provided very minimal responses to questions[,]" but mother eventually told a caseworker that there had been " more than twenty" incidents of domestic violence against her by father. She also told a caseworker that there had been " approximately thirty" incidents to which the children should not have been exposed. Mother reported that the oldest child, W, had been injured during one of the incidents.
Father told a caseworker that he had been in a car accident in 2005 and had suffered serious injuries, including a head injury, and was in a coma for several weeks. Following the accident and coma, father experienced severe memory problems and a personality change.
On September 13, 2013, DHS took the children into protective custody. The next day, September 14, 2013, mother moved into a domestic violence shelter. Two days later, on September 16, 2013, a hearing was held and the juvenile court approved the temporary placement of the [267 Or.App. 735] children in foster care. Mother informed the court that she was willing to take the children to a safe place away from father and cooperate with DHS. Father was arraigned on a probation violation and taken into custody.
Approximately one week later, on September 25, 2013, mother underwent a mental health assessment by a mental health therapist. The therapist expressed concern about mother's minimization of father's domestic violence and opined that mother's prognosis without treatment was " poor." But the therapist left it up to mother to decide whether to pursue counseling because, in the therapist's view, it was important for mother, as a domestic violence survivor, " to have opportunities to choose, to be empowered, and to know that she is an adult with valid rights, feelings, and opinions." According to a DHS report, mother participated in " a couple" of individual counseling sessions in October 2013.
On October 14, 2013, one month after the children were taken into protective custody, the juvenile court asserted jurisdiction over them based on father's domestic violence, the family's homelessness, and the parents' need for state services to adequately parent the children. See ORS 419B.100(1)(c) (providing for juvenile court jurisdiction over a child " [w]hose condition or circumstances are such as to endanger the welfare of the [child]" ); ORS 419B.100(1)(d) (providing for juvenile court jurisdiction over a child " [w]ho is dependent for care and support on a public or private child-caring agency that needs the services of the court in planning for the best interest of the [child]" ).
The jurisdictional judgment states that mother admitted to the following allegations, copied from the petition for jurisdiction that DHS filed regarding W:
" * * * There is a history of domestic violence in said child's home, committed in her presence, which endangers the child's ...