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In re C. L. M.

Court of Appeals of Oregon

April 8, 2015

In the Matter of C. L. M., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
E. L. G. and C. M. M., aka C. M. R., Appellants

Submitted: February 12, 2015.

Petition Number 14334J01; Lane County Circuit Court 14334J; Valeri L. Love, Judge.

Peter Gartlan, Chief Defender, and Shannon Flowers, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant E. L. G. Megan L. Jacquot filed the brief for appellant C. M. M.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Cecil A. Reniche-Smith, Senior Assistant Attorney General, filed the brief for respondent.

Before Nakamoto, Presiding Judge, and Egan, Judge, and Wilson, Senior Judge.

OPINION

Page 826

[270 Or.App. 310] NAKAMOTO, P. J.

Father and mother (collectively, parents) each appeal a juvenile court judgment asserting jurisdiction over their two-month old child, C, making him a ward of the court under ORS 419B.100(1)(c). On appeal, father and mother argue that the juvenile court erred in asserting jurisdiction over C because the Department of Human Services (DHS) failed to establish that father and mother's incestuous relationship posed a current risk of serious loss or injury to C. In an additional assignment of error, mother argues that the juvenile court also erred in ordering parents to have no contact with one another. Parents acknowledge that they did not preserve their jurisdictional argument below, but they contend that the error is plain and urge us to exercise our discretion to correct it. For the reasons below, we conclude that, even if the juvenile court committed plain error in asserting jurisdiction over C, we would not exercise our discretion to correct that error. However, we agree with mother that the juvenile court lacked authority to issue the no-contact order. Accordingly, we affirm the portion of the judgment related to jurisdiction over child, but reverse the portion of the judgment in which the court ordered that father and mother have no contact.

Mother is father's biological, adult daughter. At some point in time (it is not clear from the record when), father and mother began a sexual relationship with one another, which resulted in the birth of two children, Z, born in August 2013, and C, born in June 2014.[1] Mother and father's other child, Z, has significant medical issues, including medical issues that are likely due to the close genetic relationship of his biological parents. At the time of the jurisdictional hearing regarding C, the juvenile court had asserted jurisdiction over Z and had placed Z in foster care.

Due to mother's previous involvement with DHS, DHS considered mother's pregnancy with C to be " high-risk." DHS was alerted when mother gave birth to C at a hospital in Klamath Falls, and DHS learned that there was [270 Or.App. 311] a preliminary positive test for methamphetamine.[2] Four days after C's birth, DHS filed a dependency petition alleging that C was within the jurisdiction of the court under ORS 419B.100(1)(c), because C's " circumstances and conditions *** are such as to endanger his own welfare" based on allegations relating to both father and mother.[3]

In the original petition, DHS alleged that mother could not safely parent C because she (1) had mental health issues; (2) had substance abuse problems; (3) had a chaotic lifestyle and living instability; (4) did not

Page 827

understand the basic needs of C and lacked parenting skills necessary to safely parent C; (5) had limited cognitive abilities; (6) " has another child for whom she is not a parental resource and the conditions or circumstances that were the basis for the mother not having custody of that child, which include the following: mental health issues, substance abuse, and limited cognitive abilities, have not changed or been ameliorated" ; and (7) her parental rights have been previously terminated to another child based on conditions and circumstances that have not changed or been ameliorated. The petition alleged that father was not able to safely parent C because of his (1) criminal behaviors, (2) mental health issues, and (3) chaotic lifestyle and living instability. The juvenile court entered a shelter care order the same day that the petition was filed, placing C in the temporary custody of DHS pending a jurisdictional hearing on the petition. At some point before the jurisdictional hearing, the police initiated a criminal investigation into father and mother's relationship.

Prior to the jurisdictional hearing, and in exchange for the dismissal of the other allegations against her in the petition, mother agreed to admit the allegation that she

[270 Or.App. 312] " has another child for whom she is not a parental resource and the conditions or circumstances that were the basis for the mother not having custody of that child, which include the following: mental health issues, substance abuse, and limited cognitive abilities, have not changed or been ameliorated and interfere with her ability to safely parent the child."

At the jurisdictional hearing, parents were present and represented by counsel. The court noted mother's admission and asked the parties how they would proceed with respect to the allegations against father. DHS told the court that it was amending the allegation regarding father's criminal behavior and dismissing the remaining ...


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