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In re N. B.

Court of Appeals of Oregon

May 20, 2015

In the Matter of N. B., a Child.
A. B. and S. U., Appellants DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

Argued and Submitted March 10, 2015.

Page 559

2014802782; Petition Number 110605M. Multnomah County Circuit Court. Kathryn L. Villa-Smith, Judge.

Valerie Colas, Deputy Public Defender, argued the cause for appellant A. B. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

George W. Kelly argued the cause and filed the brief for appellant S. U.

Jeff J. Payne, 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.


Page 560

[271 Or.App. 356] TOOKEY, J.

Mother and father appeal a judgment of the juvenile court taking jurisdiction over their one-year-old daughter, N. Parents contend that, in light of their decision to cede care of N to N's paternal grandmother (grandmother), the evidence that the Department of Human Services (DHS) presented at the jurisdictional hearing, which focused on parents' risk-causing behaviors, did not demonstrate that N's condition and circumstances were such as to endanger her welfare. ORS 419B.100(1)(c). DHS responds that ORS 419B.100(2) prohibits us from considering grandmother's care of N in evaluating N's condition and circumstances. We disagree. The proper inquiry is whether N's condition and all of her circumstances, including parents' conduct, grandmother's care of N, and all of the circumstances attendant to the arrangement between parents and grandmother, expose N to a current threat of serious loss or injury. Here, DHS did not contend that there was any nexus between the risk-causing conduct that it proved and a threat of serious loss or injury to N. Accordingly, we reverse.

In April 2014, DHS filed a dependency petition alleging that N and her four-year-old half sister, K,[1] were within the jurisdiction of the juvenile court because their " condition or circumstances are such as to endanger the welfare of the person or of others." ORS 419B.100(1)(c). In the second amended petition, DHS again alleged that the juvenile court had jurisdiction under ORS 419B.100(1)(c). At the jurisdictional hearing, which took place in August 2014, the court determined that DHS had proved the following allegations:

" B. The mother exposed the children to persons who present a risk of harm to the children.
" C. The mother needs the assistance of the Department of Human Services to develop parenting skills because she [271 Or.App. 357] lacks the skills necessary to avoid exposing her children to dangerous and harmful people and places.
" D. The mother's substance abuse interferes with her ability to safely parent the children.
" * * * *
" H. The father * * * is involved in criminal activities that interfere with his ability to safely parent his child.
" I. The father exposed the child, K, to criminal activity, drugs, and guns. He needs the assistance of the Department of Human Services in order to learn the parenting skills necessary to safely parent his child and protect her from harm.
" J. The father's * * * substance abuse impairs his judgment and ability to safely parent his child."

The court also found that, as alleged in allegation G, there is no legal father for K. The court entered a judgment that, as relevant to this appeal, took jurisdiction over N. Both parents appeal.

On appeal of a judgment of dependency jurisdiction, we may review the facts de novo. ORS 19.415(3)(b); Dept. of Human Services v. C. Z., 236 Or.App. 436, 442, 236 P.3d 791 (2010). Where, as here, no one has requested de novo review and we do not undertake it, we " assume the correctness of the juvenile court's explicit findings of historical fact if these findings are supported by any evidence in the record," and " further

Page 561

assume that, if the juvenile court did not explicitly resolve a disputed issue of material fact and it could have reached the disposition that it reached only if it resolved that issue in one way, the court implicitly resolved the issue consistently with that disposition." Dept. of Human Services v. N. P., 257 Or.App. 633, 639-40, 307 P.3d 444 (2013). We state the facts consistently with that standard.

Mother and father first became romantically involved in May 2009, while mother was pregnant with K. In June 2010, father was arrested at parents' home in north-east Portland for a probation violation; during the arrest, police found a gun in a closet, which resulted in father's conviction on a charge of felon in possession of a weapon. Later that year, while father was in prison as a result of that [271 Or.App. 358] conviction, parents separated. They reunited in October 2011, after father was released. They began living together again shortly thereafter.

N was born in May 2013 and lived with parents and K for three months. When N was born, the family lived in the same apartment complex as grandmother and father's sister, aunt. In June 2013, grandmother moved to Scappoose. Soon after, aunt joined her there. Aunt is in the process of purchasing the house that she and grandmother share.

In August 2013, parents brought N to stay with grandmother in Scappoose. At first, they visited every few days; later, after the semester started at Portland Community College, where both parents were enrolled, they would visit every week. After December or January, they visited every two to three weeks. When parents visited, they would bring K. Grandmother testified that, when N had a doctor's appointment, aunt would take N to parents the morning of or the evening before the appointment and parents would take her to the appointment. Grandmother explained that she and aunt were very attached to N; in particular, aunt " really didn't want to give her back. And so she was just kind of our baby." She explained that, by April 2014, the arrangement was indefinite: " We would have kept her until she graduated from college, if that [was what happened]. We were prepared for that." A DHS worker who had observed family visits with the children, which included grandmother and aunt, noted that N was very bonded to grandmother. He observed that, " [t]he majority of the time N was actually being held by [grandmother], and N's spending the majority of her time [during the visits] with [grandmother]."

At the time of the hearing, in August 2014, mother was 25. In the past, she had worked as a dancer at various strip clubs in Portland and, in the summer of 2011, while father was in prison, she had worked as a prostitute. Neither child was ever exposed to those activities. In December 2013, mother stopped dancing at strip clubs and, in January 2014, began working part-time as a cashier at a Rite Aid in northeast Portland. At the time of the jurisdictional hearing, mother was still working at Rite Aid and was anticipating a promotion. Father, who was 34 at the time of the [271 Or.App. 359] hearing, has several criminal convictions beginning with a conviction for third-degree assault entered in 1997.

Both parents admitted that they use marijuana and cocaine. Mother used cocaine while she was dancing; after she stopped dancing, she used it occasionally. When she was going to use drugs, she would leave K (as well as N) with grandmother. Mother sometimes used drugs even after she started working at Rite Aid, where she was subject to random drug testing. Shortly after the children were taken into DHS custody, mother submitted a urine sample that tested positive for both marijuana and cocaine. Father uses marijuana regularly; mother testified that he used it every other day. Father leaves the house when he uses marijuana.

In November 2013, the police stopped parents as they were leaving a party where they had smoked marijuana. Mother, who has never had a driver's license, was driving a car that she owned; at the jurisdictional hearing, she admitted that she was high during that stop. A 16-year-old girl was also in the car. The police found a marijuana pipe and marijuana in the car and a gun in the glove compartment, which was locked. The gun belonged to mother, who knew that father was not to be around weapons. The

Page 562

police also found a baggie of cocaine in father's pocket.

On the night of April 22, 2014, while mother was working an overnight shift at Rite Aid, father took K with him to what turned out to be a controlled drug buy. After police officers removed father and his companion from the car and arrested father, they discovered K sleeping in the back seat. They took her into protective custody and ...

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