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In re M.P.H.

Court of Appeals of Oregon

June 24, 2015

In the Matter of M. P. H., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
M. A. H., Appellant

Submitted May 28, 2015

1400203. Douglas County Circuit Court. Petition Number 14JU227. Julie A. Zuver, Judge pro tempore.

Reversed.

Peter Gartlan, Chief Defender, and Valerie Colas, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. Shannon Storey, Chief Defender, Juvenile Appellate Section, and Valerie Colas, Deputy Public Defender, Office of Public Defense Services, filed the reply brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeff J. Payne, Senior Assistant Attorney General, filed the brief for respondent.

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

OPINION

Page 739

[272 Or.App. 77] LAGESEN, J.

The juvenile court determined that 21-month-old M's " condition or circumstances" created a current " threat of serious loss or injury to the child," so as to warrant the exercise of dependency jurisdiction under ORS 419B.100(1)(c).[1] M's mother appeals from the dependency judgment, assigning error to the trial court's conclusion that M's circumstances at the time of the jurisdictional hearing demonstrated that she would be endangered absent the exercise of juvenile court jurisdiction.[2] We reverse.

Neither party requests de novo review, and we decline to exercise our own discretion to do so. Thus, we review the juvenile court's jurisdictional determination under ORS 419B.100(1)(c) as follows:

" [W]e: (1) assume the correctness of the juvenile court's explicit findings of historical fact if these findings are supported by any evidence in the record; (2) further 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

Page 740

implicitly resolved the issue consistently with that disposition; and (3) assess whether the combination of (1) and (2), along with nonspeculative inferences, was legally sufficient to permit the trial court to determine that ORS 419B.100(1)(c) was satisfied."

Dept. of Human Services v. N. P., 257 Or.App. 633, 639-40, 307 P.3d 444 (2013). Consistent with that standard of review, we draw the historical facts from the juvenile court's explicit factual findings; as necessary, we supplement those facts contained in the trial court's explicit findings [272 Or.App. 78] with additional facts drawn from the record that are either uncontested or consistent with the juvenile court's ultimate disposition.

Mother was 36 years old at the time of the hearing in November 2014. Mother has suffered from depression throughout her life and has been treated for it with medication and counseling. Mother separated from father shortly before M's birth in February 2013. As a result, mother parented M by herself from the time that M was born to the time that M was removed from mother's home in July 2014. Mother had legal custody of M. M was mother's first and only child, and the transition to motherhood was difficult for mother. A few days before M was born, mother expressed concern to her own mother (grandmother) and to father that she might harm her baby. Mother did not intend to harm her child, but made that statement because she was scared about the process of giving birth, and wanted attention from grandmother and father. Grandmother and father contacted the Department of Human Services (DHS), and mother was hospitalized and evaluated. As a result of that process, mother was provided with six weeks of counseling, in which she participated.

In November 2013, when M was approximately nine months old, mother left M in the car while mother went into a store. Mother left M alone for approximately 20 minutes. DHS was contacted as a result of the incident but did not take any action.

Mother relied on grandmother and grandmother's husband to help her with M. They would watch M for mother and, at times, when M would cry, they would talk to M on the telephone to soothe her. At the time DHS removed M from mother's care, M was physically healthy in all respects and her height and weight were at the top of the charts for her age. M was clean and appeared to be well-cared for; mother's house was clean and stocked with appropriate food and toys for M.

DHS removed M from mother's care after receiving a call from grandmother. In the month or so leading up [272 Or.App. 79] to M's removal,[3] mother left voicemail messages for grandmother, and sent text messages as well, often when mother was not able to reach grandmother for ...


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