In the Matter of C. Z., a Child.
A . F., aka A. H., and E. Z., Appellants. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
and Submitted January 24, 2017
County Circuit Court ZIECHR13; Petition Number 13JV0274 Alta
Jean Brady, Judge. (Review Judgment) Stephen P. Forte, Judge.
Shannon L. Flowers, Deputy Public Defender, argued the cause
for appellant A. F. With her on the briefs was Shannon
Storey, Chief Defender, Juvenile Appellate Section, Offce of
Public Defense Services.
Perez-Selsky fled the brief for appellant E. Z.
J. Maukonen, Assistant Attorney General, argued the cause for
respondent. With her on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Sercombe, Presiding Judge, and Flynn, Judge, and DeHoog,
Summary: Parents appeal from the denial of their motion to
dismiss jurisdiction as to their child, C. Parents argue that
the juvenile court erred in concluding that Department of
Human Services (DHS) met its burden to prove by a
preponderance of the evidence that at the time of the
hearing: (1) the facts upon which jurisdiction was based
continue, (2) those facts continue to pose a risk of serious
loss or injury to the child, and (3) the risk will likely be
realized should the court dismiss jurisdiction.
Held: The record permits the juvenile court's
decision to continue jurisdiction. There is evidence in the
record that the basis for jurisdiction, parents'
cognitive limitations, persists and presents a serious risk
of loss or injury to C that is not merely speculative.
appeal from the denial of their motion to dismiss
jurisdiction as to their child, C, who was two and one-half
years old at the time of the hearing. Neither parent requests
de novo review, and this is not a case where such
review is appropriate. See Dept. of Human Services v.
J.M.. 275 Or.App. 429, 431, 364 P.3d 705 (2015), rev
den, 358 Or 833 (2016) (explaining that "[w]e
exercise our discretion to review de novo sparingly
and 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 and assess
whether, when so viewed, the record was legally sufficient to
permit a particular outcome." Id. (internal
quotation marks omitted). Applying that standard of review,
procedural facts are undisputed. The Department of Human
Services (DHS) removed C from father's care when he was
nine days old. At that time, C lived with father, and mother
lived separately. The juvenile court took jurisdiction based
on DHS's allegations that both mother and father have
"limited cognitive abilities that interfere with [their]
ability to safely parent the child." There is no dispute
that mother's IQ places her in the "[e]xtremely low
to borderline" range of intelligence and that
father's IQ places him in the range of "mild mental
retardation." However, by the time that parents moved to
dismiss jurisdiction, they were living together and had
completed a parenting program that involved more than a year
of weekly supervised visits paired with a parenting
curriculum. The parenting coach for that program reported
that parents had made progress and recommended that DHS move
toward more frequent visits and some unsupervised visits.
Based in part on their progress in the parenting program,
parents argued that their cognitive limitations no longer
constitute bases for jurisdiction. The juvenile court
determined that DHS proved otherwise and denied parents'
motion to dismiss. On appeal, parents renew their argument
that the record is insufficient to support continuing
prevail against parents' motion to dismiss jurisdiction,
DHS was required to prove by a preponderance of the evidence
that, at the time of the hearing: (1) the facts upon which
jurisdiction was based continue, (2) those facts continue to
expose the child to a risk of serious loss or injury, and (3)
the risk will likely be realized should the court terminate
the wardship and dismiss jurisdiction. Dept. of Human
Services v. T. L.. 279 Or.App. 673, 678, 379 P.3d 741
(2016). Viewing the record in the light most favorable to the
trial court's disposition, we conclude that DHS met its
is evidence that parents' cognitive limitations persist.
There is also some evidence that situations will arise for C,
as a toddler, that present a risk of serious injury and that
parents' cognitive limitations interfere with their
judgment and ability to recognize the danger of those
situations. Moreover, that evidence is not merely
speculative. Parenting services providers who have worked
with the family described specific examples of past
situations in which parents failed to recognize circumstances
that exposed C to a serious risk of injury and then resisted
advice about how to eliminate the risk. The providers also
identified specific common situations that are likely to
occur for C and that present a risk of serious injury to him.
Finally, there is some evidence from which the juvenile court
could infer that parents will not seek ...