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In re D. M.

Court of Appeals of Oregon

March 22, 2017

In the Matter of D. M., a Child.
C. M., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

          Argued and Submitted October 11, 2016

         Lake County Circuit Court 16JU00789; A162035 Cameron F. Wogan, Judge.

          Foster A. Glass argued the cause and fled the brief for appellant.

          Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Sercombe, Presiding Judge, and Flynn, Judge, and DeHoog, Judge.

          DEHOOG, J.

         In this juvenile dependency case, father appeals the judgment assuming jurisdiction over his child, D, pursuant to ORS 419B.100(1)(c). The juvenile court took jurisdiction based on its determination that D's conditions or circumstances endangered his welfare because (1) mother placed D under a threat of harm by exposing him to domestic violence in the home; (2) mother failed to engage in services offered to her to help ensure D's safety and continued to allow contact between father and D despite father's impulsive and dangerous behavior; and (3) father exposed D to domestic violence, placing D at a threat of harm. On appeal, father raises five assignments of error. He challenges all three bases for the court's jurisdiction over D, arguing that there is insufficient evidence to establish jurisdiction, and also asserts that the court erred in admitting hearsay testimony from the Department of Human Services (DHS) caseworker.[1] For the reasons explained below, we affirm.

         Father does not request de novo review, and this is not an exceptional case warranting such review. See ORAP 5.40(8)(c) (we exercise our discretion to review de novo 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 that outcome." Dept. of Human Services v. N. P.. 257 Or.App. 633, 639, 307 P.3d 444 (2013). Specifically, we

"(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 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."

Id. at 639-40. We state the relevant facts in accordance with that standard.

         Father and mother have one child together, D; mother also has a daughter, K, who is not related to father.[2]At the time of the jurisdictional hearing, D was four years old, and K was 14. In January 2016, father, mother, D, and K all lived in the same home.

         On January 16, 2016, father came home in the evening, found the door locked, and yelled to be let inside. Mother unlocked the door, and father entered, tackled mother to the floor, and began to choke her with both hands. The struggle lasted for approximately 20 to 30 seconds. After mother asked K for help and K said that she was going to call the police, father jumped up and knocked her cell phone away. Mother stood up and tried to get between father and K. Father pushed K away, hitting her in the face in the process; K, in turn, swung at father and struck him in the face.[3]D was present but asleep in a recliner in the room where the incident took place. Albertson, a 19-year-old friend of K, witnessed the incident. After that altercation, K left the house with Albertson and stayed with him at his parents' home that evening. Father and mother were arguing when Albertson and K left.

         That same evening, DHS caseworker Estes, a second DHS caseworker, and police officers spoke with mother outside of the residence. Father and D remained inside, and mother refused to allow the caseworkers or police to enter the home. After about an hour of talking, mother agreed to go into the home, get D, and stay with him at a motel for the night. After they arrived at the motel, Estes spoke to mother about a safety plan. Estes asked mother not to allow contact between the children and father, causing mother to become very upset. Mother refused to sign a written safety plan providing for no contact between the children and father, but eventually gave Estes her verbal assurance that she would not allow that contact. Mother also agreed to meet at a shelter on the following day.

         Although mother met with Estes's coworker and a person from the shelter to finalize a safety plan, mother did not keep father away from D as she agreed to do at that meeting. Mother also did not immediately return phone calls from DHS. When mother ultimately called DHS, she left a voice message stating that she was back in the family home and that the children were at D's grandparents' house. After receiving community reports that the children had, instead, been seen at their own house when father was home, DHS attempted-again unsuccessfully-to contact mother. DHS was concerned that mother's decisions were placing the children at risk and, therefore, sought court authorization for DHS to take the children into protective custody. The court signed an order authorizing protective custody on January 27, 2016. DHS found D at home with both father and mother and immediately removed him from their care. At that time, police officers were also at the home to arrest father on a warrant.

         On January 29, the juvenile court held a shelter hearing and granted temporary custody of D to DHS. DHS placed D in nonrelative foster care along with his half-sister, K. DHS petitioned for jurisdiction over D, alleging the following bases:

"A. The mother's *** substance abuse hinders her ability to adequately and appropriately parent and protect her child and places the ...

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