In the Matter of D. M., a Child.
C. M., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
and Submitted October 11, 2016
County Circuit Court 16JU00789; A162035 Cameron F. Wogan,
A. Glass argued the cause and fled the brief for appellant.
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.
Sercombe, Presiding Judge, and Flynn, Judge, and DeHoog,
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. For the reasons explained below, we
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).
"(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.
and mother have one child together, D; mother also has a
daughter, K, who is not related to father.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
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.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.
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
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.
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
"A. The mother's *** substance abuse hinders her
ability to adequately and appropriately parent and protect
her child and places the ...