In the Matter of P. A. C., aka P. A. C., a Child
S. A. B. O., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, In the Matter of Z. L. S., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
S. A. B. O., Appellant.
Submitted December 12, 2017.
County Circuit Court 17JU00928, 17JU00930 Jay A. McAlpin,
Tobin Smith fled the briefs for appellant.
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General, fled the briefs for respondent.
Aoyagi, Presiding Judge, and Egan, Chief Judge, and Hadlock,
Or.App. 89] Case Summary: In this juvenile dependency case,
mother appeals two separate judgments in which the juvenile
court asserted jurisdiction over mother's two young
children on the ground that mother's mental health
condition interferes with her ability to safely parent. The
court entered those judgments in 2017 after having previously
taken jurisdiction in 2015 on the ground that mother had
assaulted the father of one of the children. On appeal,
mother contends that the record does not include evidence
sufficient to establish that her mental health condition
creates a current threat of serious loss or injury to the
children that is reasonably likely to be realized.
Held: The juvenile court erred. The record does not
include evidence that mother's mental health condition
creates a current threat of serious loss or injury to her
children. Moreover, the record did not establish what threat
of serious harm to the children existed in 2015, when the
court first took jurisdiction over the children. As a result,
any evidence that mother's mental health condition
contributed to what happened in 2015 also cannot establish
that the existence of that mental health condition put the
children at risk in 2017.
Or.App. 90] HADLOCK, J.
juvenile dependency case, mother appeals two separate
judgments in which the juvenile court asserted jurisdiction
over mother's two young children on the ground that
mother's mental health condition interferes with her
ability to safely parent. The court entered those judgments
in May 2017 having previously taken jurisdiction in 2015 on
the ground that mother had assaulted the father of one of the
children. On appeal, mother contends that the record does not
include evidence sufficient to establish that her mental
health condition creates a current threat of serious loss or
injury to the children that is reasonably likely to be
realized. See Dept. of Human Services v. S. P., 249
Or.App. 76, 84, 275 P.3d 979 (2012). In response, the
Department of Human Services (DHS) argues that the juvenile
court's determination that the children were at risk is
adequately supported by evidence showing that mother's
mental health condition impeded her ability to resolve the
issues identified in the 2015 judgment. We agree with mother
and, therefore, reverse.
has not requested that we exercise our discretion to review
de novo, ORS 19.415(3)(b), and, in any event, this
is not a case in which we would conclude that de
novo review is appropriate. See ORAP 5.40(8)(c)
(we exercise de novo review "only in
exceptional cases"). Accordingly, in reviewing the
juvenile court's judgments, 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). We are bound by the
juvenile court's explicit and necessarily implied
findings of historical fact as long as any evidence supports
them. Id. at 639-40. We state the facts consistently
with those standards.
sometimes was in foster care when she was a teenager,
although the record includes few details regarding the
reasons why mother was removed from the home of her own
mother (grandmother). A psychological evaluation [291 Or.App.
91] performed in 2012, when mother was 17 years old,
indicated that mother's cognitive functioning was
significantly below average. She also was diagnosed with
depressive disorder and a reactive attachment disorder, which
the psychologist described as reflecting "a real
difficulty making connections with people emotionally, "
making conflicts and disruptions in relationships more
likely. Mother had significant anger-management difficulties.
mother's children was born in 2014 and the other was born
in May 2015. DHS filed dependency petitions for both children
in August 2015, after mother assaulted her then-boyfriend,
LS, who is the father of one of the children. The 2015
jurisdictional petitions and judgments are not in the record
of this case. However, we judicially notice that, in
August 2015, DHS petitioned for jurisdiction on three
grounds: (1) mother's mental health interfered with her
ability to safely parent; (2) mother committed domestic
violence against LS, in the presence of a child or children;
and (3) "mother's criminal behaviors interfere with
her ability to safely parent [.]" See OEC
201(f) ("Judicial notice may be taken at any stage of
the proceeding."); Dept. of Human Services v. S. R.
H., 278 Or.App. 427, 442 n 17, 381 P.3d 1059, rev
den, 360 Or. 422 (2016) (taking judicial notice of a
permanency judgment entered during the pendency of an appeal
from other judgments involving the same children). The
children were removed from mother's care and soon were
placed in relative foster care.
September 2015, mother was convicted of misdemeanor
fourth-degree assault against LS. Mother admitted that
conviction in response to the 2015 dependency petitions and
further admitted that she needed the assistance of DHS [291
Or.App. 92] and the court "to resolve the safety
risk" to the children. The juvenile court found the
children to be within its jurisdiction solely on the basis of
those admissions, apparently in association with the
allegation relating to mother's "criminal
behaviors." The "safety risk" to the children
was not further identified either in mother's admissions
or in the jurisdictional judgments. The court dismissed the
other jurisdictional allegations, namely, those related to
domestic violence and to mother's mental health. The
court required mother to complete domestic violence
counseling, demonstrate "a violence-free lifestyle,
" and complete a comprehensive psychological evaluation
and any recommended treatment.
testified at the hearing on the 2017 petitions that, although
she now recognizes that she was verbally abusive to LS in
2015, there had been only one incident of physical abuse
between them. She described that as occurring after they got
in an argument, he started throwing chairs around, and she
slapped him. Mother testified that no children were present
during the argument, which occurred "at the bottom
end" of an 11-acre property, although her two children
were in the house. Mother acknowledged that other,
unidentified, children would have heard the yelling. She also
acknowledged that it is bad for children to witness domestic
accordance with the 2015 jurisdictional judgments, mother
received another comprehensive psychological evaluation; it
was performed by the same psychologist who had evaluated her
in 2012. Because DHS relied heavily on the resulting report,
we discuss it in some detail. The 2015 report includes
background information that the psychologist received from
DHS, which indicates that some children had been nearby
during mother's altercation with LS, but that
mother's children "were not directly present."
The report further states, in the section based ...