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In re P. A. C.

Court of Appeals of Oregon

April 4, 2018

In the Matter of P. A. C., aka P. A. C., a Child
v.
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,
v.
S. A. B. O., Appellant.

          Submitted December 12, 2017.

          Lane County Circuit Court 17JU00928, 17JU00930 Jay A. McAlpin, Judge.

          Adrian Tobin Smith fled the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General, fled the briefs for respondent.

          Before Aoyagi, Presiding Judge, and Egan, Chief Judge, and Hadlock, Judge.

         [291 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.

         Reversed.

         [291 Or.App. 90] HADLOCK, J.

         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 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.

         Mother 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.

         Mother 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).[1] 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.

         One of 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.[2] 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.[3]

         In 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.

         Mother 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 violence.

         In 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 ...


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