In the Matter of J. J. B., a Child.
J. J. B., JR., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
and submitted January 23, 2018
Jackson County Circuit Court 17JU01198; Lisa C. Greif, Judge.
Peterson, Deputy Public Defender, argued the cause for
appellant. With her on the briefs was Shannon Storey, Chief
Defender, Juvenile Appellate Section, Offce of Public Defense
P. Robertson, Assistant Attorney General, argued the cause
for respondent. With her on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
Summary: The juvenile court asserted jurisdiction over child
based on parents' substance abuse and domestic violence
in their home. Father appeals the jurisdictional judgment as
to all bases of jurisdiction. He argues that DHS failed to
prove domestic violence. He does not deny parents' drug
use but argues that DHS failed to prove a non speculative
risk of serious loss or injury to child that was likely to be
realized in the absence of dependency jurisdiction.
Held: Although only father appealed, all of the
jurisdictional bases are properly before the Court of Appeals
on this record. DHS failed to prove domestic violence of a
nature or severity that created a current threat of serious
loss or injury to child that was likely to be realized. On
this record, DHS also failed to prove that parents' drug
use created a current threat of serious loss or injury to
child that was likely to be realized. The juvenile court
therefore erred in asserting jurisdiction.
Or.App. 227] AOYAGI, J.
juvenile court asserted jurisdiction over J, a five-year-old
girl, based on parents' substance abuse and domestic
violence in parents' home. Father appeals the
jurisdictional judgment. He argues that DHS failed to prove
that any domestic violence occurred. With respect to
substance abuse, father does not deny drug use but argues
that DHS failed to prove that parents' drug use creates a
non-speculative risk of serious loss or injury to J that is
likely to be realized in the absence of dependency
jurisdiction. For the reasons that follow, we agree with
father that DHS's evidence was insufficient to establish
jurisdiction. Accordingly, we reverse.
reviewing a judgment of jurisdiction, we determine whether,
on the record before it, the juvenile court erred in making
the statutorily prescribed determination. Dept. of Human
Services v. N. P., 257 Or.App. 633, 639, 307 P.3d 444
(2013). We view the evidence, as supplemented and buttressed
by permissible derivative inferences, in the light most
favorable to the juvenile court's disposition and assess
whether, when so viewed, the record was legally sufficient to
permit the outcome. Id. at 639-40. We state the
facts in accordance with that standard, as well as including
uncontroverted historic and procedural facts.
December 2016, DHS received a report that J was exposed to a
dangerous person. A DHS caseworker interviewed J at school
and interviewed parents at their home. DHS did not find
sufficient evidence to proceed and was in the process of
closing the case when, on February 3, 2017, DHS received a
report regarding a concerning photo on J's phone. On
February 4, 2017, an employee of Jackson County
Children's Advocacy Center interviewed J. A DHS
caseworker and two police officers observed the interview.
DHS determined that J had taken the photo herself, resolving
the concern about the photo.
the course of the interview on February 4, J made certain
disclosures unrelated to the photo. First, she disclosed that
parents smoke marijuana. J said parents told [291 Or.App.App.
228] her that they "smoke pot, " and she described
their bong as see-through with a star on it. J stated that
parents keep the pot (by which she appears to mean the bong)
on top of their "secret stuff" in a little box. She
does not know what is in the box because it is secret.
admitted that parents sometimes fight or argue. In J's
"Q: Do mom and dad ever have fights or arguments?
"A: Yeah they do***.
"Q: So tell me what happens when mom and dad have
"A: They just fight fight fight fight fight and fight
and it's just that it hurts my feelings. I think that
dad's gonna- last time my dad fighted so bad in our old
house he punched a hole in the wall and guess what I think
that's gonna happen again. He said no.
"Q: So dad punched a hole in the wall?
"A: Yeah when we were in our old house but he's not
gonna do it ever again. He's not gonna fight in front of
me ever again.
"Q: Have you ever seen dad punch anything else
that's different ...