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In re J. J. B.

Court of Appeals of Oregon

April 4, 2018

In the Matter of J. J. B., a Child.
v.
J. J. B., JR., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

          Argued and submitted January 23, 2018

          Jackson County Circuit Court 17JU01198; Lisa C. Greif, Judge.

          Sarah 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 Services.

          Lauren 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 General.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case 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.

         [291 Or.App. 227] AOYAGI, J.

         The 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.

         I. FACTS

         When 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.

         In 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.

         During 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.

         J also admitted that parents sometimes fight or argue. In J's own words:

"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 arguments.
"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 ...

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