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In re J. M. S.

Court of Appeals of Oregon

July 5, 2018

In the Matter of J. M. S., a Child.
v.
T. L. H. S., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

          Submitted February 5, 2018

          Marion County Circuit Court 17JU01926; A165801 Thomas M. Hart, Judge.

          Shannon Storey, Chief Defender, Juvenile Appellate Section, and Sarah Peterson, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Cecil A. Reniche-Smith, Assistant Attorney General, fled the brief for respondent.

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

         Case Summary:

         The juvenile court asserted dependency jurisdiction over J, an eight-year-old girl, based on mother's failure to protect J from father, mother's mental health condition, and father's stipulated unavailability to parent. Mother appeals the judgment. Mother argues that, at the time of the jurisdictional hearing, J was no longer exposed to a current threat of serious loss or injury that was likely to be realized. Held: The evidence at the jurisdictional hearing was not legally sufficient to permit the juvenile court to assert jurisdiction. The evidence was insufficient to establish that J's circumstances at the time of the hearing exposed her to a current threat of serious loss or injury that was likely to be realized.

         Reversed.

         [292 Or.App. 709] AOYAGI, J.

         The juvenile court asserted dependency jurisdiction over J, an eight-year-old girl, based on mother's failure to protect J from father, mother's mental health condition, and father's stipulated unavailability to parent. Mother appeals the judgment. Mother does not contest that she failed to protect J when J told her that father, who had sole custody of J and was her residential parent, had sexually abused her. She also does not contest that her untreated mental health condition, along with her own history as a victim of sexual abuse, contributed to her not handling the situation appropriately. Mother argues, however, that at the time of the jurisdictional hearing her mental health had substantially improved, she deeply regretted her handling of the situation, and she knew what to do if a similar situation occurred again. Also, father was under a no-contact order, and mother was planning to request a change in J's custody. As a result, mother contends, J was no longer exposed to a current risk of serious loss or injury that was likely to be realized. For the reasons that follow, we agree with mother that, at the time of the hearing, the evidence was insufficient to take jurisdiction. Accordingly, we reverse.

         On appeal of a jurisdictional judgment, 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. We state the facts in accordance with that standard.

         In 2009, mother, who has a history of alcohol abuse and mental health issues, gave birth to J. As a result of mother's alcohol abuse, father was awarded sole custody of J. Mother was given two days of parenting time each week. Otherwise, J lived with father and his parents.

         When J was seven years old, J told mother in early February that "some weird things" had happened at father's house. After mother urged her to explain what she meant, [292 Or.App. 710] J disclosed to mother that father had sexually abused her. The record is silent as to what exactly J told mother, but the parties agree that whatever J said was enough to constitute a disclosure of sexual abuse. Mother testified that she was "so shocked" by this information that her "whole body just stopped" and she did not know what to do. Mother, who had been sexually abused herself by a family friend once when she was about nine years old, knew that sexual abuse is a crime and knew that crimes should be reported to the police. She did not, however, call the police. Instead, knowing that teachers are mandatory reporters, mother told J to tell her teacher. Mother later returned J to father's care in accordance with the custody order.

         When J came back to mother's house the following week, mother asked J whether she had told her teacher. J said that she had not. At that point, mother made a video recording of J describing what father had done. Mother again told J to tell her teacher, but she still did not call the police herself, and she again returned J to father's house according to the custody schedule. The record is silent as to whether any abuse occurred after J's initial disclosure to mother.[1]

         On February 21, J reported father's sexual abuse to a teacher. The school contacted DHS. While DHS and the police investigated, J was placed with mother. Mother was depressed and upset about everything that was happening. A few days after J was placed with mother, while J was playing at a neighbor's house, mother drank alcohol and took Benadryl in an apparent suicide attempt. Mother was admitted to the hospital for treatment. She told a DHS caseworker that "everything that was going on regarding the child welfare and criminal investigation pertaining [to father] was too much for her to handle." At that point, DHS placed J with her maternal grandparents. Around the same time, the state instituted criminal charges against father, which resulted in a no-contact order as a condition of father's pretrial release, and DHS filed a petition for the juvenile court to assert jurisdiction over J under to ORS 419B.100.

         [292 Or.App. 711] As a result of those events, mother voluntarily sought treatment for alcohol abuse and began mental health counseling. At the time of the jurisdictional hearing in August, mother had been meeting regularly with her counselor for five or six months, had completed an alcohol treatment program, and had not used alcohol for five or six months. She had a good relationship with the counselor and intended to continue therapy for the rest of her life. One of the topics mother was discussing with the counselor was her own sexual abuse history and how it contributed to her reaction in February. Mother also was taking medications to treat depression, anxiety, and attention-deficit disorder. Mother testified at the jurisdictional hearing that she had made a lot of progress on her mental health and never wanted to go back to how she felt before.[2] Mother also had completed a twelve-week parenting course and was willing to engage in other services, but the parenting course was the only referral that she had received from DHS. While mother worked on her mental health and parenting skills, she visited J regularly.

         Mother has a difficult relationship with her own mother (grandmother). On June 30, mother and grandmother exchanged text messages. Grandmother used profanity and criticized mother for lacking motivation and having [292 Or.App. 712] an unhealthy lifestyle. Mother responded that "me being alive * * * and sane is all that matters" and that J "would be even sadder if I'm dead so please stop." She concluded the text string, "I don't ever want to be awake right now I'm going back to bed"; mother later testified that it was supposed to say "even," not "ever," but auto-fill changed it. Grandmother reported mother's statements to DHS as a suicide threat. At a team meeting at DHS two weeks later, mother agreed that she was very emotional and struggling to maintain her mental health but denied making a suicide threat. Mother's parents refused to participate in family counseling, and J was eventually placed with her paternal grandparents.

         The jurisdictional hearing took place in August 2017. Father stipulated that he was unavailable as a custodial resource due to the no-contact order and pending criminal charges, at which point the other jurisdictional allegations regarding father were dismissed. As for mother, DHS alleged three bases of jurisdiction: (A) mother's mental health problems, if left untreated, interfere with her ability to safely parent;[3] (B) mother's substance abuse interferes with her ability to safely parent; and (C) mother failed to protect J when mother became aware of the allegations against father. Before the hearing began, DHS voluntarily dismissed allegation (B), because mother had successfully completed alcohol abuse treatment and was willing to engage in ongoing sobriety testing. The hearing therefore was limited to allegations (A) and (C).

         DHS called three witnesses, each of whom testified only briefly. Roeder, a DHS caseworker, testified that she received the case after J disclosed abuse to her school and that, after mother's hospitalization in February, mother told Roeder that she drank alcohol and took Benadryl to cope with anxiety related to J's abuse. Fessler, a DHS caseworker who took over the case from Roeder, testified about mother's positive engagement with mental health services and parenting classes, mother's strained relationship with her own mother, and "very recent" concerns about domestic violence [292 Or.App. 713] toward mother. Espelding, a hospital social worker, testified that mother was alert in the hospital in February and told her that she was under stress due to J's sexual abuse allegations. Mother testified on her own behalf.

         The juvenile court stated repeatedly during the hearing that it did not consider five or six months of sobriety and mental health counseling and a twelve-week parenting course a "magic wand" that solved everything. During mother's testimony, the court told mother that she needed to earn the court's trust and that, although it recognized that she was working on her mental health, "life is a journey and like you just don't take one pill, just don't take one set of classes and say, ho ho, ollie, ollie, I'm free, I'm okay." Mother agreed and explained that that was why she had been working on her mental health for the past five or six months and that she was doing much better than she had been. During the DHS caseworker's testimony, the court asked whether it could take a very long time for mother to come to terms with her own history of sexual abuse and "unwind the rest of the ball of yarn that comprises her life," and the caseworker said yes. Asked by the court if that was why DHS wanted to stay involved, the caseworker again said yes, and the court commented, "It's really not that complicated."

         At the conclusion of the hearing, the juvenile court concluded that DHS had proved the allegations. It explained its assertion of jurisdiction as follows:

"This is a cycle that has been ongoing for a long time for which mom has not really fully followed through with anything that first brought her into the court system. She never successfully completed the stuff required by driving under the influence. She continued to drive. She had a judgment in the custody case where she got less than a third of the time as a parent. Never really came back to the court to show that other things had been done, that she should have more or ask for changes like that. A couple of contempt proceedings associated with failure to pay child support.
"And the very unfortunate pervasive obvious issue with regard to the mental health was that mom gets brought to the hospital by her boyfriend of three years, who I wouldn't give him any hard time about being angry with her for [292 Or.App. 714] being drunk on her off time. Low self-esteem in many respects. Life is really hard. A lot of feel sorry for myself kind of I hear coming out of that, and that somebody owes her something. And then when things don't go her way by gosh, darn, I'm going to talk about ending my life. You watch it's a wonderful life too many times.
“*****
"The ongoing situation is the mental health problems that are deep seated and you know they are, we've talked about it, the complexity, need to be peeled back a little better, or really gotten a better hold of. And ...

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