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In re K. M. P.

Court of Appeals of Oregon

July 5, 2018

In the Matter of K. M. P., aka K. P., a Child.
v.
J. H., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

          Argued and submitted May 3, 2018.

          Marion County Circuit Court 17JU07466. Heidi O. Strauch, Judge.

          Sarah Peterson, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.

          Ryan Kahn, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General.

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

         Case Summary: The juvenile court entered a judgment of jurisdiction over K, a 10-year-old girl, based on mother's substance abuse interfering with her ability to safely parent and mother exposing the child to domestic violence. On appeal, mother challenges both bases of jurisdiction. Held: The evidence at the jurisdictional hearing was not legally sufficient to permit the trial court to assert jurisdiction. The evidence was insufficient to establish that mother's drug use exposed K to a current threat of serious loss or injury that was likely to be realized in the absence of jurisdiction. It also was insuffcient to establish that domestic violence in mother's home exposed K to a current threat of serious loss or injury.

         Reversed and remanded.

         [292 Or.App. 734] AOYAGI, J.

         The juvenile court entered a judgment of jurisdiction over K, a 10-year-old girl, based on mother's substance abuse interfering with her ability to safely parent and mother exposing the child to domestic violence. On appeal, mother challenges both bases of jurisdiction. For the reasons that follow, we agree with mother that the record is not legally sufficient to support 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). Viewing the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the juvenile court's disposition, we assess whether the record was legally sufficient to permit the outcome. Id. at 639-40. We state the facts in accordance with our standard of review, along with uncontroverted procedural facts.

         Mother has a long history of methamphetamine use, treatment, and relapse, dating back to when she was an adolescent. Mother participated in a treatment program for adolescents with substance abuse problems while she was pregnant with K. According to mother, she remained clean for "quite some time" after engaging in that program, but eventually relapsed for about a year and a half, then was clean for four and a half years, and then relapsed again. Mother's most recent relapse occurred in May 2017. According to mother, she used methamphetamine four times in May 2017, which happened at a friend's house while K was in school; did not use in June or July 2017; and then used twice more in early August 2017, while K was living with both of her grandmothers. Mother says that she feels "agitated" and "not [her] normal bubbly self" when she uses methamphetamine and that the effects usually last for three to five hours.

         Mother's domestic partner, W, has lived in the family home since spring 2015. Beginning around November [292 Or.App. 735] 2016, and continuing until at least August 2017, mother and W argued regularly in the home. Sometimes mother and W would start arguing in a common area and then go to their bedroom and lock the door to argue. Approximately three days each week, K would arrive home from school and hear mother and W "yelling" in their bedroom. According to K, she "didn't need to get into it" so she would retreat to her own room about three feet away. K could hear mother "screaming and crying stop and stuff and W asking "why are you like crying and stuff." K thought that mother probably was telling W to "stop yelling at her" when she said "stop." On "quite a few" occasions, K heard "stuff being knocked over" in the bedroom and thought that it was a glass falling, a telephone falling, or something like that. Sometimes mother would burst out of the bedroom, W would lock the bedroom door behind her, and then mother and W would "be all pushing on the door against each other and stuff."

         K was "scared" that mother and W "were going to get hurt" during their arguments, but K never observed any physical violence between mother and W. Mother also denied any physical violence. Mother recalled breaking a cup once during an argument, but she did not throw the cup at W; it just got broken. Asked about whether she felt safe at home, K testified that "the only time I didn't feel like I was safe was when [mother and W] were fighting." K also testified that mother had never hurt her and that she "never thought about" the possibility of W hurting her.

         Asked at trial about mother's ability to meet her needs, K testified that ...


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