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In re M. S. M.

Court of Appeals of Oregon

October 31, 2018

In the Matter of M. S. M., a Child.
v.
C. A. M., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

          Argued and submitted August 14, 2018

          Lane County Circuit Court 17JU09528 Josephine H. Mooney, Judge.

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

          Kelsie Crippen, Certifed Law Student, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Paul L. Smith, Deputy Solicitor General.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary:

         Mother appeals a judgment of the juvenile court assuming jurisdiction over her infant son, M. The court assumed jurisdiction after M's twin sister, C, died of undetermined causes while sleeping with father and after evidence surfaced that father had likely caused nonaccidental injuries to C before her death. Mother challenges the jurisdictional judgment on the grounds that (1) the record does not support the juvenile court's finding that mother “knew or should have known” about the risk that father posed to M and C, and (2) that the evidence in the record is not legally sufficient to permit the court's ultimate determination that a nonspeculative risk of harm to M continued to exist under mother's care. DHS argues that the case is moot, and, alternatively, that the judgment should be affirmed on the merits. Held: The case is not moot, and the juvenile court did not err in asserting jurisdiction over M. There was evidence in [294 Or.App. 606] the record that mother knew or should have known that father posed a risk to the children, and the evidence in the record was legally sufficient to permit the juvenile court to determine that a nonspeculative risk of harm to M existed under mother's care.

          [294 Or.App. 607] GARRETT, J.

         This juvenile dependency case arose out of the death of a three-month-old girl, C, who died of undetermined causes while sleeping with father. After evidence surfaced that father had likely caused nonaccidental injuries to C before her death, the juvenile court assumed jurisdiction over C's surviving twin brother, M. The court found that father had posed a risk of physical harm to the twins and that mother knew or should have known about that risk and had failed to protect the twins from father. The court determined that there was a nonspeculative risk of physical harm to M under mother's care.

         Mother appeals, arguing that the evidence in the record does not support the juvenile court's finding that mother "knew or should have known" about the risks that father posed to the twins. Mother also argues that the evidence in the record is not legally sufficient to permit the ultimate determination of a risk of harm to M. The Department of Human Services (DHS) argues that the appeal is moot but that, if it is not moot, the juvenile court's judgment should be affirmed. We conclude that the case is not moot, and affirm.

         The following facts were presented at trial and are mostly undisputed. Mother and father married in 2015. Early in their relationship, father told mother that he had been investigated by DHS for the suspected abuse of an infant in 2007. Mother understood that father had possibly been ordered to engage in some services with DHS, including a psychological evaluation, but that father's engagement with DHS was terminated because his paternity over the infant was disestablished. Mother also knew that, in 2010, father was convicted of assault for physically attacking another man.

         On June 24, 2017, mother gave birth to twins: a girl, C, and a boy, M. A nurse, Hoertkorn, occasionally helped parents care for the children. In the early morning of September 21, 2017, when the twins were about three months old, C died while sleeping with father.

         An autopsy revealed a bruise under C's left eye, another bruise on her left arm, and four "healing rib [294 Or.App. 608] fractures." Medical personnel were unable to determine the precise cause of C's death. Doctor St. Germain observed the autopsy and concluded that the bruises and rib fractures did not cause C's death; she also concluded that C's injuries existed before her death and were caused by a level of force that was inconsistent with them being accidental. When told about the injuries, father denied knowledge of the broken ribs and bruise on C's arm but speculated that the rib injuries might have happened accidentally in his care. As for the bruise under C's eye, father suggested that it happened while he was holding her, when her head bobbed forward and hit father's collarbone. St. Germain did not believe father's explanation and suspected that father had inflicted C's injuries intentionally.

         Detective Vreim spoke to mother a couple of days after C's death. At that time, mother did not know about the injuries to C's arm and ribs. Mother said that she was aware of the bruise on C's face and that she believed father's explanation for it. Mother also said that she was holding "some resentment and anger toward [s]" father and "wished that she could blame him," but that she "knew" that "he didn't do anything." She reported that, more than once, she observed father saying "mean" things to the twins when they were crying that she believed showed impatience, like "quit being dramatic," "what's your fucking problem," and "shut the fuck up!" However, mother remarked that, if father had done anything to the twins intentionally or accidentally, she would have seen it. When Vreim told mother about C's broken ribs, mother said that she could not think of a reason why that would happen. She also said that she "couldn't be sure that [father] didn't injure [C]," that she had a "nervous feeling about" father, and that "something felt wrong."

         Authorities alerted DHS to the situation. A DHS caseworker, Layton, contacted parents and discussed a safety plan for M. The plan required M and the parents to live with family friends whom DHS had approved as "safety service providers, "[1] and who had to provide "sight-and-sound" [294 Or.App. 609] supervision for all of parents' contact with M. Mother and father followed the safety plan. For a short while after C's death, mother, father, and M lived together at the safety providers' home. In late September or early October, father moved out and left M in mother's care.

         As time passed, mother's feelings about father wavered. In late September or early October, mother told Layton that she intended to divorce father because she "couldn't emotionally support him any more." However, when mother spoke with Layton again in early October, she said that she "was unsure if they were going to separate or if they were just going to take some time apart." Father's account from that period was consistent with mother's statements: On or about October 1, father told Layton that he and mother "were still together" but that he was uncertain if that would last.

         In early November, mother told Chappell that she had again decided to file for divorce, but then, on or about November 17, mother told Chappell that she "wasn't sure" about whether to do so. Several weeks later, mother reported to Chappell that she had "the paperwork" for divorce and intended to file it. However, she did not do so until January 17, 2018, the day before the jurisdictional trial. In the stipulated divorce decree entered on that date, ...


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