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In re E. B.

Court of Appeals of Oregon

November 7, 2018

In the Matter of E. B., a Child.
v.
M . F., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

          Argued and submitted September 28, 2018

          Marion County Circuit Court 17JU08196; Jennifer K Gardiner, Judge pro tempore.

          Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services, argued the cause and fled the brief for appellant.

          Cecil A. Reniche-Smith, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Matthew Maile, Assistant Attorney General.

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

         Case Summary:

         In this juvenile dependency case, father appeals a judgment in which the juvenile court asserted jurisdiction over child on two bases related to father: (1) father is "unable to protect the child from the mother because he lacks full custody" and (2) father needs assistance from the court and the state to meet child's basic and special needs. On appeal, father argues that the record does not support the juvenile court's assertion of jurisdiction on either basis related to his alleged inability to care for and protect child.

         Held:

         The juvenile court erred. The record included no evidence that mother is currently in a position to insist that father deliver child to her, that she is likely to make such a demand, or that father would be unable to resist it. Additionally, evidence regarding the totality of the circumstances did not support a determination that father would currently fail to attend to child's needs and that serious loss or injury is reasonably likely to follow.

         Reversed.

         [294 Or.App. 689] HADLOCK, P. J.

         The Department of Human Services (DHS) filed a dependency petition in 2017 after it received reports that mother and her five-year-old child were homeless, that mother was using drugs in child's presence, and that mother was neglecting child, who has significant disabilities that require constant attention. Father, who had not lived with mother and child for about two and a half years at that point, contacted the agency. DHS then filed an amended petition adding two allegations related to father, specifically that child is endangered because (1) father needs assistance from the court and the state to meet child's basic and special needs, and (2) father is "unable to protect the child from the mother because he lacks full custody." The juvenile court entered a judgment asserting jurisdiction over child on those two bases, as well as bases related to mother's residential instability and need for assistance in meeting child's needs.[1]On appeal, father argues that the record does not support the juvenile court's assertion of jurisdiction on the two bases related to his alleged inability to care for and protect child. We agree and, accordingly, reverse.

         Father has not requested that we exercise our discretion to review de novo, ORS 19.415(3)(b), and this is not an exceptional case in which we find de novo review appropriate. See ORAP 5.40(8)(c) (we review de novo "only in exceptional cases"). Accordingly, in reviewing the dependency judgment, we "view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome." Dept. of Human Services v. N. P., 257 Or.App. 633, 639, 307 P.3d 444 (2013). In this case, the juvenile court issued a detailed and thoughtful letter opinion. We are bound by the court's explicit and necessarily implied findings of historical fact, as expressed in that letter and elsewhere in the record, as long as any evidence supports them. Id. at 639-40. We state the facts in accordance [294 Or.App. 690] with that standard, setting them out in some detail because of the significance of child's special needs and the juvenile court's concern that father would not follow through with meeting those needs.

         Child was born in early 2012 and she initially lived with both parents. Father moved out when child was about two years old. Sometime in 2015, father saw that mother "was having some other issues," and so he took child into his home. Child remained in father's care for about one month. During that period, child twice got out of father's home, was found unsupervised in a parking lot, and was returned to father by police officers. Father installed child-proof locks on his doors after the second incident, at a police officer's instruction. Although child exhibited pica at that early age, father did not feel that her needs rose to the level of developmental disabilities; he testified that child's doctor then was unsure whether child had ...


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