In the Matter of E. B., a Child.
M . F., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
and submitted September 28, 2018
County Circuit Court 17JU08196; Jennifer K Gardiner, Judge
Shannon Storey, Chief Defender, Juvenile Appellate Section,
Office of Public Defense Services, argued the cause and fled
the brief for appellant.
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.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
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
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.
Or.App. 689] HADLOCK, P. J.
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.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,
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
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 ...