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In re K. R. M.

Court of Appeals of Oregon

February 13, 2019

In the Matter of K. R. M., a Child.
v.
D. W. M., Appellant Cross-Respondent. 296 Or.App. 109 DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent Cross-Appellant, and K. R. M., Respondent Cross-Appellant,

          Argued and submitted May 31, 2018

          Lane County Circuit Court 17JU08181 Josephine H. Mooney, Judge.

          Tiffany Keast, Deputy Public Defender, argued the cause for appellant-cross-respondent. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Offce of Public Defense Services.

          Jona J. Maukonen, Assistant Attorney General, argued the cause for respondent-cross-appellant Department of Human Services. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Ginger Fitch fled the brief for respondent-cross-appellant child.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge. [*]

         [296 Or.App. 110] Case Summary: Father appeals a juvenile court judgment asserting jurisdiction over his child, challenging the court's determination that father's substance abuse and perpetuation of domestic violence against the mother in the presence of child endangered the welfare of child. The Department of Human Services (DHS) and child cross-appeal the juvenile court judgment dismissing the allegation that father sexually abused child. On appeal, father contends that, even if father was engaging in domestic violence and substance abuse, DHS failed to prove a nexus between that conduct and a nonspeculative risk of serious loss or injury to child. On cross-appeal, DHS and child argue that the evidence was sufficient to establish that father posed a current risk of harm to child where the juvenile court explicitly found that father sexually abused child and child's sister; at the time of the jurisdictional hearing, child was the same age as sister when father sexually abused sister; there was uncontested evidence that father continued to treat child in a sexualized manner; father had not completed sex offender treatment; and child reported cutting herself in response to father's sexual abuse. Held: On appeal, the juvenile court erred in asserting jurisdiction over child because, on de novo review, although there was evidence that father exposed child to domestic violence and abused alcohol, DHS failed to present persuasive evidence of either the risk of serious loss or injury to child, or a nexus between father's conduct and any perceived harm, sufficient to support juvenile court jurisdiction. On cross-appeal, the juvenile court erred in dismissing DHS's claim that father sexually abused child. On de novo review, DHS met its burden to establish that father posed a current risk to child because father previously sexually abused child and child's older sister, father continued to say sexually inappropriate things to child, child is in the same class of father's victims, and father has failed to engage in any treatment or acknowledge any harm to child.

         On appeal, reversed; on cross-appeal, reversed and remanded.

         [296 Or.App. 111] ORTEGA, P. J.

         This is a juvenile dependency case in which father appeals a judgment finding child, his 14-year-old daughter, to be within the jurisdiction of the juvenile court based on findings that father perpetuated domestic violence against mother and that father's substance abuse interfered with his ability to safely parent. Father argues that the juvenile court erred in denying his motion to dismiss and in asserting jurisdiction over child under ORS 419B.100(1)(c) because the Department of Human Services (DHS) failed to prove that either his perpetuation of domestic violence or his use of alcohol created a threat of serious loss or injury to child.

         DHS and child cross-appeal, challenging the juvenile court's dismissal of DHS's allegation that father's sexual abuse of child endangers her welfare.[1] DHS argues that, in light of the juvenile court's explicit finding that father sexually abused child, the juvenile court's dismissal was in error and inconsistent with the undisputed evidence.

         In a dependency case, we have discretion to "try the cause anew upon the record or make one or more factual findings anew upon the record." ORS 19.415(3)(b). However, we exercise that discretion only in exceptional cases. ORAP 5.40(8)(c). Here, although none of the parties request de novo review, we view this as an exceptional case for several reasons. First, we conclude that the juvenile court's decision that father does not pose a current risk of sexual abuse to child does not comport with its express factual findings that father sexually abused child and her older sister in the past, or with the uncontroverted evidence in the record that father continued to treat child in a sexualized manner after he stopped sexually abusing her. ORAP 5.40(8)(d)(ii) (a relevant consideration for the appellate court in determining whether to take de novo review is whether the "trial court's decision comports with its express factual findings or with uncontroverted evidence in the record"). Second, the juvenile court made express factual findings, and those express findings allow us to infer the juvenile court's implicit findings [296 Or.App. 112] as to witness credibility. ORAP 5.40(8)(d)(i) (the appellate court is to consider whether "the trial court made express factual findings, including demeanor-based credibility findings" in deciding whether to take de novo review). Finally, when a juvenile court declines jurisdiction after finding that a parent sexually abused a child, and the court's factual findings related to that determination are ambiguous, de novo review may be justified-and we conclude that it is here- to ensure an expedited resolution to protect the child. See generally ORAP 5.40(8)(d) (stating that the considerations in the rule for reviewing de novo are not binding or exclusive); see also Dept. of Human Services v. T. L. H. S., 292 Or.App. 708, 715, 425 P.3d 775 (2018) (explaining that the "sole purpose" of juvenile dependency proceedings "is to protect children," and that "[t]he focus is always on the child").

         On de novo review, we independently assess and evaluate the evidence and reweigh the facts and reassess the persuasive force of the evidence. Turner and Muller, 237 Or.App. 192, 194, 238 P.3d 1003 (2010), rev den, 350 Or. 231 (2011). However, "we give considerable weight to the findings of the trial judge who had the opportunity to observe the witnesses and their demeanor in evaluating the credibility of their testimony." Fitts v. Case, 243 Or.App. 543, 552 n 3, 267 P.3d 160 (2011).

         As we explain below, we agree with father that DHS failed to establish a sufficient nexus between father's abuse of alcohol and domestic violence and a nonspeculative risk of serious loss or injury to child and, therefore, we reverse the judgment taking jurisdiction based on those allegations. On the cross-appeal, we agree with DHS and child that the evidence was sufficient to find that father posed a current risk of serious loss or injury to child based on his prior sexual abuse of child and, accordingly, we reverse the juvenile court's ruling rejecting that as a basis for jurisdiction.

         Mother and father have been in an intimate relationship for 28 years but they are not married. They have two biological daughters, child, who is 14 years old and a freshman in high school, and child's sister, who is 24 years old and no longer lives in the family home. The parents have separated on and off over the years, but their longest period [296 Or.App. 113] of separation was the two and a half months preceding the jurisdictional hearing.

         On July 31, 2017, while child was present in the house, mother and father got into a verbal altercation. At some point during the altercation, father disclosed to mother (and child overheard) that he had touched child's sister inappropriately. Mother later asked child's sister whether father had touched her, but child's sister would not talk to mother about it. Mother also asked child if father had ever touched her, but child denied that he had. Eventually, child admitted to mother's friend, and later to mother, that father had sexually abused her. After child's disclosure, child's sister finally confirmed to mother that father had sexually abused her as well. Father was arrested on September 1, 2017, based on allegations of sexual abuse against child and child's sister.

         About three weeks later, DHS petitioned the juvenile court to take dependency jurisdiction over child. The petition alleged that (1) father "sexually abused" child, (2) father "perpetrates domestic violence against *** mother, in the presence of * * * child," and (3) that father's "substance abuse interferes with his ability to safely parent."[2] Mother ultimately admitted to allegations that she "exposed * * * child to domestic violence perpetrated by * * * father" and that her "substance abuse, if left untreated, interferes with her ability to safely parent."[3]

         The juvenile court took evidence over two days and heard from a number of witnesses, including child. Child testified that she has been aware of father's drinking her whole life, and that her parents drink half a bottle of whiskey every night. She described seeing her parents drunk every night, and observing them stumbling and slurring their words. However, she stated that "by the time they were drunk, it was mainly about an hour before I would go to bed, so I didn't really have to deal with it." In child's estimation, her parents' drinking had "kind of slowed * * * down" within [296 Or.App. 114] the past year, but it would also "speed up sometimes." Child testified that father, ...


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