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In re O.W.

Court of Appeals of Oregon

July 3, 2019

In the Matter of O.W., a Child.
v.
J. G. K., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, In the Matter of B. K., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
J. G. K., Appellant. In the Matter of O. W., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
J. G. K., Appellant.

          Submitted May 30, 2019

          Douglas County Circuit Court 17JU06610; 18JU01237; 18JU03228; Jason R. Thomas, Judge pro tempore.

          Shannon Storey, Chief Defender, Juvenile Appellate Section, and Shannon Flowers, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

         [298 Or.App. 399] Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Judy C. Lucas, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Affirmed.

         Case Summary: Father challenges jurisdictional judgments with respect to his son B and daughter O. Father assigns error to the juvenile court's exclusion of evidence, on the grounds of relevance, that father's sister, the children's paternal aunt, was prepared to assist him with parenting. Held: Under Dept. of Human Services v. T. L., 279 Or.App. 673, 379 P.3d 741 (2016), the juvenile court erred, but any error was harmless. The juvenile court should have permitted father to develop the evidence regarding paternal aunt's ability to assist him in caring for B and taken that evidence into account in assessing whether any risks to which B was exposed were the sort for which the law authorized the court's exercise of dependency jurisdiction. However, that error was harmless because the testimony developed through father's offer of proof showed that there was no concrete plan in place to help father parent B, let alone O-just that paternal aunt and father's friend had discussed how to help father get back on his feet.

         [298 Or.App. 400] LAGESEN, P. J.

         In this consolidated juvenile dependency appeal, father challenges jurisdictional judgments with respect to his son B and daughter O, who were four and one, respectively, at the time of the hearing below. Father assigns error to the juvenile court's exclusion of evidence, on the ground of relevance, that father's sister, the children's paternal aunt, was prepared to assist him with parenting. On review for legal error, see, e.g., Dept. of Human Services v. T. L., 279 Or.App. 673, 684-86, 379 P.3d 741 (2016), we conclude that the juvenile court erred but that any error was harmless. We therefore affirm.

         The juvenile court originally took dependency jurisdiction over O in August 2017. The Department of Human Services (DHS) later petitioned the juvenile court to (1) assert dependency jurisdiction over O on additional bases not included within its initial petition and (2) take dependency jurisdiction over B in the first instance. With respect to B, DHS alleged that dependency jurisdiction was warranted as to father because, among other circumstances, (1) father's residential instability; (2) his "incoherent thought processes" and inability to communicate about B's basic needs; (3) his failure to provide needed dental treatment for B; and (4) his inability to provide a safe and sanitary environment for B presently endangered B's welfare. With respect to O, DHS alleged that dependency jurisdiction was warranted as to father because, in addition to previously established jurisdictional bases, (1) father's residential instability and (2) "incoherent thought processes" and inability to communicate about O's basic needs endangered her welfare.

         At the hearing, the children's paternal aunt was called as a witness. She previously had provided care for B for a short amount of time, and father asked her whether she would be in a position to take B into her care for a longer period of time. DHS objected to father's question on the grounds of relevance. The juvenile court sustained the objection. It ruled that the evidence that father sought to elicit about the aunt's capacity to care for B was "not relevant to jurisdiction" and would be "exclusively relevant to [298 Or.App. 401] a disposition which we have not got to yet but it certainly would be something we could consider at the disposition of the case should jurisdiction be established."

         Father then asked to make an offer of proof by questioning the aunt, and the juvenile court allowed him to do so. The aunt testified that the family had been discussing that either she or a friend of father's who lives in Idaho would be able to care for B and help father "get on his feet." She explained that she had the money for a bus ticket to Idaho for father and that they would figure out how to get B to Idaho if needed. In response to a question about where B would be living if he went to Idaho, the aunt responded that she and father's friend had not yet discussed that. She also testified that father himself had only been a "little bit" involved in her discussions with his friend in Idaho.

         The juvenile court ultimately determined that jurisdiction over B as to father was warranted on the grounds identified above. It also determined that DHS had established the identified additional bases for jurisdiction over O. Appealing those jurisdictional judgments, father assigns error to the juvenile court's exclusion of the aunt's testimony regarding her ability to assist in providing care for B. He contends that, under our decision in T. L., the evidence was relevant to the question of whether dependency jurisdiction was warranted and that the juvenile court erroneously concluded otherwise. DHS responds that T. L. does not apply because that case involved a motion to dismiss jurisdiction, as distinct from an initial jurisdictional determination, and that the juvenile court otherwise correctly concluded that the evidence was not relevant to the question of dependency jurisdiction in the first instance. Alternatively, DHS contends that the exclusion of the aunt's testimony was harmless. DHS points out that father's offer of proof did not suggest that father had a plan in place for providing care for O, and that, as to B, any plan was so speculative that the excluded evidence had no likelihood of affecting the juvenile court's decision.

         The juvenile court was wrong when it excluded as irrelevant to dependency jurisdiction the evidence that father sought to elicit as to aunt's willingness to assist with [298 Or.App. 402] B's care. Contrary to DHS's argument, the fact that T. L. involved a ruling on a motion to dismiss jurisdiction, rather than an initial determination of jurisdiction, does not render its holding inapplicable. The legal questions presented at an initial jurisdictional hearing are the same as those presented on any subsequent motion to dismiss dependency jurisdiction: Do the alleged (in the case of an initial jurisdictional hearing) or the established (in the case of a motion to dismiss jurisdiction) jurisdictional bases pose a "current threat of serious loss or injury" to the child and, if so, is there a "reasonable likelihood that the threat will be realized"? T. L., 279 Or.App. at 678, 684-85 (internal quotation marks and citations omitted). In either instance, evidence that a parent has the assistance of friends and family members is relevant to the jurisdictional inquiry, because it is probative of how likely it is that the threat of harm or injury presented by the alleged ...


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