Department of Human Services v. B. B.

274 P.3d 242, 248 Or. App. 715

• Court: Court of Appeals of Oregon
• Decided: March 14, 2012
• Docket: J100512 J100513 J100514 073010BRE3 073010BRE1 073010BRE2 A147227 (Control) A147228 A147229
• Status: Published

Opinions

NAKAMOTO, J.

In this dependency case, father and mother appeal the juvenile court’s judgments taking jurisdiction over their children, K, E, and S, under ORS 419B.100(1)(c). The parties dispute whether the Department of Human Services (DHS) proved that father and mother were endangering the welfare of the children, as DHS alleged in its petition to the court to take jurisdiction. Father, who discontinued sex offender treatment in April 1999, and mother contend that the minimum quantum of evidence to support jurisdiction — evidence of likely harm to the children, current at the time of hearing in 2010 — is lacking. We exercise our discretion under ORS 19.415(3)(b) to review the facts de novo and agree that some of the juvenile court’s findings of fact, including its key finding regarding risk to the children, are not supported by the evidence, and the findings that are supported by the record are insufficient to establish that the current condition or circumstances of the children are such as to endanger their welfare, the touchstone for jurisdiction under ORS 419B.100(1)(c). We therefore reverse the judgments.

Under ORS 19.415(3)(b), “the Court of Appeals, acting in its sole discretion, may try the cause anew upon the record or make one or more factual findings anew upon the record.” Although in the vast majority of cases, we now do not review a juvenile dependency proceeding such as this one under the de novo standard, we choose to do so in this case, even though no party has requested it, because the trial court’s most important factual findings either plainly do not comport with uncontroverted evidence in the record or are inconsistent with other express factual findings. See ORAP 5.40(8)(d)(ii) (a consideration relevant to whether the court makes findings anew upon the record is whether “the trial court’s decision comports with its express factual findings or with uncontroverted evidence in the record”). Although we state the following background facts consistently with the juvenile court’s ultimate conclusion to take jurisdiction, we make findings anew upon the record when we discuss the allegations against father and mother.¹

In the past, father physically and sexually abused children, and he was sexually abused when he was a child. In 1994, when he was 21 years old, father was convicted of criminal mistreatment for physically abusing his then-girlfriend’s pre-school-aged children. She had left the children in his care while she was looking for work in another state. Father struck the three-year-old girl, who lost consciousness, and also struck her brother. He eventually took the children to the emergency room and admitted hitting the children in anger. Father served a prison sentence and was released on post-prison supervision in 1996.

One of the conditions of his supervision was that he undergo a sex offender evaluation and complete any recommended treatment. The Department of Corrections characterized him as a “predatory sex offender,” stemming from information that a counselor in prison had obtained concerning father’s own history of being sexually abused as a child and information in a presentence report that father, in addition to striking the three-year-old girl in his care, had sexually abused her. Father admitted to his probation officer, Bergey, that he had orally sodomized the girl and had masturbated in her presence.

In August 1996, Cannon, a licensed clinical social worker, conducted a mental health and sex offender evaluation of father. In the evaluation report, Cannon noted that the medical staff who examined the three-year-old girl conducted a pelvic examination, which showed “mild bleeding of her genitals and significant engorgement of the veins of her rectum.” Father also admitted that, when he was 11 or 12, he had orally sodomized a one-year-old girl he was babysitting and had orally and anally sodomized a four-year-old boy he was babysitting. Father said that he regularly viewed adult pornography. Cannon concluded that father was “in heavy denial that he has a sexual problem” and that his “steady diet of pornography and his lack of a regular sexual partner makes the risk even greater.” Father, she concluded, was “both a physical and sexual risk to children,” and she recommended that he be required to “enter and successfully complete a sexual offender treatment program.”

Father began sex offender treatment with Doyle, but failed to attend treatment regularly. After father viewed child pornography in February 1998, Doyle discontinued treatment in March 1998. Father then resumed treatment with a different provider, Shannon, who worked with him in 1998 and 1999. Father admitted to mother that he had again viewed child pornography in July 1998, and she reported his conduct to Shannon and Bergey. Also in 1998, mother reviewed father’s history, completed chaperone training, and signed a document approved by Shannon and Bergey in which she acknowledged that father’s post-prison supervision conditions included that he have no contact with minor children. She also promised to be responsible for ensuring that father was not left alone with children and to contact Bergey and Shannon should father engage in inappropriate behavior. Mother and Shannon also discussed safety plans for children when they were around father. Father’s post-prison supervision then ended in April 1999, and father discontinued his treatment in May 1999 without completing it.

Mother and father were living together in 1999, when mother was pregnant with their first child. Because father had discontinued sex offender treatment, Shannon notified Bergey in May 1999 to let him know that he had concerns about father’s ability to be “sexually safe around children” at that point. Father and mother’s initial contact with DHS occurred in 1999, when their first child, K, was born. DHS then put a “no-contact order” in place to keep father from contacting K without permission from Shannon.

Near the end of 1999, mother and K moved to Ohio, where mother has family. Father followed several months later, arriving in Ohio in January 2000. Initially, for the first two to three years in Ohio, father lived with mother’s sister and brother-in-law, while mother lived with her mother. Eventually, father and mother had the two other children at issue, E and S, and lived together as a family. Father and mother also had a fourth child, who has special needs and who lives with her maternal grandmother in Ohio. For most of the time that the family was in Ohio, father worked as a long-haul truck driver. Father was laid off in 2008 and had recently resumed working in Oregon before the trial.

Mother testified that Ohio child welfare authorities became involved when DHS contacted them, but that the Ohio authorities “had no issues with [father] being around children” and permitted father to live with her and the children. As mother testified, the condition that Ohio child welfare authorities wanted was for mother, not father, to have legal custody of the children. Mother also introduced a 2006 Ohio magistrate decision, which showed that the Ohio juvenile court was aware of father’s “whole history about the sexual offending” and the earlier requirement that he engage in sex offender treatment. DHS employees did not provide contrary evidence. Instead, they acknowledged that they had reviewed written records from Ohio’s child welfare authorities, that a petition in the Ohio juvenile court had been filed based on the potential risk to the children posed by father and by mother’s knowledge of father’s sex-offending history, that Ohio authorities had closed the case, and that father had lived in the home with mother and the children. Father was not required to complete sex offender treatment before Ohio authorities terminated the case involving father and mother. Ohio juvenile court records from 2007 also showed that the same magistrate permitted father to visit with mother and father’s special-needs child without restriction.

In July 2010, mother and father moved back to Oregon. Soon after the family’s return, DHS filed petitions alleging that K, E, and S were within the jurisdiction of the juvenile court. At the time of trial, K was 11, E was 9, and S was 4 years old.

Our analysis begins with the allegations against father. DHS alleged that the juvenile court had jurisdiction over each of the children and parents under ORS 419B.100(l)(c), which provides that the juvenile court “has exclusive original jurisdiction in any case involving a person who is under 18 years of age and * * * [w]hose condition or circumstances are such as to endanger the welfare of the person or of others.” The key inquiry for determining whether jurisdiction lies under ORS 419B.100(1)(c) is “whether, under the totality of the circumstances, there is a reasonable likelihood of harm to the welfare of the child.” Dept. of Human Services v. C. Z., 236 Or App 436, 440, 236 P3d 791 (2010).

DHS alleged two sets of conditions or circumstances justifying jurisdiction with respect to father. In paragraph 2.C of the petition, DHS alleged that jurisdiction was warranted because father “has a history of inappropriate sexual contact with minors and such behavior un-remediated endangers the child’s welfare and safety.” DHS alleged in paragraph 2.D of the petition that the children were endangered because father had “disclosed inappropriate sexual contact with minors and failed to complete the sex offender treatment as recommended by child welfare authorities.” The juvenile court found that DHS had proved both allegations.

Thus, as to the allegation in paragraph 2.C, the court found that the children were in danger because (1) father had a history of inappropriate sexual contact with minors; and (2) his inappropriate sexual contact with minors was “unremediated,” in other words, uncorrected or ongoing. DHS must prove a current risk of harm, so the evidence of father’s past — inappropriate sexual contact with minors in 1994 when father was 21 and when father was himself a child, at age 11 or 12 — does not by itself justify jurisdiction. Nor does father’s viewing of child pornography in 1998, which the juvenile court also considered, provide a basis for a finding of current risk of serious harm to the children. See, e.g., Dept. of Human Services v. A. F., 243 Or App 379, 386, 259 P3d 957 (2011) (the threat of serious loss or injury “must be current”); State ex rel Juv. Dept. v. S. A., 230 Or App 346, 347, 214 P3d 851 (2009) (in dependency petitions, as the state conceded, the agency must allege a current risk of harm). Rather, the court’s second finding — that father’s conduct is unremediated — is the determinative historical fact that would support the conclusion that the children are in danger as DHS alleged in paragraph 2.C.

Consistently with what the petition alleged, the juvenile court’s express finding of father’s unremediated sexual contact with children goes to father’s conduct or behavior as opposed to a mental condition or disorder. But an examination of the testimony at the jurisdictional hearing reveals that both that express finding and any implied finding as to an unremediated condition or disorder lack factual support.

Despite finding that father’s conduct is unremediated, the juvenile court stated at the hearing that “it may be there haven’t been any further acts” since father’s sex offender treatment ended in 1999. In fact, there was no evidence from any source presented at the hearing that father had ever abused his children or any other children since 1994, some 16 years before the hearing. No one testified that father had been accused of having had sexual contact with his children, or with any other children since 1994. To the contrary, the DHS investigator admitted that the children had not reported sexual abuse and that DHS did not suspect that they had been abused “in any way.” There simply is no evidence from which the juvenile court could have found that father sexually abused his children or had inappropriate sexual contact with any other children since 1994.

The juvenile court’s comments on the evidence at the close of the hearing reveal that the court also misunderstood the testimony of Shannon, father’s treatment provider in 1999, and Bergey, father’s probation officer in 1999. The juvenile court noted that “the only evidence before the Court regarding the risk” to children posed by father was, in its view, “the information from the treatment provider” that “as time goes on, the longer you’re away from treatment, the greater the risk [of sexually inappropriate behavior] actually becomes.” The court stated it was relying on that evidence “when determining that a risk still exists.” Although the juvenile court was correct that such testimony was the only evidence of risks, the only “treatment provider” who testified, Shannon, provided no such testimony or information.

Shannon testified that he is a licensed professional counselor of 26 years and is certified as a sex offender treatment specialist by the Oregon Sex Offender Treatment Board. As noted, Shannon treated father in 1998 and 1999. Because of the age of the file on father, Shannon had purged it. Shannon recalled little about father; he knew that father had had sexual contact with minors but could not remember their ages or any other information about the circumstances of such contact. As a result, father’s attorney objected to DHS’s attempt to solicit Shannon’s testimony about whether, for sex offenses like the ones that father committed, the offender must have treatment in order for “sexual offense behavior” to “go away.” Ultimately, the juvenile court asked Shannon whether he could testify — without knowing anything about father other than that he had committed sexual offenses against minors — as to whether “sex offender treatment would be required for him to be in remission.” Shannon’s response was nuanced, but the bottom line was that completion of such treatment was not required for father to be “in remission.”

Specifically, Shannon testified that the prevailing trend in the treatment community was that “therapy would increase the likelihood for remission and reduce the likelihood for recidivism,” and that, hypothetically, if at the time of treatment, the client aborts the treatment prematurely, it is not “a positive sign,” but

“ten years later, I cannot tell you anything about where he’s been, what he has done; if the disorder was placed in remission based on willpower, based on readjustment of a moral position, based on conscience, based on some intervention informally by others who have assisted him to — to not recommit these types of offenses, I just — I can’t tell you anything about that.”

(Emphasis added.) Thus, instead of testifying that father was at great risk of sexually abusing a child, whether because father stopped treatment in 1999 or because it had been over a decade since father was last in treatment, Shannon informed the juvenile court that father could have made changes in his life during the 11 years following father’s last treatment with Shannon so as not to “recommit these types of offenses.” Nor did Shannon testify that a sex offender who does not complete treatment cannot remediate his conduct or condition.

Rather, the testimony that the juvenile court relied on came from father’s former probation officer, Bergey. But even Bergey did not testify in accordance with the juvenile court’s recollection of the “treatment provider” testimony. Bergey had experience as a probation officer supervising sex offenders. Father objected to Bergey’s opinion testimony regarding whether father’s inappropriate sexual contacts with minors “could become remediated on their own” as speculation. In aid of his objection, and as father notes on appeal, father established that (1) Bergey was not “qualified through training to provide sex offender treatment,” and (2) Bergey had had no contact with father in the 11 years preceding the hearing. Accordingly, the juvenile court then sustained father’s objection to Bergey’s opinion testimony. We agree with father that what Bergey later actually testified about was his “concerns” in 1999.

Bergey stated that he was “concerned” back in 1999 that father “was at risk to reoffend” because father had not completed sex offender treatment. Bergey was then asked whether father’s treatment would have alleviated that concern in 1999, and Bergey said:

“It would not have completely alleviated those concerns. From my training and my reading on sex offender crimes, it’s not something that can be cured. It’s something that hopefully can be monitored and controlled while on supervision. And the longer someone gets past supervision and treatment, the more likely [it] is that something could happen again.”

At best, then, Bergey described his beliefs in 1999. But Bergey’s belief system and “concerns” in 1999 do not provide a foundation for finding that father’s behavior or condition in 2010 was “unremediated,” as alleged in paragraph 2.C of the petition. The juvenile court was not permitted to treat Bergey’s testimony about his state of mind in 1999 as expert testimony concerning father’s risk of reoffending, and we do not either. See OEC 701(1); State v. Lerch, 296 Or 377, 384, 677 P2d 678 (1984) (an “essential difference between opinion testimony by a lay witness and an expert witness is that the lay witness is restricted to his personal perceptions”). In fact, when the juvenile court sustained father’s objection to Bergey’s opinion testimony, it recognized that permitting Bergey to testify as a sex offender treatment expert would be improper.

As father summarizes:

“To meet its burden the department presented evidence (1) that, when father was released from parole 11 years prior to the jurisdictional hearing, father’s treatment provider (Shannon) and his parole officer (Bergey) were ‘concerned’ that father might re-offend; (2) that by the time of the hearing, father had lived with his children for seven years and had unsupervised contact with them over the last two years; (3) that, upon questioning, the children did not report any sort of abuse or neglect; and (4) that the ‘philosophical position’ of the prevailing therapeutic community was that ‘therapy would increase the likelihood for remission and reduce the likelihood for recidivism.’ ”

We agree with father that “[t]hat evidence fails” to satisfy DHS’s burden of proof. The juvenile court erred in finding jurisdiction as to father based on the grounds alleged in paragraph 2.C of the petition.

For similar reasons, we disagree with the juvenile court’s finding that father endangers the children because he failed to “complete sex offender treatment as recommended by the child welfare authorities,” as alleged in paragraph 2.D of the petition. Although it is undisputed that father terminated sex offender treatment with Shannon in 1999 and did not engage in additional treatment, there is no evidence in this record that Oregon or Ohio child welfare authorities had required father to engage in additional sex offender treatment. And, as discussed with respect to the allegations in paragraph 2.C of the petition, the record in any event lacks evidence that father’s failure to engage in further sex offender treatment endangered the children at the time of the hearing in 2010.

To the extent that the juvenile court made an implicit finding that father had a “sex offender” condition that was not in remission, we find that the evidence does not support it. Shannon testified that a sex offender can change, on his own, without sex offender treatment, and father has not sexually abused any of his children, nor is he even suspected of having abused any of his children. On the record in this case, father’s failure to complete treatment in 1999 does not establish a current risk of abuse. Cf. A. F., 243 Or App at 387 (proof that the father possessed images and partially downloaded videos of child pornography was insufficient to establish that the father endangered the welfare of his children under ORS 419B.100(1)(c) in light of testimony by the state’s sex offender treatment expert that the father posed a “potential risk,” but that he would need additional information, such as how recently and frequently the father had used the pornography, before he could determine whether the father was an actual risk to his children). Stated another way, there is no presumption that father’s failure to complete treatment some 11 years before the jurisdictional hearing, by itself, makes father “an unremediated sex offender,” who in turn would be presumed dangerous to his children. That result is at odds with the proof requirement under ORS 419B.100(l)(c). See State ex rel Juv. Dept. v. Smith, 316 Or 646, 652-53, 853 P2d 282 (1993) (rejecting “the proposition that any specific condition or circumstance per se does, or does not, establish the juvenile court’s jurisdiction” under former ORS 419.476(l)(c) (1983), the predecessor to ORS 419B.100(l)(c)); State ex rel Dept. of Human Services v. D. T. C., 231 Or App 544, 554, 219 P3d 610 (2009) (evidence that parent failed to complete treatment is not sufficient in itself to prove that condition precipitating treatment requirement persists).

Nor do the 1996 observations by Cannon contained in her written evaluation admitted into evidence support a finding that father’s condition was not in remission at the time of this proceeding some 14 years later. Although Cannon’s 1996 evaluation states that father was then in denial about his problem, her observations of father in 1996 do not establish that he in fact did not change during the intervening 14 years. Moreover, we have rejected evaluations for purposes of determining risk of parental harm to children where the evaluation’s predictions are inconsistent with the evidence of the parent’s actual circumstances. See D. T. C., 231 Or App at 554-55 (no reasonable likelihood of harm to the children proven when only evidence presented by DHS at the jurisdictional hearing regarding the father’s risk of alcoholic relapse was an evaluation, one and a half years old, that stated the father’s risk of relapse was then "severe” due to his denial that he had an alcohol problem and resulting unwillingness to change, yet he had since stopped drinking, last used alcohol 10 months earlier, and had made the decision not to drink). In this case, the 14-year gap between Cannon’s evaluation and the jurisdictional hearing is a temporal canyon, and the 1996 evaluation does not establish that father currently poses a risk of harm to the children.

Although the juvenile court was not required to credit the testimony of either father or mother, the other evidence in the record is insufficient to prove the jurisdictional allegations pertaining to father.² In sum, the juvenile court erred in finding jurisdiction as to father.

We turn to the allegations against mother. The juvenile court concluded that it had to find that mother “exposed the child to an unsafe person, including the child’s father, who has a history of sexual offending of minor children” and that she thus was “endangering the children.” In other words, the finding was derivative of the court’s conclusion that father was dangerous with regard to the children. Because the evidence did not support the finding against father, DHS did not prove the allegation in paragraph 2.A of the petition that mother exposed the children to an “unsafe person,” namely, father.

As to the allegation in paragraph 2.B that mother was aware of father’s risk to the children and failed to protect them from him, the juvenile court found that the Ohio juvenile court knew “the whole history about the sexual offending and Dad’s requirement to do sex offender treatment. All that information [is] included in the 2006 decision.” Consequently, the juvenile court concluded that the evidence of the proceedings in Ohio did not support a finding against mother that she was aware of the risk that father posed to the children and then failed to protect them. Instead, the court turned to mother’s own testimony that she had chosen to supervise father’s contact with the children even after the Ohio juvenile court concluded that it was unnecessary. The juvenile court found “that Mom was aware because she continued to provide supervision or chaperone Dad up until two years ago. She was still aware that Father presented a risk, and that’s after these orders from the court in Ohio [allowing father unsupervised contact with the children] were imposed.” The court then added that mother “had gone through the chaperone class and knew that he was a risk, and that he continued to be a risk and continues today to be a risk to the children.” We disagree with the court’s conclusion.

First, the juvenile court’s findings regarding mother’s conduct is based in large part on the erroneous conclusion that the evidence showed father was a current danger to the children. Second, as to mother’s alleged failure to protect the children from father, the juvenile court found that mother had gone above and beyond the requirements of the Ohio juvenile court by chaperoning the children with father until 2008, when father stayed at home with the children. Mother’s choice to do so does not prove that father actually presented a risk to the children when she ceased chaperoning, or that she knew father posed a danger to the children at the time she ceased chaperoning or thereafter, at the time of the hearing. Accordingly, the evidence does not establish grounds for jurisdiction with respect to mother.

Reversed.

1 The dissent suggests that our decision to review this case de novo is not in keeping with ORS 19.415(3) and ORAP 5.40(8). 248 Or App at 739 n 1 (Wollheim, J., dissenting). The dissent’s view is inconsistent with the legislative history of the amendment to the statute and the language of the rule. As the Chief Judge of this court explained in testimony in support of the bill that amended ORS 19.415, the amendment to provide for discretionary, instead of mandatory, de novo review in almost all equitable cases was designed, in large part, to allow this court to “stretch its limited resources” in addressing the appellate caseload. Testimony, Senate Judiciary Committee, SB 262, Apr 9, 2009, Ex 12 (statement of Chief Judge David V. Brewer); see also Testimony, House Judiciary Committee, SB 262A, May 12, 2009, Ex 2 (statement of Chief Judge David V. Brewer) (“In addition, Oregon probably can no longer afford being one of the few states that provides universal de novo review of trial court decisions in equity cases.”). As Chief Judge Brewer explained, the amendment to ORS 19.415 would give the Court of Appeals discretion to undertake de novo review, “similar to how the Supreme Court currently employs that standard.” I'd. Thus, although ORAP 5.40(8) provides guidance to litigants regarding how this court will exercise its discretion, this court, like the Supreme Court, see, e.g., Haguewood and Haguewood, 292 Or 197, 199, 638 P2d 1135 (1981) (“This being a case in equity, our permissible scope of review on the record is entire.”), retains discretion to make findings anew on the record in any equitable case, as ORAP 5.40(8)(d) indicates: “The Court of Appeals considers the items set out below to be relevant to the decision whether to exercise its discretion * * *. These considerations, which are neither exclusive nor binding, are published to inform and assist the bar and the public.” (Emphasis added.)

2 The dissent argues that we should affirm the juvenile court because it was entitled to draw different inferences and DHS had established evidence from which a reasonable factfinder could conclude that father was a danger to his children. 248 Or App at 741 (Wollheim, J., dissenting). There are a number of problems with the dissent’s discussion. First, it cannot be overemphasized that the set of facts that the dissent argues is sufficient evidence to establish father’s current danger to his children, id. is drawn from father’s statements or Cannon’s observations in the report Cannon prepared in August 1996. Second, the dissent contends that, applying “ordinary experience,” the trial court could have concluded that, given a period of 10 years between father’s abuse of children when he was 11 or 12 years old and when he was 21 years old, despite the 16-year gap between the time father was 21 years old and the time of trial, it need not allow father to remain with his children without state intervention. Id. Even assuming for the sake of argument that the juvenile court could have drawn the inference that father is a current risk to his children’s safety, we review this case de novo, and not under the standard of review the dissent applies. And, the dissent’s “ordinary experience” trope cuts both ways. Similar to the case law acknowledging the legislative assumption in the dependency laws that people can change their behavior, as discussed above, ordinary experience indicates that a child’s and young person’s conduct is usually not the conduct of that same person as a mature adult. Most importantly, though, the evidence presented in light of applicable legal standards (or, as in this case, the lack of such evidence) governs the outcome in this or any case, not hunches or feelings cast as ordinary experience.