Department of Human Services v. B.P.

381 P.3d 1073, 281 Or. App. 218, 2016 Ore. App. LEXIS 1118
CourtCourt of Appeals of Oregon
DecidedSeptember 21, 2016
Docket15JU04240; Petition Number 111283; A160781 (Control); 15JU02789; Petition Number 111188; A161100
StatusPublished
Cited by2 cases

This text of 381 P.3d 1073 (Department of Human Services v. B.P.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Human Services v. B.P., 381 P.3d 1073, 281 Or. App. 218, 2016 Ore. App. LEXIS 1118 (Or. Ct. App. 2016).

Opinion

EGAN, J.

In this consolidated appeal, father appeals from a 2015 judgment asserting jurisdiction over his child, M, and a judgment terminating father’s parental rights over M. Father argues that the 2015 jurisdictional judgment is invalid, as a matter of law, because it was inextricably linked to a 2014 jurisdictional judgment, which has since been reversed on appeal. Dept. of Human Services v. B. P., 277 Or App 23, 370 P3d 536 (2016). Father argues further that the juvenile court lacked the authority to terminate his parental rights as a result of our reversal in B. P. We conclude that the juvenile court properly asserted jurisdiction based on the 2015 petition, which contained allegations that were not dependent on the validity of the 2014 jurisdictional judgment. We also conclude that the juvenile court had authority to terminate father’s parental rights. We therefore affirm both the jurisdictional and termination judgments.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. 2014 Jurisdictional Judgment

The facts, which are largely procedural, are undisputed. In March 2014, the Department of Human Services (DHS) removed M from father and disallowed contact between father and M based on allegations of sexual abuse, drug use, and neglect. In October 2014, the juvenile court held a three-day hearing on the allegations against father. The child’s mother, who had previously admitted to having mental health issues that interfered with her ability to safely parent the child, testified at the hearing. The juvenile court issued an order pertaining solely to father. The court ruled that DHS had failed to prove that (1) father sexually abused M, (2) M’s statement that father sexually abused her warranted jurisdiction, (3) father allowed M to reside in unfit conditions, (4) father failed to provide M with routine meals, and (5) father exhibited a pattern of drug use. However, at the conclusion of the hearing and upon consent of both parties, the court amended the petition and asserted jurisdiction over M based on findings that

“father was neglectful toward the child by not enrolling the child in school from October through December of 2013, [221]*221and by regularly failing to bring the child to school on time. Furthermore, the child’s educational and social needs were not being met because of this neglect and the child suffered harm by falling behind and needing to repeat her kindergarten year in school.”

In November 2014, the juvenile court referee conducted a hearing and entered an order regarding both parents. The juvenile court affirmed the referee’s order and entered a judgment establishing dependency jurisdiction over M (the 2014 jurisdictional judgment).

Father appealed the 2014 jurisdictional judgment, arguing that the court’s findings that father neglected M’s educational and grooming needs and allowed M to have contact with her mother despite a contrary visitation order were insufficient to support juvenile court jurisdiction. B. P., 277 Or App at 25. Neither DHS nor M defended the merits of the juvenile court’s decision. Rather, they argued that the decision finding M within the jurisdiction of the court was not made in an appealable judgment. Id.

On May 1, 2015, while father’s appeal was pending, the juvenile court changed M’s permanency plan from reunification to adoption, and authorized and ordered DHS to file a petition to terminate both parents’ parental rights. DHS filed a petition to terminate father’s parental rights on June 2, 2015.

B. 2015 Jurisdictional Judgment

On July 17, 2015, DHS filed a second dependency petition with allegations pertaining to father only. DHS then filed an amended version of the second dependency petition on August 3, 2015; again, the petition contained allegations pertaining solely to father. Specifically, the amended second petition alleged that M’s conditions and circumstances endangered her welfare because: (1) father had “a pattern of residential, relationship, and lifestyle instability which impair his ability to safely and adequately care for the child”; (2) since October 2014, father had not visited M or maintained contact with DHS, indicating that he was either unwilling, or unable, to meet M’s special needs; (3) since March 2014, father had “failed to participate in [222]*222court-ordered therapeutic services designed to help him recognize and reunite the special needs of his child”; (4) M had been diagnosed as “suffering from sexual abuse of a child (by history) and neglect of child from history” and father was unable and unwilling to meet M’s special needs; (5) father had no contact with M since her removal in March 2014, despite visitation having been made available to him since November 2014; and (6) father failed to maintain regular communication with DHS. The petition also alleged that M was dependent for care and support from DHS because “father has not engaged in services designed to reunite him with his child, and the child requires foster care placement.” Lastly, the petition alleged that father abandoned M “physically and emotionally,” failed to provide M with the “care or education required by law,” and failed to provide M with the “care, guidance and protection” necessary for her physical, mental, or emotional well-being.

At the start of the hearing, DHS moved to amend the petition once again by removing the words “court-ordered” from allegation number three, and by changing M’s diagnosis in allegation four from “sexual abuse of a child (by history) and neglect of child from history” to “post-traumatic stress disorder (including primary symptoms of PTSD, along with characteristics of complex developmental trauma),” and “continue to monitor for attention deficit hyperactivity disorder.” Father did not object to those amendments or ask for a continuance. Then, upon DHS’s request, the juvenile court took judicial notice of the case file from the 2014 dependency petition. Father did not object to the court taking such judicial notice. Lastly, counsel for DHS clarified that it was seeking wardship “based upon the absence of [father] in [M’s] life since [December 2014].”

During the hearing, father noted that there was an ongoing appeal of the 2014 jurisdictional judgment and sought to introduce into evidence the appellate briefs filed in that matter. Father argued that the briefs were relevant to show why DHS had filed a second dependency petition that was substantively similar to the first, rather than amending the original petition — namely, that DHS was trying to bolster a weak jurisdictional finding that would likely be [223]*223overturned on appeal. Father noted that both DHS and M had conceded that the evidence put forth in the 2014 hearing was insufficient to support a jurisdictional finding.

In an effort to understand father’s argument about the relevance of the pending appeal, the court stated:

“I think the argument is that there shouldn’t have been jurisdiction in the first place, * * * and if there should not have been jurisdiction in the first place, then the father shouldn’t have had to do all of these things that it’s alleged he did not do, and since there shouldn’t have been jurisdiction, then it’s kind of no-harm/no-foul; doesn’t matter that he didn’t do those things, because he shouldn’t have had to in the first place, so the allegations — the underpinning of the allegations is without merit and therefore the allegation should be dismissed.”

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Related

Dept. of Human Services v. S. L. M.
338 Or. App. 676 (Court of Appeals of Oregon, 2025)
Department of Human Services v. S. C. T.
380 P.3d 1211 (Court of Appeals of Oregon, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
381 P.3d 1073, 281 Or. App. 218, 2016 Ore. App. LEXIS 1118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-bp-orctapp-2016.