Department of Human Services v. C. J. T.

308 P.3d 307, 258 Or. App. 57, 2013 WL 4104332, 2013 Ore. App. LEXIS 970
CourtCourt of Appeals of Oregon
DecidedAugust 14, 2013
Docket11564J; Petition Number 11564J02; A152344; 11563J; Petition Number 11563J02; A152345; 05662J; Petition Number 05662J05; A152347
StatusPublished
Cited by64 cases

This text of 308 P.3d 307 (Department of Human Services v. C. J. T.) 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. C. J. T., 308 P.3d 307, 258 Or. App. 57, 2013 WL 4104332, 2013 Ore. App. LEXIS 970 (Or. Ct. App. 2013).

Opinion

WOLLHEIM, J.

Mother appeals from jurisdictional and dispositional judgments taking jurisdiction over her three children, C, T, and G, based on a finding that mother’s use of marijuana endangered the welfare of the children.1 She argues that the court erred in concluding that her use of marijuana interfered with her ability to parent when the record lacked evidence of marijuana use at the time of the fact-finding hearing and lacked evidence of a nexus between mother’s marijuana use and a current threat of harm to the children.2 We agree with mother and reverse the judgments.

We have discretion to review a juvenile dependency proceeding de novo in exceptional cases, ORS 19.415 (3)(b), ORAP 5.40(8)(c). Mother has not requested that we exercise de novo review, and we conclude that it is unnecessary to do so.3 Accordingly, 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 P3d 444 (2013); ORS 419B.100(1)(c).

The following facts are undisputed. Mother has three children, C, T, and G, respectively ages one, nine, and 10 years old at the time of the hearing. Mother was the custodial parent of all three children at the time the Department of Human Services (DHS) issued a “Protective Action” on May 24, 2012, to place the children with other family members during a 30-day investigation.4 The protective order [60]*60stated that the safety threat was as follows: “Caregivers [sic] behavior is violent and/or they will not control behavior. Family situation results in no adult in the home performing parenting duties.” On June 1, 2012, mother’s counsel notified DHS that the protective action was not voluntary and demanded that DHS file a petition in the juvenile court by June 5, 2012. DHS filed a dependency petition for each of the children on June 4, 2012.

DHS alleged that each child was within the jurisdiction of the court, pursuant to ORS 419B.100(l)(c), by reason of four circumstances and conditions that endangered the children’s welfare. The circumstances and conditions alleged for each child were substantially the same: (1) that the child had been subject to neglect; (2) that the child had been subject to mental or emotional injury because of mother’s erratic, violent, and unpredictable behaviors, including throwing objects around the home and acting in [61]*61a threatening manner toward the child; (3) that the child’s father is unable to protect the child; and (4) that mother’s use of alcohol and/or marijuana interferes with her ability to parent and presents a threat of harm to the child.

Following a jurisdictional hearing, the juvenile court found sufficient evidence to support jurisdiction for each of the children based solely on the allegation concerning mother’s use of alcohol and/or controlled substances.5 The focus at the time of the hearing was on mother’s use of marijuana.

On appeal, mother argues that the trial court erred in determining that the three children were within the jurisdiction of the court under ORS 419B.100(l)(c) when DHS failed to prove that the children’s welfare was at risk of a serious loss or injury or to present any evidence that mother was using marijuana at the time of the hearing. Mother argues that DHS presented only a speculative argument that mother’s marijuana use created a per se risk to the safety of the children, and the record lacks evidence to establish a current threat of harm to any particular child. Finally, mother argues that, even if mother’s marijuana use created a per se likelihood of “a harmful environment” for any child, DHS still failed to meet its burden to show that the harm was, in fact, present at the time of the jurisdictional hearing.

Juvenile court jurisdiction is appropriate under ORS 419B.100(l)(c) when a child’s condition or circumstances endanger the welfare of the child. To “endanger” the welfare of a child means to expose the child to conditions or circumstances that present a current threat of serious loss or injury. Dept. of Human Services v. M. Q., 253 Or App 776, 785, 292 P3d 616 (2012). The “key inquiry in determining whether condition [s] or circumstances warrant jurisdiction is whether, under the totality of circumstances, there is a reasonable likelihood of harm to the welfare of the child,” [62]*62Dept. of Human Services v. C. Z., 236 Or App 436, 440, 236 P3d 791 (2010) (internal quotation marks omitted), and DHS has the burden to demonstrate a nexus between the allegedly risk-causing conduct and the harm to the child, Dept. of Human Services v. D. S. F., 246 Or App 302, 314, 266 P3d 116 (2011) (“Evidence that a child has been exposed to a parent exhibiting the adverse effects of intoxication is not, in and of itself, a basis for juvenile court jurisdiction over a child [;] * * * there must be evidence that the exposure puts the child at risk of serious loss or injury”). In addition, DHS has the burden to show that the risk of harm is present, at the time of the hearing and not merely speculative. M. Q., 253 Or App at 785 (citing Dept. of Human Services v. A. F., 243 Or App 379, 386, 259 P3d 957 (2011)).

We first review the record for evidence that mother was using marijuana at the time of the hearing. Mother’s two sons, G and T, and each of their fathers testified that they smelled marijuana in mother’s house and believed that she was using it. G and T also testified that they had seen mother using marijuana. There was also testimony that the boys reported to others their beliefs and concerns that mother was using marijuana. However, neither child testified as to when mother had last used marijuana. G’s father, Young, testified that he smelled marijuana in mother’s house in March or April of 2012. T’s father, Tarter, testified that he smelled it in March 2012. Mother testified that she last used marijuana in March or April 2012. The jurisdictional hearing was held on July 30, 2012.

The record also contains the results of three drug tests that mother took in July 2012, all of which were negative for any controlled substances. Although the results from mother’s second July 2012 drug test show that she failed that test due to a diluted specimen, it was administered a short time between the other two tests with negative results and does not support the conclusion that mother was using controlled substances at that time.

We conclude that the record lacks legally sufficient evidence to establish that mother used marijuana after April 2012, which is at least one month before DHS issued the protective order and filed its petitions for jurisdiction, and approximately three months before the fact-finding hearing.

[63]

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Bluebook (online)
308 P.3d 307, 258 Or. App. 57, 2013 WL 4104332, 2013 Ore. App. LEXIS 970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-c-j-t-orctapp-2013.