Department of Human Services v. C.P.

383 P.3d 390, 281 Or. App. 10, 2016 Ore. App. LEXIS 1083
CourtCourt of Appeals of Oregon
DecidedSeptember 14, 2016
Docket100118J; Petition Number 10118J02; A160428 (Control); 110064J; Petition Number 110064J02; A160429
StatusPublished
Cited by4 cases

This text of 383 P.3d 390 (Department of Human Services v. C.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. C.P., 383 P.3d 390, 281 Or. App. 10, 2016 Ore. App. LEXIS 1083 (Or. Ct. App. 2016).

Opinion

ORTEGA, P. J.

In this consolidated juvenile dependency case, father appeals orders denying his motions to dismiss jurisdiction and terminate wardships over his two children.1 After the court held a permanency hearing and changed the permanency plan from reunification to adoption, father filed motions to dismiss jurisdiction and terminate the wardships. In support of his motions, he asserted that the children’s paternal grandfather could care for the children, claiming that, if the children were in grandfather’s care, the bases for jurisdiction (which were all related to parents’ inability to safely parent the children) would no longer expose the children to a current threat of serious loss or injury. After a hearing addressing grandfather’s suitability as the children’s caregiver, the court denied father’s motions. On appeal, father makes one argument in support of six assignments of error. He argues that the Department of Human Services (DHS) failed to prove that his plan to have grandfather care for the children would expose the children to a current risk of serious loss or injury that was likely to be realized. In those circumstances, father claims that the court should have granted his motions to dismiss jurisdiction and terminate the wardships.

After this case was briefed and argued on appeal, we decided Dept. of Human Services v. T. L., 279 Or App 673, 379 P3d 741 (2016). In that case, we touched on two issues that are potentially at play in this appeal. First, we addressed whether evidence “that another person is available and willing to help parents care for a child — in a way that will mitigate the risks posed by the grounds on which dependency jurisdiction is founded — [is] relevant to the determination of whether dependency jurisdiction continues!.]” 279 Or App at 676. We concluded that such evidence is governed by “principles of evidentiary relevance,” and that it generally will be probative of whether there is a continued risk of harm posed by the jurisdictional bases. Id. at 685.

[13]*13Second, we addressed whether motions to dismiss jurisdiction were “legally cognizable” after a permanency plan has been changed away from reunification, and if so, who has the burden of proof on such motions. Id. at 686-87. We held that a motion to dismiss jurisdiction is legally cognizable in that situation. Id. at 689-90. However, we also concluded that, when a permanency plan for a child is something other than reunification, there is a presumption that the jurisdictional bases continue to make it unsafe for the child to return home, and if the proponent of continuing jurisdiction invokes that presumption, the parents bear the burden of proof on their motion to dismiss. Id. at 692. In T. L., the juvenile court had concluded that evidence that a relative was available and willing to help the parents care for the child was not relevant to whether the juvenile court should continue jurisdiction. Id. Accordingly, we vacated and remanded for the juvenile court to reconsider the motion to dismiss under the standards announced in the opinion. Id.

We address the effect of T. L. on our analysis in this case in more detail later in the opinion, but we note at the outset that it ultimately does not change our analysis in any significant way. That is, given the way this case was presented and decided below, it ultimately presents this straightforward question: whether, viewing the evidence in the light most favorable to the juvenile court’s ultimate conclusion to deny father’s motions, the evidence is legally sufficient, despite grandfather’s ability and willingness to care for the children, to support the court’s determination that the original bases of jurisdiction pose a current threat of harm to the children’s welfare if jurisdiction is dismissed. We conclude that the record is legally sufficient to support the juvenile court’s determination, and affirm.

For purposes of our analysis, the relevant facts are few. In June 2012, DHS removed the children and placed them in foster care due to reports of domestic violence in parents’ home. The juvenile court asserted jurisdiction over the children in August 2012 based on domestic violence, father’s criminal activity, parents’ substance abuse, mother’s mental health, and parents’ inability to overcome their parenting deficits after previously being offered services. DHS returned the children to mother’s care in September 2013, [14]*14but after another domestic violence incident between parents, DHS removed the children and placed them back into foster care. Father was imprisoned in March 2014 for a probation violation related to that domestic violence incident.

At a permanency hearing in September 2014, father stipulated that he would be unavailable to parent the children within a reasonable time and agreed that a change in the permanency plans to something other than reunification was warranted. DHS sought to change the plans to adoption, while father sought to change the plans to guardianship, with grandfather as the guardian. The court changed the permanency plans to adoption. In the court’s letter opinion, it explained that guardianship was not an appropriate plan. It found that grandfather did not have “anything near a parent/child relationship with the children” and that “[a]s a truck driver [grandfather] is clearly dedicated to his job and providing a living wage based upon the huge number of hours he is on the job. He must rely on his aged mother to provide care for the children for the substantial part of most days of the week.” Father appealed the resulting permanency judgments, and we affirmed without opinion. Dept. of Human Services v. C. P., 271 Or App 590, 354 P3d 774, rev den, 358 Or 145 (2015).

After the change in permanency plan, father moved to dismiss jurisdiction over the children, arguing that grandfather’s availability and willingness to care for them obviated the need for jurisdiction because, under grandfather’s care, the bases for jurisdiction would not expose the children to a current threat of serious loss or injury. Father argued that because he had executed a “delegation of parental authority” to grandfather, under Dept. of Human Services v. A. L., 268 Or App 391, 342 P3d 174 (2015), there existed no current threat of harm to the children and there remained no continuing basis for jurisdiction.

The court held a hearing on father’s motions to dismiss, which focused on grandfather’s suitability as a caregiver for the children and the applicability of A. L. At the hearing, a mental health therapist testified regarding his 2013 assessment of grandfather’s potential parenting capacity. He testified that, at that time, grandfather had [15]*15presented as an adequate caregiver who could generally take care of the children’s basic needs, seemed to demonstrate suitable behavior and an ability to manage his home and personal life, and did not abuse alcohol or drugs. The therapist acknowledged that, although he did not have any concerns that grandfather would pose any risk to the children’s welfare, he had some concerns “about [grandfather’s] capacity to maintain boundaries strong enough to keep his own children out of the grandchildren’s lives without appropriate supervision and appropriate * * * safety processes in place.” He also testified that at the time of his assessment, he did not have specific information regarding the long-term permanency needs of the children.

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Cite This Page — Counsel Stack

Bluebook (online)
383 P.3d 390, 281 Or. App. 10, 2016 Ore. App. LEXIS 1083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-cp-orctapp-2016.