Department of Human Services v. D. M.

275 P.3d 971, 248 Or. App. 683, 2012 WL 839559, 2012 Ore. App. LEXIS 258
CourtCourt of Appeals of Oregon
DecidedMarch 14, 2012
DocketA149499 2010802921, 2010802922
StatusPublished
Cited by19 cases

This text of 275 P.3d 971 (Department of Human Services v. D. M.) 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. D. M., 275 P.3d 971, 248 Or. App. 683, 2012 WL 839559, 2012 Ore. App. LEXIS 258 (Or. Ct. App. 2012).

Opinion

*685 SCHUMAN, P. J.

Mother appeals the juvenile court’s decision to continue to exercise jurisdiction over her two children, I and A. When jurisdiction was first established, mother stipulated to the allegation that she had, at times, failed to provide adequate supervision of the children. At a subsequent review hearing, the court concluded, over mother’s assertion to the contrary, that the condition underlying the stipulated allegation persisted. We reverse.

The parties agree on most of the legal principles involved in this case. The juvenile court has jurisdiction over a case “involving a person who is under 18 years of age and * * * [wjhose condition or circumstances are such as to endanger the welfare of the person or of others[.]” ORS 419B.100(1)(c). A child found to be within the jurisdiction of the court becomes a ward of the court until, as relevant to this case, the court enters an order terminating the wardship. ORS 419B.328(2)(c). Such an order may result from a review hearing, ORS 419B.449(1), where the juvenile court is called on “to determine if the court should continue jurisdiction and wardship or order modifications in the care, placement and supervision of the child or ward.” The review hearing “placets] in issue whether the conditions and circumstances of [the children] require[ ] them to remain in the court’s jurisdiction.” State ex rel Juv. Dept. v. Gates, 96 Or App 365, 372, 774 P2d 484, rev den, 308 Or 315 (1989). “A wardship cannot continue if the jurisdictional facts on which it is based have ceased to exist. However, that determination does not include a retrial of the original allegations. The evidence is limited to whether the conditions that were originally found to endanger a child persist.” Id. (citation omitted). In reviewing the juvenile court’s decision whether to dismiss wardship, we are bound by the court’s explicit and implicit findings of historical fact unless there is no evidence in the record to support them, Dept. of Human Services v. C. Z., 236 Or App 436, 442, 236 P3d 791 (2010), but we review the court’s ultimate legal conclusion regarding whether to dismiss or not for legal error.

The parties appear to disagree on one point. Mother argues that wardship must be dismissed unless DHS proves *686 that the alleged jurisdictional bases continue to pose a current threat of serious loss or injury, citing Dept. of Human Services v. A. F., 243 Or App 379, 386, 259 P3d 957 (2011). According to DHS, the correct standard was set by the Supreme Court in State ex rel Juv. Dept. v. Smith, 316 Or 646, 653, 853 P2d 282 (1993): the court must continue wardship if “there is a reasonable likelihood of harm to the welfare of the child.” DHS maintains that, in A. F., we “[did] not cite” Smith and that we are “bound by” it. DHS is correct that we did not cite Smith in A. F.; however, in the same paragraph where we explained that the court can maintain wardship only if there is a current threat of serious loss or injury, we also quoted the precise language from Smith.

“Under ORS 419B.100(l)(c), the juvenile court has ‘exclusive original jurisdiction’ over any case involving a child ‘whose condition or circumstances are such as to endanger the welfare’ of the child. ‘Endanger connotes exposure to “danger,” which generally involves “the state of being threatened with serious loss or injury[.]” ’ State ex rel Dept. of Human Services v. Shugars, 202 Or App 302, 321, 121 P3d 702 (2005) (quoting Webster’s Third New Int’l Dictionary 573 (unabridged ed 2002)). Thus, for the juvenile court to have jurisdiction over a child pursuant to ORS 419B.100(1)(c), the child’s condition or circumstances must give rise to a threat of serious loss or injury to the child. The threat must be current. State v. S. T. S., 236 Or App 646, 654, 238 P3d 53 (2010) (the state must prove ‘that there is a current risk of harm and not simply that the child’s welfare was endangered at some point in the past’ (emphasis in original)). And, there must be a reasonable likelihood that the threat will be realized. State ex rel Juv. Dept. v. Vanbuskirk, 202 Or App 401, 405, 122 P3d 116 (2005) (reasoning that the ‘key inquiry in determining whether “condition[s] or circumstances” warrant jurisdiction is whether, under the totality of the circumstances, there is a reasonable likelihood of harm to the welfare of the child’).”

A. F., 243 Or App at 385-86 (first emphasis in original; second emphasis added). The two formulations complement each other and correctly state the standard. But even if we were to conclude that the Smith standard is significantly less demanding than the A. F. standard, we would nonetheless conclude that DHS failed to meet either.

*687 In March 2010, DHS filed a dependency petition regarding I, then nine years old, and A, then three. After a shelter hearing, the juvenile court granted legal custody to DHS and ordered placement in mother’s care. Shortly thereafter, the court took jurisdiction over the children based on mother’s stipulations to two allegations: that mother had, at times, failed to provide adequate supervision of her children while the children were in her care, and that mother’s substance abuse, if left untreated, impaired her judgment and ability to provide safe, consistent, and appropriate care of the children. A review hearing before a referee occurred approximately 14 months later, in July 2011. Mother moved to terminate the wardship; the referee denied the motion. At a subsequent hearing before a judge, the referee’s decision was affirmed. This appeal ensued.

DHS presented no evidence that mother’s substance abuse continued, nor does the department rely on that allegation here; the decision rested entirely on the conclusion that the conditions underlying mother’s failure to provide adequate supervision persisted.

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Bluebook (online)
275 P.3d 971, 248 Or. App. 683, 2012 WL 839559, 2012 Ore. App. LEXIS 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-d-m-orctapp-2012.