Department of Human Services v. J. M.

364 P.3d 705, 275 Or. App. 429, 2015 Ore. App. LEXIS 1459
CourtCourt of Appeals of Oregon
DecidedDecember 9, 2015
DocketJ120144; Petition Number 01J120144; A157618
StatusPublished
Cited by9 cases

This text of 364 P.3d 705 (Department of Human Services v. J. 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. J. M., 364 P.3d 705, 275 Or. App. 429, 2015 Ore. App. LEXIS 1459 (Or. Ct. App. 2015).

Opinion

EGAN, J.

In this juvenile dependency case, father and mother appeal a corrected permanency judgment that changed the permanency plan for parents’ child, C, from reunification to adoption. Before the hearing to change the plan, parents moved to dismiss jurisdiction and terminate the wardship. At the hearing, the juvenile court denied parents’ motion to dismiss and changed the plan to adoption based on factual findings related to two jurisdictional allegations: first, that C sustained an unexplained physical injury — a fracture to her tibia — while in parents’ care and, second, that parents’ lack of parenting skills made them unable to provide minimally adequate care for C. Parents assign error to both the court’s denial of their motion to dismiss and the court’s decision to change the plan, arguing that the evidence is not legally sufficient. The Department of Human Services (DHS) responds that the evidence is legally sufficient. We agree with DHS. Accordingly, we affirm.1

Parents request de novo review. We exercise our discretion to review de novo sparingly and only in exceptional cases. State v. S. N. R., 260 Or App 728, 733, 320 P3d 569 (2014); ORAP 5.40(8)(c). This is not an exceptional case, and we decline to exercise de novo review. 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 a particular outcome. Dept, of Human Services v. N. P., 257 Or App 633, 639, 307 P3d 444 (2013).

I. BACKGROUND

This appeal results from the second permanency hearing in this case. We reversed the judgment resulting from the first permanency hearing because the court failed [432]*432to allow parents to introduce admissible evidence. Dept. of Human Services v. J. M., 262 Or App 133, 325 P3d 35 (2014). In that case, we summarized the facts that gave rise to jurisdiction:

“This case arose when, at a routine pediatric exam, the pediatrician observed a small bruise on the cheek of then-two-month-old C. Concerned about the potential for abuse, the pediatrician ordered a skeletal survey of C. The x-rays were ‘concerning for a probable healing metaphyseal corner fracture in [C’s] distal right tibial metaphysis,’ that is, a possible fracture of C’s tibia. Doctors opined that the fracture was indicative of nonaccidental trauma.
“Concerned that C had been abused, [DHS] removed C from parents’ care and placed her with a foster family. A few months later, parents admitted to facts giving rise to the juvenile court’s jurisdiction. Specifically, each parent admitted that his or her ‘lack of parenting skills’ impaired his or her ‘ability to provide minimally adequate care’ for C. Each parent also admitted that C ‘sustained an unexplained physical injury to include [] distal tibial meta-physeal fracture in the child’s tibia while in the care of * * * mother and father.’ Based on those admissions, the juvenile court assumed jurisdiction over C in August 2012.”

Id. at 135-36 (footnote omitted).

Shortly after the court established jurisdiction in August 2012, parents began twice weekly visits with C supervised by DHS. The visits lasted between one and three hours each and were ongoing at the time of the second permanency hearing. Parents missed only one visit between the establishment of jurisdiction and the second permanency hearing, and only one parent was present at two-and-one-half visits.

In September 2012, mother and father each underwent separate psychological and parenting evaluations.2 Dr. Howard Deitch, the psychologist who examined mother, concluded that mother was “probably not suffering from a mental health or substance abuse disorder.” However, her [433]*433evaluations indicated that she minimized or denied problem areas and she likely had a “dependant personality.” Consequently, Deitch opined that,

“if [mother’s coparent] is dysfunctional and could be a risk to the child, I would have concerns about [mother’s] ability to recognize and exercise good judgment for the sake of maintaining that relationship [with the coparent]

Deitch testified that mother’s prognosis for treatment was “not good.” Even so, he recommended that she “complete some parenting classes, focus on effectively managing developmental challenges, routine care, [and] disciplinary issues.” He testified that mother could mitigate some of the concerns raised by the evaluations by attending those classes and that it was possible that “with knowledge could come even more assertiveness, and with knowledge could come some confidence that, hey, this is the right way to handle it.” However, he did not recommend counseling to address mother’s dependant personality because, given mother’s extreme defensiveness, he was “pretty certain that it would not be a successful treatment outcome.”

Ultimately, in light of her defensiveness and depen-dant personality, coupled with the fact that she had not provided an explanation of C’s injury that conformed to the medical evidence, Deitch described his concerns about mother:

“ [Y] ou just don’t know [how the injury occurred] and so * * * you have to be able to trust * * * that a person is going to make the necessary changes to protect that child. Whether it’s not being with the person that most likely abused the child or just showing greater assertiveness in dealing with people and showing more protective type behaviors. In the absence of actually knowing, obviously it’s better to know who did it and so they can rectify it.”

Dr. Robert Basham, the psychologist who examined father, concluded that father had “problems associated with * * * controlling and managing anger” and that his answers to test questions placed him in a particular, well-studied category of respondents, known as a “4/3 code type.” Basham testified that people in that category have good anger control most of the time,

[434]*434“but [their anger] comes out in outbursts and so maybe it’s unpredictable or unexpected. *** [T]hey’re moody individuals, fragile and brittle emotional behavioral controls, temper, outburst, dangerous explosions. Some can be assaul-tive or combative, particularly associated with alcohol use. But outwardly [they] tend to be pretty much conforming. So many people meeting them might not get the impression that they have a problem controlling their anger.”

Consequently, Basham gave father a “rule out diagnosis” of intermittent explosive disorder — meaning that father exhibited some signs of that disorder, yet not enough to give a “firm diagnosis” — and a “provisional diagnosis” of antisocial personality traits — meaning that Basham believed that father probably had those traits.

Father’s testing also indicated a high degree of defensiveness and denial, and those indications were consistent with Basham’s observations of father during the clinical interview. As an example of father’s defensiveness and denial, Basham noted that, although DHS reported that there was a founded case of child abuse against father in 2001 in which father grabbed his seven-year-old daughter by the throat and slapped her, father minimized that history, reporting that either the DHS investigation had not occurred or that the findings were false.

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Cite This Page — Counsel Stack

Bluebook (online)
364 P.3d 705, 275 Or. App. 429, 2015 Ore. App. LEXIS 1459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-j-m-orctapp-2015.