Department of Human Services v. K. C. F.

383 P.3d 931, 282 Or. App. 12
CourtCourt of Appeals of Oregon
DecidedNovember 2, 2016
Docket14609J; Petition Number 14609J01; A158834 (Control); 14610J; Petition Number 14610J01; A158844
StatusPublished
Cited by25 cases

This text of 383 P.3d 931 (Department of Human Services v. K. C. F.) 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. K. C. F., 383 P.3d 931, 282 Or. App. 12 (Or. Ct. App. 2016).

Opinion

DUNCAN, P. J.

In this juvenile dependency case, mother and father appeal a judgment determining that their daughters, A and B, ages 11 years and 18 months at the time of the hearing, are within the jurisdiction of the juvenile court pursuant to ORS 419B.100(l)(c), as a result of conditions or circumstances that endanger their welfare. The children also appeal, contending that the court erred in assuming jurisdiction. Because we agree with parents and the children that the evidence is insufficient to support the juvenile court’s determination that there is a current risk of harm, we reverse the jurisdictional judgment.

Under ORS 419B.100(l)(c), the juvenile court has exclusive jurisdiction over a minor “[w]hose condition or circumstances are such as to endanger the welfare” of the minor. In reviewing the juvenile court’s jurisdictional determination, the question is whether the Department of Human Services (DHS) has proved, by a preponderance of the evidence, that the child’s welfare is endangered by the parents’ conduct. Dept. of Human Services v. A. F., 243 Or App 379, 385-86, 259 P3d 957 (2011). On appeal, we view the evidence, as supplemented by permissible derivative inferences, in the light most favorable to the trial court’s determination 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 P2d 444 (2013).

The parents are married. The family came to the attention of DHS in May 2014, when it was contacted by mother’s psychotherapist, Cleary. Cleary had been counseling mother regarding marital conflict.1 Cleary testified at the jurisdictional hearing that, based on mother’s description of father’s conduct, she became concerned that mother is a victim of emotional abuse.2 Cleary testified that in October [15]*152014, when mother reported that father had threatened suicide and homicide, Cleary reported to DHS that father had subjected mother and the children to domestic violence.

Meyer, a DHS caseworker, testified that he first met with mother on November 7, 2014. By that time, father had a pattern of threatening suicide, but he also made regular threats of violence, which had become more frequent, and were made in a calm and matter-of-fact way.3 Based on his interview of mother, Meyer concluded that it would not be safe for the children to be with father and told mother not to take them home; he arranged for mother to go to a hotel.

DHS filed a dependency petition on November 13, 2014. The petition alleged jurisdiction based on allegations that the children are at risk of harm because father exposes them to domestic violence against mother, and because father’s substance abuse and mental health condition interfere with his ability to safely parent. The petition further alleged that mother needs the assistance of the court and DHS to protect herself and the children from the violence [16]*16and control of father and lacks legal custody to protect the children. Meyer testified that the petition’s allegation of domestic violence was based on father’s threats of violence and the impact of father’s behavior on the children’s emotional well-being. DHS concedes that there has been no physical abuse.

After the filing of the petition, DHS caseworker Kozicky worked with the family. Mother reported to Kozicky that father was remorseful, that he had quit drinking and smoking marijuana, and that he had burned his medical marijuana card. Father moved out of the house so that mother and the children could move back in, and promised that he would never threaten mother again. However, father continued to monitor the home with security cameras.

On December 23, 2014, mother reported to Cleary that father had “gone back on his promise not to be cruel and manipulate.” But then, on December 27, 2014, mother expressed concern to Kozicky that the “forced separation” was harming the family, and she urged a prompt resolution.4 After that communication from mother, DHS filed an amended petition, adding an allegation that mother “fails to understand the emotional damage and safety risk posed by father, and failed to take protective action. The child [ren] will not be safe until the reasons for mother’s protective failures are remedied.”

Kozicky testified that, although father’s behavior has not included physical violence, it nonetheless constitutes domestic abuse, which is about power and control and [17]*17encompasses emotional abuse. She testified that mother “has the standard, typical amount of denial as a domestic abuse victim. It’s difficult for her to see.” In Kozicky’s view, it would not be safe for father to return to the house, because the domestic abuse issues have not been addressed. Kozicky testified that domestic abuse is harmful to children.5

Father testified at the hearing that he previously had smoked marijuana in excess and had abused alcohol, but that since the filing of the jurisdictional petition, he has not consumed either alcohol or marijuana. He regularly attends substance abuse counseling, submits to weekly urinalysis (UAs), and, at the time of the hearing, had been sober for 65 days and had abstained from marijuana for 75 days. He admitted to having argued with mother in front of the children but denied having threatened mother in front of them. He admitted that he told mother that she should be on suicide watch, “and maybe homicide watch,” and that “it was a very stupid thing to say.” But he explained that he did not intend those statements as actual threats and he did not believe that mother took them seriously. He stated that his comments regarding suicide were made in anger, “from a place of * * * very high upset” and were intended only to end an argument. He said that he is not suicidal and that he would not hurt himself, mother, or the children. He denied ever having hit or kicked mother, but admitted that, eight or nine years earlier, he had pinned mother down in bed, and said he felt ashamed by that conduct.

Mother testified that she did not consider father’s statements regarding suicide and homicide to be genuine threats and that she did not think he would hurt her or the children. She confirmed father’s testimony that A had not been present when father made the homicide remark.

A, who testified that she is a “straight A” student in school, said that she once heard father threaten suicide [18]*18but that she had not heard him threaten homicide, and that she did not believe that he would commit suicide or harm mother or herself.

The court concluded that DHS had “met its burden of proof with regard to each of the allegations in each case.”6 In its ruling from the bench, with respect to the domestic abuse allegation, the court expressed concern about father’s need to control mother, citing in particular the incident eight or nine years earlier where father pinned mother down in bed, father’s threats of physical harm, and his recent response to a minor disagreement by throwing water in mother’s face.

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Cite This Page — Counsel Stack

Bluebook (online)
383 P.3d 931, 282 Or. App. 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-k-c-f-orctapp-2016.