Department of Human Services v. M. E.

297 P.3d 17, 255 Or. App. 296, 2013 WL 636715, 2013 Ore. App. LEXIS 189
Court of Appeals of Oregon·Decided February 21, 2013·No. J110095, J110096; Petition Number 01J110095M; A150359·Published·Cited by 12 cases

Opinion

ARMSTRONG, R J.

Mother appeals a judgment of jurisdiction as to two of her children, MA and MI, twin girls who were 13 years old at the time of the jurisdictional hearing.1 The juvenile court found that mother’s current husband—the girls’ stepfather2—had, on one occasion approximately four years before the hearing, sexually abused MI; that mother did not believe that the incident occurred; and, therefore, that the children were at risk of harm sufficient to warrant juvenile court jurisdiction under ORS 419B.100(l)(c). The court also determined that mother’s “negative comments” to one of the twins, MA, created a risk of injury to her emotional and physical well-being. On appeal, mother contends that the trial court erred in concluding that the children were presently endangered, a necessary predicate for jurisdiction under ORS 419B.100(l)(c), “based upon one incident of inappropriate touching four years before the trial,” given that stepfather was assessed not to be a risk to children. She also contends that the court erred in concluding that mother’s comments to MA “amount [ed] to such harm that the child was endangered.”

In dependency cases such as this one, we have discretion to “try the cause anew upon the record or make one or more factual findings anew upon the record.” ORS 19.415(3)(b). We exercise that discretion sparingly, see ORAP 5.40(8)(c) (appellate court exercises its discretion under ORS 19.415(3)(b) only in “exceptional cases”), and, typically, in [299]*299the absence of a request from a party concisely stating why de novo review is appropriate, we would not choose to do so. ORAP 5.40(8)(a), (b). However, in this case, although mother does not ask us to apply the de novo standard, she does challenge one of the crucial findings underlying the juvenile court’s judgment—namely, that a psychosexual evaluation of stepfather indicated that he did not present a risk of harm to only his biological children. As explained below, 255 Or App at 308, we agree with mother that the court’s finding does not comport with the uncontroverted evidence in the record, and, because that finding is essential to the court’s ultimate conclusion that MA and MI are presently endangered, we exercise our discretion to review the facts de novo. ORAP 5.40(8)(d)(ii); Dept. of Human Services v. B. B., 248 Or App 715, 718, 274 P3d 242 adh’d to on recons, 250 Or App 566, 281 P3d 653 (2012); Cf. Hanscam and Hanscam, 247 Or App 207, 219, 268 P3d 715 (2011). Considering the totality of the circumstances—including, particularly, our finding on de novo review that stepfather was assessed not to present a risk of harm to any child, as well as the express and implied findings of the juvenile court that are supported by the record—we conclude that the twins’ “condition or circumstances” are not “such as to endanger [their] welfare.” ORS 419B.100(l)(c).

MA and MI were born in 1998. Mother and father divorced in 2000. In 2004, mother married stepfather; they have four children together. Father also remarried; he has no children with his current wife. At the time of the events that gave rise to the jurisdictional judgment, father and mother shared custody of MA and MI; father had them 60 percent of the time and mother had them the remaining 40 percent.

In February 2011, when MA and MI were in the seventh grade, the school scheduled a meeting with mother and father to discuss concerns about MA—in particular, MA had fabricated a detailed story to her teacher that she had bone cancer. The meeting included MA’s teacher, her school counselor, and the vice principal; MA was brought in at the end of the meeting. When the counselor told MA about the upcoming meeting, MA admitted that she had lied [300]*300about having cancer; she also told the counselor that she was “scratching” her arm and leg and was not eating lunch. According to the counselor, MA felt that mother did not like her and treated her differently from MI. MA then told the counselor about a disclosure that MI had made about stepfather—specifically, MI had told MA that stepfather had touched her inappropriately when MI and MA were in the fourth or fifth grade. At the meeting, mother and father were told about that disclosure. Father “kind of fell apart” and was supportive of MA; mother said that it was a lie and told MA that she would be in trouble if she was telling lies. The meeting was on a Friday; MA and MI spent the following weekend with father, as scheduled.

Father separately talked to both girls about the abuse allegation and, on Monday morning, reported it to the Department of Human Services (DHS), who began an investigation. A DHS caseworker and an officer from the Hillsboro Police Department went to talk to mother. Mother told them that she thought the allegation about stepfather was false. But, she agreed that MA and MI would stay with father and that stepfather would move out of the home and have no contact with any of the children until the investigation was completed. The caseworker described mother as “cautiously cooperative.” Mother then remained in the home with the other four children and had only supervised visits with MA and MI. Mother requested counseling for MA and MI as soon as she learned of the disclosures.

Later that week, MA and MI were evaluated at CARES Northwest (CARES), which provides medical assessments for concerns related to child abuse and neglect. MA told the CARES examiner and interviewer what she had disclosed to her teacher—that MI had told her about an incident that occurred when they were in approximately the fourth or fifth grade when stepfather was rubbing MFs back as they were watching television together and then he touched her on her front private area. MA also acknowledged that she had recently been cutting her arm and leg with an “X-Acto” knife and that she was feeling “stressed” about mother. She told the interviewer that she felt mother favored [301]*301MI over her and that mother sometimes told her that she was stupid. She denied that stepfather had ever touched her inappropriately.

MI also told the CARES interviewer about the incident with stepfather. She said that one day, around the time that she was in the fourth grade, she was lying on the couch watching television with stepfather, who was sitting on the couch at her feet. She thought mother and the other children were at the grocery store. MI related that stepfather had been rubbing her back with his hand when he moved his hand under her shirt and began rubbing her stomach. She said (and demonstrated using dolls) that his hand then slid down inside the front of her pants, under her underwear, touching the top of her vaginal area. He then pulled his hand out of her underwear and put it over her underwear between her legs, rubbing her front private area. MI was confused and scared, and she got up and went to her room. She looked in her “feelings book” to identify how she was feeling and then began writing in her journal her thoughts about what had happened. The journal later disappeared.

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Department of Human Services v. M. E., 297 P.3d 17, 255 Or. App. 296, 2013 WL 636715, 2013 Ore. App. LEXIS 189 (Or. Ct. App. 2013).

297 P.3d 17 (Department of Human Services v. M. E.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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