Department of Human Services v. M. H.

300 P.3d 1262, 256 Or. App. 306, 2013 WL 1682553, 2013 Ore. App. LEXIS 457
CourtCourt of Appeals of Oregon
DecidedApril 17, 2013
Docket110119J; Petition Number 110119J01; A152188
StatusPublished
Cited by7 cases

This text of 300 P.3d 1262 (Department of Human Services v. M. H.) 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. M. H., 300 P.3d 1262, 256 Or. App. 306, 2013 WL 1682553, 2013 Ore. App. LEXIS 457 (Or. Ct. App. 2013).

Opinion

HABLOCK, J.

Mother and father appeal juvenile court judgments in which the court asserted jurisdiction over their daughter, V, and placed her in the custody of the Department of Human Services (DHS) on the ground that child’s condition and circumstances endangered her welfare. Mother asserts on appeal that the juvenile court lacked personal jurisdiction over V and also lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. Both parents contend that the court erred in concluding that child’s condition and circumstances endangered her welfare. We conclude that two of the allegations in the jurisdictional petition are not supported by any evidence in the record, but that the juvenile court’s exercise of jurisdiction was nonetheless proper.

Before we set out the material facts, we address the scope of our review. Under ORS 19.415(3)(b), we have discretion in juvenile dependency cases to review the record de novo. Mother and father request that we exercise de novo review in this case. We conclude that this is not the sort of “exceptional” case that warrants de novo review. See ORAP 5.40(8)(c) (“The Court of Appeals will exercise its discretion to try the cause anew on the record or to make one or more factual findings anew on the record only in exceptional cases.”). Accordingly, we are bound by the facts found by the juvenile court as long as they are supported by any evidence in the record. Dept. of Human Services v. C. Z., 236 Or App 436, 442, 236 P3d 791 (2010). We describe the facts in accordance with that standard.

A number of the allegations in DHS’s jurisdictional petition related to two sex offenses that father committed against children when he was a teenager. In 1984, when father was 14, he was adjudicated a juvenile delinquent for raping a three-year-old girl. While in the custody of the Oregon Youth Authority, he completed a juvenile sex offender program. Father was released from custody when he turned 18. The following year, father engaged in oral sex with his 10-year-old cousin, whom he was babysitting. He was not prosecuted for that offense for nearly five years. In the meantime, father married a woman with two daughters, [309]*309who were ages 12 and 14 at the time. Father and his then-wife had another daughter, B, around 1993. No allegations of improper treatment of any of those children are in the record. Father testified at the jurisdictional hearing that he continued to maintain contact with B.

In 1994, father was charged with and convicted of first-degree sodomy based on his conduct with his cousin. He was incarcerated for that crime until 2001. While in prison, he did not receive sex-offender treatment. After he was released, he was ordered to participate in such treatment but was terminated from the treatment program without having completed it, at least in part because he was unable to pay the treatment provider’s fee.

Mother and father met around 2009. Before they met, mother was married to another man, Benoit, with whom she lived in the State of Washington. Mother and Benoit had two children together. The first child, S, was born in Washington in 2007. When S was three months old, he was taken to a hospital because of respiratory distress. The hospital performed a bone scan on S and found “old fractures and breaks.” The Washington Department of Social and Health Services took custody of S. A child protective services worker, Hopfauf, interviewed mother. Mother told Hopfauf that she had “a really bad temper” and that, about a month earlier, she and Benoit had argued about whether to put S up for adoption because they were unsure that they were able to adequately parent the child. During the argument, mother grabbed S by the ankle and held bim upside down in the air until Benoit took the child from her. S had not been injured in that incident, but Hopfauf made a finding of physical abuse.

Washington’s child protective services initiated dependency proceedings and referred mother to a number of programs and services, including parenting classes and anger-management classes, which mother did not complete. After the first hearing in the dependency proceedings, Benoit became abusive toward mother, forced her into their car, and drove to Oregon, eventually stopping in Medford. Mother never returned to Washington, and her parental rights to S were terminated by default.

[310]*310While living in Medford, mother had her second child, J, in September 2008. DHS took protective custody of J at the hospital when he was three days old. According to mother, Benoit panicked the next day and they left Medford and moved to Crescent City, California. Two or three months later, mother left Benoit and went to Grants Pass. Shortly thereafter, she met father and they became romantically involved.

Father disclosed his sex-offender status to mother “right off the bat.” He told her that he had engaged in sex-offender treatment, and she believed him. She felt that he was safe around children because of how much time had passed, how old he was at the time of the offenses, because “people can change,” and because he had had treatment. Mother, in turn, told father about S and J having been removed from her care.

In connection with dependency proceedings involving J, mother was ordered to undergo a psychological evaluation and to follow any recommendations stemming from it. She was diagnosed with a personality disorder with dependent and borderline features. According to the psychologist who conducted the evaluation, O’Connell, mother perceived the events that led to her involvement with DHS as “largely the result of the behavior of others, primarily [Benoit], and did not seem to have much recognition into the role that she had in events that resulted in harm befalling her children.” O’Connell also opined that mother’s dependent personality meant that “one of the ways she copes with the challenges of life is to find someone that she perceives to be very strong, establish a strongly allied relationship with that person, and then do whatever is necessary in order to maintain that relationship.” He stated that, because of her dependent personality, mother

“would likely find herself in situations where she has to choose between the welfare of her children [and] the continuation of her relationship.
“And there are times when one should depart from a relationship in order to keep one’s children safe. That would be a difficult decision for her because her personality style suggests that she would place much higher priority on continuing her relationship.”

[311]*311O’Connell recommended that mother take parenting classes, anger-management classes, and individual psychotherapy. Mother did not follow those recommendations.

In May 2010, while the proceedings related to J were pending, mother gave birth to A, her first child with father. Before A was born, mother and father rented a residence, paying their rent with funds provided by the Temporary Assistance for Needy Families (TANF) program. (Mother and father have both been unemployed since their relationship began.) DHS took A into protective custody two days after she was born. Because A was removed from mother and father’s care, they were no longer eligible for the TANF program and had to move because they could no longer pay the rent. They began camping on private property outside Grants Pass.

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Bluebook (online)
300 P.3d 1262, 256 Or. App. 306, 2013 WL 1682553, 2013 Ore. App. LEXIS 457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-m-h-orctapp-2013.