Department of Human Services v. T. E. B.

377 P.3d 682, 279 Or. App. 126
CourtMarion County Circuit Court, Oregon
DecidedJune 22, 2016
Docket15JU05434; A160951
StatusPublished
Cited by5 cases

This text of 377 P.3d 682 (Department of Human Services v. T. E. B.) is published on Counsel Stack Legal Research, covering Marion County Circuit Court, 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. T. E. B., 377 P.3d 682, 279 Or. App. 126 (Or. Super. Ct. 2016).

Opinion

FLYNN, J.

In this juvenile dependency case, the court took jurisdiction over child after father admitted facts that formed one of the alleged bases for jurisdiction. Father appeals, contending that his statements and pro se filings throughout the proceedings demonstrate that father admitted only the fact that he was incarcerated and did not “knowingly or voluntarily” admit to facts sufficient to establish jurisdiction. Father assigns error to the court’s assertion of jurisdiction and to the court’s subsequent refusal to allow father to withdraw his admission. Alternatively, father argues that the jurisdictional judgment must be reversed because father received inadequate representation by trial counsel, rendering the jurisdictional proceeding fundamentally unfair. We conclude that the juvenile court did not err and we affirm without prejudice to father’s right to bring his inadequate assistance of counsel claim under the proceeding set out in ORS 419B.923.

Only the procedural facts are material to this appeal. The Department of Human Services (DHS) removed child from his mother’s care and petitioned the court to assert jurisdiction over child under ORS 419B.100(l)(c), because various conditions and circumstances involving mother and father were “such as to endanger the welfare of the child.” As to father, the petition alleged:

“E. The conditions and circumstances of the child are such as to endanger the welfare of the child by reason of the following facts: The child’s father is incarcerated and unavailable to be a custodial resource at this time;
“F. The conditions and circumstances of the child are such as to endanger the welfare of the child by reason of the following facts: The child’s father has a pattern of criminal behavior and incarceration that disrupts and compromises his ability and availability to adequately and appropriately parent.”

At a hearing regarding the allegations against father, father’s counsel advised that father was “prepared to admit to E, that he is incarcerated and unavailable to be a custodial resource at this time” and that “[t]he State is willing to [129]*129dismiss to F, that reading that he has a pattern of criminal behavior and incarceration.”

Father had previously filed a pro se petition in which he requested a variety of relief, including a “change of custody,” from child’s current placement with an aunt and uncle to “temporary custody” of child with father’s mother (grandmother) or father’s fiancée, who lived with grandmother. This petition also objected to DHS taking custody on the assumption that father “has a criminal past which shows he has a tendency to commit crimes” and requested that the court arrange transportation for child to visit father while father remained incarcerated.

After father’s counsel reported that father was prepared to “admit to E,” the court asked if father was planning to withdraw his pro se petition. Father answered that he did not want to withdraw the petition, and father’s counsel, who first saw the petition at the time of the hearing, indicated that the court could proceed with father’s admission and then address the petition later.1 Father’s counsel also suggested that father’s petition primarily reflected his concern that a criminal history did not prevent him from being an adequate parent.

The court explained to father that he had the right to a trial, at which DHS would have the burden to put on evidence to prove the allegations in the petition and at which father would have the chance to present his own evidence to challenge the DHS evidence. The court further explained that father could waive the trial right and admit to part of the petition if that was his preference. The court then asked:

“[P] aragraph 2E of the petition says, ‘The conditions and circumstances of the child are such as to endanger the welfare of the child by reason of the following facts: The child’s father is incarcerated and unavailable to be a custodial resource at this time.’ Is that true?”

Father responded, “That’s true, ma’am.” The court found this to be “a knowing and voluntary admission.”

[130]*130The court and counsel then engaged in a discussion about remaining issues, including resolution of the allegations against mother, after which father asked to add something “for the record.” He then emphasized “I do have my mother, [child’s] grandmother, and my fiancée that are willing to take care of [child] if that’s what it comes down to. I’m not completely — you know, incapable of taking care of [child], because I do have my mother and my fiancée willing to help me out with [child].”

Father later filed additional pro se motions, including a motion to change counsel, and moved to withdraw his admission. The court granted father’s request for new counsel but denied his motion to withdraw his admission. Before denying father’s motion, the court reviewed “the audiovisual recording of father’s admission” and found “that he expressed a full understanding of what he was admitting, was clear about what he understood that he was (and was not) admitting, and was not coerced or misled about the nature and consequences of his admission.”

We first consider, and reject, father’s contention that his admission was insufficient to establish jurisdiction. In reviewing the juvenile court’s assertion of jurisdiction over a child, unless we exercise our discretion to review de novo, this court views the record “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 that outcome.” Dept. of Human Services v. N. P., 257 Or App 633, 639, 307 P3d 444 (2013).

Here, the court took jurisdiction based on father’s admission that it was “true” that “[t]he conditions and circumstances of the child are such as to endanger the welfare of the child by reason of the [fact that] father is incarcerated and unavailable to be a custodial resource at this time.” Father recognizes that “a party may stipulate to facts supporting jurisdiction.” Dept. of Human Services v. D. D., 238 Or App 134, 138, 241 P3d 1177 (2010), rev den, 349 Or 602 (2011). He contends, however, that his admission that “he was incarcerated and not available to personally provide day to day care” for child is insufficient to establish [131]*131jurisdiction, given father’s proposal to place child in the temporary custody of grandmother. He relies on our decisions in cases such as Dept. of Human Services v. A. L., 268 Or App 391, 400, 342 P3d 174 (2015), in which we held that, in light of the parents’ entrustment of the children to the paternal grandparents, DHS failed to show any connection between the parents’ conduct and a risk of harm to the children.

The principle discussed in our cases like A. L., however, does not require reversal in this case, because father also admitted that his circumstances present a danger to the welfare of his child. In other words, father admitted that his unavailability to parent child presents a danger to child’s welfare despite his proposal to entrust child to the care of grandmother.

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Cite This Page — Counsel Stack

Bluebook (online)
377 P.3d 682, 279 Or. App. 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-t-e-b-orccmarion-2016.