Dep't of Human Servs. v. D. W. M. (In re K. R. M.)

437 P.3d 1186, 296 Or. App. 109
CourtCourt of Appeals of Oregon
DecidedFebruary 13, 2019
DocketA166682
StatusPublished
Cited by9 cases

This text of 437 P.3d 1186 (Dep't of Human Servs. v. D. W. M. (In re K. R. 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
Dep't of Human Servs. v. D. W. M. (In re K. R. M.), 437 P.3d 1186, 296 Or. App. 109 (Or. Ct. App. 2019).

Opinion

ORTEGA, P. J.

*111This is a juvenile dependency case in which father appeals a judgment finding child, his 14-year-old daughter, to be within the jurisdiction of the juvenile court based on findings that father perpetuated domestic violence against mother and that father's substance abuse interfered with his ability to safely parent. Father argues that the juvenile court erred in denying his motion to dismiss and in asserting jurisdiction over child under ORS 419B.100(1)(c) because the Department of Human Services (DHS) failed to prove that either his perpetuation of domestic violence or his use of alcohol created a threat of serious loss or injury to child.

DHS and child cross-appeal, challenging the juvenile court's dismissal of DHS's allegation that father's sexual abuse of child endangers her welfare.1 DHS argues that, in *1189light of the juvenile court's explicit finding that father sexually abused child, the juvenile court's dismissal was in error and inconsistent with the undisputed evidence.

In a dependency case, 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). However, we exercise that discretion only in exceptional cases. ORAP 5.40(8)(c). Here, although none of the parties request de novo review, we view this as an exceptional case for several reasons. First, we conclude that the juvenile court's decision that father does not pose a current risk of sexual abuse to child does not comport with its express factual findings that father sexually abused child and her older sister in the past, or with the uncontroverted evidence in the record that father continued to treat child in a sexualized manner after he stopped sexually abusing her. ORAP 5.40(8)(d)(ii) (a relevant consideration for the appellate court in determining whether to take de novo review is whether the "trial court's decision comports with its express factual findings or with uncontroverted evidence in the record"). Second, the juvenile court made express factual findings, and those express findings allow us to infer the juvenile court's implicit findings *112as to witness credibility. ORAP 5.40(8)(d)(i) (the appellate court is to consider whether "the trial court made express factual findings, including demeanor-based credibility findings" in deciding whether to take de novo review). Finally, when a juvenile court declines jurisdiction after finding that a parent sexually abused a child, and the court's factual findings related to that determination are ambiguous, de novo review may be justified-and we conclude that it is here-to ensure an expedited resolution to protect the child. See generally ORAP 5.40(8)(d) (stating that the considerations in the rule for reviewing de novo are not binding or exclusive); see also Dept. of Human Services v. T. L. H. S. , 292 Or. App. 708, 715, 425 P.3d 775 (2018) (explaining that the "sole purpose" of juvenile dependency proceedings "is to protect children," and that "[t]he focus is always on the child").

On de novo review, we independently assess and evaluate the evidence and reweigh the facts and reassess the persuasive force of the evidence. Turner and Muller , 237 Or. App. 192, 194, 238 P.3d 1003 (2010), rev. den. , 350 Or. 231, 253 P.3d 1080 (2011). However, "we give considerable weight to the findings of the trial judge who had the opportunity to observe the witnesses and their demeanor in evaluating the credibility of their testimony." Fitts v. Case , 243 Or. App. 543, 552 n. 3, 267 P.3d 160 (2011).

As we explain below, we agree with father that DHS failed to establish a sufficient nexus between father's abuse of alcohol and domestic violence and a nonspeculative risk of serious loss or injury to child and, therefore, we reverse the judgment taking jurisdiction based on those allegations. On the cross-appeal, we agree with DHS and child that the evidence was sufficient to find that father posed a current risk of serious loss or injury to child based on his prior sexual abuse of child and, accordingly, we reverse the juvenile court's ruling rejecting that as a basis for jurisdiction.

Mother and father have been in an intimate relationship for 28 years but they are not married. They have two biological daughters, child, who is 14 years old and a freshman in high school, and child's sister, who is 24 years old and no longer lives in the family home. The parents have separated on and off over the years, but their longest period *113of separation was the two and a half months preceding the jurisdictional hearing.

On July 31, 2017, while child was present in the house, mother and father got into a verbal altercation. At some point during the altercation, father disclosed to mother (and child overheard) that he had touched child's sister inappropriately. Mother later asked child's sister whether father had touched her, but child's sister would not talk to mother about it. Mother also asked child if father had ever touched her, but child denied that he had. Eventually, child admitted to mother's friend, and later to mother, that father had sexually abused her. After child's disclosure, child's sister finally confirmed to mother that father had sexually abused her as well. Father was arrested on September 1, 2017, based on allegations of sexual abuse against child and child's sister.

About three weeks later, DHS petitioned the juvenile court to take dependency jurisdiction *1190over child. The petition alleged that (1) father "sexually abused" child, (2) father "perpetrates domestic violence against * * * mother, in the presence of * * * child," and (3) that father's "substance abuse interferes with his ability to safely parent."2

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Cite This Page — Counsel Stack

Bluebook (online)
437 P.3d 1186, 296 Or. App. 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dept-of-human-servs-v-d-w-m-in-re-k-r-m-orctapp-2019.