Dep't of Human Servs. v. J. J. JR B. (In re J. J. B.)

418 P.3d 56, 291 Or. App. 226
CourtCourt of Appeals of Oregon
DecidedApril 4, 2018
DocketA165461
StatusPublished
Cited by13 cases

This text of 418 P.3d 56 (Dep't of Human Servs. v. J. J. JR B. (In re J. J. B.)) 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. J. J. JR B. (In re J. J. B.), 418 P.3d 56, 291 Or. App. 226 (Or. Ct. App. 2018).

Opinion

AOYAGI, J.

*227The juvenile court asserted jurisdiction over J, a five-year-old girl, based on parents' substance abuse and domestic violence in parents' home. Father appeals the jurisdictional judgment. He argues that DHS failed to prove that any domestic violence occurred. With respect to substance abuse, father does not deny drug use but argues that DHS failed to prove that parents' drug use creates a non-speculative risk of serious loss or injury to J that is likely to be realized in the absence of dependency jurisdiction. For the reasons that follow, we agree with father that DHS's evidence was insufficient to establish jurisdiction. Accordingly, we reverse.

I. FACTS

When reviewing a judgment of jurisdiction, we determine whether, on the record before it, the juvenile court erred in making the statutorily prescribed determination. Dept. of Human Services v. N. P. , 257 Or.App. 633, 639, 307 P.3d 444 (2013). We view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the juvenile court's disposition and assess whether, when so viewed, the record was legally sufficient to permit the outcome. Id . at 639-40, 307 P.3d 444. We state the facts in accordance with that standard, as well as including uncontroverted historic and procedural facts.

In December 2016, DHS received a report that J was exposed to a dangerous person. A DHS caseworker interviewed J at school and interviewed parents at their home. DHS did not find sufficient evidence to proceed and was in the process of closing the case when, on February 3, 2017, DHS received a report regarding a concerning photo on J's phone. On February 4, 2017, an employee of Jackson County Children's Advocacy Center interviewed J. A DHS caseworker and two police officers observed the interview. DHS determined that J had taken the photo herself, resolving the concern about the photo.

During the course of the interview on February 4, J made certain disclosures unrelated to the photo. First, she disclosed that parents smoke marijuana. J said parents told *228her that they "smoke pot," and she described their bong as see-through with a star on it. J stated that parents keep the pot (by which she appears to mean the bong) on top of their "secret stuff" in a little box. She does not know what is in the box because it is secret.

J also admitted that parents sometimes fight or argue. In J's own words:

"Q: Do mom and dad ever have fights or arguments?
"A: Yeah they do * * *.
"Q: So tell me what happens when mom and dad have arguments.
"A: They just fight fight fight fight fight and fight and it's just that it hurts my feelings. I think that dad's gonna-last time my dad fighted so bad in our old house he punched a hole in the wall and guess what I think that's gonna happen again. He said no.
"Q: So dad punched a hole in the wall?
"A: Yeah when we were in our old house but he's not gonna do it ever again. He's not gonna fight in front of me ever again.
*59"Q: Have you ever seen dad punch anything else that's different from the wall?
"A: No.
"Q: When mom and dad have arguments does anyone ever hit?
"A: No he just hits his arm.
"Q: When mom and dad have arguments does anyone ever cry?
"A: No.
"Q: And you said it hurts your feelings?
"A: It doesn't hurt my feelings so bad I cry."

As a result of those disclosures, a DHS caseworker, accompanied by two police officers, went to visit J's parents later the same day. Parents were living at a motel. Mother was alone in the motel room when DHS and the police *229arrived. As she opened the door, the officers could see a small lock box lying open on the bed with cash and a baggie of white powder visible inside it. The officers were questioning mother when father arrived. They arrested father for possession and distribution of methamphetamine. They ultimately seized a baggie of suspected methamphetamine and $927 from the lock box on the bed, an electronic scale and another baggie of suspected methamphetamine from the motel room safe, a methamphetamine pipe and a baggie of marijuana from an unspecified location in the motel room, and a bong from the motel room bathroom.

DHS immediately went to grandmother's house and took custody of J. The parties agree that the record is sparse as to J's precise living arrangements at that time. However, J was splitting her time in some manner between staying with parents at the motel and staying with grandmother at grandmother's house. When DHS went to the motel on February 4, J had been staying with grandmother since at least the previous evening and possibly longer. At the motel, a DHS caseworker spoke with mother about the possibility of eventually placing J with grandmother. In that process, she asked mother some questions about drug use and safety. Mother denied recent drug use. When asked about the wall-punching incident that J mentioned, mother confirmed that father had punched a hole in the wall at one time and that it scared her. Asked if she felt safe in the home, mother answered, "Most of the time." She did not elaborate.

On February 6, parents met with a DHS caseworker, who questioned them about their drug use. Both denied being under the influence of methamphetamine at the meeting, but the caseworker suspected that they were. As for historic drug use, mother admitted that she and father had "relapsed," that they had been using methamphetamine for three and a half months, and that things "started to really go downhill for them" after DHS's visit in December. As mother described their illegal drug use to the caseworker, father interrupted mother, saying, "You need to stop talking and shut up." The meeting ended shortly thereafter. Through a window in her office, the caseworker saw parents walking to their car to depart. She could not hear *230what father was saying but perceived that he was angry and yelling at mother.

DHS filed a dependency petition, alleging jurisdiction over J on five bases:

"A. The [mother]'s substance abuse interferes with her ability to safely parent the child.
"B. Domestic violence in the mother's home creates a harmful environment for the child.
"C.

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Bluebook (online)
418 P.3d 56, 291 Or. App. 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dept-of-human-servs-v-j-j-jr-b-in-re-j-j-b-orctapp-2018.