Dep't of Human Servs. v. M. F. (In re E.B.)

432 P.3d 1189, 294 Or. App. 688
CourtCourt of Appeals of Oregon
DecidedNovember 7, 2018
DocketA167705
StatusPublished
Cited by5 cases

This text of 432 P.3d 1189 (Dep't of Human Servs. v. M. F. (In re E.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. M. F. (In re E.B.), 432 P.3d 1189, 294 Or. App. 688 (Or. Ct. App. 2018).

Opinion

HADLOCK, P. J.

*689The Department of Human Services (DHS) filed a dependency petition in 2017 after it received reports that mother and her five-year-old child were homeless, that mother was using drugs in child's presence, and that mother was neglecting child, who has significant disabilities that require constant attention. Father, who had not lived with mother and child for about two and a half years at that point, contacted the agency. DHS then filed an amended petition adding two allegations related to father, specifically that child is endangered because (1) father needs assistance from the court and the state to meet child's basic and special needs, and (2) father is "unable to protect the child from the mother because he lacks full custody." The juvenile court entered a judgment asserting jurisdiction over child on those two bases, as well as bases related to mother's residential instability and need for assistance in meeting child's needs.1 On appeal, father argues that the record does not support the juvenile court's assertion of jurisdiction on the two bases related to his alleged inability to care for and protect child. We agree and, accordingly, reverse.

Father has not requested that we exercise our discretion to review de novo , ORS 19.415(3)(b), and this is not an exceptional case in which we find de novo review appropriate. See ORAP 5.40(8)(c) (we review de novo "only in exceptional cases"). Accordingly, in reviewing the dependency judgment, we "view the evidence, 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 P.3d 444 (2013). In this case, the juvenile court issued a detailed and thoughtful letter opinion. We are bound by the court's explicit and necessarily implied findings of historical fact, as expressed in that letter and elsewhere in the record, as long as any evidence supports them. Id. at 639-40, 307 P.3d 444. We state the facts in accordance *690with that standard, setting them out in some detail because of the significance of child's special needs and the juvenile court's concern that father would not follow through with meeting those needs.

Child was born in early 2012 and she initially lived with both parents. Father moved out when child was about two years old. Sometime in 2015, father saw that mother "was having some other issues," and so he took child into his home. Child remained in father's care for about one month. During that period, child twice got out of father's home, was found unsupervised in a parking lot, and was returned to father by police officers. Father installed child-proof locks on his doors after the second incident, at a police officer's instruction. Although child exhibited pica at that early age, father did not feel that her needs rose to the level of developmental disabilities; he testified that child's *1191doctor then was unsure whether child had special needs or was just being "a toddler."2 Child did have the opportunity to participate in an early-intervention program of some sort, but father did not take her to that program.

After child had been living with father for about a month, mother came to father's home with police officers. Father had not yet been legally determined to be child's father and he did not have a custody order. Accordingly, he relinquished child to mother in the police officers' presence. Although the record is not entirely clear on this point, it appears that a juvenile court asserted jurisdiction over child at around this same time; it also appears that the court dismissed jurisdiction in late 2015, when mother was in a residential treatment facility and had a few months of sobriety. By that point, DNA testing had confirmed father's paternity.

Father did not have contact with child for the two and a half years that passed between mother taking child from father's home and when DHS became involved again in late 2017. Father testified that, at some point, DHS told him that mother was competent to care for child and that mother and child were in a treatment facility. During that *691time, father did not seek to learn child's whereabouts from DHS, he blocked mother from sending him messages via Facebook (because she was "rude and derogatory"), and he did not seek information about child from other family members who were on good terms with mother. Father explained at trial that he and mother "have had numerous domestic violence situations" and he thought it could get "physical" again if they saw each other. He testified that he therefore stayed away from mother for his own safety and for child's safety. Father acknowledged that he had some concerns that mother's volatility would pose a risk to child. When asked what he did to try to mitigate that concern, father answered, "Honestly, I did nothing."

Child came to DHS's attention again in 2017, after DHS received reports that mother was neglecting child, who was then five years old. Child subsequently was assessed with significant disabilities, including autism spectrum disorder, cognitive and motor skills delays, and pica. Child is mostly non-verbal, does not use a toilet independently, and will eat feces and other non-edible, hazardous items if not constantly supervised. Child sleeps only three to five hours each night and therefore requires round-the-clock supervision. She also needs assistance with all activities of daily living.

Child's current DHS caseworker, who works primarily with developmentally disabled children, testified that child has the highest needs of any developmentally disabled child on her caseload. Child lives in foster care in Marion County and, since mid-2017, she has had a caseworker with the Marion County agency that provides services to individuals with developmental disabilities. That caseworker, Winslow, testified similarly that child needs support for all activities of daily living.

DHS filed a jurisdictional petition in September 2017 and an amended petition in October 2017, after father contacted the agency. The amended petition included the following allegations involving father, who lives in east Portland, near Gresham:

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Cite This Page — Counsel Stack

Bluebook (online)
432 P.3d 1189, 294 Or. App. 688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dept-of-human-servs-v-m-f-in-re-eb-orctapp-2018.