G. A. C. v. State ex rel. Juvenile Department

182 P.3d 223, 219 Or. App. 1, 2008 Ore. App. LEXIS 360
CourtCourt of Appeals of Oregon
DecidedMarch 26, 2008
Docket7867J; 7867J2 A136614; 8000J; 8000J1 A136621; 8001J; 8001J1 A136622
StatusPublished
Cited by9 cases

This text of 182 P.3d 223 (G. A. C. v. State ex rel. Juvenile Department) 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
G. A. C. v. State ex rel. Juvenile Department, 182 P.3d 223, 219 Or. App. 1, 2008 Ore. App. LEXIS 360 (Or. Ct. App. 2008).

Opinion

BREWER, C. J.

Three children appeal from separate judgments dismissing the state’s petitions for establishment of juvenile dependency jurisdiction over them on the ground that the state and the children had not proved that mother subjected the children to physical abuse or inappropriate discipline, thereby placing the children at risk of harm.1 ORS 419B.100(l)(c). Neither mother nor the state has appeared on appeal. On de novo review, ORS 419A.200(6)(b), we reverse and remand.

The following facts were either undisputed in the record or established by a preponderance of the evidence. See ORS 419B.310(3) (facts alleged in a dependency petition must be established by “a preponderance of competent evidence”). The children named in the petition are V, a girl aged 15; G, a boy aged 16; and A, a girl aged 11. The children were taken into protective custody on March 30, 2007, after the Salem police notified the Department of Human Services (DHS) that officers were in the home and had reason to believe that V had been physically abused. Caseworkers Mawdsley and Silbernagel went to mother’s home to investigate the incident. The caseworkers spoke to mother with police officers present, and they interviewed G and A at mother’s home. Mawdsley also interviewed V in the foster home where V was placed.

Mother admitted to Mawdsley that she had struck V with a wooden spoon and that she probably “took it too far.” Police officers took pictures civ’s upper arm and upper rear thigh that showed red welts and bruising. There were no signs of physical injury to G or A. Officer Zohner, who assisted in the investigation, testified that mother’s demeanor during police questioning was “very relaxed * * * [a]lmost nonchalant.” Zohner testified that the home was “almost immaculate,” and he had the impression that if anything was out of place “it would have been an issue.”

[5]*5Zohner was present while V was questioned. V reported that mother accused V of losing an Oregon Trail food stamp card and was dissatisfied with the way that she had cleaned the bathroom. Mother told V that she had better find the card, but V could not find it. V told police that mother stated that V was going to get a spanking and directed her to “go over to the stair.” V testified that the blows hurt “pretty bad,” rating the pain an eight or eight and a half on a scale from one to ten. V asked mother to stop, but mother refused. V told Silbernagel that she did not feel safe in the home. V had raised welts on her arm and both legs that matched the pattern of the wooden spoon. She also suffered purple bruising. The injuries were observed four hours after mother hit V. Neither A nor G witnessed the incident because mother had instructed them to walk the dogs. When they returned home, mother had left the home in a car, and V asked to use G’s cell phone. V called G’s girlfriend and told her about the incident; G’s girlfriend called her own mother, who reportedly called the police.

A told Silbernagel that she also gets hit with the wooden spoon but that V gets it more. A later denied that mother hits her and stated that mother had questioned her about her earlier statements to the caseworker.

G told the caseworkers that mother “spanks” V and A with a wooden spoon, that such spankings had occurred “many times,” with mother sometimes, but not always, making the girls take off their pants and underwear, bend over, and put their hands on the couch. G said that mother used the spoon only for spanking, and he described it as being two and one-half feet long. According to G, something like this happened once or twice a week. Mother rarely explained why she was hitting. G also testified that mother previously had “knock[ed] [V] upside the head or something.” G told a police officer that mother used to spank G until they were involved in a fight, and G was arrested and placed in a juvenile detention facility. On that occasion, mother scratched G on the chest and shoulders to the point of bleeding and kneed him a couple of times in the genitals. G stated that, since then, mother no longer challenged him.

[6]*6According to G, mother is quick to anger and has mood swings. G did not want to live with mother; he had run away from home the previous summer because he did not feel safe and did not want things to “escalate” in the way that had led to his previous involvement with the juvenile court. G acknowledged that he had been caught bringing girls into his bedroom when mother was not at home and that he had not brought his weekly grade reports home as mother had requested.

V testified that mother previously had spanked her with her clothes off. Mother had hit her with an open and closed hand and had hit her on the head. According to V, mother would hit her because “I’m in trouble — because I didn’t do something right.” Once or twice, mother also had pinched Vs throat. However, V testified that mother hit her with the spoon “every time” she got in trouble. Mother also had given V and A bloody noses by hitting them on separate occasions in the past. Once, mother told V “before you call the cops, call the hospital to tell them there’s a dead Mexican in the house.” V testified that she understood that “the dead Mexican” referred to the person who had called the police to report what was happening in the home. V felt threatened by mother and did not want to return to her home.

During questioning by police on March 30, mother’s demeanor changed from confrontive, combative, and aggressive, to passive and silent. Mother had difficulty focusing, answering questions, and tracking information. In Zohner’s experience, “most people” are “more concerned” than mother appeared when questioned about alleged child abuse.

Mother admitted that she had caused Vs injuries by hitting her with a wooden spoon. Mother testified that she hit V “about three times; what I felt was necessary.” Mother testified that she told V to place her hands on the stair rail. Mother then “drew back” to hit V three times and twice V turned around. The first time she grabbed Vs arm and put her back on the stair rail. V turned around again and “that’s how I got her on the arm twice.” Mother described this as “an accident.” She then “made contact” with the back of Vs thigh. Mother testified that she initially told a case worker that she [7]*7might have “gone overboard” in hitting V, but at trial she did not believe that she had done so because previous discipline, including grounding V, locking her out of the computer, and taking away her cell phone, had not worked.

Mother acknowledged that she previously had hit V and has had trouble with V cleaning her room. She testified that, after taking a parenting class, she would not go so far as to spank V until she had been “fighting with her” for two or three weeks and “trying other stuff.” Mother testified that V had gotten into trouble a couple of months before the incident on March 30. According to mother, the “biggest one” was Vs lying about her age and looking like a gangster in a photograph that V posted on MySpace. Mother stated — and V denied — that V also had communicated online with a 27-year-old man.

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Bluebook (online)
182 P.3d 223, 219 Or. App. 1, 2008 Ore. App. LEXIS 360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/g-a-c-v-state-ex-rel-juvenile-department-orctapp-2008.