L. D. v. T. J. T.

360 P.3d 746, 274 Or. App. 430
CourtCourt of Appeals of Oregon
DecidedOctober 21, 2015
DocketJ110571; Petition Number 00199702; A159069
StatusPublished
Cited by2 cases

This text of 360 P.3d 746 (L. D. v. T. J. T.) 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
L. D. v. T. J. T., 360 P.3d 746, 274 Or. App. 430 (Or. Ct. App. 2015).

Opinion

NAKAMOTO, J.

In this juvenile dependency case, ward appeals the juvenile court’s order denying ward’s motion to dismiss jurisdiction, terminate wardship, and vacate the guardianship. He assigns error to all three of the court’s rulings. In 2001, the juvenile court took jurisdiction over ward and his younger sister and half-brother when ward was six years old. Two years later, the court appointed ward’s aunt and uncle (guardians) as his legal custodians and guardians. In 2015, at the time of the combined guardianship review and jurisdictional hearing leading to this appeal, ward was 19 years old.

In his first assignment of error, ward contends that the juvenile court should have dismissed jurisdiction because guardians failed to prove that the facts that gave rise to jurisdiction to persist. That assignment challenges whether the proponents of wardship — in this case, guardians— met their burden to show that the factual bases for jurisdiction “persist to the degree that they pose a current threat of serious loss or injury that is reasonably likely to be realized.” Dept. of Human Services v. J. M., 260 Or App 261, 267, 317 P3d 402 (2013). We resolve the appeal on ward’s first assignment of error and conclude that the court should have dismissed jurisdiction. That conclusion necessarily resolves ward’s second and third assignments of error, concerning the juvenile court’s refusal to terminate the wardship and to vacate the guardianship, in ward’s favor.1 Accordingly, we reverse and remand with instructions to dismiss jurisdiction, terminate the wardship, and vacate the guardianship.

Ward does not request that we exercise our discretion to undertake de novo review, ORS 19.415(3)(b) (providing for discretionary de novo review of certain equitable actions), and we decline to do so. See ORAP 5.40(8)(c) (stating that we exercise de novo review “only in exceptional cases”). On appeal, when reviewing a juvenile court’s jurisdictional determination, “we view the evidence, as supplemented and buttressed by permissible derivative inferences, [432]*432in 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. R., 257 Or App 633, 639, 307 P3d 444 (2013); see also Dept. of Human Services v. D. H., 269 Or App 863, 865-66, 346 P3d 527 (2015) (applying standard). We review the juvenile court’s conclusions for legal error, and we are bound by its findings of historical fact unless there is no evidence to support those findings. Dept. of Human Services v. C. Z., 236 Or App 436, 442, 236 P3d 791 (2010).

I. FACTS

The following facts are taken from the juvenile court’s findings, as supported by evidence in the record, and supplemented with procedural or undisputed facts as needed.

A. Earlier Juvenile Court Proceedings Leading to the Guardianship

In 2001, the Department of Human Services (DHS) removed ward, who was six years old, and his younger sister and half-brother from mother’s custody and filed a petition for the juvenile court to assume jurisdiction over the children. Shortly after, ward and his sister were placed with guardians.

At the 2001 jurisdictional hearing, mother stipulated to the following six bases for jurisdiction:

“The said children’s conditions and circumstances are such to endanger the welfare of the children, to wit: [1.] The children’s mother * * * has failed to protect the children from contact with [MC, mother’s then partner,] and father of her youngest child * * * who has physically abused [ward] and [ward’s sister], [2.] DHS has founded physical abuse of [ward] and [ward’s sister] on four occasions. Two incidents of physical abuse by [MC] and two separate [incidents] of physical abuse by [mother]. *** [3. Mother] witnessed [ward] being injured and did not protect him. [4.] She endangered the children further by protecting [MC], hiding the children and lying about their whereabouts during the DHS/LEA investigation. * * * [5. Ward] has special educational, medical and counseling needs. *** [6. F]ather of [ward] and [ward’s sister], is a convicted, unsuccessfully [433]*433treated sex offender. [Father] is allowed no contact with children.”

The juvenile court exercised jurisdiction over the children based on the six stipulated bases. The court committed ward and his siblings to the legal custody and guardianship of DHS. The court also ordered mother and MC to actively participate in and to complete certain counseling and parenting services.

In 2002, the juvenile court changed the permanency plan from reunification to guardianship for ward and his sister, determining that DHS had made reasonable efforts to make it possible for the children to safely return home by providing mother and MC with various services but that neither placement with the parents nor adoption was appropriate because the children were “extremely traumatized and they ha[d] significant mental health and behavioral issues [.]” The record on appeal is unclear regarding the nature of those issues and the nature of ward’s educational, medical, and counseling needs that existed when the court assumed jurisdiction in 2001.

In 2003, DHS filed a motion for protective supervision and to appoint legal custodians and guardians under former ORS 419B.370 (2003), renumbered as ORS 419B.372 (2013).2 The juvenile court held a second permanency hearing, considered DHS’s motion, and concluded that, while ward and his sister would remain under the jurisdiction of the court, guardians would have legal custody and guardianship of the children as an incident of wardship, in lieu of DHS.

Specifically, the court found that the children’s mental health and behavioral needs had not significantly [434]*434changed since the first permanency hearing and that the children could not be safely returned to mother’s custody. The court also found that ward and his sister could not be safely returned to their father because he was incarcerated pending resolution of sexual-abuse charges. The court determined that ward’s aunt and uncle were suitable guardians for the children because they had provided foster care for them since 2001 and had provided for the children’s mental health and behavioral needs. The court concluded that it was in the best interests of the children to be placed under the protective supervision of the court under ORS 419B.331.3 It granted guardians legal custody of the children and appointed them as their legal guardians as an incident of custody. Contemporaneously, the court removed DHS as legal custodian and guardian of the children. Lastly, the court ordered guardians to provide an annual written report regarding the children to the court and to DHS.

B. The 2015 Combined Guardianship Review and Jurisdictional Hearing

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Related

Dept. of Human Services v. C. M. D.
300 Or. App. 175 (Court of Appeals of Oregon, 2019)
Department of Human Services v. S. M. H.
388 P.3d 1204 (Court of Appeals of Oregon, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
360 P.3d 746, 274 Or. App. 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/l-d-v-t-j-t-orctapp-2015.