State Ex Rel. Juv. Dept. v. TS

164 P.3d 308, 214 Or. App. 184
CourtCourt of Appeals of Oregon
DecidedJuly 18, 2007
Docket0600288JV1 0600288JV2 0600288JV3 0600288JV4 0600288M A133851
StatusPublished

This text of 164 P.3d 308 (State Ex Rel. Juv. Dept. v. TS) 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
State Ex Rel. Juv. Dept. v. TS, 164 P.3d 308, 214 Or. App. 184 (Or. Ct. App. 2007).

Opinion

164 P.3d 308 (2007)
214 Or. App. 184

In the Matter of K.S., A.S., B.S., and N.S., Minor Children.
STATE ex rel. JUVENILE DEPARTMENT OF KLAMATH COUNTY, Respondent,
v.
T.S., Appellant.

0600288JV1; 0600288JV2; 0600288JV3; 0600288JV4; 0600288M; A133851.

Court of Appeals of Oregon.

Argued and Submitted February 8, 2007.
Decided July 18, 2007.

*309 James J. Spindor, Klamath Falls, argued the cause and filed the brief for appellant.

Judy C. Lucas, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and WOLLHEIM and SERCOMBE,[*] Judges.

*310 SERCOMBE, J.

Mother appeals a judgment extending jurisdiction of the juvenile court over her four children. Mother contends that the state failed to prove that any of the children's "condition or circumstances are such as to endanger the welfare of the person * * *," the statutory basis for jurisdiction alleged in the dependency petition. ORS 419B.100(1)(c). On de novo review, ORS 419A.200(6)(b), we find that the Department of Human Services (DHS) presented sufficient evidence to prove that the welfare of the children was endangered by their circumstances. Accordingly, we affirm the judgment.

Mother and father lived together with their four children: K, a 14-year-old girl; and three boys, A, B, and N, ages 11, nine, and five years, respectively. The children recently had been adopted by father. On May 26, 2006, DHS was notified of a concern about sexual abuse of K by father. Tara Westfall, a DHS caseworker, interviewed K, and K disclosed numerous incidents of sexual abuse by father over the past three to four years. Initially, DHS and the parents agreed to place all four children with their maternal grandmother and to prohibit any interaction between the children and father. Later, K complained of pressure from the grandmother to recant the sexual abuse claims. DHS personnel and the parents met on May 31 and agreed on a safety plan. Under the plan, K was placed in foster care. The boys were to stay with mother with "no case discussion," and father would stay with his mother-in-law and have no contact with the children except during visits monitored by DHS.

A dependency petition was filed on June 1, 2006. The petition alleged that the children were under the jurisdiction of the court pursuant to ORS 419B.100(1)(c). Paragraph 8(A)(1) of the petition alleged:

"A. The children, [K, A, B, and N], are currently residing under a threat of harm for sexual abuse, to wit:
"1. The father * * * has sexually abused [K] on repeated occasions since the child was approximately 11 years old. The mother * * * does not believe that the sexual abuse has occurred, and does not believe that her husband * * * poses a threat of harm to her children. This circumstance places all of the children, [K, A, B, and N] under a threat of harm for sexual abuse."

On July 17, mother and DHS agreed to a modification of the safety plan, which continued to prohibit contact between mother and father and continued the restrictions on father's interactions with the children. A shelter hearing was held on July 24. Because the evidence showed that mother continued to be unsupportive of K and was influencing the brothers to resent their sister, the court placed the brothers in foster care.

The jurisdictional hearing occurred on August 30. Only Westfall and mother testified. Westfall testified about her May 26 interview with K, during which K disclosed "numerous incidents of sex abuse." During that interview, K stated to Westfall that she had disclosed the abuse to mother and grandmother when she was 11 years old, but recanted after threats by father. Mother's attorney objected to Westfall's testimony about a conversation with mother. The state's attorney suggested that "it would be appropriate to just proceed at this moment with a prima facie [case] against dad, with mom and her attorney maybe out of the courtroom, and then we could continue with mom afterwards." The court approved the idea, suggesting to mother's attorney that "you may want to just withdraw and not participate * * *." Mother's attorney demurred, stating "we'll stay in the room and listen" but "won't participate in this part." The court ruled that, "at this point in time, we will be going forward on the evidence based only on the prima facie [case] for father."

With that understanding, the examination of Westfall continued. The caseworker detailed K's description of the nature and history of the sexual assaults. K told Westfall about discovering a fictional book written by father, describing in graphic detail a father raping his young daughter and other children. Westfall stated that she had recovered the book and read it; she testified that "a lot *311 of the details in the chapter were similar to some disclosures that [K] had made." Westfall further testified that father had been investigated in California for sexually abusing his 12-year-old step-daughter in 1994 and his six-year-old biological daughter in 1996. Neither case resulted in a criminal prosecution. Based on that testimony, the court found that "there is a basis for jurisdiction under [paragraph] 8(A)(1) [of the petition] to take jurisdiction over the children and father in this matter." The court allowed that the state's attorney could "still question Ms. Westfall in regard to [mother's] case."

"Mother's case" resumed. Westfall testified that mother was aware of the "prior allegations" from California, but did not believe that father had abused the other children. She also stated that mother was aware of the contents of the book, but was not concerned for the safety of her children. Westfall reported that K was present at a cousin's birthday party, also attended by her brothers, mother, and other relatives. According to K, her brothers were "mean to her, were not wanting to speak with her, they were telling her that they didn't believe her, that she was lying." The oldest brother complained about $10,000 being spent for a lawyer's retainer. That upset K and made her cry. K told Westfall that mother had laughed at her tears. K's recounting of the birthday party episode with her brothers was the catalyst for the July 24 shelter hearing that resulted in different custodial arrangements for the brothers.

Next, Westfall summarized her interview of the brothers. All three were supportive of their parents and felt that K was lying about the sexual abuse. None reported having been sexually abused by father.

Westfall opined that a risk of harm existed for all of the children because mother was unwilling to accept the truth of K's accusations and to take the necessary steps to protect the children from father.

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State ex rel. Juvenile Department v. T. S.
164 P.3d 308 (Court of Appeals of Oregon, 2007)

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Bluebook (online)
164 P.3d 308, 214 Or. App. 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-juv-dept-v-ts-orctapp-2007.