State v. R. H.

239 P.3d 505, 237 Or. App. 245, 2010 Ore. App. LEXIS 1086
CourtCourt of Appeals of Oregon
DecidedSeptember 15, 2010
Docket090203J; 090203J02; A144082
StatusPublished
Cited by11 cases

This text of 239 P.3d 505 (State v. R. H.) 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 v. R. H., 239 P.3d 505, 237 Or. App. 245, 2010 Ore. App. LEXIS 1086 (Or. Ct. App. 2010).

Opinion

SCHUMAN, P. J.

Father appeals from a judgment of the juvenile court finding jurisdiction over his son, Z, and from parts of the dis-positional judgment in the same case requiring father to undergo counseling in Oregon and to participate in a psycho-sexual risk assessment. He argues, first, that the juvenile court erred in failing to strike several of the allegations in the state’s dependency petition because they were insufficient to establish jurisdiction; second, that, even if those allegations were sufficient, the state failed to prove them by a preponderance of the evidence; and third, that the remedies ordered by the juvenile court do not bear a rational relationship to the jurisdictional findings that brought Z within the court’s jurisdiction. We affirm.

Under ORS 19.415, which went into effect before the notice of appeal was filed in this case, we can choose between reviewing the juvenile court’s findings de novo or applying our usual standard of review. Neither party requests de novo review, and we do not choose to exercise it. We therefore accept the court’s findings of fact if there is any evidence to support them. Ball v. Gladden, 250 Or 485, 488, 443 P2d 621 (1968).

Father and mother have fraternal twins, Z and daughter, who were born in May of 1993. Mother is not party to this appeal and the state has dismissed the petition insofar as it relates to daughter; the appeal concerns only father and the son, Z. In 1999, mother filed a restraining order against father, apparently in response to an incident in which father had physically assaulted Z, and also in response to Z’s accusation that father had sexually abused him. Shortly thereafter, mother and the children moved to Hawaii. Beginning at that point, father stopped having contact with Z.

Eventually, mother and the children returned to Oregon. In 2007, mother contacted the Department of Human Services (DHS) because she was struggling with Z’s behavioral problems and was considering an out-of-home placement. DHS and mother ultimately decided that such a step was unnecessary because mother and Z were undergoing a variety of therapeutic services. However, in 2008, [248]*248mother again contacted DHS to request out-of-home placement for Z, and this time DHS agreed that such placement was in Z’s best interest. Mother signed a voluntary agreement placing Z in the legal custody of DHS. Father, still not in contact with the family, was not a party to the agreement. Z was first placed at Maple State, and then, in November 2008, he was transferred to St. Mary’s, a residential treatment facility for adolescent boys. He was, and at the time of the hearing he remained (in the court’s words), “a vulnerable child with important psychological burdens.”

In the spring of 2009, father returned to Oregon to join the family after a 10-year absence. When Z’s DHS caseworker learned about father’s return, she alerted mother to concerns about father living in the family home, where daughter still lived, because of the past sexual and physical abuse allegations against him. Mother told the caseworker that she had reason to believe that the allegations were not true, but agreed not to allow father to have unsupervised time with daughter. Since his return, father has contacted Z through a few letters and two visits, both in June 2009.

Aware of Z’s earlier accusations of sexual abuse, Z’s caseworker explored that topic with him. He consistently told her that his statements about his father’s physical and sexual abuse were true, and he never recanted to the caseworker. However, Z’s therapist testified that, when she discussed the abuse with Z after father had reestablished contact, Z’s recollection began to change. He reportedly told her, “It is okay that [father] abused me. I don’t care,” and, later, “Maybe it wasn’t even my dad. Maybe my mom told me it was dad. * * * Maybe it was someone else. Maybe I don’t even remember it, and mom just told me.” The therapist concluded, and the trial court agreed, that Z was confused about the issue of father’s abuse.

In July 2009, DHS caseworkers visited the family home to reevaluate the family plan. DHS was trying to learn why mother and father were not more involved and what could be done to help the family. After speaking with DHS at the home visit, mother signed an agreement to participate in services, and father orally agreed to undergo a psychosexual evaluation.

[249]*249About a week after that meeting, mother, father, and daughter moved to Hawaii with no warning to Z or DHS. Circumstances suggest, and the trial court found as fact, and we agree, that the parents “fled Clackamas County and the state of Oregon to avoid involvement with” DHS. Only after she had arrived in Hawaii did mother call Z to let him know that the family had relocated. Because mother was no longer in Oregon, DHS terminated the voluntary custody agreement and took Z into protective custody.

A dependency hearing was held in November 2009. At the time, mother and father were still in Hawaii and were not allowed to appear by phone; consequently, neither testified at the hearing. After the presentation of evidence by Z’s caseworkers and therapists, the juvenile court found that Z, who was 16 years old, was within the court’s jurisdiction. The court made the following findings:

“Specifically the Court finds, consistent with the allegations of the amended petition, that [Z] has accused his father of sexually abusing him.
“Secondly, that the father fled Clackamas County and the state of Oregon to avoid involvement with the child welfare agency.
“* * * * *
“Father has abandoned the child.
“The father lacks a relationship with the child [and] needs the assistance of a child welfare agency to establish a safe and meaningful relationship with the child.
“Those findings are consistent with the conclusion under ORS 419B.100; that in the first place, under (1)(a), [Z] is beyond the control of the parents since they are now in Hawaii, and he is left here in Oregon.
“The Court makes a further finding that [Z], although he is 16 years old, is a vulnerable child with important psychological burdens. He is not the kind of child, as some are at 16, that could be described as, for example, self-reliant. He is not. He needs his parents. He needs the benefit of adult supervision. He needs the benefit, now under these circumstances, of the Department of Human Services.
[250]*250“Secondly, I find that consistent with [ORS] 419B.100 his condition or circumstances are such as to endanger the welfare of [Z], since he is vulnerable and his parents are not here.
“* * * * *
“And further, consistent with the allegation of the petition, under [ORS 419B.100(1)(e)], the Court finds that * * * [Z’s] father has very little to do with his life.
“* * * * *

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Cite This Page — Counsel Stack

Bluebook (online)
239 P.3d 505, 237 Or. App. 245, 2010 Ore. App. LEXIS 1086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-r-h-orctapp-2010.