A Child. State Of Or. v. S.T.S.

• Decision Date: 03 February 2010
• Docket Number: 090315J; Petition Number 090315JA; A143524 (Control); 090380J; Petition Number 090380JA; A143525.
• Citation: 238 P.3d 53,236 Or.App. 646
• Parties: In the Matter of R.T.S., a Child. STATE of Oregon, Petitioner-Respondent, v. S.T.S., Appellant. In the Matter of K.R.S., a Child. State of Oregon, Petitioner-Respondent, v. S.T.S., Appellant.
• Court: Oregon Court of Appeals

236 Or.App. 646

238 P.3d 53

In the Matter of R.T.S., a Child.

STATE of Oregon, Petitioner-Respondent,

v.S.T.S., Appellant.

In the Matter of K.R.S., a Child.

State of Oregon, Petitioner-Respondent,

v.S.T.S., Appellant.

090315J; Petition Number 090315JA; A143524 (Control); 090380J; Petition Number 090380JA; A143525.

Court of Appeals of Oregon.

Argued and Submitted Feb. 3, 2010.

Shannon Flowers, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.

Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

LANDAU, P.J.

In this juvenile dependency case, the state alleged that father's domestic violence against mother presented a reasonable likelihood of harm to the couple's two children, and the juvenile court took jurisdiction over both children as to father on that basis. Father challenges the court's finding of jurisdiction, arguing that the state failed to prove that his conduct presented a current risk of harm to either of the children. After the case was submitted to this court, the juvenile court dismissed jurisdiction, and Department of Human Services (DHS) now moves this court to dismiss father's appeal as moot. We agree with father that his appeal is not moot, although we agree with DHS that the juvenile court's finding of jurisdiction was appropriate. Accordingly, we deny DHS's motion to dismiss and affirm on the merits.

The relevant facts are undisputed. Mother and father met and began a romantic relationship in 2002; they lived together on and off for the next seven years. During the course of their relationship, they had frequent arguments and would sometimes separate for a period of time afterwards.

At various points, mother reported that father had been violent toward her. In November 2005, four months after the birth of their first child, mother attended a mental health assessment and reported to the assessing counselor that she had been in a “domestically violent situation” with father. In January 2008, mother applied for a domestic violence grant so that she could obtain independent housing; on her application, she represented that she had been in a domestic violence relationship for the previous six years. And, in December 2008, while mother was pregnant with their second child and receiving prenatal care, she reported that father was physically abusive and that he had hit her or kicked her in the previous two weeks. That same month, father threw a diaper bag at mother, which gave her a black eye.

In January 2009, a DHS caseworker scheduled an appointment with mother to investigate concerns about domestic violence between mother and father. Mother-who was in California but had planned to come back to Oregon for the appointment-notified DHS that she would be staying in California indefinitely and would be unable to make the appointment. DHS closed the case as “unable to locate.” Two months later, in March, mother moved back to Oregon and began living with father. In May, mother moved into father's parents' home, although father was not also living there at the time.

In June 2009, DHS learned that mother-still pregnant-had moved back to Oregon and again contacted her to investigate its concerns about domestic violence. At that point, mother told the caseworker about her high-conflict relationship with father; she said that, during their arguments, father would call her names, threaten her, and break her belongings. She also reported that their child had heard them yelling at each other but that he had never seen any act of physical violence. During an interview with another DHS caseworker, the child said that he did not like it when father was mean to mother and that he did not like how father spoke to mother. He said that he would get scared and hide under the covers on his bed.

Shortly thereafter, DHS filed a dependency petition requesting that the juvenile court take jurisdiction of that child. Just a few weeks later, mother gave birth to the couple's second child, and DHS filed a dependency petition regarding that child as well. In both petitions, DHS alleged that domestic violence between mother and father created a “harmful environment” for their children.

In July 2009, mother admitted that father had committed domestic violence against her and that that violence had created a harmful environment for the children; as a result, the juvenile court took jurisdiction over the children as to her.

Both parents testified at father's jurisdiction hearing the next month, in August 2009. At that time, the two children were four years old and seven weeks old. Mother and father testified that they had been living apart for nearly four months and that they had no plans to reunite. They admitted that, during their relationship, they frequently argued with each other, although they denied that any physical violence had ever occurred. The state, however, called witnesses who testified about the numerous occasions on which mother had admitted to being a victim of father's physical violence. The state also called a county mental health specialist who testified that a child in a home where physical violence occurs could also be injured, even if the violence is not directed at the child.

As we have noted, the juvenile court took jurisdiction over both children. The court expressly found that father had committed domestic violence against mother, despite their testimony to the contrary:

“As to both petitions, there is no reasonable doubt in my mind that [father] has been a perpetrator of domestic violence against [mother], and that he's done it often, and that it was both physical and verbal. And I do find that it endangers the welfare of both these children.

“ * * * * *

“I really have to say [father] that your testimony is very convincing as to the opposite of everything you say. You have very specific recollections of everything except the important stuff. And then [mother], I see her as someone who has been emotionally beat down by you, and Post Traumatic Stress, at least. That's my ruling.”

On appeal of the juvenile court's decision, father argues that the juvenile court erred in assuming jurisdiction over the children. Father acknowledges that the state “proved that mother and father lived together off and on for seven years, they sometimes argued and yelled, and father was physically aggressive with mother on two or three occasions, once causing mother a black eye.” Father's argument on appeal is, rather, that the court's factual findings do not meet the legal standard for establishing juvenile court jurisdiction-that is, “[e]ven if the state proved that domestic violence occurred between mother and father in the past, it failed to prove that either child was exposed to more than yelling or arguing or that such exposure may be harmful to a child.” Furthermore, father contends that, due to the parents' testimony that they had been separated for several months at the time of the hearing and had no plans to reunite, “the state failed to prove that any yelling, arguing, or physical altercations continued between mother and father at the time of the jurisdiction hearing or were likely to continue in the future.”

The state insists that it was appropriate for the juvenile court to take jurisdiction of the children because father's domestic violence against mother created a reasonable likelihood of harm to the welfare of the children. According to the state, “[t]he evidence establishing father's repeated violence against mother and the evidence establishing how it has affected [the older child] are more than sufficient to support the juvenile court's conclusion that father's actions endangered the children.” As to whether the state proved that father's domestic violence created a current risk of harm, the state insists that the juvenile court's credibility determination undermines that argument and that the record “establishes that father and mother have a long history of separating, getting back together, and continuing their violent habits.” At the very least, the state concludes, father “is responsible for creating a harmful environment for the children” and that that fact alone is sufficient to establish juvenile court jurisdiction over the children as to him. The state responds that “the [juvenile] court's finding that father has engaged in domestic violence is sufficient for the juvenile court to establish jurisdiction.”

As we have noted, after this case was submitted, the juvenile court entered two judgments “terminating jurisdiction and wardship”-one for each child at issue in this case. The judgments do not specify the basis for the court's decision. In a motion to dismiss, DHS asserts that, given that father's appeal arises from judgments that are no longer in effect, a decision by this court as to the merits in this case would no longer have a practical effect on the rights of the parties and is, therefore, moot.

Father counters that his appeal is not moot. In support of that assertion, he relies on a recent decision of this court, State ex rel. Juv. Dept. v. L. B., 233 Or.App. 360, 226 P.3d 66 (2010), and asserts that the finding that jurisdiction was warranted on the basis of father's domestic violence against the mother “may affect father's employability,” will have an effect in any future investigations by DHS of his or the child's circumstances, and “gives rise to social stigma.”

In L.B., the parents appealed a juvenile court judgment establishing dependency jurisdiction over their newborn based on a finding that the child had sustained a serious, unexplained injury as a result of the conditions and circumstances in the parents' home. Id. at 362, 364, 226 P.3d 66. When the juvenile...