Dep't of Human Servs. v. M. E. (In re C. L. S.)
| Decision Date | 04 March 2020 |
| Docket Number | A171718 (Control),A171721,A171720,A171719 |
| Parties | In the MATTER OF C. L. S., a Child. Department of Human Services, Petitioner-Respondent, v. M. E., Appellant. In the Matter of C. J. S., a Child. Department of Human Services, Petitioner-Respondent, v. M. E., Appellant. In the Matter of K. M. E., a Child. Department of Human Services, Petitioner-Respondent, v. M. E., Appellant. In the Matter of K. A. E., a Child. Department of Human Services, Petitioner-Respondent, v. M. E., Appellant. |
| Court | Oregon Court of Appeals |
Tiffany Keast, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.
Philip Thoennes, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and Powers, Judge, and Brewer, Senior Judge.
In this consolidated appeal, mother appeals judgments taking dependency jurisdiction over her four children.1 The juvenile court took jurisdiction over the children based on its determination that mother’s alcohol problem—along with the children’s fathers’ admissions that they, too, required the assistance of the Department of Human Services (DHS) to ensure that the children were safely parented—endangered the children. Mother contends that the court legally and factually erred in determining that the children were at risk of harm in view of mother’s plan to enlist the help of family members to assist her while she dealt with her alcohol problem. We conclude that the court applied the wrong legal standard in evaluating whether dependency jurisdiction was warranted and, accordingly, reverse and remand.
The key facts are not disputed. Mother has a significant problem with alcohol that interferes with her ability to safely parent her children on her own. After an incident in which mother hit one of her children while she was intoxicated, DHS and mother entered into a protective action plan with mother’s aunt, the children’s great-aunt. Under the plan, mother’s children were to stay with the aunt, with mother having only supervised contact with the children. Mother complied with the protective plan while it was in place.
After the children had been in the aunt’s home for five days, DHS removed them. It did so because of 20-year-old "founded" allegations involving the aunt’s husband. In the incident that led to the "founded" determinations, the aunt’s husband, who was intoxicated at the time, became involved in an altercation with a friend that resulted in an injury to a child. The aunt’s husband stopped drinking after the incident, and no similar incidents have occurred. Shortly after removing the children from the aunt’s home, DHS filed dependency petitions with respect to each child.
In the meantime, mother worked with the aunt and the aunt’s adult daughter, who lived in the same house, to develop a care plan for the children. Under that plan, which was very close to the same protective plan that DHS had put into place initially, the children would live with the aunt and her adult daughter, and they would care for the children until such time as mother was able to resume their care, even if it took months or years.
At the jurisdictional hearing, which took place about two months after DHS first removed the children from mother’s care, mother had been in inpatient treatment for her alcohol problem for a week. Mother argued that, in view of the plan that she had made for the children’s care, the juvenile court could not conclude that the children were presently at risk of harm from mother’s alcohol problem. In support of that argument, she referred the juvenile court to our decisions in Dept. of Human Services v. A. B. , 271 Or. App. 354, 350 P.3d 558 (2015), and Dept. of Human Services v. A. L. , 268 Or. App. 391, 342 P.3d 174 (2015), both cases in which we concluded that DHS failed to establish that the children at issue faced the sort of loss or harm that would justify dependency jurisdiction in view of the role that third-party caregivers were playing in the children’s lives. The court rejected mother’s argument, distinguishing those cases on the ground that, in each case, the third-party care arrangement predated DHS involvement:
The court concluded that mother’s alcoholism posed a risk to the children based on what it had heard about how it had affected them but expressed hope that DHS might nonetheless place the children with mother’s aunt. It thereafter entered the jurisdictional judgments on appeal.
On appeal, mother assigns error to the juvenile court’s determination that dependency jurisdiction was warranted as to each child. She argues that the court erred when it determined that our decisions in A. L. and A. B. did not control because those cases involved third-party caregiving arrangements that preexisted DHS involvement. She contends that the principles at play in A. L. and A. B. are not so limited, because our other decisions recognize that third-party care arrangements, no matter when established, can be sufficient to render children safe, thereby precluding dependency jurisdiction. Mother further asserts that, when the record is viewed under the...
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