Dep't of Human Servs. v. M. T. J. (In re E. J.)

• Citation: 304 Or.App. 148,466 P.3d 702
• Decision Date: 13 May 2020
• Docket Number: A172295
• Parties: In the MATTER OF E. J., a Child. Department of Human Services, Petitioner-Respondent, and E. J. and K. S., Respondents, v. M. T. J., Appellant.
• Court: Court of Appeals of Oregon

304 Or.App. 148

466 P.3d 702

In the MATTER OF E. J., a Child.Department of Human Services, Petitioner-Respondent,andE. J. and K. S., Respondents,

v.M. T. J., Appellant.

A172295

Court of Appeals of Oregon.

Argued and submitted February 11, 2020.

May 13, 2020

Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services, argued the cause and filed the briefs for appellant.

Inge D. Wells, Assistant Attorney General, argued the cause for respondent Department of Human Services. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Christa Obold Eshleman argued the cause and filed the brief for respondent E. J.

Ginger Fitch filed the brief for respondent K. S.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

DEHOOG, J.

Father appeals a juvenile court judgment establishing jurisdiction over his child, E, raising 24 assignments of error. In his first five assignments of error, father contends that the court erred in precluding him from presenting or eliciting evidence at the jurisdictional hearing related to mother's history and instead limiting the evidence to the facts of the petition, which, essentially, implicate only father's conduct.¹ DHS, mother, and child respond, variously, that father failed, in full or in part, to preserve his arguments; that, in any event, the court's ruling was correct; and that, even if the court erred, the error was harmless. As we explain below, we conclude that the court committed reversible error in granting mother's motion in limine to exclude father's evidence, and, on that basis, we reverse and remand for further proceedings. That disposition obviates the need to address father's remaining assignments of error.²

The circumstances surrounding DHS's involvement with this family are somewhat unusual. However, we limit our recitation of the facts to those needed as context for the narrow legal questions addressed in this opinion. Unless otherwise noted, those facts are undisputed.³

E was born in November 2012 in North Carolina; mother and father were separated around that time.⁴ Neither parent had a formal custody order, but E has been in father's primary care since she was between one and two years old.⁵ Mother has seen E only one time since then (for "about a week"), although the two sometimes spoke by phone or Skype.⁶ By 2017, father and E had moved to Oregon. Mother now lives in Arizona.

On May 21, 2019, the Department of Human Services (DHS) filed a dependency petition asserting that E was within the juvenile court's jurisdiction due to conditions and circumstances endangering her welfare. See ORS 419B.100(1) (setting out bases for dependency jurisdiction). With regard to mother, DHS alleged that mother "has been unable to protect [E] from the father's behavior," that she "has been unable to successfully assert custody to protect [E]," and that mother "was subjected to domestic violence by the father and [she] has been unable to protect [E] from exposure to father's violence." As to father, DHS alleged that E "has been injured by father's physical outbursts"; father "has anger control problems that interfere with his ability to safely parent [E]"; E "has been exposed to domestic violence by the father"; father "has engaged in a pattern of domestic violence with others [with whom] he has had a relationship" and "has not successfully addressed his violent behavior or ameliorated this conduct"; father "does not understand or acknowledge the impact his domestic violence has on [E]"; and father "does not understand [E's] need for a calm, violence-free, and structured home."

The petition was adjudicated over five days in September 2019. At the start of the jurisdictional hearing, mother made an oral motion in limine :

"Your honor, I'm making a motion to limit the father's testimony. In part, the petition alleges three things as to my client which really go to her ability to protect [E] from violence in the home and her ability to assert custody of [E] given the allegations. My understanding is that the father may be making allegations against the mother which (unintelligible) inaccurate, irrelevant, and they violate my client's right to due process, so I'm asking that the testimony that's being provided about my client stay within the confines of the petition that's been alleged ."

(Emphasis added.) Father objected, stating:

"The issue before the Court is what is the safety concerns regarding both parents; both parents are listed on the petition, part of our case, Your Honor, is what DHS chose not to do, what DHS chose not to investigate, DHS’[s] hasty decision. And I think part of that is going to be all of the information that they could have found out about the mother when they found out about the mother when they made their plan. So I do think that is relevant, her history is relevant to this case."

The colloquy between the court and the parties continued:

"[MOTHER'S COUNSEL]: And my client would respond by saying that the agency did due diligence and I see cases that it's conducted, my client was vetted, a recommendation was made for placement, there are no safety concerns, and I think this is not a domestic relations case and I would argue that we need to keep again the evidence confined to what's been plead [sic] in the petition .

"* * * * *

"[CHILD'S COUNSEL]: Thank you. As child's attorney we support mother's motion in limine, believing that as she stated this is not a domestic relations case, this is a petition filed by the State and the State is intervening to assert that there are jurisdictional bases and bases that place [E] in danger. At this time I believe that the evidence should be limited to the State's petition , it's not a free-for-all, this is the time and place to adjudicate this petition.^[7]

"* * * * *

"[FATHER'S COUNSEL]: Your Honor, as the parties and Court is aware, the Court is never limited just to the allegations in the petition. Whatever evidence –

"THE COURT: Well, I think I beg to differ; I think there are appellate cases that say when you go beyond the terms of a petition that's basis for reversal of assumption of jurisdiction. Anyone argue with that? I told you I keep up on recent cases and there is a recent case that I think does say that.

"[FATHER'S COUNSEL]: Your Honor, I'm referring to evidence that comes in at trial , for instance, if there were testimony that came in when there was only issues of substance abuse if testimony came in through the parties that, for instance, that touched on mental health when it wasn't alleged, the Court wouldn't just ignore that if it came into evidence; I believe the Court would consider that –

"THE COURT: What's the difference between this and that? What's the difference?

"[FATHER'S COUNSEL]: Between?

"THE COURT: The two hypotheses you are putting forward?

"[FATHER'S COUNSEL]: Your Honor, I think again part of our case is that DHS has not fully investigated the mother; that when they began this they made decisions hastily, that they chose not to look into information against the mother when they made decisions. And they still have through that narrow tunnel vision have proceeded in this case.

"THE COURT: Okay.

"[FATHER'S COUNSEL]: So we do think that is –

"THE COURT: Okay. The motion in limine is granted."

(Emphases added.)

Later in the hearing, when cross-examining mother, father's counsel made an offer of proof that, but for the court's ruling on the motion in limine , counsel would have elicited information about the gaps in time between mother's contacts with E when E was in father's care, and about mother's opportunities to see E. Counsel stated that the evidence

"would document different stays at treatment centers for drug treatment; also a hospitalization in a mental health facility which I think would account for times when she was not available to have contact with her daughter. And I think that would be impeachment material against that. In essence, there were times that she wasn't able to reach out to her daughter because of things that were going on in her life, not that [father] was preventing her from doing so."

Still later, father's counsel made an offer of proof that, through cross-examination of a DHS child-welfare worker, Calvin, father "would be able to show inconsistent statements by the mother based on information that has been provided in an August 15th, 2018, assessment."

At the conclusion of the hearing, the juvenile court found that DHS had proved all of the allegations in the petition by a preponderance of the evidence and concluded that E was within the court's jurisdiction. Regarding mother, the court found that she "in effect, admits [that the allegations regarding her] are true * * * with the addition that the only way those conditions can be ameliorated is with the Court's involvement and the Department of Human Services involvement." The court expressly found father not credible with respect to his denial of domestic violence—noting "his selective memory, how he can remember details in some instances and not remember a restraining order he filed," and that "[h]is tone of voice, his body language tells me when I know he's not telling me the truth." Continuing on to disposition, the court authorized DHS to place E with mother in Arizona, with regular phone or Skype visits with father, and that they begin family counseling. The court also required father to enroll in parenting classes, to engage in anger management, domestic violence, and batterers’ intervention programs as directed by DHS, and to undergo a psychological examination.

The court entered a judgment of jurisdiction and disposition in accordance with those oral rulings, which father now appeals.

Because they raise "essentially the same legal questions," father presents a combined argument with respect to his first five assignments of error, focusing on the court's allowance of mother's motion in limine to limit father's testimony.⁸ As refined and...