Dep't of Human Servs. v. C. T. (In re C. T.)

• Decision Date: 01 November 2017
• Docket Number: A164163 (Control), A164292
• Citation: 288 Or.App. 593,406 P.3d 191
• Parties: In the Matter of C. T., fka C. T.-W., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. C. T., fka C. T.-W., and J. W. T., Appellants. In the Matter of S. D.-F. T.-W., a Child. Department of Human Services, Petitioner-Respondent, v. J. W. T., Appellant.
• Court: Oregon Court of Appeals

288 Or.App. 593

406 P.3d 191

In the Matter of C. T., fka C. T.-W., a Child.

DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

v.C. T., fka C. T.-W., and J. W. T., Appellants.

In the Matter of S. D.-F. T.-W., a Child.

Department of Human Services, Petitioner-Respondent,

v.J. W. T., Appellant.

A164163 (Control), A164292

Court of Appeals of Oregon.

Argued and submitted August 2, 2017.

November 1, 2017

Tiffany Keast argued the cause and filed the brief for appellant J. W. T.

Ginger Fitch argued the cause and filed the brief for appellant C. T.

Nani Apo, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

ORTEGA, P. J.

In this consolidated juvenile dependency appeal, father appeals judgments asserting jurisdiction over children, C and S, and C appeals the judgment asserting jurisdiction over him.¹ ORS 419B.100(1). Father contends that the Department of Human Services (DHS) failed to prove its allegations that exposure to domestic violence endangered the children at the time of the jurisdictional hearing and that his substance abuse interfered with his ability to safely parent them. As for the challenge to the substance abuse determination, the state concedes that that was error, and we accept the concession. C contends that DHS failed to prove that his paternal grandfather, who had admitted to sexually abusing his own two daughters when they were children, was a threat to C's welfare, which was the basis for the juvenile court's determination that mother and father were unwilling and unable to protect him from harmful and dangerous circumstances. C raises three assignments of error, asserting that the juvenile court erred by admitting expert testimony from a clinical social worker and a DHS caseworker and arguing that there was no nexus connecting grandfather's history of sexual abuse to any risk of harm to him. Further, subsequent to the juvenile court taking jurisdiction of the children, it dismissed jurisdiction on the state's motion, but father asserts that the appeal is not moot. For the reasons explained below, we agree with father that the appeal is not moot. We affirm, however, the jurisdictional judgment based on the allegation other than the substance abuse allegation.

I. BACKGROUND

C, but not father, requests de novo review. ORAP 5.40(8)(c) ; ORS 19.415(3)(b). We conclude that this is not an exceptional case that merits such review and, accordingly, we "view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that out-come."

Dept. of Human Services v. N. P. , 257 Or.App. 633, 639, 307 P.3d 444 (2013). We "assume the correctness of the juvenile court's explicit findings of historical fact if these findings are supported by any evidence in the record." Id . We present the facts consistently with that standard.

DHS's petitions involving children were precipitated by two incidents in particular. The first took place in August 2014 when S's aunt reported that S, who was seven years old at the time of the jurisdictional hearing, had possibly been sexually abused while she was staying at grandparents' home. S did not live with grandparents but intermittently stayed with them. C, 11 years old at the time of the hearing, had lived with grandparents for much of his life. Detective Yerrick conducted the investigation into the reported abuse and interviewed both C and S. S told Yerrick that "she did not want [her grandfather] to go to jail." Yerrick also interviewed grandfather, who admitted to abusing his own two daughters when they were young but denied ever having sexually abused S. Grandfather also admitted to walking around his home naked in front of C. Parents were interviewed and informed of Yerrick's investigation. They were told that grandfather had admitted to abusing his two daughters. The case was presented to the district attorney's office, but a decision was made not to prosecute grandfather. DHS made a founded disposition that grandfather had sexually abused S and that there was a threat of harm of sexual abuse to C because parents allowed C to stay with grandfather after DHS made parents aware of its concerns.

The second incident occurred on February 14, 2016. Mother, who has a history of residential instability and had lived apart from father since August 2014, needed a place to live and moved herself and the children into father's small one-bedroom house. On February 14, parents argued heatedly about mother's boyfriend. Mother tried to leave, but father blocked the door. Mother tried pushing father out of the way and eventually threw a glass at father, which hit him in the side. Both C and S were in the bedroom during the argument, and S actually saw mother throw objects at father. The argument was not an isolated incident; mother and father argued frequently, which was what had led mother to separate from father in the first place, and mother had obtained a restraining order against father at one point. The fight left S feeling "[k]ind of sick" and C was "weirded out." Mother called grandparents, who picked up mother and children and took them to grandparents' home, where they spent the night. Mother, however, had been previously informed by DHS that it had deemed grandparents' home unsafe for the children. DHS was notified on February 16 of both the altercation and that C and S had spent a night at grandparents' home.

At the time of the jurisdictional hearing, which took place in October and December of 2016, parents had been married for eleven years but were no longer living together. DHS alleged, among other things and as relevant on appeal, that father "is unable and/or unwilling to protect" C and S "from harmful and/or dangerous circumstances" and that C and S had been "exposed to violence and/or domestic violence while in [father's] care * * *." To prove the allegations that grandfather was a threat to C's safety, DHS adduced a report and testimony from Dr. Steinhauser, a clinical social worker. That testimony and the juvenile court's rulings on the parties' objections to it are discussed further below, but the thrust of the testimony was that, given grandfather's history of sexually abusing children, which was never treated or punished, grandfather posed a risk to C. Huston, a DHS caseworker (whose testimony is also challenged by C), testified to the circumstances leading to the founded disposition that grandfather had sexually abused S and that C's welfare was endangered.

S testified in chambers but did not recall, or denied, that grandfather abused her in 2014, and she repeated that she did not want him to go to jail. Grandfather also testified, admitting that, although he was not exactly sure how long he had abused his own daughters by "rubbing" his hands on their "rear end and hips," the abuse may have occurred over a period as long as six months. According to grandfather, he stopped sexually abusing his daughters when he "found the Lord." The police interviewed his daughters around the time of the abuse of them occurred, but did not pursue further investigation. Grandfather also testified that he had been diagnosed by his doctor as suffering from the early stages of dementia. He testified that he had occasionally walked around naked in front of C but had stopped after grandmother got upset and told him not to do it anymore.

C testified that grandfather had never touched him in a way that made him feel uncomfortable and that he wanted to live with grandparents. Neither father nor mother believed that grandfather was a threat to C, and father took the position that he wanted C to live with grandparents.

The court took jurisdiction over C and S, determining that their circumstances were such as to endanger their welfare. ORS 419B.100(1)(c) (the juvenile court has jurisdiction when "conditions or circumstances are such as to endanger the welfare" of the child). The court found that the children had been exposed to domestic violence and determined that domestic violence between mother and father was a current threat to the children. That was because:

"1. [Mother and father] have been married for 11 years, were married at the time of the hearing, and are still married.

"2. During their marriage there has been a history of separation and reunification.

"3. As noted, [mother] has a history of residential instability. She testified that she began to reside with [father] in January 2016, not for any romantic reason, but because she needed a place to live. On the other hand, [father] was romantically interested in [mother], which culminated in the argument on Valentine's Day because of her interest in [another man]. In the future, either [father's] romantic interest in [mother]; or [mother's] constant need for shelter, will likely cause them to reunite."

As for the danger posed by grandfather, the court found persuasive the testimony of Steinhauser that grandfather

"was a threat to reoffend [because] an admitted sex offender, who has not suffered any consequences as a result of his criminal conduct; and thus has never had treatment, continues to be a serious risk to reoffend, even at age 83."

The court also found that it was "more likely than not that [S] was sexually abused by [grandfather]" and that S's allegation of abuse was credible despite her recantation. Moreover, the court found it inappropriate that grandfather walked around the house naked in front of C. In sum, the court found "the evidence *** overwhelming" and determined that "[C] should not be in the care of [grandparents]." Persuaded by Steinhauser's testimony that grandfather was a threat to reoffend based on his history of abusing his daughters, the court determined that DHS had proven its...