Dep't of Human Servs. v. M.E. (In re M.S.), J110095

• Decision Date: 21 February 2013
• Docket Number: A150359.,J110095,J110096
• Citation: 297 P.3d 17,255 Or.App. 296
• Parties: In the Matter of M.S. and M.S., Children. DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent, v. M.E., Appellant.
• Court: Oregon Court of Appeals

255 Or.App. 296

297 P.3d 17

In the Matter of M.S. and M.S., Children.DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent,

v.M.E., Appellant.

J110095, J110096; A150359.

Court of Appeals of Oregon.

Argued and Submitted Nov. 29, 2012.

Decided Feb. 21, 2013.

Megan L. Jacquot argued the cause and filed the brief for appellant.

Justice J. Rillera, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ARMSTRONG, Presiding Judge, and DUNCAN, Judge, and BREWER, Judge pro tempore.

ARMSTRONG, P.J.

Mother appeals a judgment of jurisdiction as to two of her children, M.A. and M.I., twin girls who were 13 years old at the time of the jurisdictional hearing.¹ The juvenile court found that mother's current husband—the girls' stepfather ²—had, on one occasion approximately four years before the hearing, sexually abused M.I.; that mother did not believe that the incident occurred; and, therefore, that the children were at risk of harm sufficient to warrant juvenile court jurisdiction under ORS 419B.100(1)(c). The court also determined that mother's “negative comments” to one of the twins, M.A., created a risk of injury to her emotional and physical well-being. On appeal, mother contends that the trial court erred in concluding that the children were presently endangered, a necessary predicate for jurisdiction under ORS 419B.100(1)(c), “based upon one incident of inappropriate touching four years before the trial,” given that stepfather was assessed not to be a risk to children. She also contends that the court erred in concluding that mother's comments to M.A. “amount[ed] to such harm that the child was endangered.”

In dependency cases such as this one, we have discretion to “try the cause anew upon the record or make one or more factual findings anew upon the record.” ORS 19.415(3)(b). We exercise that discretion sparingly, seeORAP 5.40(8)(c) (appellate court exercises its discretion under ORS 19.415(3)(b) only in “exceptional cases”), and, typically, in the absence of a request from a party concisely stating why de novo review is appropriate, we would not choose to do so. ORAP 5.40(8)(a), (b). However, in this case, although mother does not ask us to apply the de novo standard, she does challenge one of the crucial findings underlying the juvenile court's judgment—namely, that a psychosexual evaluation of stepfather indicated that he did not present a risk of harm to only his biological children. As explained below, 255 Or.App. 296, 297 P.3d at 23–24, we agree with mother that the court's finding does not comport with the uncontroverted evidence in the record, and, because that finding is essential to the court's ultimate conclusion that M.A. and M.I. are presently endangered, we exercise our discretion to review the facts de novo.ORAP 5.40(8)(d)(ii); Dept. of Human Services v. B.B., 248 Or.App. 715, 718, 274 P.3d 242adh'd to on recons.,250 Or.App. 566, 281 P.3d 653 (2012); Cf. Hanscam and Hanscam, 247 Or.App. 207, 219, 268 P.3d 715 (2011). Considering the totality of the circumstances—including, particularly, our finding on de novo review that stepfather was assessed not to present a risk of harm to any child, as well as the express and implied findings of the juvenile court that are supported by the record—we conclude that the twins' “condition or circumstances” are not “such as to endanger [their] welfare.” ORS 419B.100(1)(c).

M.A. and M.I. were born in 1998. Mother and father divorced in 2000. In 2004, mother married stepfather; they have four children together. Father also remarried; he has no children with his current wife. At the time of the events that gave rise to the jurisdictional judgment, father and mother shared custody of M.A. and M.I.; father had them 60 percent of the time and mother had them the remaining 40 percent.

In February 2011, when M.A. and M.I. were in the seventh grade, the school scheduled a meeting with mother and father to discuss concerns about M.A.—in particular, M.A. had fabricated a detailed story to her teacher that she had bone cancer. The meeting included M.A.'s teacher, her school counselor, and the vice principal; M.A. was brought in at the end of the meeting. When the counselor told M.A. about the upcoming meeting, M.A. admitted that she had lied about having cancer; she also told the counselor that she was “scratching” her arm and leg and was not eating lunch. According to the counselor, M.A. felt that mother did not like her and treated her differently from M.I. M.A. then told the counselor about a disclosure that M.I. had made about stepfather—specifically, M.I. had told M.A. that stepfather had touched her inappropriately when M.I. and M.A. were in the fourth or fifth grade. At the meeting, mother and father were told about that disclosure. Father “kind of fell apart” and was supportive of M.A.; mother said that it was a lie and told M.A. that she would be in trouble if she was telling lies. The meeting was on a Friday; M.A. and M.I. spent the following weekend with father, as scheduled.

Father separately talked to both girls about the abuse allegation and, on Monday morning, reported it to the Department of Human Services (DHS), who began an investigation. A DHS caseworker and an officer from the Hillsboro Police Department went to talk to mother. Mother told them that she thought the allegation about stepfather was false. But, she agreed that M.A. and M.I. would stay with father and that stepfather would move out of the home and have no contact with any of the children until the investigation was completed. The caseworker described mother as “cautiously cooperative.” Mother then remained in the home with the other four children and had only supervised visits with M.A. and M.I. Mother requested counseling for M.A. and M.I. as soon as she learned of the disclosures.

Later that week, M.A. and M.I. were evaluated at CARES Northwest (CARES), which provides medical assessments for concerns related to child abuse and neglect. M.A. told the CARES examiner and interviewer what she had disclosed to her teacher—that M.I. had told her about an incident that occurred when they were in approximately the fourth or fifth grade when stepfather was rubbing M.I.'s back as they were watching television together and then he touched her on her front private area. M.A. also acknowledged that she had recently been cutting her arm and leg with an “X–Acto” knife and that she was feeling “stressed” about mother. She told the interviewer that she felt mother favored M.I. over her and that mother sometimes told her that she was stupid. She denied that stepfather had ever touched her inappropriately.

M.I. also told the CARES interviewer about the incident with stepfather. She said that one day, around the time that she was in the fourth grade, she was lying on the couch watching television with stepfather, who was sitting on the couch at her feet. She thought mother and the other children were at the grocery store. M.I. related that stepfather had been rubbing her back with his hand when he moved his hand under her shirt and began rubbing her stomach. She said (and demonstrated using dolls) that his hand then slid down inside the front of her pants, under her underwear, touching the top of her vaginal area. He then pulled his hand out of her underwear and put it over her underwear between her legs, rubbing her front private area. M.I. was confused and scared, and she got up and went to her room. She looked in her “feelings book” to identify how she was feeling and then began writing in her journal her thoughts about what had happened. The journal later disappeared. Stepfather came into her room while she was writing in her journal and asked if she was okay. She said that she was, and he left. She told M.A. the next day about what stepfather had done, but M.A. did not react. M.I. did not tell anyone else, and she indicated that stepfather had never touched her inappropriately again. M.I. said that she had recently told M.A. again about the incident ³ but had told her not to tell anyone because it had been over three years since it had occurred. A physical examination performed at CARES revealed no physical evidence of sexual abuse of either girl.

DHS filed dependency petitions for all six of mother's children on March 8, 2011.⁴ The operative petitions ⁵ allege that M.A. and M.I. are within the jurisdiction of the court under ORS 419B.100(1)(c) based on the following conditions and circumstances:

“A. [Stepfather] sexually abused [M.I.] several years ago. The mother does not believe that the sexual abuse occurred and does not believe that [stepfather] poses a threat of harm to her children. This circumstance places all the children under a current threat of harm.

“B. The mother has made negative comments directly and indirectly to [M.A.] that created a risk of serious loss or injury to [M.A.'s] emotional and physical well being.

“C. [Father] is the legal father of [M.I. and M.A.]. He was married to the mother at the time of [M.I. and M.A.'s] birth.

“D. The father is unable to legally protect [M.I. and M.A.] due to the custody order allowing unsupervised visitation with the mother and requires the assistance of DHS to monitor the mother's contact with [M.I. and M.A.]. This circumstance poses a current threat of harm to [M.I. and M.A.'s] emotional and physical well being.”

Before the jurisdictional hearing, Dr. Colistro, a forensic/investigative psychologist and certified clinical sex-offender therapist, performed a psychological evaluation and psychosexual risk assessment of stepfather. The results of his psychological testing supported the presence of a social anxiety disorder, which was consistent with what stepfather reported. Stepfather's “psychosexual profile as it pertains to sexual violence risk * * * indicate[d] an absence of criminogenic factors.” Colistro stated, “[I...