Dep't of Human Servs. v. B.B. (In re K.B.)

• Decision Date: 14 March 2012
• Docket Number: 073010BRE2,073010BRE3,J100514,073010BRE1,A147229.,A147228,J100512,A147227 (Control),J100513
• Citation: 248 Or.App. 715,274 P.3d 242
• Parties: In the Matter of K.B., a Child.DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent, v. B.B. and K.M.N., Appellants.In the Matter of E.B., a Child.Department of Human Services, Petitioner–Respondent, v. B.B. and K.M.N., Appellants.In the Matter of S.B., a Child.Department of Human Services, Petitioner–Respondent, v. B.B. and K.M.N., Appellants.
• Court: Oregon Court of Appeals

248 Or.App. 715
274 P.3d 242

In the Matter of K.B., a Child.DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent,
v.
B.B. and K.M.N., Appellants.In the Matter of E.B., a Child.Department of Human Services, Petitioner–Respondent,
v.
B.B. and K.M.N., Appellants.In the Matter of S.B., a Child.Department of Human Services, Petitioner–Respondent,
v.
B.B. and K.M.N., Appellants.

J100512

J100513

J100514

073010BRE3

073010BRE1

073010BRE2

A147227 (Control)

A147228

A147229.

Court of Appeals of Oregon.

Argued and Submitted May 12, 2011.Decided March 14, 2012.

[274 P.3d 243]

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

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

Greg Rios, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

[274 P.3d 244]

NAKAMOTO, J.

[248 Or.App. 718] In this dependency case, father and mother appeal the juvenile court's judgments taking jurisdiction over their children, K., E., and S., under ORS 419B.100(1)(c). The parties dispute whether the Department of Human Services (DHS) proved that father and mother were endangering the welfare of the children, as DHS alleged in its petition to the court to take jurisdiction. Father, who discontinued sex offender treatment in April 1999, and mother contend that the minimum quantum of evidence to support jurisdiction—evidence of likely harm to the children, current at the time of hearing in 2010—is lacking. We exercise our discretion under ORS 19.415(3)(b) to review the facts de novo and agree that some of the juvenile court's findings of fact, including its key finding regarding risk to the children, are not supported by the evidence, and the findings that are supported by the record are insufficient to establish that the current condition or circumstances of the children are such as to endanger their welfare, the touchstone for jurisdiction under ORS 419B.100(1)(c). We therefore reverse the judgments.

Under ORS 19.415(3)(b), “the Court of Appeals, acting in its sole discretion, may try the cause anew upon the record or make one or more factual findings anew upon the record.” Although in the vast majority of cases, we now do not review a juvenile dependency proceeding such as this one under the de novo standard, we choose to do so in this case, even though no party has requested it, because the trial court's most important factual findings either plainly do not comport with uncontroverted evidence in the record or are inconsistent with other express factual findings. See ORAP 5.40(8)(d)(ii) (a consideration relevant to whether the court makes findings anew upon the record is whether “the trial court's decision comports with its express factual findings or with uncontroverted evidence in the record”). Although we state the following background facts consistently with the juvenile court's ultimate conclusion to take jurisdiction, we make findings anew upon the record when we discuss the allegations against father and mother.¹

[248 Or.App. 719] In the past, father physically and sexually abused children, and he was sexually abused when he was a child. In 1994, when he was 21 years old, father was convicted of criminal mistreatment for physically abusing his then-girlfriend's preschool-aged children. She had left the children in his care while she was looking for work in another state. Father struck the three-year-old girl, who lost consciousness, and also struck her brother. He eventually took the children to the emergency room and admitted hitting the children in anger. Father served a prison sentence and was released on post-prison supervision in 1996.

One of the conditions of his supervision was that he undergo a sex offender evaluation and complete any recommended treatment. The Department of Corrections characterized

[274 P.3d 245]

him as a “predatory sex offender,” stemming from information that a counselor in prison had obtained concerning father's own history of being sexually abused as a child and information in a presentence report that father, in addition to striking the three-year-old girl in his care, had sexually abused her. Father admitted to his probation officer, Bergey, that he had orally sodomized the girl and had masturbated in her presence.

[248 Or.App. 720] In August 1996, Cannon, a licensed clinical social worker, conducted a mental health and sex offender evaluation of father. In the evaluation report, Cannon noted that the medical staff who examined the three-year-old girl conducted a pelvic examination, which showed “mild bleeding of her genitals and significant engorgement of the veins of her rectum.” Father also admitted that, when he was or 12, he had orally sodomized a one-year-old girl he was babysitting and had orally and anally sodomized a four-year-old boy he was babysitting. Father said that he regularly viewed adult pornography. Cannon concluded that father was “in heavy denial that he has a sexual problem” and that his “steady diet of pornography and his lack of a regular sexual partner makes the risk even greater.” Father, she concluded, was “both a physical and sexual risk to children,” and she recommended that he be required to “enter and successfully complete a sexual offender treatment program.”

Father began sex offender treatment with Doyle, but failed to attend treatment regularly. After father viewed child pornography in February 1998, Doyle discontinued treatment in March 1998. Father then resumed treatment with a different provider, Shannon, who worked with him in 1998 and 1999. Father admitted to mother that he had again viewed child pornography in July 1998, and she reported his conduct to Shannon and Bergey. Also in 1998, mother reviewed father's history, completed chaperone training, and signed a document approved by Shannon and Bergey in which she acknowledged that father's post-prison supervision conditions included that he have no contact with minor children. She also promised to be responsible for ensuring that father was not left alone with children and to contact Bergey and Shannon should father engage in inappropriate behavior. Mother and Shannon also discussed safety plans for children when they were around father. Father's post-prison supervision then ended in April 1999, and father discontinued his treatment in May 1999 without completing it.

Mother and father were living together in 1999, when mother was pregnant with their first child. Because father had discontinued sex offender treatment, Shannon [248 Or.App. 721] notified Bergey in May 1999 to let him know that he had concerns about father's ability to be “sexually safe around children” at that point. Father and mother's initial contact with DHS occurred in 1999, when their first child, K., was born. DHS then put a “no-contact order” in place to keep father from contacting K without permission from Shannon.

Near the end of 1999, mother and K. moved to Ohio, where mother has family. Father followed several months later, arriving in Ohio in January 2000. Initially, for the first two to three years in Ohio, father lived with mother's sister and brother-in-law, while mother lived with her mother. Eventually, father and mother had the two other children at issue, E. and S., and lived together as a family. Father and mother also had a fourth child, who has special needs and who lives with her maternal grandmother in Ohio. For most of the time that the family was in Ohio, father worked as a long-haul truck driver. Father was laid off in 2008 and had recently resumed working in Oregon before the trial.

Mother testified that Ohio child welfare authorities became involved when DHS contacted them, but that the Ohio authorities “had no issues with [father] being around children” and permitted father to live with her and the children. As mother testified, the condition that Ohio child welfare authorities wanted was for mother, not father, to have legal custody of the children. Mother also introduced a 2006 Ohio magistrate decision, which showed that the Ohio juvenile court was aware of father's “whole history about the sexual offending” and the earlier requirement that he engage in sex offender treatment. DHS employees did not provide contrary evidence. Instead, they acknowledged

[274 P.3d 246]

that they had reviewed written records from Ohio's child welfare authorities, that a petition in the Ohio juvenile court had been filed based on the potential risk to the children posed by father and by mother's knowledge of father's sex-offending history, that Ohio authorities had closed the case, and that father had lived in the home with mother and the children. Father was not required to complete sex offender treatment before Ohio authorities terminated the case involving father and mother. Ohio juvenile court records from 2007 also showed that the same magistrate permitted father to visit with mother and father's special-needs child without restriction.

[248 Or.App. 722] In July 2010, mother and father moved back to Oregon. Soon after the family's return, DHS filed petitions alleging that K., E., and S. were within the jurisdiction of the juvenile court. At the time of trial, K. was 11, E. was 9, and S. was 4 years old.

Our analysis begins with the allegations against father. DHS alleged that the juvenile court had jurisdiction over each of the children and parents under ORS 419B.100(1)(c), which provides that the juvenile court “has exclusive original jurisdiction in any case involving a person who is under 18 years of age and * * * [w]hose condition or circumstances are such as to endanger the welfare of the person or of others.” The key inquiry for determining whether jurisdiction lies under ORS...