Dep't of Human Servs. v. F. Y. JR D. (In re I. T. M.)

• Decision Date: 29 January 2020
• Docket Number: A171156
• Parties: In the MATTER OF I. T. M., a Child. Department of Human Services, Petitioner-Respondent, v. F. Y. D., JR., Appellant.
• Court: Oregon Court of Appeals

302 Or.App. 9

459 P.3d 947

In the MATTER OF I. T. M., a Child.

Department of Human Services, Petitioner-Respondent,

v.F. Y. D., JR., Appellant.

A171156

Court of Appeals of Oregon.

Submitted November 8, 2019.

January 29, 2020

Shannon Storey, Chief Defender, Juvenile Appellate Section, and Holly Telerant, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

ARMSTRONG, P. J.

In this juvenile dependency case, father appeals the juvenile court’s judgment establishing jurisdiction over T. After an incident in which T nearly died when father violated a no-contact order and allowed T to come into unsupervised contact with mother, who gave T methadone to help him sleep, the Department of Human Services (DHS or the department) alleged against father three grounds for jurisdiction that were additional to the basis for jurisdiction established in a separate case.¹ The juvenile court established jurisdiction under ORS 419B.100(1)(c) on the basis that the conduct alleged by DHS as additional grounds for jurisdiction exposed T to a threat of serious loss or injury that was likely to be realized in the absence of juvenile court jurisdiction. Father challenges the court’s denial of his motion to dismiss those alleged grounds for jurisdiction, arguing that, because his sister—T’s aunt—was available to care for T while father served about four to five more months of incarceration, DHS failed to present sufficient evidence of a current threat of harm to T. DHS responds in the main that father failed to preserve his argument that the availability of T’s aunt as a primary caregiver meant that there was not a current risk of harm, and, in any event, asserts that the record supports the juvenile court’s determination.²

For the reasons explained below, we conclude that father did preserve his argument that the availability of his sister as a primary caregiver while he was in prison meant that there was no current risk of harm to T, but that, nevertheless, because father entrusted T to his sister for only the few months that he would be in prison, the juvenile court did not err in taking jurisdiction based on its finding that it was likely that father would assume his parental responsibilities when released and that that posed a risk of harm to T given father’s poor judgment and decision making. We affirm.

BACKGROUND

Neither party requests that we exercise our discretion to review this case de novo , and we decline to do so. ORAP 5.40(8)(c). Consequently, "we view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court’s disposition." Dept. of Human Services v. N. P. , 257 Or. App. 633, 639, 307 P.3d 444 (2013). We state the following facts in in accordance with that standard.

In October 2017, father and mother had a physical altercation, for which father was convicted of fourth-degree assault and strangulation and placed on probation.³ Two conditions of father’s probation were that he not have contact with mother and that he not drink alcohol. Mother gave birth to T in July 2018, unbeknownst to father. T had to stay in the NICU for a week to recover from the effects of in utero exposure to methadone

. In September 2018, when T was about six or seven weeks old, mother called father’s sister, Ivanez, asking if Ivanez would watch T. Ivanez agreed and, when she saw T, observed that something was clearly not right with him and took him to the hospital. Ivanez and T’s doctors speculated that T had ingested methadone through mother’s breastmilk. Father met Ivanez at the hospital, and Ivanez suggested that father take a paternity test to determine whether he was T’s father.

DHS was contacted, placed T in foster care, and filed a dependency petition. Father obtained paternity testing, and the results confirmed that he was T’s biological father. In November 2018, the juvenile court took jurisdiction over T, based, as to father, on father’s admission that he needed the help of DHS and the court to develop a relationship with T and to protect him. On November 10 or 11, DHS placed T in father’s care, designating Ivanez as a safety-service provider, who would check up daily on father and the baby and notify the caseworker if she had any concerns. Father was aware that T had methadone

in his system when he was born and had been exposed to methadone in September.

Father complied with the probation condition that he have no contact with mother until an incident that occurred shortly after Thanksgiving in 2018. Mother called father and asked him to bring T—who at the time was about four months old—to visit her and her sister, Westfall, for the holidays. Father was hesitant but, wanting T to have a relationship with mother, relented, believing that he and mother’s sister could protect T. That is, father knew that "there’s rules and everything" but, because he was a "human being" for wanting to foster the bond between T and mother, father brought T to Westfall’s home. While there, father permitted mother to hold T without leaving T alone with mother. Father had brought two or three beers to Westfall’s home and drank them during dinner and a movie; mother’s sister persuaded father to stay the night. Father and mother slept on the floor with T in a car seat between them. Father fell asleep; he was eventually awakened by someone screaming that T was not breathing. Father saw that T was out of his car seat, bluish in color, and had difficulty breathing. Father immediately began to administer CPR to T and yelled for mother or Westfall to call 9-1-1. At some point, mother fled Westfall’s home and then communicated to Westfall that she had given T methadone

. Father continued CPR until emergency responders took over and administered Narcan, which improved T’s condition, and father rode with T to the hospital.

At the hospital, T was given more Narcan

, and his condition became stable. While at the hospital, father was observed to be loving, caring, and attentive. When father’s probation officer learned of the incident, he arrested father for violating the terms of his probation, namely, that he not drink alcohol or have any contact with mother. Father was placed in custody, and T was returned to the foster-care placement that he had been in before he had been placed with father. Mother was also arrested, and she was eventually sentenced to 40 months’ incarceration for convictions of causing another person to ingest methadone and third-degree assault. DHS filed the petition at issue in this appeal, alleging additional bases for the court’s jurisdiction—that father’s criminal behaviors and attendant consequences interfere with his ability to safely parent T, that father failed to comply with his probation requirements, including having no contact with mother, which presents a threat of harm to T, and that father permitted T to have unsupervised contact with mother despite the department’s directives.⁴

At the jurisdictional hearing in April 2019, father indicated that he would be released from custody in September of that year. He also testified that he had executed a power of attorney to Ivanez for T, because he wanted T to be with his family, his sister specifically, whom father described as trustworthy and someone who had always been involved in T’s life. Father expressed his desire for Ivanez to be a custodial resource for T "while [he was] locked up" and that he would not be in prison for a long time. Further, father responded "Yes" when asked if the purpose of the power of attorney was that, "just in case the state DHS child welfare case were to go away, you would have a placement for your son with your sister?" Father’s attorney introduced into evidence the document by which father conferred power of attorney—for a six-month period of time from April 4, 2019—to Ivanez to exercise his parental rights as to T regarding the care and custody of T, including decisions about childcare and medical care. Father also testified that it was his understanding that Ivanez was certified by DHS as a foster parent.

Ivanez also testified. Ivanez was certified by DHS as a foster parent for her two nephews, and father’s attorney moved to introduce the certification into evidence. When DHS objected to the certification as not relevant, the court overruled the objection based on father’s attorney’s statement that he would be arguing that father "has an appropriate relative [who] could temporarily take care of his son, and this goes to that, and I think it would undercut any of the State’s arguments to that end." Ivanez went on to say, both on direct and cross-examination, that she was willing to take care of T on a temporary and permanent basis.

Ivanez was willing to "be there like a mother for him," "forever" if necessary. At one point, T’s attorney asked Ivanez what she would do if father were released "tomorrow" and revoked the power of attorney, and Ivanez replied that she did not know what she would do and that she trusted father with T.

Faughnan, a DHS caseworker, testified that father and father’s family had been advocating for a relative placement and that DHS was in the process of certifying Ivanez and Ivanez’s daughter but that, "at this point in time we didn’t want to move the baby, just for the least amount of disruptions. This kiddo was going through withdrawals at the time and the foster family had already known the baby’s schedule, was able to figure out he wasn’t sleeping well at night * * *." Aside from the disruption, Faughnan did not have concerns about placement with father’s family and she indicated that family members were possible long-term resources for T. When the juvenile court asked the department’s attorney why that was relevant,...