Dep't of Human Servs. v. A.L. (In re H.H.C.), J130504
| Decision Date | 07 January 2015 |
| Docket Number | J130504,J130505,J130506,A156911. |
| Citation | 342 P.3d 174,268 Or.App. 391 |
| Parties | In the Matter of H.H.C., a Child. Department of Human Services, Petitioner–Respondent, v. A.L. and A.S., Appellants. In the Matter of E.E.C.Z., a Child. Department of Human Services, Petitioner–Respondent, v. A.L. and A.S., Appellants. In the Matter of A.E.S., a Child. Department of Human Services, Petitioner–Respondent, v. A.L. and A.S., Appellants. |
| Court | Oregon Court of Appeals |
Megan L. Jacquot argued the cause and filed the brief for appellant A.L.
Sarah Peterson, Deputy Public Defender, argued the cause for appellant A.S. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before ORTEGA, Presiding Judge, and DEVORE, Judge, and GARRETT, Judge.
In this consolidated appeal, father and mother challenge the juvenile court's judgments asserting jurisdiction over their three children. Parents assign error to the court's failure to dismiss the dependency petitions regarding the children and to the court's determination that the Department of Human Services (DHS) proved each allegation in the petitions. Because the record did not permit the juvenile court to determine that the “child[ren's] condition or circumstances gave rise to” a current threat of harm to the children, we reverse and remand.
“[W]e 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 outcome.” 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 state the facts consistently with that standard.
This case concerns three children: A (10 years), E (1 year), and H (3 months). Mother and father live in the paternal grandparents' home. Up until the time of removal, A and E had lived in that home for their entire lives. Father's family is Chinese and of Mien descent. In their culture, large families live together, honoring close cross-generational ties, and grandparents and older relatives often act as primary caregivers to children.
When mother gave birth to A in 2004, the paternal grandparents immediately assumed primary parenting responsibilities. For the most part, mother and father lived in the home and interacted with A like close relatives rather than parents. At times, mother and father lived elsewhere, but they maintained frequent contact with the paternal grandparents.
In January 2013, mother gave birth to E. Mother and E tested positive for methamphetamine at the time of the birth, and mother admitted to using methamphetamine six months before her pregnancy and three days before E was born. E was not “drug-affected” and the paternal grandparents became his primary caregiver when he came home from the hospital. DHS made several attempts to contact parents in the first few months of E's life, but after receiving no response, DHS closed the case because DHS had “no concerns about the current situation * * * of [E] and [A] with the paternal grandparents.”
In December 2013, mother gave birth to H. Mother denied current substance abuse, but refused drug testing and did not allow H to be drug tested. However, because E had tested positive for methamphetamine 11 months earlier, the hospital tested H's meconium and found it to be positive for methamphetamine, though the lab was unable to pinpoint the time or frequency of use. Two days later, a DHS protective services worker informed parents that DHS intended to place H with the maternal grandfather due to their “lack of cooperation” and the “need to continue and perform a full assessment.” In response, according to the DHS caseworker, father “pounded a fist into a palm” and “punched the chair that he was sitting on.”
That same day, DHS filed dependency petitions regarding each of the three children, alleging that, under ORS 419B.100(1)(c), “[t]he conditions and circumstances endanger the welfare of said child” based on alleged facts as to both parents. DHS alleged that mother could not safely parent the children because she (1) had substance abuse problems, (2) lacked necessary parenting skills and an understanding of the basic needs of her children, and (3) left the children in the care of unsafe persons. DHS also alleged that father suffered from the same deficits, as well as anger and impulse control problems. At the jurisdictional hearing, the paternal grandparents were identified as the alleged “unsafe caregivers.”
At a shelter hearing on December 24, the juvenile court asserted temporary jurisdiction over the children. The court placed H with the maternal grandfather, but allowed A and E to remain in their home with mother, father, and the paternal grandparents. On December 30, at a shelter review hearing, the court ordered a safety plan that required the paternal grandparents to supervise all of A's and E's interactions with mother and father and required parents to submit to random urinalysis (UA) tests. DHS referred parents for substance abuse assessments; mother completed her assessment, but father did not. Mother participated minimally in the recommended treatment for a few weeks and submitted four UAs that tested negative for controlled substances. Father submitted one UA that tested positive for methamphetamine but submitted another that tested negative for all controlled substances.
In mid-January 2014, the paternal grandparents were indicted on two counts each of criminal conduct (racketeering and conspiracy to commit unlawful manufacture of marijuana); they were charged with providing financial assistance to father's brother's alleged marijuana-growing operation. Authorities also indicted 10 other family members (and five nonrelatives). The paternal grandparents do not otherwise have criminal records.
On January 27, the paternal grandparents met with DHS to discuss “potential * * * violations of the safety plan.” They acknowledged that on one occasion during the period of shelter care, the paternal grandfather left the home during a family emergency, leaving A and E unsupervised with parents while the paternal grandmother was sleeping upstairs. The next day, DHS removed A and E from the home and placed them with the maternal grandmother. DHS refused to certify the paternal grandparents as a foster placement for the children because of their pending criminal charges, the violation of the safety plan, and a “founded disposition” against the paternal grandfather for physical abuse that the parties agree occurred 10 years earlier.
The juvenile court held a jurisdictional hearing on the petitions for the three children over the course of four days between February and April 2014. Although parents contested the allegations about their parental deficits, they did not propose to be primary caregivers for the children. Instead, parents presented evidence that they intended to maintain an arrangement where other family members primarily cared for the children. The paternal grandparents intended to continue to act as primary caregivers but had made arrangements for either of the paternal grandmother's sisters to care for the children in the event that the grandparents were convicted and incarcerated; both women had existing relationships with the children and were not facing criminal charges.
The juvenile court determined that jurisdiction had been proven and that DHS had met its burden “as to each and every allegation in the * * * petitions.” The court noted specifically that the paternal grandparents “who the parents look to to provide virtually all the care of these children, are currently under [i]ndictment for [d]rug [t]rafficking” and referred to “evidence with respect to drug trafficking in the home.” The court mentioned “concern of the amount of firearms found in the home * * * [and] the current drug charges [that] have created an environment where there's an increased risk of unsafe people in the home.” The court also noted the grandparents' violation of the safety plan and that “DHS is unable to certify these grandparents at this time as a placement resource” and referred to the paternal grandfather's founded allegation for physical abuse “that has yet to be addressed.” Accordingly, the court found all allegations proven under ORS 419B.100(1)(c).
Mother and father appeal separately and assign multiple errors. Because it is dispositive, we address only the assignment of error to the trial court's assertion of jurisdiction over each child based on the court's determination that there was a current threat of harm reasonably likely to be realized by all the children. We assess whether the record established evidence that “was legally sufficient to permit the trial court to determine that ORS 419B.100(1)(c) was satisfied.” N.P., 257 Or.App. at 640, 307 P.3d 444.
Parents argue that DHS failed to prove any of the alleged parenting deficits because mother and father did not need to serve as primary caregivers for their children, and instead demonstrated “protective capacity” by arranging for extended...
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