Dep't of Human Servs. v. C. A. M. (In re M. S. M.)
| Decision Date | 31 October 2018 |
| Docket Number | A167074 |
| Citation | 432 P.3d 1175,294 Or.App. 605 |
| Parties | In the MATTER OF M. S. M., a Child. Department of Human Services, Petitioner-Respondent, v. C. A. M., Appellant. |
| Court | Oregon Court of Appeals |
Sarah Peterson, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.
Kelsie Crippen, Certified Law Student, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Paul L. Smith, Deputy Solicitor General.
Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.
This juvenile dependency case arose out of the death of a three-month-old girl, C, who died of undetermined causes while sleeping with father. After evidence surfaced that father had likely caused nonaccidental injuries to C before her death, the juvenile court assumed jurisdiction over C's surviving twin brother, M. The court found that father had posed a risk of physical harm to the twins and that mother knew or should have known about that risk and had failed to protect the twins from father. The court determined that there was a nonspeculative risk of physical harm to M under mother's care.
Mother appeals, arguing that the evidence in the record does not support the juvenile court's finding that mother "knew or should have known" about the risks that father posed to the twins. Mother also argues that the evidence in the record is not legally sufficient to permit the ultimate determination of a risk of harm to M. The Department of Human Services (DHS) argues that the appeal is moot but that, if it is not moot, the juvenile court's judgment should be affirmed. We conclude that the case is not moot, and affirm.
The following facts were presented at trial and are mostly undisputed. Mother and father married in 2015. Early in their relationship, father told mother that he had been investigated by DHS for the suspected abuse of an infant in 2007. Mother understood that father had possibly been ordered to engage in some services with DHS, including a psychological evaluation, but that father's engagement with DHS was terminated because his paternity over the infant was disestablished. Mother also knew that, in 2010, father was convicted of assault for physically attacking another man.
On June 24, 2017, mother gave birth to twins: a girl, C, and a boy, M. A nurse, Hoertkorn, occasionally helped parents care for the children. In the early morning of September 21, 2017, when the twins were about three months old, C died while sleeping with father.
An autopsy revealed a bruise under C's left eye, another bruise on her left arm, and four "healing rib fractures." Medical personnel were unable to determine the precise cause of C's death. Doctor St. Germain observed the autopsy and concluded that the bruises and rib fractures did not cause C's death; she also concluded that C's injuries existed before her death and were caused by a level of force that was inconsistent with them being accidental. When told about the injuries, father denied knowledge of the broken ribs and bruise on C's arm but speculated that the rib injuries might have happened accidentally in his care. As for the bruise under C's eye, father suggested that it happened while he was holding her, when her head bobbed forward and hit father's collarbone. St. Germain did not believe father's explanation and suspected that father had inflicted C's injuries intentionally.
Detective Vreim spoke to mother a couple of days after C's death. At that time, mother did not know about the injuries to C's arm and ribs. Mother said that she was aware of the bruise on C's face and that she believed father's explanation for it. Mother also said that she was holding "some resentment and anger toward[s]" father and "wished that she could blame him," but that she "knew" that "he didn't do anything." She reported that, more than once, she observed father saying "mean" things to the twins when they were crying that she believed showed impatience, like "quit being dramatic," "what's your fucking problem," and "shut the fuck up!" However, mother remarked that, if father had done anything to the twins intentionally or accidentally, she would have seen it. When Vreim told mother about C's broken ribs, mother said that she could not think of a reason why that would happen. She also said that she "couldn't be sure that [father] didn't injure [C]," that she had a "nervous feeling about" father, and that "something felt wrong."
Authorities alerted DHS to the situation. A DHS caseworker, Layton, contacted parents and discussed a safety plan for M. The plan required M and the parents to live with family friends whom DHS had approved as "safety service providers,"1 and who had to provide "sight-and-sound" supervision for all of parents' contact with M. Mother and father followed the safety plan. For a short while after C's death, mother, father, and M lived together at the safety providers' home. In late September or early October, father moved out and left M in mother's care.
As time passed, mother's feelings about father wavered. In late September or early October, mother told Layton that she intended to divorce father because she "couldn't emotionally support him any more." However, when mother spoke with Layton again in early October, she said that she "was unsure if they were going to separate or if they were just going to take some time apart." Father's account from that period was consistent with mother's statements: On or about October 1, father told Layton that he and mother "were still together" but that he was uncertain if that would last.
In early November, mother told Chappell that she had again decided to file for divorce, but then, on or about November 17, mother told Chappell that she "wasn't sure" about whether to do so. Several weeks later, mother reported to Chappell that she had "the paperwork" for divorce and intended to file it. However, she did not do so until January 17, 2018, the day before the jurisdictional trial. In the stipulated divorce decree entered on that date, mother was awarded sole legal custody of M, and father was allowed supervised parenting time at mother's discretion.
At trial, Layton and Chappell testified on behalf of DHS about two primary concerns regarding mother's ability to care for M. First, DHS was concerned about mother's ability to "recognize people being harmful to her child, whether verbally or physically," as evidenced by her failure to notice father's inflicting C's injuries or otherwise respond to father's concerning behaviors around the twins. Second, DHS was concerned that, although mother was capable of meeting M's basic needs, mother's vacillating intentions regarding father, as well as her failure to "recognize or act upon how [father] treated" C and M, created the possibility that mother "would either return into a relationship with [father], or allow other unsafe people around" M. Layton and Chappell also testified that DHS's 2007 investigation of father was triggered because father was suspected of inflicting bruises on the chest of an infant. As a result, DHS had ordered father to participate in a psychological evaluation, anger management counseling, parenting classes, and alcohol and drug treatment, however father did not complete those programs because paternity over the infant was later disestablished.
Meanwhile, mother testified that she no longer blamed father for C's death and that she "knew" that "he would never hurt our children intentionally." Mother explained that she had known about at least some of the circumstances surrounding father's 2007 investigation by DHS but that the incident gave her no concerns about father's ability to parent. Mother also testified that she thought that father's 2010 assault conviction "has to do with anger." When twice asked whether she thought father "had a role" in C's injuries to the arm and ribs, mother first answered "no" and later answered "I don't know." Mother had no explanation for how those injuries occurred. She also said about father,
On the topic of parents' relationship, mother testified that she "still loved" father but that she was "conflicted" about him. When asked about whether she would reconcile with father, she said that that was "not part of the plan."
At the conclusion of the evidence, the juvenile court made the following findings:
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