Dep't of Human Servs. v. K. C. F. (In re V. R. F.)
| Decision Date | 02 November 2016 |
| Docket Number | A158834 (Control),A158844 |
| Parties | In the Matter of V. R. F., a Child. Department of Human Services, Petitioner–Respondent, v. K. C. F., K. C. F., and V. R. F., Appellants. In the Matter of G. A. F., a Child. Department of Human Services, Petitioner–Respondent, v. K. C. F., K. C. F., and G. A. F., Appellants. |
| Court | Oregon Court of Appeals |
282 Or.App. 12
383 P.3d 931
In the Matter of V. R. F., a Child.
Department of Human Services, Petitioner–Respondent,
v.
K. C. F., K. C. F., and V. R. F., Appellants.
In the Matter of G. A. F., a Child.
Department of Human Services, Petitioner–Respondent,
v.
K. C. F., K. C. F., and G. A. F., Appellants.
A158834 (Control)
A158844
Court of Appeals of Oregon.
Argued and submitted August 13, 2015.
November 2, 2016
Megan L. Jacquot argued the cause and filed the brief for appellant G. A. F.
Caitlin Mitchell argued the cause and filed the brief for appellant V. R. F.
Michael Vergamini, Eugene, argued the cause and filed the brief for appellant father K. C. F.
Ashlee Rochelle Wiese argued the cause for appellant mother K. C. F. With her on the brief was Eckart Wostmann Wiese, LLC.
Judy C. Lucas, 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 Duncan, Presiding Judge, and Flynn, Judge, and Haselton, Senior Judge.
DUNCAN, P.J.
In this juvenile dependency case, mother and father appeal a judgment determining that their daughters, A and B, ages 11 years and 18 months at the time of the hearing, are within the jurisdiction of the juvenile court pursuant to ORS 419B.100(1)(c), as a result of conditions or circumstances that endanger their welfare. The children also appeal, contending that the court erred in assuming jurisdiction. Because we agree with parents and the children that the evidence is insufficient to support the juvenile court's determination that there is a current risk of harm, we reverse the jurisdictional judgment.
Under ORS 419B.100(1)(c), the juvenile court has exclusive jurisdiction over a minor “[w]hose condition or circumstances are such as to endanger the welfare” of the minor. In reviewing the juvenile court's jurisdictional determination, the question is whether the Department of Human Services (DHS) has proved, by a preponderance of the evidence, that the child's welfare is endangered by the parents' conduct. Dept. of Human Services v. A. F. , 243 Or.App. 379, 385–86, 259 P.3d 957 (2011). On appeal, we view the evidence, as supplemented by permissible derivative inferences, in the light most favorable to the trial court's determination 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).
The parents are married. The family came to the attention of DHS in May 2014, when it was contacted by mother's psychotherapist, Cleary. Cleary had been counseling mother regarding marital conflict.1 Cleary testified at the jurisdictional hearing that, based on mother's description of father's conduct, she became concerned that mother is a victim of emotional abuse.2 Cleary testified that in October
2014, when mother reported that father had threatened suicide and homicide, Cleary reported to DHS that father had subjected mother and the children to domestic violence.
Meyer, a DHS caseworker, testified that he first met with mother on November 7, 2014. By that time, father had a pattern of threatening suicide, but he also made regular threats of violence, which had become more frequent, and were made in a calm and matter-of-fact
way.3 Based on his interview of mother, Meyer concluded that it would not be safe for the children to be with father and told mother not to take them home; he arranged for mother to go to a hotel.
DHS filed a dependency petition on November 13, 2014. The petition alleged jurisdiction based on allegations that the children are at risk of harm because father exposes them to domestic violence against mother, and because father's substance abuse and mental health condition interfere with his ability to safely parent. The petition further alleged that mother needs the assistance of the court and DHS to protect herself and the children from the violence
and control of father and lacks legal custody to protect the children. Meyer testified that the petition's allegation of domestic violence was based on father's threats of violence and the impact of father's behavior on the children's emotional well-being. DHS concedes that there has been no physical abuse.
After the filing of the petition, DHS caseworker Kozicky worked with the family. Mother reported to Kozicky that father was remorseful, that he had quit drinking and smoking marijuana, and that he had burned his medical marijuana card. Father moved out of the house so that mother and the children could move back in, and promised that he would never threaten mother again. However, father continued to monitor the home with security cameras.
On December 23, 2014, mother reported to Cleary that father had “gone back on his promise not to be cruel and manipulate.” But then, on December 27, 2014, mother expressed concern to Kozicky that the “forced separation” was harming the family, and she urged a prompt resolution.4 After that communication from mother, DHS filed an amended petition, adding an allegation that mother “fails to understand the emotional damage and safety risk posed by father, and failed to take protective action. The child[ren] will not be safe until the reasons for mother's protective failures are remedied.”
Kozicky testified that, although father's behavior has not included physical violence, it nonetheless constitutes domestic abuse, which is about power and control and
encompasses emotional abuse. She testified that mother “has the standard, typical amount of denial as a domestic abuse victim. It's difficult for her to see.” In Kozicky's view, it would not be safe for father to return to the house, because the domestic abuse issues have not been addressed. Kozicky testified
that domestic abuse is harmful to children.5
Father testified at the hearing that he previously had smoked marijuana in excess and had abused alcohol, but that since the filing of the jurisdictional petition, he has not consumed either alcohol or marijuana. He regularly attends substance abuse counseling, submits to weekly urinalysis (UAs), and, at the time of the hearing, had been sober for 65 days and had abstained from marijuana for 75 days. He admitted to having argued with mother in front of the children but denied having threatened mother in front of them. He admitted that he told mother that she should be on suicide watch, “and maybe homicide watch,” and that “it was a very stupid thing to say.” But he explained that he did not intend those statements as actual threats and he did not believe that mother took them seriously. He stated that his comments regarding suicide were made in anger, “from a place of * * * very high upset” and were intended only to end an argument. He said that he is not suicidal and that he would not hurt himself, mother, or the children. He denied ever having hit or kicked mother, but admitted that, eight or nine years earlier, he had pinned mother down in bed, and said he felt ashamed by that conduct.
Mother testified that she did not consider father's statements regarding suicide and homicide to be genuine threats and that she did not think he would hurt her or the children. She confirmed father's testimony...
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