Dep't of Human Servs. v. J. R. W. (In re W. J. B.)

• Decision Date: 11 January 2023
• Docket Number: A178530
• Citation: 323 Or.App. 714
• Parties: In the Matter of W. J. B., a Child. v. J. R. W., aka J. W., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
• Court: Oregon Court of Appeals

323 Or.App. 714

In the Matter of W. J. B., a Child.

DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. J. R. W., aka J. W., Appellant.

A178530

Court of Appeals of Oregon

January 11, 2023

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Argued and submitted November 16, 2022

Lane County Circuit Court 22JU00397, Valeri L. Love, Judge.

Tiffany Keast, Deputy Chief Defender, argued the cause for appellant. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Offce of Public Defense Services.

Jon Zunkel-deCoursey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán Judge.

PAGAN, J.

The juvenile court asserted dependency jurisdiction over W, aged 21 months at the time of the trial in March 2022, on four bases. On appeal, mother assigns error to the trial court's determination that her "criminal conduct and attendant consequences interfere with her ability to safely parent."^[1] For the reasons discussed, we agree. We reverse and remand the jurisdictional judgment as to the criminal conduct basis, but otherwise affirm.^[2]

A juvenile court may assert dependency jurisdiction under ORS 419B.100(1)(c), making the child a ward of the court, when it finds that the child's conditions or circumstances endanger the child's welfare, considering the totality of the circumstances. Dept. of Human Services v. C. J T., 258 Or.App. 57, 61, 308 P.3d 307 (2013). To establish jurisdiction, the state must establish that the child's conditions or circumstances "present a current threat of serious loss or injury" that is nonspeculative and reasonably likely to be realized. Id. at 61-62. And when a parent's conduct is at issue, the state must prove a causal connection between that conduct and the threatened harm to the child. Dept. of Human Services v. S. G. T., 316 Or.App. 442, 444, 503 P.3d 1264 (2021).

Mother does not request de novo review, and this is not the kind of exceptional case in which de novo review is appropriate. See ORAP 5.40(8)(c) ("The Court of Appeals will exercise its discretion to try the cause anew on the record or to make one or more factual findings anew on the record only in exceptional cases."). Thus, we determine whether, based on the record before it, there was sufficient evidence, supported by permissible inferences and viewed in the light most favorable to the juvenile court's disposition, for the court to conclude that the child was endangered by conditions or circumstances. S. G. T., 316 Or.App. at 444-45. We describe the facts related to the criminal conduct basis in accordance with that standard.

On January 18, 2022, mother and father had a dispute over video games. By the time police arrived, father was not at the shared home. Mother told police that father had choked her for about 20 seconds, that she had hit and scratched father's back, and that she had thrown a flowerpot at the television, which bounced off the television and hit W in the head. One officer noted a slight bruise or discoloration on W's head.

Mother told officers that she and father had been using methamphetamine and heroin throughout the day, in W's presence. Police located drug paraphernalia consistent with smoking both drugs and noted that mother appeared to be under the influence of drugs at that time. After father returned, police arrested both of them. Mother was later charged with assault for the injuries to father, and with recklessly endangering W by throwing the flowerpot and smoking drugs in W's presence.

Mother was released from jail by January 26, and, well before the jurisdictional trial later in March, the state dismissed the criminal charges arising from the January 18 domestic violence call.

At the jurisdictional trial, a caseworker testified that mother's January 18 conduct was a "safety concern" because it had led to her arrest and left no one to care for W The state did not present any other evidence of mother's criminal activity.

In closing argument, mother contended that although she had been arrested on probable cause, because the charges stemming from the January 18 incident had been dismissed, there was no "current nonspeculative risk of harm to the child."

In rebuttal, the state argued that current criminal charges were not required, only that the parent had engaged in criminal conduct that puts the child at a risk of harm. According to the state, it was the arrest arising from the criminal conduct of domestic violence with father and continuing consumption of methamphetamine and heroin, which left W without a caregiver that presented the risk of harm.

The court concluded that the state had "carried its burden" with respect to the criminal conduct allegation and, along with several other bases, took jurisdiction over W.

In effect, we understand the state's argument and the court's conclusion to be that because of the alleged criminal conduct from January 18 and the possible attendant consequence of being incarcerated, W was subjected to a nonspeculative risk of harm at the time of the jurisdictional trial. We disagree.

As we have explained, "incarceration of a parent only provides a basis...