In the Matter of T.F. v. A.F.

• Decision Date: 08 June 2011
• Docket Number: 0900299JV3; 1000146M; A147231.,0900299JV1,0900299JV2
• Citation: 259 P.3d 957,243 Or.App. 379
• Parties: In the Matter of T.F.; K.F.; and R.F., Children.DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent,v.A.F., Appellant.
• Court: Oregon Court of Appeals

243 Or.App. 379

259 P.3d 957

In the Matter of T.F.; K.F.; and R.F., Children.DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent,

v.A.F., Appellant.

0900299JV1

0900299JV2

0900299JV3; 1000146M; A147231.

Court of Appeals of Oregon.

Argued and Submitted April 12, 2011.Decided June 8, 2011.

Mary Shannon Storey, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.Inge D. Wells, Senior Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Kristen G. Williams, Assistant Attorney General.Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.DUNCAN, J.

The juvenile court took jurisdiction over father's children, pursuant to ORS 419B.100(1)(c), on the ground that father's possession of pornography, including child pornography, endangered the children's welfare. Father appeals, arguing that the state failed to prove that his possession of pornography endangered the children's welfare. We agree and, accordingly, reverse.

We begin with the facts, which we state consistently with the juvenile court's factual findings and ultimate legal conclusion. Dept. of Human Services v. C. Z., 236 Or.App. 436, 442, 236 P.3d 791 (2010). In August 2009, on the state's petition, the juvenile court took jurisdiction over father and mother's three children on the ground that they were “currently residing under a threat of harm for mental injury and neglect,” due primarily to father's abusive treatment of mother. After that, mother and father divorced.

In March 2010, the state filed another petition, alleging additional bases for the juvenile court's jurisdiction over the children, including an allegation that the children were endangered because father had “displayed sexually inappropriate behaviors involving children.” The juvenile court held a hearing on the petition in November 2010.

At the hearing, the state presented evidence that, in July 2009, mother brought two computers that belonged to her and father to the police for examination. She did so because she knew that father had stored adult pornography on the computers and because father had once told her that he had accidentally downloaded child pornography, but had erased it.

A police detective, Anderson, examined the data on the computers. He determined that one of the computers contained three still images and six videos of child pornography. The three still images were “thumbnails.” “Thumbnails” are smaller, lower-resolution versions of full-size images; they help computer users recognize and organize full-size images on their computers. According to Anderson, when a computer user downloads a full-size image, both the full-size image and a thumbnail are stored on the computer. When the user deletes the full-size image, the thumbnail remains in a thumbnail folder, but it cannot be enlarged without special software. Anderson found the child pornography thumbnails in a thumbnail folder; the full-size images had been deleted. Anderson used special software, which was not present on the parents' computer, to enlarge the thumbnails so that he could determine their contents.

The six videos of child pornography were stored in an “incomplete” folder, indicating that they had been downloaded, but the downloading process had not been completed. Anderson believed that the videos were downloaded using a peer-to-peer file-sharing program. According to Anderson, such programs download files in pieces. As each piece is downloaded, it is stored in an “incomplete” folder, where it remains until the rest of the pieces are downloaded. If the download process is interrupted—which can occur for a variety of reasons, including termination by the user—the downloaded pieces remain in the “incomplete” folder. If the process is completed, then the program moves the file to a “complete” or “downloaded” folder. Although the videos on the parents' computer were in the “incomplete” folder, they were accessible. Anderson was able to view all of them, at least partially.

Anderson testified that the still images and videos of child pornography on the parents' computer were downloaded in 2005 and last accessed in 2007. Anderson further testified that, although he could tell when the files were last accessed, he could not tell the nature of the access. He could not tell whether the files were “viewed, deleted, or [there was] some other activity with regard to [the] file[s].” ¹

A second computer expert, Young, was called as a witness by father. Like Anderson, Young testified that he believed that the three still images and six videos of child pornography were downloaded using a peer-to-peer file-sharing program in 2005 and that they were last accessed in 2007. Young further testified that the access in 2007 was likely an automated search. He explained that the images and videos were last accessed on the same date, between 2:00 and 4:00 a.m., along with “several thousand files of a wide variety * * * of types,” indicating an automated activity, such as a virus scan. According to Young, the computer access records indicated that, although the still images and videos were accessed in 2007, no one viewed them at that time.

In addition to the still images and videos of child pornography, Anderson and Young found 300 to 400 images and videos of adult pornography.

Mother testified that there had always been a large amount of adult pornography on the computers. She testified that father downloaded the pornography; she did not. She also testified that, as mentioned, father once told her that he had accidentally downloaded child pornography, but had erased it. She never saw child pornography on the computers.

The state called a sexual offender treatment specialist, Gilbert, to testify about the risks that arise from the possession of pornography. Gilbert testified that repeated exposure to pornography can reduce a person's inhibitions; it can reduce “the threshold of actually acting on fantasy.” According to Gilbert, repeated exposure to pornography allows a person to view others “more as objects * * * than as humans[,]” thereby “reduc[ing] them to * * * something less and easier to molest or easier to offend against.” Thus, according to Gilbert, “there's an increased likelihood of sexual crime taking place when there's heavy use of pornography.”

But, Gilbert emphasized, “I don't think we can say that just because someone [has] a particular image on a computer that they're therefore a * * * sexual offender.” And, Gilbert continued, “I think it also probably needs to be noted that just because someone demonstrates arousal to a particular target population doesn't necessarily mean they're going to commit an offense or have committed an offense.” When asked about the amount of pornography father downloaded, Gilbert said that it was “outside the norm” but that, “just because behavior lies outside the norm, it doesn't mean that a sexual crime is going to be committed.”

Gilbert regarded the pornography father had downloaded as a “red flag.” Gilbert was concerned by the amount of pornography father had downloaded and the fact that it included child pornography. He testified that father posed a “potential risk” and “until we can rule out the risk * * * we have to assume there is a risk.” Gilbert said that he would need more information to determine whether father posed an actual risk, including information about why and where father obtained the pornography, how recently and frequently he used it, and how he used it. That information would, according to Gilbert, “help clarify this situation.”

After the presentation of the evidence at the hearing, the state moved to amend the petition, which, as mentioned, alleged that father had “displayed sexually inappropriate behaviors involving children.” The state argued:

“I think we can broaden this petition, Your Honor, to just say [‘]has displayed sexually inappropriate behaviors[’] inclusive of everything, and that it does create a risk to the children * * *. And as far as whether it's an intentional download or an unintentional download, based on the evidence that's come forward, I don't believe it really matters.”

Father responded that the state had failed to prove that he had intentionally possessed child pornography and that his possession of adult pornography was an insufficient basis for the juvenile court to take jurisdiction over the children. Father argued:

“[T]he State's argument is, ‘Well, let's back up and just talk about Mr. Gilbert and the volume of pornography here.’ Your Honor, the things I heard Mr. Gilbert talk about were—let's rule it out. I submit that in court proceedings, we don't decide that we have a concern and we're going to rule something out; we have to have a finding. A finding that, in this particular case, because of this particular fact, that there's a threat of harm.”

The juvenile court amended the petition to allege that father “possessed sexually inappropriate materials” that “place[d] the children under a threat of harm,” and the court took jurisdiction over the children on that basis. The court explained:

“Well, this is one of the more difficult cases,...