Dept. of Human Services v. L. E. F.

254

Argued and submitted July 30, affirmed October 14, 2020, petition for review

denied February 19, 2021 (367 Or 559)

In the Matter of B.-L. F.,

aka B.-L. T. F., a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

v.

L. E. F.,

Appellant.

Linn County Circuit Court

19JU04004; A171952 (Control)

In the Matter of D.-L. F.,

aka D.-L. A. F., a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

v.

L. E. F.,

Appellant.

Linn County Circuit Court

19JU04003; A171953

476 P3d 119

Father appeals from an order continuing the jurisdictional hearing date

beyond the 60-day deadline of ORS 419B.305(1) and from the jurisdictional judg-

ment. The juvenile court asserted jurisdiction over father’s children after con-

sidering, among other things, evidence that father abused alcohol, had anger

control issues, and engaged in inappropriate discipline. Father assigns error to

the court’s assumption of jurisdiction. He argues that there was insufficient evi-

dence to support jurisdiction and that the court denied him due process when

it (1) failed to hold a jurisdictional hearing within the 60-day period; (2) failed

to provide him with parenting time; and (3) required a separate modification

proceeding to proceed before the juvenile dependency cases concluded. Held: The

juvenile court did not err. The record was legally sufficient to support the court’s

jurisdiction over father’s children, and good cause justified holding the jurisdic-

tional hearing outside of the 60-day period. Father failed to preserve the remain-

der of his due process arguments because they arose from his separate domestic

relations proceeding.

Affirmed.

Michael B. Wynhausen, Judge.

Cite as 307 Or App 254 (2020) 255

Shallon Halttunen argued the cause for appellant. Also

on the brief was Weatherford Thompson, P.C.

Erin K. Galli, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before DeHoog, Presiding Judge, and Mooney, Judge,

and Hadlock, Judge pro tempore.

MOONEY, J.

Affirmed.

256 Dept. of Human Services v. L. E. F.

MOONEY, J.

Father appeals from judgments that determined,

under ORS 419B.100(1)(c), that his children, B and D, were

within the jurisdiction of the juvenile court.1 The court

asserted jurisdiction after considering (1) mother’s admis-

sion to the single allegation against her (lack of a custody

order and inability to “lawfully” protect the children from

their father) and (2) evidence received at trial concerning

the allegations against father (alcohol use, inappropri-

ate discipline, anger control issues). Father assigns error

to the juvenile court’s assumption of jurisdiction over his

children, arguing, first, that there was insufficient evi-

dence to support jurisdiction2 and, second, that the court

denied him due process when it failed to hold a jurisdic-

tional hearing within the requisite 60-day time period,

failed to provide him with parenting time, and required

a custody modification proceeding in a separate domestic

relations case to proceed before the juvenile cases were con-

cluded.3 The Department of Human Services (DHS) count-

ers that the record was legally sufficient to support the

court’s assumption of jurisdiction over B and D, especially

given the court’s specific credibility findings. Moreover,

DHS argues, the procedural discrepancies are not prop-

erly before us and, in any case, did not combine to violate

father’s liberty interest in raising his children. We agree

with DHS as to the court’s assertion of jurisdiction over B

and D, as well as its argument that father only partially

preserved his due process argument (i.e., only the 60-day

trial deadline issue is preserved). Because we also reject

the preserved portion of father’s due process argument, we

affirm.

1

The parties agree that, despite the subsequent dismissal of the challenged

judgment of jurisdiction, this matter is not moot. We agree. Dept. of Human

Services v. A. B., 362 Or 412, 426, 412 P3d 1169 (2018).

2

Father presents four arguments as to why the court erred in assert-

ing jurisdiction. We address the first three, but conclude that he did not pre-

serve his fourth argument—that an allegation admitted by mother is not

sufficient to support jurisdiction—and thus reject that argument without

discussion.

3

The juvenile court consolidated the juvenile dependency cases with the

parents’ domestic relations case as required by ORS 419B.806. Father has not

appealed any ruling in that domestic relations matter.

Cite as 307 Or App 254 (2020) 257

I. STANDARD OF REVIEW

Father asks us to review this matter de novo, argu-

ing that this is an exceptional case that qualifies for such

review. We have discretion whether to exercise de novo

review in juvenile dependency proceedings, other than ter-

mination proceedings. ORS 19.415(3)(b). However, we exer-

cise that discretion only in exceptional cases, ORAP 5.40

(8)(c), and we do not regard this as such a case. Accordingly,

we defer to the juvenile court’s findings of historical fact if

they are supported by any evidence. Dept. of Human Services

v. C. L. H., 283 Or App 313, 315, 388 P3d 1214 (2017). We

“view the evidence, as supplemented and buttressed by per-

missible derivative inferences, in the light most favorable to

the [juvenile] court’s disposition and assess whether, when

so viewed, the record was legally sufficient to permit that

outcome.” Dept. of Human Services v. D. A. N., 258 Or App

64, 65, 308 P3d 303, rev den, 354 Or 490 (2013) (citing Dept.

of Human Services v. N. P., 257 Or App 633, 307 P3d 444

(2013)). We state the facts in accordance with that standard

of review.

II. FACTUAL AND PROCEDURAL BACKGROUND

Mother and father divorced in 2013, at which time

they were granted joint custody of their daughters, D (nine

years old at the time of divorce) and B (four years old at the

time of divorce). After the divorce, the children lived pri-

marily with mother, spending three weekends each month

with father. In January 2019, father initiated a modification

proceeding in which he sought an order awarding him sole

legal custody of the children with reduced parenting time

for mother. In May 2019, B reported to someone at school

that father had slapped her and thrown her to the ground,

which, in turn, resulted in a report to DHS. DHS investi-

gated the report and filed a petition in juvenile court. DHS

did not immediately remove the children from father’s care,

instead allowing them to spend the Memorial Day week-

end together. However, at the shelter hearing, DHS rec-

ommended removal and the children were placed in moth-

er’s care at that time. D was 13 years old and B was nine

years old. The juvenile cases were later consolidated with

258 Dept. of Human Services v. L. E. F.

the domestic relations case. Factfinding occurred over the

course of two days in early August 2019.

The juvenile court accepted mother’s admission of

the single allegation as to her in the dependency petitions

and held an evidentiary hearing on the allegations as to

father. The court received documentary evidence and heard

testimony from several witnesses including, Pawlik, a DHS

caseworker; Studer, an Emergence drug and alcohol assess-

ment counselor; Cloud, a Linn County qualified mental

health professional; Dr. Stoltzfus, PsyD, a clinical psychol-

ogist; DeVaney, the children’s cousin; Hook, father’s former

girlfriend; D; and father.

At the conclusion of the factfinding proceeding,

the court made findings and asserted jurisdiction over the

children on four bases: (1) mother’s lack of sole custody and

associated inability to protect the children from father,

(2) father’s alcohol abuse, (3) father’s use of inappropriate

discipline, and (4) father’s anger control problem.

III. ANALYSIS: SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, father argues that

there was insufficient evidence to support jurisdiction. A

juvenile court may assert jurisdiction over a child under

ORS 419B.100(1)(c) when it finds that the child’s conditions

or circumstances endanger the child. A child is endangered

when he or she is exposed to conditions or circumstances

that “present a current threat of serious loss or injury.” Dept.

of Human Services v. C. J. T., 258 Or App 57, 61, 308 P3d

307 (2013). DHS must establish by a preponderance of the

evidence a connection between the parents’ allegedly risk-

causing conduct and the harm to the children, and it must

also establish that the threat of harm is current and non-

speculative. Id. at 62. “[I]t is not sufficient for the state to

prove that the child’s welfare was endangered sometime in

the past.” Dept. of Human Services v. M. Q., 253 Or App 776,

785, 292 P3d 616 (2012).

A. Alcohol Use

With respect to his use of alcohol, father’s testimony

about the amount of alcohol he consumed while caring for his

children was at odds with the testimony of D, who described

Cite as 307 Or App 254 (2020) 259

father as being “drunk all the time whenever we’d go out

there” after drinking “every night” the children stayed with

him on the weekends. D also described in detail the effects

of father’s drinking, including that he had red and “puffy”

eyes, and that he would “stumbl[e]” and “fall[ ] over.”

Father denies alcohol abuse and, in any event, says

that he stopped using alcohol altogether after the children

were removed from his care. The juvenile court found D’s

testimony about father’s alcohol use patterns more credible

than father’s testimony about his alcohol use patterns, in

part, because D’s testimony was consistent with what she

told DHS officials previously and because “father lies as a

matter of course in order to put himself in the best light pos-

sible in any given situation.” The court also noted that father

had not been honest during his drug and alcohol assessment

when he told the evaluator that DHS was not involved with

his family. The evaluator, Studer, testified that, once she

learned that DHS was involved, she obtained collateral infor-

mation from DHS, and changed her recommendation from

no treatment to treatment for father. Stoltzfus testified that

father’s abstention from alcohol since the time DHS inter-

vened is not significant, remarking that “anybody can * * *

hold it together for two months.” In light of that evidence, we

conclude that the juvenile court’s inference concerning the

likelihood and imminence of father’s further alcohol abuse

in conjunction with his parenting time is supported by the

record.

B. Discipline

Father next argues that DHS failed to meet its bur-

den to establish that he used inappropriate discipline with

the children. The testimony focused on two incidents: father

(1) dragging D down the stairs two years before DHS involve-

ment, leaving bruises on her hips, and (2) slapping B twice

and pushing her to the ground a month before DHS became

involved, leaving a red mark and causing B to cry. Father

denies the first incident and notes that D changed her story

about the timing of that incident, initially reporting to the

DHS caseworker that it had happened within the previous

month and then later testifying that it had been two years

before. D rated the pain she experienced from being dragged

260 Dept. of Human Services v. L. E. F.

as a “5” on a scale of “0 to 10.” She testified that her bruises

lasted a few days. The court resolved the discrepancy

between D’s testimony and that of father when it made its

credibility determinations. As for the slapping incident, the

court acknowledged not receiving B’s testimony. But father

admitted to slapping B, and D testified that she heard the

incident and saw a red mark on B’s face that lasted for 30

to 60 minutes and that she observed B “bawling” afterward.

Additionally, when making its findings, the juvenile court

observed that the children are “clearly terrified” of father.

Reasonable physical force used by a parent to disci-

pline a child is not unlawful. ORS 161.205(1)(a). In the con-

text of mandatory child abuse reporting, “abuse” does not

include reasonable discipline unless the discipline results

in, among other things, “any physical injury to a child which

has been caused by other than accidental means” and “any

mental injury to a child, which shall include any observable

and substantial impairment of the child’s mental or psycho-

logical ability to function caused by cruelty to the child[.]”

ORS 419B.005(1)(a)(A), (B). We were guided by that defi-

nition in G. A. C. v. State ex rel Juv. Dept., 219 Or App 1,

9-12, 182 P3d 223 (2008), as we conducted de novo review

and reached conclusions about whether “inappropriate dis-

cipline” was used in that case. Because “physical injury” is

not defined in the juvenile dependency code, we find helpful

guidance in other sections of the Oregon Revised Statutes.

For example, ORS 161.015(7) defines “physical injury” as

“impairment of physical condition or substantial pain” for

purposes of the criminal code. In this case, there is evidence

in the record from which the juvenile court could reason-

ably find that each child experienced substantial pain when

dragged and slapped, respectively, by father and, therefore,

that such force used in the course of “discipline” was not

reasonable.

C. Anger Control

The sufficiency of the evidence with respect to

father’s alleged anger control problem is a closer call. There

was testimony that father had responded with anger to the

DHS caseworker; however, that may simply reflect his frus-

tration with the process. Stoltzfus, the clinical psychologist

Cite as 307 Or App 254 (2020) 261

who evaluated father, testified that father’s Minnesota

Multiphasic Personality Inventory (MMPI) test results sug-

gest that father is “not generally an angry person.” However,

he also acknowledged that father’s “overcontrolled hostility

index” was elevated, “suggesting that if things are pushed

too far * * * that he would do something rather dramatic and

ineffective * * * [a]nd, occasionally may do something either

inappropriate or ineffective, you don’t know what happens

with that.” D described her father as “mean” when he drank

alcohol and said that she and B were afraid of their father

because he drank and was mean most days they spent with

him. Again, we cannot say on this record, given the credibil-

ity findings of the court, that the court’s conclusion was not

supported by the evidence as a matter of law.

IV. ANALYSIS: DUE PROCESS

In his second assignment of error, father argues

that the juvenile court deprived him of his fundamental lib-

erty interest in raising his children without due process. He

specifically argues that the court did so when it (1) set the

jurisdictional trial outside the statutory 60-day time limit,

(2) denied him parenting time with his children, and (3) pro-

ceeded with the consolidated domestic relations modifica-

tion hearing while the juvenile dependency cases were still

open.

We conclude that the juvenile court did not err by

finding good cause to reschedule the trial beyond the 60-day

deadline, given that the court was in the middle of a dif-

ferent trial and that rescheduling the witnesses to testify

would require time and notice. Also, the trial was resched-

uled to a date only seven judicial days later. The court’s find-

ing of good cause legally supported the short delay and, like

State v. Tatarinov, 211 Or App 280, 289, 155 P3d 67, rev den,

342 Or 727 (2007), that delay did not violate father’s due

process rights.

Finally, we agree with DHS that father did not pre-

serve his remaining due process arguments. Father’s motion

to postpone the domestic relations proceeding was not made

in these juvenile dependency cases, even though it was

brought to the juvenile court’s attention at the September 6,

262 Dept. of Human Services v. L. E. F.

2019, dispositional hearing. Father has not appealed the

dispositional judgments and he has not filed an appeal in

the domestic relations case. Although there is significant

overlap between dependency cases and domestic relations

cases concerning the same children, “[c]onsolidation does

not merge the procedural or substantive law of the individ-

ual actions.” ORS 419B.806(3). We therefore cannot, and do

not, address whether the court violated father’s due process

rights by denying him parenting time with his children or

by denying his motion to postpone the domestic relations

modification hearing.

Affirmed.