Dept. of Human Services v. K. B. L.

482 May 14, 2025 No. 427

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

In the Matter of M. L.,

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

and

M. L.,

Respondent,

v.

K. B. L.,

aka K. L.,

Appellant.

Columbia County Circuit Court

24JU01603; A184809 (Control)

In the Matter of K. L.,

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

and

K. L.,

Respondent,

v.

K. B. L.,

aka K. L.,

Appellant.

Columbia County Circuit Court

24JU01604; A184810

In the Matter of B. L.,

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

and

B. L.,

Respondent,

v.

Cite as 340 Or App 482 (2025) 483

K. B. L.,

aka K. L.,

Appellant.

Columbia County Circuit Court

24JU01605; A184811

Denise E. Keppinger, Judge.

Argued and submitted February 26, 2025.

Sarah Peterson, Deputy Public Defender, argued the

cause for appellant. Also on the briefs was Shannon Storey,

Chief Defender, Juvenile Appellate Section, Oregon Public

Defense Commission.

Benjamin Gutman, Solicitor General, argued the cause

for respondent Department of Human Services. Also on the

brief was Dan Rayfield, Attorney General.

Erica Hayne Friedman filed the brief for respondents

M. L., K. L., and B. L. Also on the brief was Youth, Rights

& Justice.

Before Shorr, Presiding Judge, Powers, Judge, and Pagán,

Judge.

POWERS, J.

Reversed and remanded for entry of jurisdictional judg-

ments omitting allegations 4(D) and 4(E) as bases for juris-

diction; otherwise affirmed.

484 Dept. of Human Services v. K. B. L.

POWERS, J.

In this consolidated juvenile dependency case,

mother challenges judgments asserting jurisdiction over her

three children. The court took jurisdiction based on allega-

tions related to mother’s substance abuse and exposing the

children to an adult who injured one of them. In 24 assign-

ments of error, mother makes two primary arguments. First,

in assignments of error one through six, mother asserts that

the juvenile court erred by admitting toxicology lab reports

of the children under the business records exception to hear-

say, OEC 803(6), and by admitting testimony about those

lab reports. Second, in assignments of error seven through

24, mother argues that the juvenile court erred in asserting

dependency jurisdiction because the department failed to

prove that mother exposed the children to a cognizable risk

of harm. As explained below, we conclude that the juvenile

court erred by admitting the lab reports and related testi-

mony and that the court erred in asserting jurisdiction in

part. Accordingly, we affirm the jurisdictional judgments in

part and reverse in part.

Absent de novo review, which mother does not seek,

we view the evidence, as supplemented and buttressed by

permissible derivative inferences, in the light most favor-

able 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. N. P., 257 Or App

633, 639, 307 P3d 444 (2013). We are bound by the juve-

nile court’s express and necessarily implied findings of fact,

if supported by any evidence. Id. at 639-40. We recite the

underlying facts with that standard of review in mind.

Mother has three children, M, K, and B. At the

time of the underlying jurisdictional trial in 2024, M was

five years old, K was four, and B was two. In 2022, the juve-

nile court originally took jurisdiction over the children after

B tested positive at birth for various controlled substances.

Father died of an accidental drug overdose a few months

later. Mother completed family treatment court, and in

January 2024, the court dismissed jurisdiction because it

concluded that mother addressed the issues that brought

the children into care.

Cite as 340 Or App 482 (2025) 485

Less than a month after the juvenile court dismissed

the case, the Department of Human Services (the depart-

ment or DHS) received a hotline call that prompted a child-

welfare investigation that led to new dependency petitions.

DHS investigator, Lovett, interviewed mother and thought

that mother “appeared anxious” and that it was “kind of

hard [for mother] to focus.” Lovett urged mother to get a drug

and alcohol assessment but did not remove the children.

One month later, the department received another

call, and Lovett went to inspect mother’s residence. When

Lovett arrived, mother appeared to be under the influence of

drugs and was confused about B’s whereabouts. Mother ini-

tially told Lovett that B was napping upstairs, but B was not

there when Lovett went inside. Mother then remembered

that B was at the babysitters. While in the home, Lovett saw

small alcohol bottles all around the apartment that could

have been within the children’s reach, including one that

was full and uncapped. Additionally, Lovett saw a “whole

setup for injecting substances,” which she described as a “fix

kit,” including a razor blade, a spoon, used syringes, and a

water bottle that had cocaine residue on the outside, sitting

in the apartment’s only working bathroom. Mother acknowl-

edged that the syringes were dangerous for the kids but

denied that they were hers and told Lovett that the syringes

belonged to someone else whom she just let use her shower.

A few days later, DHS received a report that M had

injuries. Lovett went to M’s school and reported that he had

a “goose egg” on his head. M told Lovett that his mother’s

friend, Marsh, who occasionally stayed the night at their

home, was in their home and kicked M, which caused M to

fall down the stairs. In addition to Lovett, M told several

other adults about Marsh kicking him and falling down

the stairs. When mother was confronted about M’s injury,

mother told Lovett that the children “hurt each other. All

these fucking kids have bruises on their heads from each

other.” When mother was told by Lovett that Marsh would

need to be kept away from the children, she was upset and

said “no,” and she referred to Marsh as “all I have.”

At Lovett’s urging in response to M’s injuries,

mother drove all three children to the Amani Center, a

486 Dept. of Human Services v. K. B. L.

child advocacy center that conducts forensic interviews and

medical exams. Lovett observed that, at this time, mother

seemed to be impaired but allowed her to drive the children

because there was no “pickup order yet.” Reardon, a family

nurse practitioner at the Amani Center, examined the chil-

dren and noted that all three children had scratches and

bruises. Reardon, who described the children as generally

well-groomed and otherwise well-cared for, took urine sam-

ples from the three children and a hair sample from K, all

of which she sent to a lab for testing. While at the Amani

Center, Lovett obtained an order authorizing her to remove

the children from mother’s care and place them in foster

care, at which point mother told Lovett, “My children are

fucking liars.”

Antonucci, a DHS permanency worker, also observed

mother under the influence of substances several times,

including during one of mother’s family visits with the

children. In one instance, while Antonucci was walking

with mother, mother seemed unaware that she was hold-

ing B while carrying him down a hallway, and later mother

dropped B 14 to 16 inches into his car seat.

DHS petitioned the juvenile court to take jurisdic-

tion based on five allegations: 4(A), mother exposed the chil-

dren to an adult (Marsh) in her home who caused injury to

M; 4(B), mother’s substance abuse interferes with her ability

to safely parent the children; 4(C), father is deceased; 4(D),

K and B tested positive for controlled substances while in

the care of mother; and 4(E), despite receiving treatment for

an admitted substance abuse allegation in a prior depen-

dency case, including inpatient treatment and participating

in specialty court, K and B tested positive for controlled sub-

stances approximately 10 weeks after dismissal of the prior

dependency case and mother has been observed to be under

the influence of controlled substances.

At trial, the juvenile court accepted Reardon as

an expert in diagnosing child medical maltreatment. DHS

introduced Reardon’s reports, which included copies of the

lab reports documenting the children’s drug tests. Mother

objected to the lab reports and related testimony regard-

ing those reports on hearsay grounds. The court overruled

Cite as 340 Or App 482 (2025) 487

the objection, citing the business records hearsay excep-

tion, OEC 803(6), and admitted the exhibits reasoning that

the lab reports were part of the routine process informing

Reardon’s opinion. Reardon proceeded to testify that she

conducted a forensic medical evaluation of all three children

and that she collected the hair and urine samples, but that

she did not have any involvement in running those samples

or preparing the lab reports. Reardon concluded that the

children had recently been exposed to substances given that

B’s urine tested positive for amphetamines and metham-

phetamines and K’s hair sample tested positive for meth-

amphetamines and marijuana.

Mother also testified at trial. Mother denied that

Marsh was an important person to her. When asked if she

believed M that Marsh hurt him, she answered yes, but she

also provided conflicting testimony, including: “[y]es and

no, because I always believe something my child comes and

tells me, right? However, * * * it was a little hard to believe,”

that M has “stated things to me * * * that are not true,” that

M has “falsely accused people before,” and that she “can’t a

hundred percent say my kid is lying. What I’m saying is [M]

has been known to say things that are not true.”

Ultimately, the juvenile court concluded that the

department established all the bases for jurisdiction.1

Mother timely appeals.

In mother’s first six assignments of error, mother

asserts that the juvenile court erred by admitting the lab

results and testimony about the lab results. We review

whether evidence qualifies under the OEC 803(6) busi-

ness records hearsay exception for errors of law. Arrowood

Indemnity Co. v. Fasching, 369 Or 214, 247, 503 P3d 1233

(2022).

Mother asserts that the lab reports do not qualify

as business records because it is undisputed that Reardon

did not have any knowledge about how the lab reports were

1

Although the judgments note that the juvenile court asserted jurisdiction

based on allegations “3A” through “3E,” the court orally referred to the allega-

tions as “4A” through “4E,” which tracks the numbering in the petition. Like the

parties’ briefs on appeal, we similarly use the numbering from the petitions and

assume that the notations in the judgments are scrivener’s errors.

488 Dept. of Human Services v. K. B. L.

generated, and the fact that she relied on the lab reports for

her own purpose does not establish anything about their cre-

ation, which is what OEC 803(6) requires. The department

concedes that the court erred by admitting the lab reports

as business records, but it argues that the reports were

admissible for the nonhearsay purpose of explaining the

foundations for Reardon’s expert opinions, thus any error is

harmless. In her reply, mother asserts that the testimony is

inadmissible because, although an expert may testify about

inadmissible evidence to provide the foundation necessary

to explain the expert’s opinion, it is not admissible for its

truth, and here, the court considered the lab reports for

their truth. Further, mother argues Reardon’s opinion was

nothing more than a recitation of the lab reports.

We first turn to the lab reports themselves. Hearsay

evidence, which is defined in OEC 801(3) as “a statement,

other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth

of the matter asserted,” is generally inadmissible. See OEC

802. Unlike statements made in court, which are subject to

immediate cross-examination and where the trier of fact can

observe the demeanor of the witness who swears or affirms

to tell the truth, hearsay evidence is presumptively excluded

because of its untrustworthiness. Arrowood Indemnity Co.,

369 Or at 222. One exception to hearsay in the evidence code

is what is commonly known as the business record exception.

Under OEC 803(6), qualifying business records are exempt

from the bar on hearsay evidence if there is testimony that

the records were “kept in the course of a regularly conducted

business activity” and that it is “the regular practice of that

business activity” to make the records. Thus, “a party seek-

ing to utilize the business records exception must present evi-

dence about the record-making practices of the business that

created the record.” Arrowood Indemnity Co., 369 Or at 226.

Here, no such foundation was established. Reardon did not

create the reports or have any insight into how the reports

were generated. Accordingly, we accept the state’s concession

that the juvenile court erred in admitting the lab reports

under OEC 803(6).

Cite as 340 Or App 482 (2025) 489

We turn next to mother’s objection to Reardon’s tes-

timony. OEC 703 allows an expert witness to offer an opinion

based on inadmissible evidence, as long as the information

is “of a type reasonably relied upon by experts in the partic-

ular field in forming opinions or inferences upon the subject,

the facts or data.” Importantly, however, “OEC 703 does not

render otherwise inadmissible evidence admissible merely

because it was the basis for the expert’s opinion.” McCathern

v. Toyota Motor Corp., 332 Or 59, 70, 23 P3d 320 (2001). An

expert may testify about the inadmissible evidence only “to

provide the foundation necessary to explain [the expert’s]

opinions, not for its truth.” Id. Moreover, an expert may not

merely parrot the statement of another for its truth. State v.

Bowman, 373 Or 213, 227, 564 P3d 121 (2025). Accordingly,

if a testifying expert is relying entirely on the conclusions

reached by other technicians, that testimony is not allowed

because it would simply be parroting hearsay statements.

Id. at 226 (citing Laird C. Kirkpatrick, Oregon Evidence

§ 703.03[3], 690-91 (7th ed 2020)).

Here, although the lab results might be the type of

information that a nurse might reasonably rely upon to form

an opinion about potential child medical maltreatment,

Reardon did not testify to the results of the lab reports for the

purpose of explaining her own diagnostic opinion. Rather,

her conclusion relied entirely on the conclusions reached by

other technicians. That is, DHS elicited and relied upon that

testimony for the truth of the matter asserted. For instance,

the department referenced the testimony and lab results in

closing arguments, asserting that “the evidence also showed

through expert testimony that two of her children tested

positive for controlled substances,” and “we do have children

through lab urinalysis and hair samples who have tested

positive for controlled substances.” Ultimately, because

Reardon was relying entirely on the conclusions reached by

other technicians, the trial court erred in allowing her testi-

mony because it was merely parroting inadmissible hearsay

statements.

In sum, we agree with mother’s arguments that the

juvenile court erred in admitting the lab reports as exhibits

and in allowing Reardon to testify over her hearsay objection

490 Dept. of Human Services v. K. B. L.

about the lab results. Those errors are not harmless. The

effect of the court’s evidentiary error becomes clear as we

discuss mother’s challenge to the merits of the dependency

judgments.

Turning to the remaining assignments of error,

mother asserts in a combined argument that the juvenile

court was not authorized to assert dependency jurisdiction

over each of her children because the department failed to

prove that mother exposed the children to a cognizable risk

of harm. We agree that the juvenile court erred in asserting

jurisdiction in two instances and affirm the remaining por-

tions of the jurisdictional judgments.

ORS 419B.100(1)(c) allows a juvenile court to assert

dependency jurisdiction over a child whose “condition or

circumstances are such as to endanger [a child’s] welfare.”

The evidence must show “that the child’s condition or cir-

cumstances expose the child to a current threat of serious

loss or injury that is likely to be realized.” Dept. of Human

Services v. A. W., 276 Or App 276, 278, 367 P3d 556 (2016).

DHS has the burden of showing a nexus “between the par-

ent’s conduct or condition and a threat of harm to the child

that exists at the time of the jurisdictional trial.” Dept. of

Human Services v. C. A. M., 294 Or App 605, 615, 432 P3d

1175 (2018). A record may support a nexus if there is evi-

dence that a parent does not believe that another person

poses a risk of harm to a child, when that other person does

pose such a risk. See Dept. of Human Services v. K. V., 276 Or

App 782, 792-93, 369 P3d 1231, rev den, 359 Or 667 (2016)

(concluding that evidence that the father did not believe that

there were issues with the mother’s parenting that would

have led to the child’s injury supported the court’s findings

that the father was likely to fail to protect the child from the

mother); Dept. of Human Services v. H. H., 266 Or App 196,

204-05, 337 P3d 929 (2014), rev den, 356 Or 837 (2015) (not-

ing that, because the mother did not believe that the father

played a role in harming the child and did not perceive the

need to take steps to protect her children from the father,

there is a reasonable likelihood that the father would again

inflict a significant injury on one of the children).

Cite as 340 Or App 482 (2025) 491

Applying those standards here, the record permits

the juvenile court’s assertion of jurisdiction based on alle-

gation 4(A), that mother exposed the children to an adult

(Marsh) in her home who caused injury to M, allegation 4(B),

that mother’s substance abuse interferes with her ability to

safely parent the children, and allegation 4(C), that father is

deceased. We further conclude that the evidence was insuf-

ficient to support the court’s determination of jurisdiction

based on allegations 4(D) and 4(E).

Both allegations 4(D), regarding K and B testing

positive for controlled substances while in mother’s care, and

4(E), which focuses on K and B testing positive for controlled

substances shortly after the dismissal of the prior dependency

case, rely on evidence that the children tested positive for con-

trolled substances. As we explained above, the juvenile court

erred in admitting both the lab reports and testimony from

Reardon about the lab results. Although there is evidence

that the children were exposed to controlled substances, such

as mother’s intoxication while caring for the children and the

drugs and “fix kit” in the home, the evidence from the lab

reports and the testimony are significant, if not dispositive,

that the children tested positive for controlled substances.

Thus, even when viewed in the light most favorable to the

juvenile court’s disposition, the evidence is insufficient to sup-

port the court’s determination on those two bases for jurisdic-

tion. Accordingly, we conclude that the juvenile court erred in

asserting jurisdiction based on allegations 4(D) and 4(E).

As to allegation 4(A), the evidence adduced at trial

was that M sustained a noticeable injury, a “goose egg” on

his forehead, and mother continued to have difficulty artic-

ulating that she believes Marsh injured M. Even though

M is young, M made consistent statements to a number of

adults that he received the injury from Marsh. M was able

to clearly articulate how he was injured, and those state-

ments matched the injury and were made near the time of

the injury. Further, when mother was confronted about M’s

injury, she referred to Marsh as “all I have” and became

upset and said “no” when she was told Marsh could not be

around the children. Although mother later testified that

Marsh was not important to her, the department argues that

492 Dept. of Human Services v. K. B. L.

there is evidence that contradicts that statement. Viewing

that evidence in the light most favorable to the juvenile

court’s disposition, there was sufficient evidence from which

the court could conclude that mother exposed the children

to an adult who caused injury to M. Further, there is evi-

dence to support the finding that mother does not believe

that Marsh injured M or seemingly perceive that Marsh is a

danger to the children, which supports a determination that

the children remain at risk of harm.

As to allegation 4(B), there is evidence that supports

that mother’s substance abuse interferes with her ability to

safely parent the children. Mother admitted using alcohol

and marijuana, including using marijuana on the morning

of the trial, and Lovett and Antonucci both testified that they

encountered mother while she was seemingly under the influ-

ence of intoxicants while interacting with her children. For

example, while mother was intoxicated, mother was unaware

of where B was, telling Lovett that B was inside but later

realizing B was at the babysitters. Mother at one point was

apparently unaware that she was holding B and later dropped

B into a car seat. Further, alcohol bottles were strewn across

the home, including an opened and uncapped full bottle of

alcohol that could have been within reach of the children.

There was also drug paraphernalia, including a rusty razor,

spoon, used syringes, and a bottle that had cocaine residue on

the outside, in the only working bathroom of the apartment.

On appeal, mother argues that evidence that a par-

ent uses drugs is insufficient to establish jurisdiction with-

out some theory, supported by the facts, as to how that use

poses a risk to the child. See, e.g., A. W., 276 Or App at 280

(reversing a jurisdictional judgment based on the mother’s

substance abuse due to lack of evidence that the mother

“used drugs while caring for [the child] or that her drug use

had any effect on her parenting”). Here, however, we agree

with DHS’s argument that the evidence was sufficient given

the evidence that mother was intoxicated and unaware that

B was in her arms while carrying him down a hallway, and

evidence of drugs, drug paraphernalia, and alcohol in areas

where the children could reach. Ultimately, viewing the

evidence in the light most favorable to the juvenile court’s

Cite as 340 Or App 482 (2025) 493

disposition, there was sufficient evidence for the juvenile

court to determine that mother’s substance abuse interferes

with her ability to safely parent the children.

As to allegation 4(C), it is undisputed that father

is deceased. Although jurisdiction is not warranted over

a child who has a parent that is capable for caring for the

child safely, Dept. of Human Services v. E. M., 264 Or App

76, 84-85, 331 P3d 1054 (2014), because we conclude that

the state sufficiently proved allegations 4(A) and 4(B), the

juvenile court did not err in establishing allegation 4(C).

In sum, the evidence was sufficient to support the

juvenile court’s jurisdiction over the three children based

on allegations 4(A) through (C), but insufficient to support

jurisdiction based on allegations 4(D) and 4(E). Accordingly,

we reverse and remand for the court to enter judgments

establishing jurisdiction based on allegations 4(A) through

(C) only.

Reversed and remanded for entry of jurisdictional

judgments omitting allegations 4(D) and 4(E) as bases for

jurisdiction; otherwise affirmed.