Court: Court of Appeals of Oregon; September 15, 2010; Oregon; State Appellate Court
Father appeals a juvenile court judgment that established jurisdiction over his son, Z, and certain dispositional orders requiring him to undergo counseling in Oregon and a psycho-sexual risk assessment. He contends: (1) the court erred by not striking allegations in the dependency petition that he claims fail to establish jurisdiction; (2) the state did not prove these allegations by a preponderance of the evidence; and (3) the remedies imposed are not rationally related to the jurisdictional findings. The court affirms the juvenile court's findings, opting not to conduct a de novo review and instead accepting the findings if supported by any evidence.
The case involves fraternal twins Z and his sister, born in May 1993. Their mother filed a restraining order against father in 1999 following allegations of physical assault and sexual abuse against Z. After moving to Hawaii, mother and children returned to Oregon, where, in 2007, she contacted the Department of Human Services (DHS) regarding Z’s behavioral issues. Although initially deciding against out-of-home placement, mother later opted for such placement in 2008, leading to Z’s custody being transferred to DHS without father’s involvement. Z was placed in a residential treatment facility, remaining there due to significant psychological challenges.
In 2009, after a decade-long absence, father returned to Oregon, which raised concerns for Z’s caseworker about father living in the same home as daughter, given the prior abuse allegations. Although mother doubted the truth of these allegations, she agreed to supervise father’s contact with daughter. Father maintained limited contact with Z, who consistently affirmed to his caseworker the truth of his previous abuse claims. However, when discussing the issue with his therapist, Z’s statements shifted, expressing confusion and suggesting his memories might be influenced by his mother. The therapist and trial court recognized Z's confusion regarding the abuse allegations against father.
In July 2009, DHS caseworkers visited a family home to reassess the family plan, specifically to understand the lack of parental involvement. During this visit, the mother signed an agreement to participate in services, while the father verbally agreed to undergo a psychosexual evaluation. Shortly after, the family moved to Hawaii without notifying DHS or the assigned caseworker, Z. The trial court found that the parents fled Oregon to evade DHS involvement. Following their relocation, DHS terminated the voluntary custody agreement and took Z into protective custody. A dependency hearing occurred in November 2009, during which the parents, still in Hawaii, could not testify. The juvenile court determined that Z, 16 years old, was under its jurisdiction, confirming allegations of sexual abuse by the father and noting the father's abandonment and lack of relationship with Z. The court found Z to be a vulnerable child needing adult supervision and DHS support due to his parents' absence. The court concluded that Z’s welfare was endangered and mandated the father to participate in family counseling and a psychosexual assessment in Oregon. The father subsequently appealed the jurisdictional decision and the conditions imposed. The document outlines the juvenile court's exclusive jurisdiction over cases endangering a child's welfare and the procedural requirements for establishing such jurisdiction.
After the petitioner presents evidence, other parties may move to dismiss allegations on the grounds that, if proven, they do not support the relief sought. The court then determines whether the allegations are proven, concluding the jurisdictional phase of the dependency hearing. If jurisdiction is established, the hearing progresses to the dispositional phase, where future steps are ordered. On appeal, several issues may be addressed, including the sufficiency of the allegations to establish jurisdiction and whether they are proven by a preponderance of the evidence. The father challenges specific allegations regarding accusations of sexual abuse, fleeing from court jurisdiction, and lacking a relationship with his child, arguing they do not demonstrate how he endangers the child. Although he did not preserve these arguments at the dependency hearing, he requests plain error review. However, the court finds that the required standard for plain error review—obviousness—is not met. The allegations must be viewed collectively, and some may inherently endanger a child's welfare without explicit connections. Thus, the court concludes it would not have been clear that the state needed to clarify the implications of the father's abandonment and flight. Additionally, the court emphasizes that any objection during the trial could have allowed for the amendment of the petition, and therefore does not consider the father's first three assignments of error. The father also contends that the trial court erred in finding that the state proved by a preponderance of the evidence that he abandoned the child.
The court's task was to assess whether the historical facts found by the lower court were supported by evidence and whether these facts established juvenile court jurisdiction under ORS 419B.100(1)(c). The father contended that to prove abandonment of Z, the state needed to demonstrate his intent to relinquish parental rights permanently. The court concurred that abandonment necessitates proof of intent, referencing the Supreme Court's ruling in a related case. It emphasized that abandonment is determined based on intention and surrounding circumstances. Despite the father's argument that his relocation to Hawaii did not indicate abandonment, the court found that his failure to contact Z after a prolonged absence supported the inference of intent to relinquish rights.
Additionally, the father disputed the trial court's conclusion that Z was dependent on state services and beyond the father's control. He argued that since the mother had a voluntary agreement with DHS, he was still involved in Z's care. The court rejected this claim, noting that only the mother was party to the agreement, which required residency in Oregon. After moving to Hawaii, the agreement was terminated, and Z was placed in DHS custody, indicating the father no longer had control or responsibility for Z.
Lastly, the father challenged the juvenile court's requirement for him to undergo a psychosexual evaluation and participate in family counseling in Oregon, arguing the state failed to prove allegations of sexual abuse and that the requirements lacked a rational basis related to the court's jurisdiction. However, evidence from Z’s counselor suggested that counseling could be conducted via phone, supporting the court’s jurisdictional findings and requirements under ORS 419B.343.
The trial court determined that evidence regarding allegations of abuse was conflicting and unresolved, creating a significant risk concerning the welfare of the child, Z. The court acknowledged the ambiguity surrounding whether abuse occurred and noted Z's confusion about the events. It deemed a psychosexual evaluation necessary to assess any potential risk posed by the father and to identify appropriate treatment if needed. The court's order for the father to return to Oregon for therapy was viewed as a rational response to the jurisdictional grounds, particularly since Z felt abandoned due to the father's prior flight from the state. This requirement aimed to facilitate the father's active involvement in Z's life, addressing one of the primary reasons for the court's intervention. The court affirmed its previous decisions and rejected the father's objections.
