Dept. of Human Services v. M. D. M.

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00031-CV ___________________________ IN THE INTEREST OF E.T., A.T., AND E.T., CHILDREN On Appeal from the 231st District Court Tarrant County, Texas Trial Court No. 231-745808-24 Before Kerr, Birdwell, and Wallach, JJ. Memorandum Opinion by Justice Wallach  MEMORANDUM OPINION Father appeals from the trial court’s judgment terminating his parental rights to his minor children on the grounds that Father had “executed before or after the suit [wa]s filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by Chapter 161” of the Texas Family Code and that termination was in the children’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(K), (b)(2). We affirm. Father’s appointed appellate counsel filed an Anders brief stating that the appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967); see also In re K.M., 98 S.W.3d 774, 776–77 (Tex. App.—Fort Worth 2003, order) (holding that Anders procedures apply in cases terminating parental rights), disp. on merits, No. 2-01-349-CV, 2003 WL 2006583, at *1–3 (Tex. App.—Fort Worth May 1, 2003, no pet.) (per curiam) (mem. op.). The brief meets the Anders requirements by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced on appeal. Further, Father’s counsel (1) provided Father with a copy of the Anders brief, (2) informed Father of his right to file a pro se response, and (3) advised Father of his right to access the appellate record and provided to him a form motion for effectuating that purpose. 1 1 Father’s counsel did not inform Father of his pro se right to seek discretionary review of our opinion should we declare his appeal frivolous, a function that an appointed lawyer who files an Anders brief must fulfill in a criminal appeal. See Tex. R. App. P. 48.4; Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). An appointed 2 Father did not file a response, and the Texas Department of Family and Protective Services declined to file a brief. When an Anders brief is filed, we must independently examine the record to determine if any arguable grounds for appeal exist. In re C.J., 501 S.W.3d 254, 255 (Tex. App.—Fort Worth 2016, pets. denied). Our examination should consider the record, the briefs, and any pro se response. In re L.B., No. 02-19-00407-CV, 2020 WL 1809505, at *1 (Tex. App.—Fort Worth Apr. 9, 2020, no pet.) (mem. op.). After careful review, we agree with Father’s counsel that there are no arguable grounds for appeal in this case. We affirm the trial court’s judgment terminating Father’s parental rights. Father’s counsel remains appointed in this case through any proceedings in the Supreme Court unless otherwise relieved of these duties. See Tex. Fam. Code Ann. § 107.016; In re P.M., 520 S.W.3d 24, 27–28 (Tex. 2016) (order). /s/ Mike Wallach Mike Wallach Justice Delivered: June 19, 2025 appellate attorney in a termination appeal has no such obligation, however, because his representation does not end in our court. See In re C.W., No. 02-21-00340-CV, 2022 WL 1155908, at *2 n.3 (Tex. App.—Fort Worth Apr. 19, 2022, pet. denied) (mem. op.). 3

No. 538 June 11, 2025 299 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON D. R. H., Petitioner-Appellant, v. SETH THOMAS HOLBROOK, Respondent-Respondent. Yamhill County Circuit Court 22SK02713; A182668 Cynthia Kaufman Noble, Judge. Submitted February 4, 2025. Aron Perez-Selsky filed the brief for appellant. No appearance for respondent. Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce, Judge. JOYCE, J. Affirmed. 300 D. R. H. v. Holbrook JOYCE, J. Petitioner appeals from a judgment denying her petition for a permanent stalking protective order (SPO) against respondent, her ex-husband.1 She contends that the trial court erred in finding that her evidence did not satisfy the requirements for an SPO. On appeal, we review “the evi- dence and all reasonable inferences that may be drawn from it in the light most favorable to the trial court’s disposition.” H. L. P. v. Jones, 309 Or App 108, 109, 481 P3d 415 (2021). Doing so, we conclude that the trial court did not err in denying the SPO, where it was not persuaded by petitioner’s evidence, regardless of whether that evidence would have supported an SPO had the court found the facts differently. Accordingly, we affirm. Petitioner and respondent were married for sev- eral years, and they had two children. Petitioner sought an SPO against respondent after a series of incidents in which respondent came to her home, engaged in conversation with her, and, on at least two occasions, would not leave when told. Petitioner testified that respondent’s visits caused her “alarm” and made her feel “very unsafe” because she “didn’t know what he was going to do next.” Petitioner also testi- fied that when she and respondent were married, he was “emotionally” and “psychologically” abusive and displayed “controlling behaviors, possessiveness, [and] erratic anger.” For example, on several occasions when respondent had become angry while driving her and their son, respondent had accelerated to unsafe speeds and had refused to relin- quish control of the vehicle. Although petitioner testified that respondent was never physically abusive toward her, she stated that respondent was physically abusive toward their son. According to petitioner, respondent had been “dis- proportionate with his discipline” and that “there was actu- ally a time where [their son] did get bruised from spanking.” After hearing the evidence, the trial court entered a judgment denying the SPO. In its letter opinion, the court stated that “based on [its] credibility and demeanor find- ings, [it had] a number of concerns about many aspects of the testimony and the record made in this case.” The court 1 Respondent does not appear on appeal. Nonprecedential Memo Op: 341 Or App 299 (2025) 301 did not specify, beyond that statement, what credibility or demeanor findings it had made. Ultimately, the court con- cluded that “[p]etitioner has failed to meet the burden to satisfy the elements for the continuance of the Stalking Protective Order.” Petitioner appeals, arguing that the trial court erred in concluding that she failed to meet her burden to sat- isfy the requirements for an SPO. In particular, petitioner contends that the record regarding respondent’s visits to her home was sufficient to establish that he made two unwanted contacts that subjectively alarmed her and that her alarm was objectively reasonable. See ORS 30.866(1)(a) - (c) (to obtain an SPO, a petitioner must prove that the respondent engaged in “repeated and unwanted contact[s]” that sub- jectively alarmed the petitioner as to the threat of physical injury, and that the alarm was objectively reasonable). The problem with petitioner’s argument is that we do not understand the trial court to have ruled on the suffi- ciency of the evidence. Instead, it appears to us that the court simply was not persuaded by petitioner’s evidence. Given that, it is immaterial whether the evidence, if believed, was sufficient to support the issuance of an SPO. Our standard of review requires us to review “the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the trial court’s dis- position.” H. L. P., 309 Or App at 109. Where, as here, the trial court did not make any express findings of fact, we “presume that the facts were decided in a manner consistent with the trial court’s ultimate conclusion as long as there is evidence in the record to support those implicit findings.” M. A. B. v. Buell, 366 Or 553, 565, 466 P3d 949 (2020) (inter- nal q

158 June 4, 2025 No. 513 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON In the Matter of A. P., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. M. P., Appellant. Clackamas County Circuit Court 24JU01576; A185671 Todd L. Van Rysselberghe, Judge. Submitted April 30, 2025. Shannon Storey, Chief Defender, Juvenile Appellate Section, and Kyle Sessions, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent. Before Tookey, Presiding Judge, Joyce, Judge, and Jacquot, Judge. JOYCE, J. Affirmed. Nonprecedential Memo Op: 341 Or App 158 (2025) 159 JOYCE, J. In this juvenile dependency case, father appeals from the juvenile court’s judgment asserting jurisdiction over his child A based, in part, on father’s mental health issues and pattern of impulsive behavior.1 Father raises three assignments of error, all of which reduce to the argu- ment that the Oregon Department of Human Services (ODHS) failed to prove that father exposed A to a nonspecu- lative threat of serious loss or injury as a result of father’s mental health issues and impulsivity. We affirm. Absent de novo review, which father does not seek, when reviewing the juvenile court’s assertion of jurisdiction, “[w]e 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 the outcome.” Dept. of Human Services v. T. L. H. S., 292 Or App 708, 709, 425 P3d 775 (2018). Juvenile court depen- dency jurisdiction is authorized under ORS 419B.100(1)(c) when a child’s condition and circumstances expose them to a current threat of serious loss or injury that will likely be realized. Dept. of Human Services v. A. L., 268 Or App 391, 397-98, 342 P3d 174 (2015). ODHS bears the burden of prov- ing a nexus between the allegedly risk-causing conduct and probable harm to the child. Id. at 398. We conclude that the record before the juvenile court at the July 2024 jurisdiction trial was sufficient to sup- port its determination that then-four-month-old A would be exposed to a nonspeculative threat of serious loss or injury without dependency jurisdiction. Preceding A’s birth, ODHS and the juvenile court had already been involved with father’s family for about two years, in relation to parents’ older child J and two of moth- er’s other children. Father’s relationship with ODHS was contentious and combative, with father frequently sending rambling, hostile, and threatening messages to ODHS staff. The ODHS caseworker believed that father did not perceive 1 Mother did not appeal the jurisdiction judgment and is not a party to this appeal. 160 Dept. of Human Services v. M. P. reality like others, that he did not recognize the concerns that DHS had presented, and that he was unable to discuss his children’s needs. A was born prematurely, in March 2024, and was admitted to the neonatal intensive care unit (NICU) and placed on a CPAP machine to address his respiratory dis- tress. While spending time with A in the NICU, father’s behavior was “unusual,” with him making “strange hand and body movements” and talking rapidly to himself, the wall, or someone who was not there. When a doctor and nurses explained that A was in respiratory distress and needed the CPAP machine to assist him with breath- ing, father did not acknowledge what was being said and appeared to not understand, continuing to insist that the CPAP machine was not safe. Father attempted to remove the CPAP machine, but hospital staff stopped him, deter- mined that he should not be left alone with A, and reported the incident to ODHS. Father and mother did not visit A after he was discharged from the hospital into ODHS’s tem- porary custody in April 2024. There is also evidence in the record that the apart- ment where father and mother had been living was unsafe. There was garbage throughout the apartment, including rotting food and used feminine hygiene products, and a thick layer of sawdust from the pallets they broke down and burned for heat covered much of the kitchen. At the jurisdiction trial, father frequently inter- rupted the proceedings, reacting to arguments from the parties and the testimony of witnesses and speaking to him- self or t

188 June 4, 2025 No. 520 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON In the Matter of W. O. A. IV, aka B. B. E., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. M. E., Appellant. Washington County Circuit Court 24JU03934; A185889 Michele C. Rini, Judge. Submitted April 30, 2025. Aron Perez-Selsky filed the brief for appellant. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Stacy M. Chaffin, Assistant Attorney General, filed the brief for respondent. Before Tookey, Presiding Judge, Joyce, Judge, and Jacquot, Judge. JACQUOT, J. Reversed. Nonprecedential Memo Op: 341 Or App 188 (2025) 189 JACQUOT, J. In this juvenile dependency case, mother appeals from the juvenile court’s judgment asserting jurisdiction over her infant son, W.1 She asserts that “the juvenile court erred in finding that [her] ‘pattern of criminal activities’ and ‘history of and current substance abuse’ posed a cur- rent threat of serious loss or injury warranting jurisdiction.” Specifically, mother asserts the juvenile court erred, because (1) there was no evidence that mother’s past criminal activi- ties involved children or evinced harm to children; (2) there was no evidence that W has been exposed to controlled sub- stances or that mother used controlled substances around him; (3) there was no evidence, even if mother had recently used controlled substances, that her use impaired her abil- ity to meet W’s basic needs; and (4) at the time of the juris- dictional hearing, mother was not as risk of incarceration while in Oregon. Consequently, in mother’s view, the Oregon Department of Human Services (ODHS) did not prove that she exposed her child to a nonspeculative threat of serious loss or injury stemming from her criminal activities and substance abuse.2 ODHS responds that the court properly asserted jurisdiction because “mother’s substance abuse was active at the time of the trial, intertwined with her criminal activity, and combined with the use and possession of firearms, all of which posed a current and non-speculative risk to [W].” Because evidence presented at the time of the juris- dictional hearing did not support a conclusion that mother posed a current and nonspeculative risk to W under ORS 419B.100(1)(c), as further explained below, we reverse. For a juvenile court to take jurisdiction over a child, ODHS must present evidence “sufficient to support a con- clusion that the child’s condition or circumstances expose the child to a current threat of serious loss or injury that is likely to be realized.” Dept. of Human Services v. J. H., 292 Or App 733, 737, 425 P3d 791 (2018) (internal quotation 1 Father is deceased. 2 At the time of trial, W took the same position and asked that the case be dismissed. He does not appear on appeal. 190 Dept. of Human Services v. M. E. marks omitted). Specifically, ODHS “must establish the type, degree, and duration of the harm at issue,” and it must “establish a nexus between the allegedly risk-causing conduct and the harm to the child.” Id. (internal quotation marks omitted). The risk of harm must be “nonspecula- tive”; that is, “there must be a reasonable likelihood that the threat will be realized.” Id. (internal quotation marks omitted). No party asks for de novo review, nor do we find this to be an exceptional case warranting it. In the absence of a de novo review, in reviewing a juvenile court’s determina- tion of jurisdiction in juvenile dependency proceedings, we: “(1) assume the correctness of the juvenile court’s explicit findings of historical fact if these findings are supported by any evidence in the record; (2) further assume that, if the juvenile court did not explicitly resolve a disputed issue of material fact and it could have reached the disposition that it reached only if it resolved that issue in one way, the court implicitly resolved the issue consistently with that disposition; and (3) assess whether the combination of (1) and (2), along with nonspeculative inferences, was legally sufficient to permit the trial court to determine that ORS 419B.100(1)(c) was satisfied.” Dept. of Human Services v. N. P., 257 Or App 633, 639-40, 307 P3d 444 (2013). In considering this case, we note that the juvenile court made adverse credibility findings against mother. Those findings are supported by the record, and we do not disturb them. Dept. of Human Services v. A. J. G., 304 Or App 221, 230, 465 P3d 293,

206 June 4, 2025 No. 524 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON In the Matter of A. P. N. M., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. M. U., Appellant. Polk County Circuit Court 23JU00969; A185938 (Control) In the Matter of A. L. W. M., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. M. U., Appellant. Polk County Circuit Court 23JU00970; A185939 Rafael A. Caso, Judge. Argued and submitted April 30, 2025. George W. Kelly argued the cause and filed the brief for appellant. Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, and Benjamin Gutman, Solicitor General. Before Tookey, Presiding Judge, Joyce, Judge, and Jacquot, Judge. Nonprecedential Memo Op: 341 Or App 206 (2025) 207 PER CURIAM Affirmed. 208 Dept. of Human Services v. M. U. PER CURIAM Mother appeals judgments terminating her paren- tal rights to two of her children, AL and AP. In four assign- ments of error, mother contends that the juvenile court erred in finding that she knew about and aided father’s sex- ual abuse of her stepchild, M, in determining that she was unfit to parent AL and AP, and in concluding that it would be in AL’s and AP’s best interests to terminate mother’s parental rights. We review de novo, ORS 19.415(3)(a), ORS 419A.200(6), and affirm.1 A parent’s rights can be terminated when a court finds by clear and convincing evidence that the parent is “unfit by reason of conduct or condition seriously detrimen- tal to the child,” that “integration of the child * * * into the home * * * is improbable within a reasonable time due to con- duct or conditions not likely to change[,]” and that termina- tion is in the “best interests” of the child. ORS 419B.500(1); ORS 419B.504; ORS 419B.521(1); State ex rel SOSCF v. Stillman, 333 Or 135, 144-46, 36 P3d 490 (2001). “Evidence is clear and convincing when it makes the existence of a fact highly probable or when it is of extraordinary persuasive- ness.” Dept. of Human Services v. R. K., 271 Or App 83, 88, 351 P3d 68, rev den, 357 Or 640 (2015) (internal quotation marks omitted). In her first assignment of error, mother argues that the juvenile court erred in finding that she knew about and aided father’s sexual abuse of M. But mother reported father’s sexual abuse of M to police in April 2018, and, at the termination of parental rights (TPR) trial, M testified that mother knew about father’s sexual abuse. The detailed nature of mother’s report to the police supports its verac- ity. At the TPR trial, mother testified that her report to the police was false, but her account of why she lied to the police is implausible. In addition, the juvenile court found that mother’s testimony was not credible, and that some of M’s testimony about sexual abuse was corroborated and credi- ble. Even on de novo review, we give “considerable weight” 1 Also decided today is Dept. of Human Services v. M. D. M., 341 Or App 201, (Jun 4, 2025), in which we affirm judgments terminating father’s parental rights to the same two children. Nonprecedential Memo Op: 341 Or App 206 (2025) 209 to demeanor-based credibility findings, because the juve- nile court judge “had the opportunity to observe the wit- nesses and their demeanor in evaluating the credibility of their testimony.” Dept. of Human Services v. T. L. B., 294 Or App 514, 516, 432 P3d 343 (2018), rev den, 365 Or 556 (2019) (internal quotation marks omitted). Having reviewed the record de novo and giving due weight to the juvenile court’s demeanor-based credibility findings, we reject mother’s first assignment of error. In her second and third assignments, mother argues that the juvenile court erred in determining that she was unfit to care for AL and AP because she has kept father away from the farm for six years, she intends to continue doing so, and her other children will ensure that father has no contact with AL and AP. However, at the time of the TPR trial, mother was pregnant with her seventh child, and she acknowledged that father was the father. Reviewing the record de novo, it shows that mother is unable or unwill- ing to understand that father is a danger to the children. In addition, mother has not participated in services since 2021, she remains married to and dependent on father, and we