Dept. of Human Services v. T. J.

“‘Under ORS 419B.100(1)(c), jurisdiction is warranted if a child’s condition or circumstances are such as to endanger [that child’s] welfare’—that is, if they ‘give rise to a threat of serious loss or injury.’ DHS must prove that the threat is current, nonspeculative, and causally connected to the allegedly risk-causing conduct or circumstances.” Dept of Human Services v. D.W.M., 296 Or App 109, 117-18, 437 P3d 1186 (2019).

Father appealed an order removing infant son, T, from his mother's care. Father assigned error to the lower court's jurisdiction. On appeal, father challenges the court's jurisdiction over himself and the use of evidence of his domestic violence conviction against T's mother to make an out-of-home placement. T is eligible for enrollment with the Kalamath Tribes. After a single incident of domestic violence, which T did not witness, both parents abided by a no-contact order. Father argues that his actions are not cause for T's removal from his mother's care. Under the Indian Child Welfare Act (ICWA) the state may assert jurisdiction only if the conditions or circumstances which endanger the child's welfare are current, not speculative, and give rise to a threat of serious injury or loss. Further, a foster care placement is permissible only when the placement is supported by clear and convincing evidence. The Court held that jurisdiction over the father was not erroneous because a child need not be aware of an incident of domestic violence to be at risk. The Court found that T's out-of-home placement is not supported by clear and convincing evidence that T's placement with his mother would result in serious emotional or physical damage. Reversed and Remanded as to the portion of the judgment ordering out-of-home placement of T; otherwise affirmed.