Dep't of Human Servs. v. J. S. (In re V. B. N. S.)

368 Or. 516

495 P.3d 1245

In the MATTER OF V. B. N. S., a Child.

Department of Human Services, Respondent on Review,

v.J. S., Petitioner on Review,andR. N., Appellant.

In the Matter of M. R. R. N. S., a Child.

Department of Human Services, Respondent on Review,

v.J. S., Petitioner on Review,andR. N., Appellant.

CC 18JU09064 (CC 18JU09064) (SC S068044)

Supreme Court of Oregon.

Argued and submitted May 4, 2021.

September 17, 2021

Tiffany Keast, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the brief was Shannon Storey, Chief Defender, Juvenile Appellate Section.

Inge D. Wells, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

En Banc

NAKAMOTO, J.

These juvenile dependency cases raise the issue of the scope of a juvenile court's temporary emergency jurisdiction under ORS 109.751, which is part of Oregon's enactment of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). As we will explain in more detail later in this opinion, the UCCJEA sets out rules for determining jurisdiction in child custody cases involving multiple states. In this case, parents were residents of Washington who were living temporarily at a motel in Oregon. The juvenile court asserted temporary emergency jurisdiction over their 15-month-old son after police, investigating the death of his infant brother, found him living in squalid and dangerous conditions in the motel room. The court later entered several dependency judgments concerning that child as well as another child later born to parents in Washington.

Parents challenged the juvenile court's authority under ORS 109.751 or any other provision of the UCCJEA to issue dependency judgments making their two children wards of the court in Oregon. In particular, parents moved to dismiss dependency petitions filed by Department of Human Services (DHS) in the juvenile court on the ground that the juvenile court had authority under ORS 109.751 only to enter shelter orders and did not have subject matter jurisdiction under that statute or any other provision of the UCCJEA to adjudicate dependency petitions for children from another state who are temporarily in Oregon. The juvenile court denied the motion.

On parents’ appeals, the Court of Appeals affirmed the juvenile court, holding that the juvenile court had properly exercised temporary emergency jurisdiction as to both children under ORS 109.751 and did not exceed its temporary emergency jurisdiction when it issued dependency judgments as to the children. Dept. of Human Services v. J. S. , 303 Or. App. 324, 464 P.3d 157 (2020). Only mother filed a petition for review, which we allowed. We affirm the juvenile court's denial of mother's motions to dismiss the dependency petitions, because the juvenile court had temporary emergency jurisdiction under the UCCJEA to enter dependency judgments as to the children. However, the juvenile court exceeded the scope of its temporary emergency jurisdiction, and therefore we vacate certain parts of the dependency judgments. As a result, we affirm in part and reverse in part the Court of Appeals decision.

I. BACKGROUND

The following facts are not in dispute. Before February 2018, mother and father lived in Goldendale, Washington. They had two children: V, who was born in January 2017, and K, who was born in December 2017. Both children were born in Washington. In February 2018, parents lost their housing in Goldendale and moved to a motel in Rufus, Oregon, while they tried to obtain new housing in Goldendale.

Both mother and father regularly used methamphetamine, and, as father testified before the juvenile court, father used methamphetamine in the motel bathroom "almost every day." On April 10, 2018, mother drove to Goldendale, ostensibly to do some grocery shopping. She did not return home that evening; she left the children in the motel room overnight with father. Mother later admitted that she had used methamphetamine with a friend that night.

The next morning, April 11, when father awoke, he discovered that K, who had been sleeping in bed with him, had died. When the police arrived at the motel room, they arrested father on outstanding warrants. Shortly there-after, police executed a search warrant of the room. Police observed soiled diapers and garbage on the floor. On the nightstand next to the bed, within reach of the children, were several items of drug paraphernalia, as well as marijuana and an open folding-blade knife. In a duffel bag next to the bed, also within reach of the children, was a small zip-lock bag containing a substance resembling methamphetamine. The room also contained a portable crib, where V slept. It was thick with bedding, and, as the officers peeled back the layers, the bed emanated a strong odor of sour milk, urine, and rotten food. In the bed were bits of rotting food, as well as candy, a watch cell battery, and other choking hazards.

DHS removed V and took him to a hospital. He tested negative for illicit substances. He was diagnosed as having a yeast infection in his genital and anal areas. Hospital staff also noticed that V was extremely sensitive to touch and developed red marks on his skin when they picked him up, which they attributed to a lack of consistent touch.

After an autopsy, K's death was ruled an accident. However, a toxicology screen performed as part of the autopsy established that K had methamphetamine in his system.

On April 12, DHS filed a dependency petition for V in the Sherman County Circuit Court, alleging on multiple grounds that V's condition or circumstances endangered his welfare, as provided in ORS 419B.100(1)(c). DHS also alleged for purposes of the UCCJEA that, during "the previous five years," V had lived in Goldendale and in Rufus, but it did not mention how long the child had lived in either location. The juvenile court entered a shelter order the same day. In its shelter order, the juvenile court asserted jurisdiction under the UCCJEA, ORS 109.701 to 109.834.

Not later than 60 days after the dependency petition was filed, subject to extension for good cause, the juvenile court was required by statute to hold a hearing on the dependency petition to decide whether V was within its jurisdiction under ORS 419B.100. ORS 419B.305(1). And, under ORS 419B.328(1), if the juvenile court decides after the hearing that the child is within its jurisdiction under ORS 419B.100, the court "shall" make the child a ward of the court. Accordingly, on August 24, 2018, the juvenile court conducted a jurisdictional hearing. Neither parent objected to the hearing taking place for lack of subject matter jurisdiction.

At the conclusion of the hearing, the juvenile court entered a judgment of jurisdiction. The court determined that it had "jurisdiction under the UCCJEA to make a child custody determination" and that V was within the jurisdiction of the court under ORS 419B.100(1)(c). The judgment made V a ward of the court and provided for his placement, including committing V to the legal custody of DHS, continuing his placement in foster care, and ordering parents to take specified actions to regain custody of V. The bases for the court's assertion of dependency jurisdiction were, among other things, mother's admissions that her substance abuse and mental health problems interfered with her ability to safely parent V and that she needed assistance from the state to safely and adequately parent V, and father's admissions that his substance abuse problems, criminal activities and incarceration, and chaotic lifestyle interfered with his ability to parent V.

Meanwhile, both parents had returned to Washington. Mother moved back to Goldendale, having found housing there, and father was undergoing drug and alcohol treatment in Chehalis, Washington.

On November 7, 2018, mother gave birth to M in a hospital in Washington. M was born seven weeks prematurely, she had a low birth weight, and tests showed that she had been exposed to amphetamines, methamphetamine, and ecstasy in utero. M's meconium tested positive for marijuana and amphetamines. On the day M was born, because of medical concerns, she was transferred to the neonatal intensive care unit at Doernbecher Children's Hospital in Portland. That day, DHS removed M from mother's care and filed a dependency petition in Sherman County, alleging grounds for jurisdiction over M under ORS 419B.100(1)(c).

The next day, November 8, the juvenile court entered a shelter order in which it asserted temporary emergency jurisdiction under ORS 109.751. That statute provides, in part:

"(1) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

"(2) If there is no previous child custody determination that is entitled to be enforced under ORS 109.701 to 109.834 [the UCCJEA] and a child custody proceeding has not been commenced in a court of a state having jurisdiction under ORS 109.741 to 109.747 [providing grounds for child custody jurisdiction], a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under ORS 109.741 to 109.747. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under ORS 109.741 to 109.747, a child custody determination made under this section becomes a final determination if the determination so provides and this state becomes the home state of the child."

The bases for the court's ruling were that M was present in the state, temporary emergency jurisdiction was necessary in an emergency to protect her...