Opinion
A164163 (Control), A164292
11-01-2017
In the Matter of C. T., fka C. T.-W., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. C. T., fka C. T.-W., and J. W. T., Appellants. In the Matter of S. D.-F. T.-W., a Child. Department of Human Services, Petitioner-Respondent, v. J. W. T., Appellant.
Tiffany Keast argued the cause and filed the brief for appellant J. W. T. Ginger Fitch argued the cause and filed the brief for appellant C. T. Nani Apo, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Tiffany Keast argued the cause and filed the brief for appellant J. W. T.
Ginger Fitch argued the cause and filed the brief for appellant C. T.
Nani Apo, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.
ORTEGA, P. J.In this consolidated juvenile dependency appeal, father appeals judgments asserting jurisdiction over children, C and S, and C appeals the judgment asserting jurisdiction over him. ORS 419B.100(1). Father contends that the Department of Human Services (DHS) failed to prove its allegations that exposure to domestic violence endangered the children at the time of the jurisdictional hearing and that his substance abuse interfered with his ability to safely parent them. As for the challenge to the substance abuse determination, the state concedes that that was error, and we accept the concession. C contends that DHS failed to prove that his paternal grandfather, who had admitted to sexually abusing his own two daughters when they were children, was a threat to C's welfare, which was the basis for the juvenile court's determination that mother and father were unwilling and unable to protect him from harmful and dangerous circumstances. C raises three assignments of error, asserting that the juvenile court erred by admitting expert testimony from a clinical social worker and a DHS caseworker and arguing that there was no nexus connecting grandfather's history of sexual abuse to any risk of harm to him. Further, subsequent to the juvenile court taking jurisdiction of the children, it dismissed jurisdiction on the state's motion, but father asserts that the appeal is not moot. For the reasons explained below, we agree with father that the appeal is not moot. We affirm, however, the jurisdictional judgment based on the allegation other than the substance abuse allegation.I. BACKGROUND
Grandparents (intervenors in the jurisdictional hearing), S, and mother do not appeal.
C, but not father, requests de novo review. ORAP 5.40(8)(c) ; ORS 19.415(3)(b). We conclude that this is not an exceptional case that merits such review and, accordingly, we "view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that out-come." Dept. of Human Services v. N. P. , 257 Or.App. 633, 639, 307 P.3d 444 (2013). We "assume the correctness of the juvenile court's explicit findings of historical fact if these findings are supported by any evidence in the record." Id . We present the facts consistently with that standard.
DHS's petitions involving children were precipitated by two incidents in particular. The first took place in August 2014 when S's aunt reported that S, who was seven years old at the time of the jurisdictional hearing, had possibly been sexually abused while she was staying at grandparents' home. S did not live with grandparents but intermittently stayed with them. C, 11 years old at the time of the hearing, had lived with grandparents for much of his life. Detective Yerrick conducted the investigation into the reported abuse and interviewed both C and S. S told Yerrick that "she did not want [her grandfather] to go to jail." Yerrick also interviewed grandfather, who admitted to abusing his own two daughters when they were young but denied ever having sexually abused S. Grandfather also admitted to walking around his home naked in front of C. Parents were interviewed and informed of Yerrick's investigation. They were told that grandfather had admitted to abusing his two daughters. The case was presented to the district attorney's office, but a decision was made not to prosecute grandfather. DHS made a founded disposition that grandfather had sexually abused S and that there was a threat of harm of sexual abuse to C because parents allowed C to stay with grandfather after DHS made parents aware of its concerns.
The second incident occurred on February 14, 2016. Mother, who has a history of residential instability and had lived apart from father since August 2014, needed a place to live and moved herself and the children into father's small one-bedroom house. On February 14, parents argued heatedly about mother's boyfriend. Mother tried to leave, but father blocked the door. Mother tried pushing father out of the way and eventually threw a glass at father, which hit him in the side. Both C and S were in the bedroom during the argument, and S actually saw mother throw objects at father. The argument was not an isolated incident; mother and father argued frequently, which was what had led mother to separate from father in the first place, and mother had obtained a restraining order against father at one point. The fight left S feeling "[k]ind of sick" and C was "weirded out." Mother called grandparents, who picked up mother and children and took them to grandparents' home, where they spent the night. Mother, however, had been previously informed by DHS that it had deemed grandparents' home unsafe for the children. DHS was notified on February 16 of both the altercation and that C and S had spent a night at grandparents' home.
At the time of the jurisdictional hearing, which took place in October and December of 2016, parents had been married for eleven years but were no longer living together. DHS alleged, among other things and as relevant on appeal, that father "is unable and/or unwilling to protect" C and S "from harmful and/or dangerous circumstances" and that C and S had been "exposed to violence and/or domestic violence while in [father's] care * * *." To prove the allegations that grandfather was a threat to C's safety, DHS adduced a report and testimony from Dr. Steinhauser, a clinical social worker. That testimony and the juvenile court's rulings on the parties' objections to it are discussed further below, but the thrust of the testimony was that, given grandfather's history of sexually abusing children, which was never treated or punished, grandfather posed a risk to C. Huston, a DHS caseworker (whose testimony is also challenged by C), testified to the circumstances leading to the founded disposition that grandfather had sexually abused S and that C's welfare was endangered.S testified in chambers but did not recall, or denied, that grandfather abused her in 2014, and she repeated that she did not want him to go to jail. Grandfather also testified, admitting that, although he was not exactly sure how long he had abused his own daughters by "rubbing" his hands on their "rear end and hips," the abuse may have occurred over a period as long as six months. According to grandfather, he stopped sexually abusing his daughters when he "found the Lord." The police interviewed his daughters around the time of the abuse of them occurred, but did not pursue further investigation. Grandfather also testified that he had been diagnosed by his doctor as suffering from the early stages of dementia. He testified that he had occasionally walked around naked in front of C but had stopped after grandmother got upset and told him not to do it anymore.
C testified that grandfather had never touched him in a way that made him feel uncomfortable and that he wanted to live with grandparents. Neither father nor mother believed that grandfather was a threat to C, and father took the position that he wanted C to live with grandparents.
The court took jurisdiction over C and S, determining that their circumstances were such as to endanger their welfare. ORS 419B.100(1)(c) (the juvenile court has jurisdiction when "conditions or circumstances are such as to endanger the welfare" of the child). The court found that the children had been exposed to domestic violence and determined that domestic violence between mother and father was a current threat to the children. That was because:
"1. [Mother and father] have been married for 11 years, were married at the time of the hearing, and are still married.
"2. During their marriage there has been a history of separation and reunification.
"3. As noted, [mother] has a history of residential instability. She testified that she began to reside with [father] in January 2016, not for any romantic reason, but because she needed a place to live. On the other hand, [father] was romantically interested in [mother], which culminated in the argument on Valentine's Day because of her interest in [another man]. In the future, either [father's] romantic interest in [mother]; or [mother's] constant need for shelter, will likely cause them to reunite."
As for the danger posed by grandfather, the court found persuasive the testimony of Steinhauser that grandfather
"was a threat to reoffend [because] an admitted sex offender, who has not suffered any consequences as a result of his criminal conduct; and thus has never had treatment, continues to be a serious risk to reoffend, even at age 83."
The court also found that it was "more likely than not that [S] was sexually abused by [grandfather]" and that S's allegation of abuse was credible despite her recantation. Moreover, the court found it inappropriate that grandfather walked around the house naked in front of C. In sum, the court found "the evidence *** overwhelming" and determined that "[C] should not be in the care of [grandparents]." Persuaded by Steinhauser's testimony that grandfather was a threat to reoffend based on his history of abusing his daughters, the court determined that DHS had proven its allegation that parents were unwilling or unable to protect C. Father and C now appeal the judgments asserting jurisdiction.
II. DISCUSSION
A. Mootness
During the pendency of this appeal, the juvenile court, on the state's motion, dismissed jurisdiction and wardship of both children. DHS therefore asserts that the appeal by father and C has probably been rendered moot by the subsequent entry of the judgments from which it is taken. Father responded to the state's notice of probable mootness with arguments to the contrary, advancing several reasons that his appeal is not moot. As we explain below, we conclude that father's appeal (and C's related challenges) are not moot.
An appeal is moot when a decision on the main issue in controversy will no longer have a practical effect on the rights of the parties. Dept. of Human Services v. G. D. W. , 353 Or. 25, 32, 292 P.3d 548 (2012). A juvenile court's termination of its jurisdiction and a wardship ordinarily renders moot an appeal of the underlying jurisdictional judgment. Dept. of Human Services v. C. W. J. , 260 Or.App. 180, 181-82, 316 P.3d 423 (2013). By written declaration, father states that he intends to allow C to live with grandparents and that he intends to obtain legal custody of C if C does not return to live with grandparents. Because the judgment includes a finding that C's exposure to grandfather is unsafe, father asserts that it is highly likely that DHS will petition the juvenile court to take jurisdiction again if parents permit C to return to live with grandparents. Further, father argues that the juvenile court's finding that he exposed C and S to domestic violence would adversely affect him in any custody proceedings. We agree that it is likely that the juvenile court's findings could have an adverse effect on father during custody proceedings. We also agree with father's contention that the court's findings that children were exposed to "unsafe persons," namely grandfather—a finding contested by C on appeal—is likely to have adverse consequences. That is, DHS has made a founded disposition of sex abuse against grandfather with S as the victim and, because of that founded disposition, there is also a founded disposition of a threat of harm and sexual abuse with C as the victim. DHS will not conduct a review of a founded disposition where there is a legal finding consistent with that disposition. OAR 413-010-0722. Accordingly, father is correct to assert that he cannot challenge DHS's founded disposition while the jurisdictional judgment on appeal still stands, notwithstanding the subsequent dismissal of jurisdiction. Accordingly, we proceed to address the challenges asserted by both father and C.
Father asserts that his case is indistinguishable from the exception to the general rule that the termination of a judgment renders an appeal of the underlying judgment moot that is described in State v. S. T. S. , 236 Or.App. 646, 653-54, 238 P.3d 53 (2010). In S. T. S. , the father argued that because of the juvenile court's finding that he perpetrated domestic violence against mother, his appeal remained justiciable because that finding of domestic violence gives rise to a social stigma and will have an effect on future DHS investigations. We held that "the social stigma associated with a finding that father perpetrated domestic violence," coupled with "a taint on father's record with DHS" was sufficient to conclude that our decision would have a practical effect on the rights of the parties. Id . at 654, 238 P.3d 53. We disagree that father's case is indistinguishable from S. T. S. The court's findings in this case are that "[C and S] [have] been exposed to violence and/or domestic violence while in the care of the father." That is a significant contrast to S. T. S. , where we held that a finding that the father perpetrated domestic violence involved the demonstrated likelihood of adverse consequences of social stigma and tainting father's record with DHS. Id . at 654. S. T. S. does not resolve the question of mootness in this case.
B. Steinhauser's Testimony
In C's first assignment of error, he argues that the juvenile court plainly erred by failing to exclude certain portions of the testimony of Steinhauser, a clinical social worker with almost 40 years of experience evaluating and treating sexual offenders and individuals with sexual behavior problems. C also makes an argument, which is preserved, that portions of Steinhauser's testimony constitute impermissible vouching. Steinhauser offered an expert assessment, based on her experience and training (found by the juvenile court to be "extensive"), of (1) the risk of harm to any child in grandparents' home in light of grandfather's history of sexually abusing children and the lack of any treatment to address his behavior in order to mitigate the risk that he would abuse other children, namely C and S, and (2) the importance that adults responsible for the safety of the children take the necessary steps to prevent the risk of reoffending.
Before the hearing, Steinhauser prepared a written report of her assessments after reviewing the case file provided to her by DHS, but did not interview grandfather or the children. At the hearing and before Steinhauser testified, her report was contested in two ways: (1) that her conclusion that S was abused by grandfather constituted vouching, and (2) that the report included a provisional diagnosis of grandfather that went beyond Steinhauser's expertise. The juvenile court indicated to the parties that they could object to the portions of Steinhauser's testimony they found objectionable and that the court could properly weigh the persuasiveness of testimony outside Steinhauser's expertise. Moreover, the court indicated that an objection to any opinion by Steinhauser that S or C were abused would be well-taken.
Steinhauser then testified that grandfather posed a risk of harm to any child in his home given his history. She based that conclusion, primarily, on grandfather's admission that he had abused his two daughters when they were children, but Steinhauser also stated, at least initially, that her conclusion was also based on her opinion that S was sexually abused by grandfather. Steinhauser also appeared to believe that grandfather had abused his daughters for many years. According to Steinhauser, there is a "heightened risk" of additional sexual abuse offenses by offenders who have neither been punished for sexual abuse nor received treatment for that conduct. Such behavior will not "spontaneously remit," nor is "religiosity" an effective intervention. In addition, in Steinhauser's view, "without considering" the alleged abuse of C and S, it did not matter that 40 years had passed since grandfather had abused his daughters; for "men who have offended against children and who have pedophilic interests," the drive to sexually abuse children does not "abate." Steinhauser also noted as a risk factor that grandfather suffers from dementia.
Steinhauser stated that "we do know that [the grandfather] offended against [S] via her disclosure and against [C]." That was ruled inadmissible by the court and ultimately Steinhauser explained that her opinion was based on the admission of sex abuse of the two daughters and not C or S.
An error is "plain" "if (1) the error is one of law, (2) the error is obvious, not reasonably in dispute, and (3) the error appears on the face of the record, so that we need not go outside the record to identify the error or choose between competing inferences, and the facts constituting the error are irrefutable." State v. Corkill , 262 Or.App. 543, 551, 325 P.3d 796, rev. den. , 355 Or. 751, 331 P.3d 1010 (2014) (internal quotation marks omitted). In this case, C fails to establish that the error is obvious and not reasonably in dispute.
C's challenge to Steinhauser's testimony relies on his assertion that the scientific evidence to which she testified was not helpful to the juvenile court as required by OEC 702. That rule provides, in part, that an expert may testify to scientific evidence if it "assist[s] the trier of fact to understand the evidence or to determine a fact in issue." "To be helpful [under OEC 702 ], the subject of the testimony must be within the expert's field, the witness must be qualified, and the foundation for the opinion must intelligibly relate the testimony to the facts. " State v. Brown , 297 Or. 404, 409, 687 P.2d 751 (1984) (emphasis added).
OEC 702 provides:
"If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise."
At the outset, we note that C is not asserting that Steinhauser's testimony was improperly admitted as scientific evidence. Rather, we understand C's argument on appeal to be that the juvenile court plainly erred by admitting Steinhauser's testimony because it was not intelligibly related to the facts of the case. In particular, C relies on the Supreme Court's recent decision in State v. Jesse , 360 Or. 584, 385 P.3d 1063 (2016), where the court held that an expert's testimony was too tangentially related to the defendant's evidence at trial to be helpful to the court. Here, C sets out two categories of facts that he posits were not intelligibly related to the juvenile court's task of determining whether grandfather posed a risk of sexually abusing C: (1) Steinhauser relied on her conclusion that the grandfather abused S and relied on incorrect factual premises, including that the grandfather abused his own children over a long period of time instead of a few months; and (2) Steinhauser made a number of speculative assertions without scientific validity, such as her opinion that religion cannot cure pedophilia, persons with sexual behavior problems do not "enjoy spontaneous remission," persons with dementia often regress to the point that they identify children as viable sexual partners, and children commonly recant allegations of abuse because they come to realize the negative consequences of the disclosure and are protective of the alleged abuser.
C's assignment of error under his numbered heading asserts that the juvenile court committed plain error under State v. Marrington , 335 Or. 555, 73 P.3d 911 (2003), and B. A. v. Webb , 253 Or.App. 1, 289 P.3d 300 (2012), rev. den. , 353 Or. 428, 299 P.3d 889 (2013), yet his argument in support of the assignment asserts that the court plainly erred under the Supreme Court's holding in State v. Jesse , 360 Or. 584, 385 P.3d 1063 (2016), which resolved whether scientific testimony was helpful to the trier of fact under OEC 702. Marrington resolved whether an expert's testimony was scientific evidence that therefore required an appropriate foundation, a different question from the substance of C's plain error argument. 335 Or. at 557, 73 P.3d 911. In B. A. , we concluded that the trial court plainly erred by failing to sua sponte exclude expert testimony that commented on the credibility of the plaintiff in a sexual battery tort action and provided a diagnosis of sexual abuse in the absence of physical findings. 253 Or.App. at 3, 289 P.3d 300.
In C's view, it was the trial court's role to find that fact, not Steinhauser's.
C also asserts that mother's counsel pointed out twenty-six additional factual errors to the court for which the court concluded that, to the extent that there were factual errors, it would consider them when it weighed the persuasiveness of Steinhauser's testimony rather than rule it inadmissible. As C does not argue how any of the factual errors, aside from the length of the abuse, renders Steinhauser's report or testimony plainly inadmissible, we do not consider them.
However, on the first point, the juvenile court clarified that Steinhauser's opinion that grandfather was at risk of sexually abusing C or S could be supported alone by grandfather's abuse of his two daughters 40 years previously. The juvenile court, in its written findings, stated that Steinhauser eventually indicated that her opinion would remain the same without the allegations regarding S and that it had made its own assessment of S's allegation of sexual abuse apart from Steinhauser's testimony. Given that clarification, we cannot conclude that admitting Steinhauser's testimony was plain error. Additionally, it is not obvious that Steinhauser's misunderstanding of the period of time that grandfather abused his daughters renders inadmissible her opinion that his history of sexual abuse of children poses a risk of harm to C. The court stated that it recognized the factual errors pointed out to it and that it would factor in any errors when it evaluated the persuasiveness of Steinhauser's testimony.
Likewise, we cannot conclude that it was plain error to admit portions of Steinhauser's testimony that C characterizes as "speculative." Those opinions were based on Steinhauser's experience and training, which the juvenile court deemed "extensive." Without any authority stating that any of those opinions are impermissible—and C provides none—it is not obvious that it was error for the court to admit them, or rely on them.
We turn to C's final argument concerning Steinhauser's testimony, in which he contends that admitting Steinhauser's opinions that a "child's disclosure always trumps the polygraph" and that sexual abuse treatment professionals "always take [a child's] word as truth" to guarantee the "best recommendations for safety" was error because it was impermissible vouching. See, e.g. , State v. Middleton , 294 Or. 427, 438, 657 P.2d 1215 (1983) ; State v. Milbradt , 305 Or. 621, 629, 756 P.2d 620 (1988) (stating that assessment of credibility of witness is for trier of fact). As to the opinion about the polygraph test, we note that the court explicitly ruled that it understood that statement to be that Steinhauser believed that the results of the polygraph were unreliable and did not take it as a comment on credibility. As to the second opinion, the court expressly disregarded that testimony as vouching. The issue of vouching was raised before, during, and after Steinhauser's testimony. Indeed, the court stated that it "could not come to the conclusion that S was sexually abused based on what Dr. Steinhauser said." The court could not have been clearer; it did not err.C. Huston's Testimony
Steinhauser stated that polygraph tests have false negatives and positives and that, in her clinical experience, known sexual abusers have lied about abuse.
C also challenges the testimony of Huston, a caseworker for DHS, who testified, when explaining his engagement with the family after the 2014 police investigation of sexual abuse and how he had reached the founded disposition that grandfather sexually abused S, that S had "made clear disclosures of being seriously abused by her grandfather." C argues that that testimony was hearsay and not admissible because Huston had erroneously been designated by the juvenile court as an expert.
DHS asserts that that statement was harmless because the court did not rely on the asserted hearsay in determining that grandfather had abused S; assuming without deciding that admitting the hearsay was error, we agree. "Evidentiary error is considered harmless and is not a basis for reversal 'if there is little likelihood that the particular error affected the verdict.' " Dept. of Human Services v. G. D. W. , 353 Or. 25, 39, 292 P.3d 548 (2012) (quoting State v. Davis , 336 Or. 19, 32, 77 P.3d 1111 (2003) ). The court expressly determined that it was "more likely than not that [S] was sexually abused" by grandfather and made that determination based on its independent review of the recording of S's disclosure to Yerrick, which it found to be credible. Moreover, the court explicitly stated after Huston's testimony concluded that it would not accept the statements concerning why Huston made the founded disposition as "truthful" but, rather, as statements that Huston "received to make his opinion." Accordingly, because the trial court relied directly on a review of S's disclosure—not Huston's hearsay—there is little likelihood that the caseworker's statement affected the court's determination. See Dept. of Human Services v. C. M. , 284 Or.App. 521, 532-33, 392 P.3d 820 (2017) (concluding that there was little likelihood that admitting hearsay evidence that was "cumulative and qualitatively similar to other evidence presented at the hearing" affected the juvenile court's determination of exposure to domestic violence); State v. Brooks , 247 Or.App. 676, 682-83, 270 P.3d 388, rev. den. , 352 Or. 265, 286 P.3d 1230 (2012) (erroneous admission of the diagnosis of sexual abuse was harmless because the court expressly disclaimed reliance on the diagnosis in reaching its verdict and nothing in the record demonstrated otherwise).D. Determination of Risk of Harm to C
In C's third assignment of error, he asserts that DHS failed to prove that grandfather posed a risk to him; in his view, any risk was speculative. That is, C's position is that DHS's case that grandfather posed a risk to him was based on DHS's 2014 founded disposition of threat of harm and that DHS's theory was a "house of cards." He points out that S's allegations against grandfather were not prosecuted despite being brought to the attention of the district attorney's office; that S recanted; that grandfather denied the allegation; and that the time that C had lived with grandfather, which was most of his life, did not involve any incidents of abuse (walking around naked in one's own home is "normal, household behavior"). C also asserts—ignoring the finding by the court that grandfather abused S—that grandfather's history of sexual abuse occurred more than 40 years ago.
Jurisdiction is appropriate under ORS 419B.100 (1)(c)"when a child's condition or circumstances endanger the welfare of the child." Dept. of Human Services v. C. J. T. , 258 Or.App. 57, 61, 308 P.3d 307 (2013). A child's welfare is endangered if he is exposed "to conditions or circumstances that present a current threat of serious loss or injury." Id . To determine whether conditions or circumstances warrant jurisdiction, we ask whether, "under the totality of the circumstances, there is a reasonable likelihood of harm to the welfare of the child." Dept. of Human Services v. C. Z. , 236 Or.App. 436, 440, 236 P.3d 791 (2010). Additionally, DHS must "prove that there is a nexus connecting the parent's allegedly risk-causing conduct and the harm to the child and also that the risk of harm is present at the time of the hearing and not merely speculative." Dept. of Human Services v. K. V. , 276 Or.App. 782, 791, 369 P.3d 1231, rev. den. , 359 Or. 667, 379 P.3d 523 (2016) (internal quotation marks omitted). "When a party challenges the sufficiency of the evidence to prove an allegation, we review the juvenile court's explicit and implied findings to determine if there is any evidence in the record to support those findings." Dept. of Human Services v. W. A. C. , 263 Or.App. 382, 396, 328 P.3d 769 (2014) (citing N. P. , 257 Or.App. at 639-40, 307 P.3d 444 ).In this case, given that we have concluded that the juvenile court did not err or commit plain error with respect to admitting the challenged portions of Steinhauser's testimony and given the court's finding that S was abused by grandfather, we readily conclude that the evidence is sufficient to support the trial court's determination of a risk to C. That is, Steinhauser's testimony established a nexus between grandfather's sexual abuse of his daughters, which went untreated and unpunished, and the risk he posed to C, and the evidence is sufficient to support the court's findings and determination with regard to the threat posed by grandfather.
E. Exposure to Domestic Violence
Finally, we turn to father's claim that the juvenile court erred in determining that children were at a current risk of serious loss or injury from exposure to domestic violence between parents because parents were likely to reunite. In father's view, the court's finding that the parents likely would reunite is speculative. He posits that the court's finding that parents had a "history of separation and reunification" is overstated; in his view, the record indicates that parents separated in August 2014, reunited in January and February 2016, and then separated again: "That single instance does not constitute a pattern of reconciliation that might support a non-speculative inference that parents will reunite in the future." Moreover, father contends that the relationship was long over by the time of the jurisdictional hearing and that he had not spoken to mother since the February 14 altercation. He points out that mother testified that she had no interest in reuniting with father. For his argument, he relies on our recent per curiam opinion, Dept. of Human Services v. S. P. R. , 283 Or.App. 417, 388 P.3d 1246 (2017), in which, without a detailed discussion of the circumstances of the mother and father in that case, we held that the evidence was insufficient to conclude that past domestic violence was a circumstance of current threat of harm to the child. That was because the parents' relationship had ended "long before" the jurisdictional hearing and the mother had not engaged in relationships or other conduct connected to domestic violence. Id . at 420-21, 388 P.3d 1246.
Father appears to principally contest whether there existed a current threat of exposure to domestic violence rather than a contention that children were not exposed to domestic violence at any point. In any event, we have defined "exposed" as meaning "not shielded or protected : so situated as to invite or make likely an attack, injury, or other adverse development," Dept. of Human Services v. C. M. , 284 Or.App. 521, 528, 392 P.3d 820 (2017), and under that definition, the juvenile court's finding that exposure to domestic violence occurred is supported by evidence in the record.
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Without the benefit of a more detailed factual basis, S. P. R. is of limited use in this case. Based on the facts of this case, however, we conclude that the evidence was sufficient to support the juvenile court's determination. To begin with, parents remained married at the time of the jurisdictional hearing, and the record contains no indication that dissolution proceedings had been initiated. Moreover, the court found that mother's residential instability contributed to the likelihood that parents would reunite and that father retained a romantic interest in mother. We cannot conclude that the juvenile court erred in its determination.
Jurisdictional judgments reversed and remanded for entry of judgment establishing dependency jurisdiction based on allegations other than substance abuse; otherwise affirmed.