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

The risk of harm when establishing jurisdiction must be “present at the time of the hearing and not merely speculative” and “a person’s status as a sex offender does not alone justify state intervention, nor does the fact that a sex offender is untreated create a presumption of risk to the child.” Dept. of Human Services v. E.M., 264 Or App 76 (2014); Dept. of Human Services v. G.J.R., 254 Or App 436 (2013).

Father appealed a judgment finding his child was within the jurisdiction of the court. Father assigned error to the trial court denying his motion to dismiss. On appeal, Father argued that DHS failed to prove that either his perpetuation of domestic violence or his use of alcohol created a risk to the child. In response, DHS cross-appealed, challenging the court’s dismissal of sexual abuse allegations that endangered the child’s welfare. The risk of harm when establishing jurisdiction must be “present at the time of the hearing and not merely speculative” and “a person’s status as a sex offender does not alone justify state intervention, nor does the fact that a sex offender is untreated create a presumption of risk to the child.” Dept. of Human Services v. E.M., 264 Or App 76 (2014); Dept. of Human Services v. G.J.R., 254 Or App 436 (2013). The Court held that Father did pose a current risk as he did not engage in treatment, continued to say inappropriate things to the child, and Father sexually abused child’s sister when she was the same age as the child is now.

The judgment of the dismissing the sexual abuse allegation is reversed and remanded, and the judgment finding jurisdiction based on the father's substance abuse and domestic violence is reversed.