Dept. of Human Services v. M. T.

No. 986 October 14, 2026 741 IN THE COURT OF APPEALS OF THE STATE OF OREGON In the Matter of J. T., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. M. T., Appellant. Douglas County Circuit Court 25JU04819; A190019 (Control) In the Matter of J. T., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. M. T., Appellant. Douglas County Circuit Court 25JU04820; A190020 Ann Marie Simmons, Judge. Submitted August 19, 2026. Shannon Storey, Chief Defender, Juvenile Appellate Section, and Sean Connor, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and Jose Garcia-Fuerte, Assistant Attorney General, filed the brief for respondent. Before Lagesen, Chief Judge, Jacquot, Judge, and O’Connor, Judge. O’CONNOR, J. 742 Dept. of Human Services v. M. T. Reversed and remanded for entry of judgments omitting allegation 4C as a basis for jurisdiction in both judgments; otherwise affirmed. Cite as 353 Or App 741 (2026) 743 O’CONNOR, J. In this consolidated juvenile dependency case, father appeals judgments asserting dependency jurisdiction over his two children, who were seven and five years old respectively at the time of the jurisdiction trial.1 In six assignments of error, he challenges each individual basis on which the juve- nile court asserted dependency jurisdiction over each child, as well as the ultimate ruling to assert dependency juris- diction over each child. As explained below, we reverse as to the bases for jurisdiction that the children were exposed to controlled substances while in father’s custody, placing the children at risk of harm, and otherwise affirm. We do not exercise our discretion to review de novo. Father does not request de novo review, and this is not an exceptional case that would justify de novo review. ORS 19.415(3); ORAP 5.40(8)(c). Father challenges the sufficiency of the evidence. Thus, the question before us is purely legal. We “view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the juve- nile 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). The juvenile court is authorized to assert depen- dency jurisdiction over a child when the child’s condition and circumstances expose the child to a current threat of serious loss or injury that will likely be realized. ORS 419B.100(1)(c); Dept. of Human Services v. A. L., 268 Or App 391, 397-98, 342 P3d 174 (2015). The petitioner, the Oregon Department of Human Services (ODHS), bears the burden of proof. A. L., 268 Or App at 397-98. That burden includes demonstrating a nexus between the child’s conditions and circumstances that are allegedly putting them at risk, and a threat of harm to the child of the type, degree, and duration 1 Mother and father were no longer in a romantic relationship and they did not live together during the incidents relevant to the Oregon Department of Human Resources’ (ODHS’s) jurisdictional allegations. The juvenile court took jurisdiction over both children based on mother’s substance abuse. Mother is not a party to this appeal. 744 Dept. of Human Services v. M. T. as to justify juvenile court intervention into the constitu- tionally protected family sphere. Dept. of Human Services v. S. D. I., 259 Or App 116, 121, 312 P3d 608 (2013). Proof of harm or risk at some point in the past is insufficient; the threat must be current at the time of trial. State v. S. T. S., 236 Or App 646, 654, 238 P3d 53 (2010). Nor can the risk be speculative; there must be a reasonable probability that the risk will be realized. Dept. of Human Services v. J. H., 292 Or App 733, 738, 425 P3d 791 (2018). FACTS In this case, as relevant to father, the juvenile court asserted dependency jurisdiction over each child on two bases. The first basis is that “father lacks [the] skills and resources necessary to navigate the services required to meet the specialized needs of the child and places the child at risk of harm” (basis 4B in each petition). The sec- ond basis is that “[t]he child was exposed to controlled sub- stances while in the father’s custody, placing the child at risk of harm” (basis 4C in each petition). Father argues that the juvenile court erred in doing so because the evidence was legally insufficient to establish that those conditions and circumstances exposed the children to a current and nonspeculative threat of serious loss or injury at the time of the jurisdiction trial. The children have differences in their diagnoses and needs. But the parties do not argue that those differ- ences are material for the purposes of analyzing the suffi- ciency of the evidence on the jurisdictional bases. Our dis- cussion thus applies equally to the jurisdictional bases for both children. Both children are “profoundly impacted by autism.” They both cannot communicate verbally beyond a few words. They both wear diapers. They struggle with motor skills. They both “elope,” which means that they escape from their environment and run away. One of the children is par- ticularly skilled at undoing locked windows and doors and quickly eloping. Father had sole custody of the children. Father and mother both have long histories of substance abuse. Father Cite as 353 Or App 741 (2026) 745 used methamphetamine intravenously. In June 2023, ODHS removed children from father’s care because he admitted that his substance abuse interfered with his ability to safely parent children and that he needed the assistance of a child- care agency to meet his children’s special needs. Father stopped using methamphetamine when the children were returned to his physical custody after the prior dependency case. He relapsed during the jurisdictional trial in this case, after the children had been removed from his care. During the prior dependency case, a foster parent took the children to Dr. Roth, a developmental and behavioral pediatrician. Roth diagnosed the children with autism and recommended services for them. ODHS returned the children to father’s care in July 2024. It closed the dependency case in May 2025. Roth last saw the children in May 2024. Mother was involved with the children even though they did not reside with her. Mother lived with her maternal aunt, Rosemary. Father left the children with mother when he needed care for them. Father knew that mother was not supposed to be alone with the children. He assumed that mother’s aunt would help mother watch the children. Father knew that mother used methamphetamine, fentanyl, and cannabis. Mother did not use controlled substances in her aunt’s house or in front of the children. Father left the children with mother for several weeks in September and October 2025. In November 2025, both children’s hair follicles tested positive for methamphet- amine, fentanyl, and THC. The manager of the laboratory that tested the children’s hair follicles testified that the test detects exposure to drugs up to 90 days before the date that the hair follicles are collected based on the length of the hair collected. The test could detect drugs transferred from person-to-person through sweat and oils on a drug user’s skin coming into contact with another person’s hair. The test could not determine when a person was exposed to drugs during that 90-day period, how they were exposed, or the quantity of drugs that they were exposed to.2 2 The factual summary is based on the evidence in this record. It is not intended as a general statement of the capabilities or limitations of hair follicle testing for controlled substances. 746 Dept. of Human Services v. M. T. ODHS did not present evidence about how the children were exposed to the substances, although mother acknowledged that the children could have been exposed through her sweat. ODHS removed the children again from father’s care in November 2025, after the results of the hair follicle test. ODHS initiated a second dependency case, which is the subject of this appeal. Roth had not reviewed the test results that showed that the children had been exposed to controlled substances. Roth testified about the general risk to children from expo- sure to fentanyl, methamphetamine, and marijuana. She explained that generally “acute intoxication” by metham- phetamine “could be deadly but routine exposure over time can also decrease developmental or change a developmental trajectory * * *.” Routine exposure to fentanyl, even in less than a potentially fatal amount, is “not an ideal state for the young brain to be in,” Roth testified. Finally, she testi- fied that “boys with autism are at high risk for psychosis. And any exposure to THC [in marijuana] could increase that risk of psychosis.” She could not provide an opinion about the probability of risk of harm to a child from expo- sure to methamphetamine, fentanyl, or marijuana without information about how much of the substance the child had been exposed to or the manner of exposure. But she agreed that “there’s always a risk of harm with drug exposure [to] children.” The court took jurisdiction based on the children being exposed to controlled substances while in father’s cus- tody, exposing the children to risk of harm and that “father lacks [the] skills and resources necessary to navigate the services required to meet the specialized needs of the child and places the child at risk of harm.” The juvenile court found that ODHS had not established that father exposed the children to controlled substances, and that the court did not know who had exposed the children. Nevertheless, the juvenile court determined that it was father’s responsibility as the “parent who is in charge of the children” to “make sure” that the children were not exposed to controlled sub- stances. The juvenile court acknowledged that “exposure to controlled substance use by a parent” is not “usually” a Cite as 353 Or App 741 (2026) 747 sufficient risk of harm, but that “[i]t’s usually the parent’s lack of responsibility towards the child, * * * which isn’t really the argument in this case.” The court credited Roth’s testimony and determined that “the risk of harm is not what we traditionally see as the risk [of] harm” but that “in this case * * * the risk of harm is there because of the children’s neurodivergence, basically.” ANALYSIS We conclude that the evidence does not establish a nexus between father’s conduct and a nonspeculative, cur- rent risk of harm to the children based on the drug exposure allegation. As the juvenile court acknowledged, “evidence that a parent uses drugs is insufficient to establish jurisdic- tion without some theory, supported by the facts, as to how that use poses a risk to the child.” Dept. of Human Services v. T. N. M., 315 Or App 160, 168, 501 P3d 76 (2021). ODHS must present “relevant individualized evidence * * * that, in the specific case, the parent’s substance abuse subjects the child to a nonspeculative threat of serious loss or injury.” Dept. of Human Services v. T. C. S., 348 Or App 437, 445, 590 P3d 591 (2026) (internal quotation marks and citation omitted). That is, ODHS must present evidence of a parent’s drug use plus other evidence that shows a nonspeculative threat of serious loss or injury to the child. In this case, ODHS presented evidence that both children were exposed to controlled substances. However, the juvenile court found that father had not exposed them, and it did not know who had. Nonetheless, as the juvenile court explained when it amended the jurisdictional basis, it took jurisdiction on the basis that the children were some- how exposed to controlled substances while in father’s legal custody. That basis has some common-sense appeal. Most people would be troubled when a parent does not know how their seven- and five-year-old children were exposed to methamphetamine, fentanyl, and marijuana. But ODHS’s showing must be more specific. It has the burden to establish a nonspeculative risk of harm from the children being exposed to controlled substances while in father’s custody. See S. D. I., 259 Or App at 121 (ODHS 748 Dept. of Human Services v. M. T. “must present evidence about the severity of the harm and the likelihood that it will occur” and “the type, degree, and duration of the harm must be such that exposure to a reasonable likelihood of that harm justifies juvenile court jurisdiction”). On this record, ODHS failed to establish the type, degree, or duration of the harm, which in turn fails to show or reestablish that there was a reasonable likelihood of harm that justifies juvenile court jurisdiction. The hair follicle testing in the record cannot deter- mine how much methamphetamine, fentanyl, or marijuana the children were exposed to or the manner of the exposure. The substances could have been transferred to the chil- dren’s hair from the sweat of a person who had used the substances, according to the testimony of the manager of the laboratory that performed the hair follicle test. Because of the uncertainty about the quantity and manner of expo- sure, Roth could not determine the likelihood of harm to a child from the exposure. Although some types of exposure to controlled substances might permit a juvenile court to infer a reasonable risk of harm to a child without expert testimony, the record here does not permit such an inference because of the absence of evidence about the circumstances of the exposure. The juvenile court, understandably, was concerned about the children being exposed to any amount of controlled substances, particularly given their profound autism. But without evidence about how the children were exposed and whether the exposure created a nonspeculative risk of an adverse impact on their neurological development, the evi- dence was insufficient to establish the jurisdictional basis alleged in paragraph 4C of each petition. We affirm the other jurisdictional basis, however, because we agree with ODHS that the evidence was legally sufficient as to that basis. Both children require high levels of care and supervision because of their profound autism. When father had custody of the children, he was unable to get them to their medical or therapy appointments, con- sistently get them to school, or access the other services available to him and the children. Sufficient evidence in the record supports the juvenile court’s determination that Cite as 353 Or App 741 (2026) 749 father lacks the skills and resources necessary to meet each child’s specialized needs, which places the children at risk of harm. It follows that we also affirm the ultimate assertion of dependency jurisdiction as to each child. Reversed and remanded for entry of judgments omitting allegation 4C as a basis for jurisdiction in both judgments; otherwise affirmed.