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March 01, 2012

Children Not Dependent Due to Mother’s Cognitive Limitations

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

The Oregon Court of Appeals overturned a juvenile’s court’s dependency order because the record did not reflect a serious threat of harm. Though it was not disputed that mother had cognitive limitations that posed potential safety risks, she lived with a supportive couple, and nothing in statute or case law required her to parent independently.

In re N.E.F.-J., 2011 WL 6076176 (Or. Ct. App.).

The child welfare agency sought custody of mother’s two children after one was surrendered by an aunt that was caring for him due to the mother’s cognitive limitations. The younger child had been living with the mother.

At the adjudication hearing, the agency worker noted that the mother had learned some parenting skills and could apply what she had learned, but had limited ability to respond to new situations. Due to her limitations, she at times had placed the children at risk. For example, the mother continued to treat her child as a baby when he was more than a year old, giving him a bottle, despite his cues that was not what he wanted. She also let him wander to potentially harmful places. The worker concluded the mother could not parent the children herself.

The mother did not attempt to contradict the worker’s testimony. Rather, she argued that she could parent the children safely with the assistance of a family friend who she had lived with for two months. The family friend testified noting that the mother had been given primary parenting responsibility but that she and her husband were available to help her with any questions or problems.

The juvenile court found that the children were dependent because the mother had cognitive limitations that impaired her ability to parent, establishing a current threat of serious loss or injury. The mother appealed.

The Oregon Court of Appeals reversed. The court found the mother correctly argued that the agency had to prove the child was facing a current serious threat of harm.  Nothing in statute or case law required the mother to parent independently. Because the family friend stated the mother was free to remain in their home indefinitely, there was no reason to believe this supportive environment was in peril. Thus, the juvenile court’s jurisdiction order was reversed.