State Ex Rel. Juvenile Department v. Randall

*675WARREN, J.

Mother appeals a juvenile court order making her five-year-old daughter a ward of the court. She assigns error to the court’s denial of her motion to dismiss the petition for failure to state sufficient facts to support a finding of jurisdiction. We reverse.

The petition alleges, in pertinent part:

“2. The child is within the jurisdiction of the Court by reason of the following facts:
“A. The behavior, condition or circumstances of said child is such as to endanger the child’s own welfare and the welfare of others by reason of the following facts: The child’s mother uses controlled substances. The child’s sibling, born April 6,1988, had controlled substances in her system.”

Mother concedes that the juvenile court has jurisdiction over the sibling.

The state contends that the petition states facts sufficient, if proved, to bring the older child within the jurisdiction of the court under ORS 419.476.1 It argues that a mother’s use of controlled substances is a proper consideration in determining whether the welfare of a child is endangered and cites State ex rel Juv. Dept. v. Rhoades, 73 Or App 192, 196, 698 P2d 66, rev den 299 Or 443 (1985), for the proposition that, if the risk is apparent, a juvenile court may intervene to protect a child from the risk, even in the absence of actual damage to the child. According to the state, it is apparent that mother’s drug use poses a danger to the child’s welfare.

Although we agree with the state that a parent’s use of controlled substances is a proper consideration in determining whether a child should be made a ward of the state, that allegation is insufficient by itself to establish that the child’s welfare is endangered. The petition must also include *676some factual allegation showing how the parent’s drug usage endangers the welfare of the child over whom the court is asserting jurisdiction.

The petition alleges two facts: drug usage by mother and the presence of drugs in the sibling. It does not allege that, because of the substance abuse, mother is incapable of providing proper care or food for the child. It fails to allege that the child’s welfare is endangered in any way by mother’s drug use. The fact that the sibling was born with drugs in her system addresses only her welfare and not that of the older child. The allegations in the petition are insufficient to establish jurisdiction over the older child.

Our holding in State ex rel Juv. Dept. v. Rhoades, supra, 73 Or App at 195-96, does not compel a different conclusion. There, we held that the juvenile court had jurisdiction over a child, because it was reasonable to predict that harm would come to that child when the petition alleged only that the father, with whom the child would be living, had been convicted of sexually abusing another child in the family. We have also held that the physical abuse of one child justifies removing another child from a parent’s custody. See State ex rel Juv. Dept. v. Grannis, 67 Or App 565, 569, 680 P2d 660 (1984). Those acts, however, are qualitatively different from a parent’s abuse of controlled substances. Unlike the latter act, by which the parent is engaging in self-abuse that may result in unintended or unrecognized injury to her child, acts of sexual or other physical abuse are affirmatively and knowingly directed toward a child. Therefore, there is a greater likelihood that another child in a family will also be a victim of abuse.

We do not doubt that a child’s welfare might be seriously endangered by a parent’s use of a controlled substance. However, we cannot take judicial notice that all substance users are incapable of adequate parenting. We hold that a petition must allege that the child over whom jurisdiction is to be asserted is threatened or affected by mother’s substance use.2

*677Reversed.

ORS 419.476, provides, in part:

“(1) The juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and:
«* * * * *
“(c) Whose behavior, condition or circumstances are such as to endanger the the welfare of the person or the welfare of others[.j”

The dissent’s reliance on facts outside the pleading attempts to divert attention from the only issue on appeal: Does petitioner allege facts, that, if true, show that the subject child is in danger? The petition does not allege that mother uses heroin or that she does not or cannot care for the subject child because of the use of a controlled substance. It is not too much to ask the state to plead what it says it can prove when it seeks to affect a familial relationship.