Dep't of Human Servs. v. A.H. (In re A.L.H.)

• Decision Date: 30 December 2015
• Docket Number: JV150017,A159624.,JV150017A
• Citation: 365 P.3d 1183,275 Or.App. 788
• Parties: In the Matter of A.L.H., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent, v. A.H. and S.H., Appellants.
• Court: Oregon Court of Appeals

275 Or.App. 788

365 P.3d 1183

In the Matter of A.L.H., a Child.DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent,

v.A.H. and S.H., Appellants.

JV150017

JV150017A

A159624.

Court of Appeals of Oregon.

Submitted Nov. 6, 2015.

Decided Dec. 30, 2015.

Laura S. Anderson and Laura S. Anderson, LLC, filed the brief for appellant A.H.

Shannon Storey, Chief Defender, Juvenile Appellate Section, and Holly Telerant, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant S.H.

Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Nani Apo, Assistant Attorney General, filed the brief for respondent.

Before SERCOMBE, Presiding Judge, and NAKAMOTO, Judge, and TOOKEY, Judge.

SERCOMBE, P.J.

Parents appeal from a juvenile court judgment assuming jurisdiction over their child, A, pursuant to ORS 419B.100(1)(c). The court took jurisdiction over A based on allegations that mother's behaviors interfere with her ability to safely parent A and place A at risk of harm; that A's parents could not meet A's specialized needs; and that A had disclosed that a family member sexually abused her, and parents failed to take steps to protect A from the family member, who lived on the same property. At the time of the jurisdictional hearing, A was living with her grandparents. According to parents, there was no dispute that A was doing well in grandparents' care and that both parents supported her in continuing to live with grandparents for as long as she wished. Parents contend that the juvenile court erred in asserting jurisdiction over A because there was no evidence that living with grandparents exposed her to a current, nonspeculative threat of serious loss or injury that would likely be realized without the court's intervention. See Dept. of Human Services v. A.L., 268 Or.App. 391, 400, 342 P.3d 174 (2015) ("Because parents have entrusted the primary care of the children to the paternal grandparents, who do not pose a current threat of harm, the court did not have a basis for asserting jurisdiction over the children.").

The Department of Human Services (DHS) first asserts that, because the juvenile court has entered a judgment dismissing jurisdiction and terminating the wardship of A, we should dismiss the appeal as moot. "Under Oregon law, when changed circumstances render an appeal moot, it will be dismissed." Brownstone Homes Condo. Assn. v. Brownstone Forest Hts., 358 Or. 26, 30, 361 P.3d 1 (2015). An appeal is moot when a decision 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). However, "[e]ven if the main issue in a controversy has been resolved, collateral consequences may prevent the controversy from being moot under some circumstances." Barnes v. Thompson, 159 Or.App. 383, 386, 977 P.2d 431, rev. den., 329 Or. 447, 994 P.2d 126 (1999) (emphasis in original). "A collateral consequence for purposes of mootness is a probable adverse consequence to [a party] as a result of the challenged action." State v. Hauskins, 251 Or.App. 34, 36, 281 P.3d 669 (2012).

According to parents, the jurisdictional judgment has collateral consequences and, therefore, the appeal is not moot. Parents point to several adverse consequences that result from the judgment and cause their interests to remain adverse to DHS, meaning that a decision from this court will have a practical effect on the parties. They explain that a parent has the right to seek review of a "founded disposition" determining that a parent is a perpetrator of child abuse or neglect. See OAR 413–010–0720(5). However, a parent is barred from challenging that disposition if a legal proceeding results in a finding consistent with the founded disposition. See OAR 413–010–0722(1) ; OAR 413–010–0723. And, according to parents, a founded disposition, such as the neglect findings at issue in this case, puts a parent at a disadvantage in any future investigation by DHS. See State ex rel. Juv. Dept. v. L.B., 233 Or.App. 360, 365, 226 P.3d 66 (2010) (appeal from jurisdictional judgment not moot where it, "as well as any concomitant DHS findings regarding abuse or neglect, negatively affect father's and mother's record with the department").

Second, mother asserts that the jurisdictional judgment had and continues to have negative effects on her employment. In an affidavit submitted in opposition to dismissal of the appeal, mother states that, prior to DHS's involvement with the family, she worked in education, first as a special education assistant and, later, as a teacher. In those positions she was subject to background checks. When the principal at the school where mother taught learned that mother was involved in this dependency case, he informed her that he would have to report that information to the district superintendent to determine whether to put her on administrative leave during the pendency of the case. According to mother, she resigned before being put on administrative leave and, thereafter, had...