Dep't of Human Servs. v. A. B. (In re J. B.)
| Citation | 412 P.3d 1169,362 Or. 412 |
| Decision Date | 08 February 2018 |
| Docket Number | CC J150426,SC S064812 |
| Parties | In the Matter of J. B., a Child. DEPARTMENT OF HUMAN SERVICES, Respondent on Review, v. A. B. Petitioner on Review. |
| Court | Supreme Court of Oregon |
362 Or. 412
412 P.3d 1169
In the Matter of J. B., a Child.
DEPARTMENT OF HUMAN SERVICES, Respondent on Review,
v.
A. B. Petitioner on Review.
CC J150426
SC S064812
Supreme Court of Oregon.
Argued and submitted November 7, 2017.
February 8, 2018
Sarah Peterson, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the brief was Shannon Storey, Chief Defender.
Inge D. Wells, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters, Nakamoto, Flynn, and Nelson, Justices, and Shorr, Judge of the Court of Appeals, Justice pro tempore.**
WALTERS, J.
When a parent appeals from a jurisdictional judgment making the Department of Human Services (the department) the legal custodian of the parent's child and that wardship is subsequently terminated, the department may file a motion to dismiss the appeal as moot. In this case, we conclude that termination of such a wardship does not necessarily render the appeal moot; whether dismissal is appropriate will depend on the particular circumstances presented. If a parent identifies practical effects or collateral consequences that the parent believes will result from the judgment, then the department has the burden to persuade the appellate court that those consequences are factually incorrect or legally insufficient. The burden is on the department to prove that a jurisdictional judgment will have no practical effect on the rights of the parties and is therefore moot. In this case, we conclude that the department met that burden. The decision of the Court of Appeals is affirmed. Dept. of Human Services v. A. B. , 283 Or.App. 907, 389 P.3d 409 (2017).
FACTS AND PROCEDURAL HISTORY
We take the facts from the uncontested juvenile court records and the express findings of the juvenile court.
In 2005, the child who is the focus of this proceeding was born. He has an autism spectrum disorder, developmental delays, including speech delays, and other significant health issues.
In 2010, when the child was five years old, his mother and father divorced. Mother had been his primary caretaker, and she was awarded sole legal custody.
In 2015, when the child was 10 years old, the department investigated reports that mother was neglecting the child's basic needs and risking his safety by allowing him to have contact with her significant other, L. The department issued a "founded disposition" based on its administrative determination that mother had neglected the child through a "[l]ack of supervision and protection." The department then filed a petition to obtain dependency jurisdiction over
the child and, in allegations A through I, set out specific conditions and circumstances pertaining to both mother and father that, the department alleged, endanger the child's welfare.
Mother contested jurisdiction, and a trial was held based on documentary exhibits submitted by the parties. On August 28, 2015, the juvenile court issued a letter opinion. At the outset, the court stated that the case posed "a unique and challenging set of circumstances" because of the child's autism diagnosis and the fact that he is nonverbal. The court also noted that the child "is extremely attached" to mother. After reciting certain other factual findings, the court directed that three of the allegations in the petition—allegations A, B, and I—be amended. The court concluded that those allegations, as amended, had been proved. The court also concluded that a fourth allegation—allegation G—had been proved; it dismissed the remaining allegations.
Allegation A was directed to mother's conduct. As amended, it read: "The mother is aware that her domestic partner has a conviction for a sex offense, has threatened to kill her and her child, has engaged in a pattern of violent, threatening and mentally unstable behavior that presents a threat to [the] child's safety because the mother continues to allow him in the home and around the child." The court sustained that allegation based on the following findings: L had been convicted of rape in 1992. In December
2014, mother had applied for and obtained a restraining order against L alleging that he had made threats to kill her and her child. Police reports indicated that, around that time, L had thrown a brick at mother's door. And, in June 2015, L had left at least two threatening voice mail messages with the department.
Allegations B and G also were directed to mother's conduct. As amended, allegation B read: "The child is in need of therapeutic treatment that the mother has failed to provide." Allegation G alleged that mother "failed to provide for the educational needs of the child." The court sustained both allegations based on the following findings: The child has autism and a severe developmental language delay for which treatment is medically necessary. Mother participated
in a speech therapy evaluation in January 2014 and therapists recommended a 12-month treatment regimen at two to three times per month. Although mother and her child attended a couple of appointments in January and February 2014, there was no evidence that mother was following through, creating a risk of harm that the child's therapeutic needs were not being met. Mother was home schooling the child and was enrolled with the home school program in Multnomah County. However, mother had recently moved to Washington County, and there was no evidence that the child was enrolled in an educational program there. Mother worked with a nonprofit organization and agreed to have a developmental disabilities service worker come to the home once a month. There was no evidence to suggest that mother was following through with the child's speech therapy, and the child's current home schooling/educational posture was unknown.
Allegation I pertained to father. As amended, it alleged that father "is willing to be a custodial resource, but does not have sole legal custody of the child and is unable to protect him from the mother's abusive and neglectful behaviors." Father admitted that allegation.
Based on its letter opinion, the juvenile court entered an amended, corrected judgment nunc pro tunc on September 9, 2015, finding the child to be within the jurisdiction of the court. The court committed the child to the legal custody of the department for in-home placement with mother, pursuant to a safety plan. The court ordered the department to conduct three unannounced home visits in the next 90 days, noted its expectation that the department would be making the personnel decisions with respect to in-home care providers, and set a permanency hearing for June 6, 2016.
Mother appealed to the Court of Appeals, arguing that the evidence was insufficient to support the juvenile court's jurisdictional findings. While her appeal was pending, on March 23, 2016, the juvenile court entered what it labelled a "permanency judgment." The court found that mother had cooperated and worked with the department; that mother "is a minimally adequate parent"; that the
department had noted no safety concerns with mother; that mother had actually benefitted from departmental intervention; and that she had the child working with developmental disability services, "which will continue." The court concluded that no further review was necessary and ordered that the "petition [be] dismissed."
In the Court of Appeals, mother's attorney filed a notice of probable mootness under ORAP 8.45,1 informing the court of the juvenile court's decision to end the wardship. The Appellate Commissioner dismissed mother's appeal, but mother petitioned for reconsideration. In an affidavit filed with her petition, mother averred that she had not known of her attorney's notice of probable mootness and stated that, as a result of the court's jurisdictional judgment, she had suffered and would suffer what she deemed to be collateral consequences. In her affidavit, mother stated that the following consequences had occurred or would ensue:
1. Her ex-husband had stopped paying child support "while DHS was investigating" her, and he had made only one small payment since that time. He had
told her that he did not feel he should have to pay child support because she is a neglectful parent....
2. When it entered the permanency judgment, the juvenile court had advised her ex-husband to "go across the street and file against [her] in family court," and it advised his court-appointed attorney to show him how to do that. Having a founded case of child neglect on her record would more than likely count against her in any child custody cases that happen in the future.
3. When she was a minor, 25 years earlier, there was a founded
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