Dep't of Human Servs. v. K. W. (In re H. W.)

• Decision Date: 07 October 2020
• Docket Number: A171945
• Parties: In the MATTER OF H. W., a Child. Department of Human Services, Petitioner-Respondent, and H. W., Respondent, v. K. W., Appellant.
• Court: Oregon Court of Appeals

307 Or.App. 17

476 P.3d 107

In the MATTER OF H. W., a Child.

Department of Human Services, Petitioner-Respondent,

and

H. W., Respondent,

v.K. W., Appellant.

A171945

Court of Appeals of Oregon.

Argued and submitted January 16, 2020.

October 7, 2020

Shannon Flowers, Deputy Public Defender, argued the cause for appellant. Also on the brief was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.

Inge D. Wells, Assistant Attorney General, argued the cause for respondent Department of Human Services. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Matthew J. Steven argued the cause and filed the brief for respondent H. W.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

ARMSTRONG, P. J.

Mother appeals the dependency judgment in which the juvenile court established jurisdiction over her child, H, based on mother's fact admissions. Mother argues that her admissions were insufficient to permit the juvenile court's dependency jurisdiction, even though she did not raise that objection at the jurisdictional trial. In her view, preservation is excused by our decision in Dept. of Human Services v. D. D. , 238 Or. App. 134, 138, 241 P.3d 1177 (2010), rev. den. , 349 Or. 602, 249 P.3d 123 (2011), in which we fused the dual meanings of "jurisdiction" in ORS 419B.100(1) —dependency jurisdiction and subject matter jurisdiction—when we effectively held that dependency jurisdiction could be, like subject matter jurisdiction, challenged at any time. See Kleikamp v. Board of Commissioners of Yamhill County , 301 Or. App. 275, 281, 455 P.3d 546 (2019) ("A lack of subject matter jurisdiction can be raised at any time."). Mother contends on appeal that that was the correct way to interpret ORS 419B.100(1)(c).¹ The Department of Human Services (DHS) asserts otherwise and argues that our recent discussion of jurisdiction in Dept. of Human Services v. C. M. H. , 301 Or. App. 487, 455 P.3d 576 (2019), rev. allowed , 366 Or. 825, 470 P.3d 368 (2020), in which we disentangled the two meanings of "jurisdiction," was the correct approach. DHS now asks us to overrule D. D. , which all parties in this appeal assert was implicitly done in C. M. H.² This appeal concerns the conflict between those two cases. In resolving that conflict, we conclude that D. D. was incorrectly decided and that, in light of what we said in C. M. H. , it was plainly wrong.³ Because mother failed to object below, or invited the error, to the juvenile court establishing dependency jurisdiction, we affirm the jurisdictional judgment.

Before we turn to our legal discussion, we briefly set out the undisputed historical and procedural facts. In 2018, DHS petitioned the juvenile court to take jurisdiction over H on the grounds that (1) father could not be found and was not a custodial resource, and (2) mother's cognitive abilities made her unable to adequately care for H, who has significant behavioral issues. Later that year, father was discovered in the State of Louisiana, DHS amended the petition to reflect that development, and the juvenile court established dependency jurisdiction as to father based on father's admissions that he needed DHS's help to safely parent H given that he did not have sole custody of H, he was unable to protect H from mother, and H had significant needs. The allegations against mother were set for trial.

At the trial, held in May 2019, DHS recommended that H be placed with father; Louisiana had conducted a home study and determined that there were not any safety issues in father's home. Mother was presented with the choice of the juvenile court dismissing the case without establishing dependency jurisdiction, which meant that H would be placed immediately with father, or the court establishing jurisdiction so that H could remain with mother for the rest of H's school year. Mother chose the latter and admitted that she "understands [H] will be placed out-of-state with the father" and "believes the placement requires oversight by DHS to ensure [H]’s safety." The court entered a judgment in which it established dependency jurisdiction over H as to mother based on mother's admissions. Mother filed a notice of appeal. A few months after the juvenile court took jurisdiction of H, the court conducted a review hearing and entered an order dismissing the dependency case and terminating its wardship. The order recited that H had been in Louisiana for four months and that reports from several professionals in Louisiana indicated that there were no concerns about H's safety or father's parenting.

That dismissal requires us to pause our jurisdictional discussion to address DHS's motion to dismiss mother's appeal of the jurisdictional judgment. DHS asserts that the juvenile court's dismissal of dependency jurisdiction makes this appeal moot because our decision in the matter will not have any practical effect on the rights of the parties. See Dept. of Human Services v. A. B. , 362 Or. 412, 414, 412 P.3d 1169 (2018) (a party moving to dismiss an appeal as moot must show that the decision being challenged on appeal will have no further practical effect on the parties’ rights). In DHS's view, mother's admission in this case is not one that would put her at a disadvantage in any future dependency or custody proceedings because it is not an admission of abuse and is "relatively benign." Mother contests dismissal and responds that there is ongoing custody and parenting time litigation between her and father and that, in her view, reversal of the jurisdictional judgment would improve her position because she would not have a judicial determination that she was unfit.

We agree with mother that the appeal is not moot. The crux of the jurisdictional judgment is that H could remain with mother for a little while longer before H was placed with father, but for that to happen, she had to admit that she requires DHS oversight to ensure H's safety. Further, the juvenile court's determination that it had dependency jurisdiction was necessarily a determination that mother was unable to adequately care for H under ORS 419B.100. That determination could have bearing on a custody and parenting time decision and is therefore sufficient to over-come DHS's burden of showing that a decision on our part will have no practical effect on the parties’ rights. See A. B. , 362 Or. at 426, 412 P.3d 1169 (once the party moving for dismissal takes the position that an appeal is moot, the appellant parent must identify any continuing practical effects or collateral consequences that the parent believes render the appeal justiciable).

Returning to the main issue, mother asks for a reversal of the juvenile court's determination that it had dependency jurisdiction over H. According to mother, her admission that placement with father with DHS oversight to ensure H's safety was an insufficient ground to establish dependency jurisdiction. She contends that her admission failed to show that she suffered from any deficits that exposed H to a current, nonspeculative threat of serious loss or injury. As noted, she failed to make that argument below and argues on appeal that her failure to object to the juvenile court's jurisdictional determination is of no consequence because, under D. D. , she can raise it for the first time on appeal. DHS responds that, to the extent that D. D. so held, it was wrongly decided and argues that D. D. was implicitly overturned by C. M. H. , in which we disentangled the juvenile court's authority to act, i.e. , its subject matter jurisdiction, from its determination to assert dependency jurisdiction over a child.

In D. D. , mother admitted to DHS's allegation, namely the allegation that " ‘child has special medical needs’ " for which she " ‘would benefit from assistance from [DHS].’ " 238 Or. App. at 136, 241 P.3d 1177 (emphasis omitted). The mother also stipulated that, "by admitting the allegations, the Court may take control over [her child], as deemed necessary * * * and may place the child out of the family home, if deemed it is the best interests of the child." Id . at 136-37, 241 P.3d 1177 (internal quotation marks omitted). The juvenile court established jurisdiction over the child based on the mother's admissions and proceeded to a disposition hearing. Id . at 137, 241 P.3d 1177. At the hearing, the mother neither made any objection to the court establishing dependency jurisdiction nor moved to dismiss. Rather, she argued that the child should be placed with her rather than with the father. The juvenile court determined that it was in the best interests of the child to place the child with the father. Id .

On appeal, the mother argued that the admitted allegations were insufficient to support the juvenile court's jurisdiction over the child. Id . at 138, 241 P.3d 1177. Mother posited that "it is axiomatic that a set of facts that would be insufficient to establish jurisdiction, if proved, is necessarily insufficient to establish jurisdiction when admitted." Id . (emphasis omitted). As for her failure to object to the juvenile court taking jurisdiction of the child, the mother argued that parties cannot stipulate to the existence of jurisdiction. We agreed with the mother, stating that the mother "is correct that, although a party may stipulate to facts supporting jurisdiction, jurisdiction cannot itself be created by stipulation." Id .

We relied on State ex rel Juv. Dept. v. Gates , 96 Or. App. 365, 371, 774 P.2d 484, rev. den. , 308 Or. 315, 779 P.2d 618 (1989), to explain that, where no party had challenged the juvenile court's jurisdictional determination,

" ‘we must consider jurisdictional issues, even when they are not raised by the parties. Jurisdiction for a so-called "conditions-and-circumstances" juvenile hearing, [former ORS 419.476(1)(c) (1991) ],^{[4 ]} is not just the power of the court to act. It also requires a factual determination that a

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