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

279 Or.App. 673

379 P.3d 741

In the Matter of T.L., Jr., a Child.

Department of Human Services, Petitioner–Respondent,

v.T.L., Appellant.

A159576

Court of Appeals of Oregon.

Argued and submitted on November 03, 2015

Resubmittted en banc May 12, 2016

July 27, 2016

Sarah Peterson, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.

Karla H. Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General. With her on the supplemental brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

En Banc

Before Hadlock, Chief Judge, and Armstrong, Ortega, Sercombe, Duncan, Egan, DeVore, Lagesen, Tookey, Garrett, Flynn, DeHoog, Judges, and Haselton, Senior Judge.

LAGESEN, J.

This appeal arises from a juvenile dependency case about T. T is three years old and has been a ward of the juvenile court for almost his entire life. The juvenile court took jurisdiction over T because, shortly after his birth, each of T's parents admitted that his welfare was endangered within the meaning of ORS 419B.100(1)(c)¹ by mother's substance abuse and mental health issues, and by father's incarceration and substance abuse. Soon thereafter, the juvenile court placed T, who had been living with mother, in substitute care with the Department of Human Services (DHS). Approximately one year later, the juvenile court found that, notwithstanding efforts by DHS to reunify T with his parents, parents still had not made it possible for T to return safely to them, and, based on that finding, entered a permanency judgment establishing adoption as the permanency plan for T. As a result of that judgment, DHS shifted its efforts from reunifying T with his parents to executing the permanency plan of adoption.

About eight months later, parents moved to terminate the wardship and dismiss dependency jurisdiction, although, at the time, the permanency plan for T remained adoption. Parents acknowledged that they had not remediated the conditions that had led to the juvenile court exercising jurisdiction over T, but argued that those conditions no longer posed a danger to T, because T's paternal aunt (aunt) was available and willing to assist them in parenting T in a manner that would mitigate any risk to T. Noting that our case law is not clear on the point, the juvenile court determined that the evidence about aunt was not relevant to the legal issue presented by a motion to dismiss juvenile court jurisdiction, which the court understood to be narrow: whether the identified bases for jurisdiction contained in the jurisdictional judgment continued.² Based on that understanding of the law, the court denied the motion, concluding that the original grounds for jurisdiction—mother's substance abuse and mental health issues, and father's incarceration and substance abuse—were still present.

Father has appealed. The issue on appeal is whether the juvenile court erred in denying the motion to dismiss. Concerned about the potential for motions to dismiss like the one at issue in this case to disrupt the permanency process established by the legislature, after this case was submitted to a three-judge department of this court, we took this case into full court to consider two important and recurring questions related to motions to dismiss juvenile court jurisdiction: (1) What is the legal standard governing a motion to dismiss juvenile court dependency jurisdiction and, under that standard, is evidence that another person is available and willing to help parents care for a child—in a way that will mitigate the risks posed by the grounds on which dependency jurisdiction is founded—relevant to the determination of whether dependency jurisdiction continues? And (2) where a juvenile court has entered a permanency judgment changing a permanency plan away from reunification with parents to adoption, or another permanency plan, is a motion to dismiss jurisdiction such as parents' motion cognizable and, if so, what party bears the burden of proof on that motion? As to the second question, we requested and received supplemental briefing from the parties.

For reasons explained below, we answer those questions as follows: (1) On a motion to dismiss dependency jurisdiction, a juvenile court must determine (a) whether the jurisdictional bases pose a current threat of serious loss or injury to the ward, and, if so, (b) whether that threat is reasonably likely to be realized. Evidence that another person is able to assist in caring for a child in a way that would mitigate the risk posed by the jurisdictional bases is probative of the second element of that inquiry, and a juvenile court errs when it excludes that evidence or otherwise fails to take it into account in assessing whether dependency jurisdiction continues. (2) If the permanency plan for a child is something other than reunification, a parent seeking dismissal of dependency jurisdiction on the ground that the jurisdictional bases no longer endanger the child bears the burden of proving that the bases for juvenile court jurisdiction no longer endanger the child, unless the proponents of jurisdiction opt not to put them to their burden. In effect, a permanency plan other than return to parent gives rise to a presumption that the child cannot return safely home. If the proponents of ongoing jurisdiction choose to invoke that presumption, a parent seeking dismissal of dependency jurisdiction must overcome that presumption by proving that the parent has ameliorated the jurisdictional bases to the degree that they no longer pose a threat to the child that is reasonably likely to be realized.

I. LEGAL FRAMEWORK

This case involves a motion to dismiss juvenile court dependency jurisdiction filed after entry of a permanency judgment changing the ward's permanency plan from return to parents to adoption. For that reason, we provide an overview of the statutes governing dependency jurisdiction and those governing permanency proceedings in a dependency case.

Children in Oregon “are individuals who have legal rights.” ORS 419B.090(2)(a). Those rights include the right to “[p]ermanency with a safe family”; the right to “[f]reedom from physical, sexual or emotional abuse or exploitation”; and the right to “[f]reedom from substantial neglect of basic needs.” Oregon's dependency statutes serve to protect and enforce those rights while, at the same time, safeguarding parents' Fourteenth Amendment liberty interest in parenting their children. ORS 419B.090. To strike a balance between those sometimes competing interests, the statutes provide that Oregon's policy is to remove an endangered child from his or her parents, but to then make reasonable efforts “to allow [parents] the opportunity to adjust their circumstances, conduct or conditions to make it possible for the child to safely return home within a reasonable time.” ORS 419B.090. If, however, parents do not make it possible for their child to return to them, then “the State of Oregon has the obligation to create or provide an alternative, safe and permanent home for the child.” ORS 419B.090(5).

To effectuate that legislative policy, ORS 419B.100(1)(c) —the authority on which the juvenile court took jurisdiction over T—permits a juvenile court to take jurisdiction over a child whose “welfare” is endangered by the child's condition or circumstances. The provision states that “the juvenile court has exclusive original jurisdiction of any case involving a person who is under 18 years of age and * * * [w]hose condition or circumstances are such as to endanger the welfare of the person[.]” A child's welfare is “endanger[ed]” within the meaning of the statute if the child is facing a current “threat of serious loss or injury,” and there is “a reasonable likelihood that the threat will be realized.” Dept. of Human Services v. A. F. , 243 Or.App. 379, 386, 259 P.3d 957 (2011) ; State ex rel. Juv. Dept. v. Smith , 316 Or. 646, 651–53, 853 P.2d 282 (1993) (concluding that, under ORS 419.476(1)(c), the predecessor to ORS 419B.100(1)(c), a child's “condition or circumstances are such as to endanger” the child's welfare “[i]f, after considering all the facts, the juvenile court finds that there is a reasonable likelihood of harm to the welfare of the child”).

Once a juvenile court has taken jurisdiction over a child pursuant to ORS 419B.100(1)(c), the court retains that jurisdiction so long as “the jurisdictional bases [ ] continue to pose a current threat of serious loss or injury, and there [is] a reasonable likelihood that the threat will be realized.” Dept. of Human Services v. J.V.–G. , 277 Or.App. 201, 212, 370 P.3d 916 (2016). If, however, the bases for the juvenile court's jurisdiction “cease to exist,” then the juvenile court must terminate the wardship and dismiss the case, thereby returning the child to the care and legal custody of the child's parents or legal guardians. Dept. of Human Services v. A.R.S. , 258 Or.App. 624, 310 P.3d 1186 (2013), rev. dismissed , 2014 WL 5462426 (2014).

If a juvenile court places a child in substitute care with DHS (or another substitute caregiver),³ then the court periodically must review the child's circumstances. The purpose of these reviews is to assess what efforts DHS has made to reunify the family or to achieve another permanent placement for the child and, ultimately, to determine whether jurisdiction should continue. ORS 419B.449(1) (providing for review hearing for court “to review the child or ward's condition and circumstances and to determine if the court should continue jurisdiction and wardship or order modifications in the care, placement and supervision of the child or ward”).

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