Dep't of Human Servs. v. V. M. (In re J. M.)

315 Or.App. 775

502 P.3d 773

In the MATTER OF J. M., a Child.

Department of Human Services, Petitioner-Respondent,

v.V. M., Appellant.

In the Matter of K. M., a Child.

Department of Human Services, Petitioner-Respondent,

v.V. M., Appellant.

A175491 (Control), A175492

Court of Appeals of Oregon.

Argued and submitted September 17, 2021.

November 24, 2021

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

Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Hadlock, Judge pro tempore.

TOOKEY, J.

In this consolidated juvenile dependency case, mother appeals the juvenile court judgments denying her motion to dismiss jurisdiction over her children, J and K, and changing the children's permanency plan from reunification to guardianship. On appeal, mother raises several assignments of error. We write to address only her combined first and second and combined eleventh and twelfth assignments of error.

In her combined first and second assignments of error, mother argues, among other points, that the juvenile court erred when it denied her motion to dismiss jurisdiction as untimely. She also argues that the juvenile court erred when it denied her motion on the merits, because the court relied, at least in part, on facts extrinsic to the jurisdictional judgment. Similarly, in her combined eleventh and twelfth assignments of error, she argues that the juvenile court erred when it changed the children's permanency plans from reunification to guardianship, because, among other reasons, it relied on facts extrinsic to the jurisdictional judgement. For the reasons that follow, we conclude that the juvenile court erred in relying on facts extrinsic to the jurisdictional judgment in denying mother's motion to dismiss and in changing the permanency plan. Accordingly, we reverse and remand.¹

In reviewing the juvenile court's decision whether to dismiss jurisdiction, "we are bound by the court's explicit and implicit findings of historical fact unless there is no evidence in the record to support them, but we review the court's ultimate legal conclusion regarding whether to dismiss or not for legal error." Dept. of Human Services v. D. M. , 248 Or. App. 683, 685, 275 P.3d 971 (2012). "Whether a juvenile court erred by relying on facts extrinsic to a jurisdictional judgment is a legal question that we review for errors of law." Dept. of Human Services v. T. L. , 287 Or. App. 753, 755, 403 P.3d 488 (2017) (internal quotation marks omitted).

Mother in this case is the adoptive mother and great-grandmother of J and K (the children) and lives in Nevada. Sometime in 2014 or 2015, mother arranged for the children to live with relatives, Laura and Mark Burkhart (the Burkharts), initially in California and then in Oregon. In December 2019, the children were removed from the Burkharts' home in Oregon due to circumstances that endangered the children's welfare, and they were placed in substitute care. In February 2020, the juvenile court entered a judgment taking jurisdiction over the children based on mother's admission to the following allegations:

"The mother has not parented the children for over four (4) years, during this time but without a legal custody agreement the children were in the care of relatives who used excessive physical discipline and unsafe parenting practices. Over the last year, the mother did not visit in person while the children were residing in an unsafe situation and were placed at risk of harm. Additionally, the children do not currently want to return to the care of their mother and the family needs services to repair their relationship."

On December 24, 2020, DHS filed a notice indicating it would seek to change the permanency plan from reunification to guardianship. On January 1, 2021, mother moved to dismiss the juvenile court's jurisdiction over the children three days before a scheduled permanency hearing, arguing that the factual bases for jurisdiction had ceased to exist. At the January 4, 2021, permanency hearing, DHS objected to mother's motion to dismiss as untimely, arguing that three days was not enough time for DHS to prepare a response. Mother's counsel responded that, if DHS was not prepared, the court should "schedule this for a time at which the State can be prepared." After a brief discussion, the juvenile court declined to rule on mother's motion to dismiss, explaining it would "make that decision later," and proceeded to hold a permanency hearing.

At the permanency hearing, testimony was taken from a DHS caseworker, a CASA, and mother. Additionally, several exhibits were admitted into evidence, including the DHS caseworker's report and a Nevada ICPC report about mother. The DHS caseworker testified, among other things, that "when the kids originally went to live with the Burkharts, [mother] had stated that they went for health reasons." And the caseworker's report noted that "given [mother's] age, biologically, she may not have the physical and mental capability to take care of the children until they are 18," and that the Nevada ICPC report referred to "documented health concerns regarding [mother]."

About two weeks after the hearing, the court issued a letter opinion denying mother's motion to dismiss, both as to timeliness and on the merits, and entered a judgment changing the permanency plan for the children from reunification to guardianship. The letter opinion stated, in relevant part,

"[T]he Court sustains ODHS's objection to the Motion to Dismiss as untimely. Mother's Motion to Dismiss is denied.

"Nonetheless, this court, in its constant concern for Mother's rights to due process and fundamental fairness, has reviewed the jurisdiction argument raised in the Motion to Dismiss, and after hearing argument from all parties, and receiving competent testimony from the ODHS child welfare worker, a CASA, and the Mother, the Court has determined that the conditions and circumstances that formed the basis for jurisdiction continue to present a current risk of serious loss or injury to the children that is likely to be realized in the absence of the court's oversight. Eighty-four or 85-year-old Mother has an extensive medical history, and these health issues in part caused Mother to place the children with the relatives that were abusing the children over 5 years ago. Mother does not seem to recognize that her health issues pose a threat to those who might be in her care, though the people around Mother recognize and are concerned about Mother's health and her ability to care for children. Mother also does not seem able to manage the care of the children. Specifically, managing the children when they were approximately 3 and 4 years old, respectively, became too much for Mother that she turned them over to relatives who were abusive. Nothing has changed with regard to the management requirements of the children, other than that the children are approximately 12 and 13 years old, respectively. It is believed that teenage children are often more difficult to manage, and there is no evidence that Mother's caregiving skills have improved or that she has taken any steps to improve her caregiving skills since she was caring for the children as 3- and 4-year-olds. If Mother cannot manage her children again, either because caregiving is too large of a job or because Mother's health issues make it impossible to manage the children, Mother's support system who would be available to care for the children is problematic.

"* * * * *

"The Court has now entered the Permanency Judgment after reviewing the record herein[.]"

Mother now appeals the resulting judgments. She argues, among other points, that the juvenile court erred in denying her motion to dismiss as untimely, because "mother was not required to move to dismiss earlier than she did," and "[n]o statute or caselaw prescribes a time limit for the filing of a motion to dismiss." She also argues that the court erred in denying her motion to dismiss on the merits, because, among other reasons, the court erroneously relied, at least in part, on facts extrinsic to the adjudicated bases for jurisdiction; namely, "the court relied on [DHS's] concerns related to mother's age and health." Mother similarly argues that the court erred by relying on those same extrinsic facts in changing the permanency plan.

We begin by addressing the juvenile court's denial of mother's motion to dismiss jurisdiction as untimely. As noted above, mother argues that the juvenile court erred when it denied her motion as untimely, because "no statute or caselaw prescribes a time limit for the filing of a motion to dismiss." DHS responds that mother's motion to dismiss was untimely because it was filed three days before the permanency hearing, thereby depriving DHS of "the necessary 14-day opportunity to file a response" provided under UTCR 5.030(1).

We agree with mother; we know of no statute prescribing time limits for a motion to dismiss the juvenile court's jurisdiction. The rule cited by DHS—i.e. , UTCR 5.030(1) —pertains only to time limits for responding to motions; it does not address time limits for filing motions.²

As we have previously observed, the legislature "has not spoken about motions to dismiss jurisdiction at all ." Dept. of Human Services v. T. L. , 279 Or. App. 673, 688, 379 P.3d 741 (2016) (emphasis added).

In T. L. , the father appealed an order denying a motion to dismiss jurisdiction over his child. The parties' arguments required that we address, among other questions, "whether a motion to dismiss juvenile court jurisdiction * * * is legally cognizable after the permanency plan has been changed away from reunification." Id. at 686, 379 P.3d 741. In answering...