Dept. of Human Services v. T. J. N. ( 2023 )

650 December 7, 2023 No. 34
IN THE SUPREME COURT OF THE
STATE OF OREGON
In the Matter of P. J. N.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Respondent on Review,
and
P. J. N.,
Respondent on Review,
v.
T. J. N.,
Petitioner on Review,
and
D. L. P.,
aka D. L. P.,
Petitioner on Review.
(CC 21JU03559, CA A178300 (Control))
In the Matter of L. E. N.,
aka L. E. N.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Respondent on Review,
and
L. E. N.,
aka L. E. N.,
Respondent on Review,
v.
T. J. N.,
Petitioner on Review,
and
D. L. P.,
aka D. L. P.,
Petitioner on Review.
(CC 21JU03560, CA A178305)
Cite as 371 Or 650 (2023) 651
In the Matter of P. R. N.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Respondent on Review,
and
P. R. N.,
Respondent on Review,
v.
T. J. N.,
Petitioner on Review,
and
D. L. P.,
aka D. L. P.,
Petitioner on Review.
(CC 21JU03561, CA A178307)
(SC S070051 (Control); S070052)
On review from the Court of Appeals.*
Argued and submitted June 22, 2023.
Kristen G. Williams, Williams Weyand Law, LLC,
McMinnville, argued the cause and filed the briefs for peti-
tioner on review T. J. N.
Elena C. Stross, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the briefs
for petitioner on review D. L. P. Also on the briefs was Shannon
Storey, Chief Defender, Juvenile Appellate Section, Salem.
Inge D. Wells, Assistant Attorney General, Salem,
argued the cause and filed the briefs for respondent on
review Department of Human Services. Also on the briefs
were Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General.
Christa Obold Eshleman, Youth, Rights & Justice,
Portland, argued the cause and filed the briefs for respon-
dents on review P. J. N., L. E. N., and P. R. N.
______________
* Appeal from Lane County Circuit Court, Bradley A. Cascagnette, Judge.
323 Or App 258, 522 P3d 914 (2022).
652 Dept. of Human Services v. T. J. N.
Before Flynn, Chief Justice, and Duncan, Garrett,
DeHoog, Bushong, and Masih Justices, and Walters, Senior
Judge, Justice pro tempore.**
FLYNN, C.J.
The decision of the Court of Appeals is reversed. The
appeals are dismissed.
­
______________
** James, J., did not participate in the consideration or decision of this case.
Nakamoto, Senior Judge, Justice pro tempore, participated in oral argument, but
did not participate in the consideration or decision of this case.
Cite as 371 Or 650 (2023) 653
FLYNN, C.J.
In these consolidated juvenile dependency cases,
parents challenge judgments of the juvenile court that
changed the “placement preference” for parents’ children
from mother’s home to “foster care”—substitute care outside
of the home. While the appeals were pending in the Court
of Appeals, the juvenile court issued multiple decisions that
again determined the placement preference for the children
to be substitute care, including judgments concerning a sec-
ond set of dependency petitions. In light of those subsequent
judgments, the Court of Appeals dismissed the cases as
moot, because it could not conclude “without some specula-
tion” that the challenged judgments would have a practical
effect on the parents’ rights. Dept. of Human Services v. T. J.
N., 323 Or App 258, 268-69, 522 P3d 914 (2022); see Rogue
Advocates v. Board of Comm. of Jackson County, 362 Or 269,
272, 407 P3d 795 (2017) (explaining that a case becomes
moot when, “because of changed circumstances, a decision
no longer will have a practical effect on or concerning the
rights of the parties” (internal quotation marks omitted)).
We allowed review to consider whether the Court of Appeals
correctly dismissed the cases as moot. But the juvenile court
has since entered judgments dismissing the dependency
cases altogether.
Thus, in addition to the question of whether the
appeals were moot for the reasons identified by the Court of
Appeals, we must also consider whether the additional judg-
ments have caused the appeals to now become moot. We con-
clude that the “some speculation” standard that the Court of
Appeals employed incorrectly excused DHS from its burden
to prove that resolution of the appeals would have no practi-
cal effect on parents’ rights. But we also conclude that DHS
has met its burden to prove that the appeals are now moot,
and we decline to exercise whatever discretionary authority
that ORS 14.175 may afford us to decide the parties’ other-
wise moot challenge to the merits of the original placement
decisions. Accordingly, we reverse the decision of the Court
of Appeals and dismiss the appeals as moot. See Woodland
v. Dept. of Rev., 371 Or 334, 339, 536 P3d 985 (2023) (affirm-
ing Tax Court’s dismissal of taxpayer’s appeal as moot and
654 Dept. of Human Services v. T. J. N.
announcing that, “[e]ven if ORS 14.175 might otherwise give
this court authority to reach the now moot-arguments (and
we do not decide if it does), we would decline to exercise our
discretion to address them”).
I. BACKGROUND
The relatively convoluted procedural posture of
these appeals boils down to a few key events in the depen-
dency cases concerning parents’ three children, who ranged
in age from seven months to six years when the original
dependency petitions were filed. Those procedural facts are
undisputed.
As pertinent to these appeals, parents admitted
to allegations that they had failed to adequately supervise
their children, and the juvenile court entered judgments
in September 2021 determining that the admissions were
sufficient to establish dependency jurisdiction over the chil-
dren. See ORS 419B.100(1)(c) (providing, in part, that “the
juvenile court has exclusive original jurisdiction” in any
case involving a child “[w]hose condition or circumstances
are such as to endanger the welfare of the [child]”). For the
most part, the children remained in mother’s home, subject
to various safety plans, but in March 2022, the juvenile court
issued the new “placement preference” judgments that are
the subject of these appeals. Those judgments were based on
the court’s findings that “[m]other cannot or will not comply
with the in-home safety plan” and that “[i]t is not in the best
interests of the children that they remain with mother at
this time as she has not adequately supervised the children
consistent with the required plan.” Parents appealed those
judgments, contending, in part, that the juvenile court had
not followed the correct statutory process for changing the
children’s placement to substitute care.
Three months later, while parents’ appeals concern-
ing that placement change were pending, the Department
of Human Services (DHS) filed a second set of dependency
petitions in which it alleged additional jurisdictional bases.
In response to the new petitions, the juvenile court issued
additional orders and judgments in which it again made
findings that placement outside of the home was in the best
Cite as 371 Or 650 (2023) 655
interest and for the welfare of the children. Eventually,
based on parents’ admissions to the allegations in the new
set of petitions, the juvenile court issued additional juris-
dictional judgments.1 Thereafter, in late 2022, the juvenile
court issued permanency judgments concerning both sets
of dependency petitions. Those permanency judgments
continued the placement preference as substitute care and
included findings that such care was “necessary and * * *
in the [children’s] best interests” because they “cannot be
safely returned to a parent today.”
DHS sought to dismiss as moot parents’ appeals
of the original substitute-care placement judgments. DHS
argued that reversing the original judgments would have
no practical effect on parents’ rights, because “subsequent
events [had] overtaken” them (i.e., the juvenile court had
subsequently decided that substitute care was the children’s
proper placement in the decisions concerning the second
set of dependency petitions). Although parents did not dis-
agree with DHS about the effect of the new dependency
petitions, they argued that their appeals of the challenged
judgments were not moot, because those judgments added
three months to the amount of time that the children spent
outside of the home in substitute care. Parents pointed to
a general statutory requirement under ORS 419B.498(1)(a)
that DHS file a petition to terminate parental rights (TPR
petition) when children have been in substitute care for 15 of
the most recent 22 months. They argued that their appeals
of the original substitute-care placement judgments contin-
ued to have a practical effect on their rights, in part because
a decision regarding the challenged placement determina-
tion would affect how many months were left on the termi-
nation clock.
1
Those judgments included the following placement and custody findings:
“Out-of-Home Placement:
“* * * Placement or continuation in substitute care is in the child’s best inter-
est and for the child’s welfare, based on the jurisdictional findings under ORS
419B.100 and because the child cannot be safely returned home/maintained in
the home without further danger of suffering physical injury or emotional harm
or endangering or harming others. Additional findings: ORS 419B.337(1).
“The court further finds that it is in the child’s best interest and welfare to be
placed * * * in the legal custody of [DHS] for substitute care[.]”
(Boldface and underscoring in original.)
656 Dept. of Human Services v. T. J. N.
After briefing and oral argument, the Court of
Appeals issued its precedential opinion dismissing parents’
appeals as moot. The Court of Appeals held that the iden-
tified collateral consequence did not prevent the cases from
being moot, because “there are too many variables that go
into whether and when a TPR petition must be filed to con-
clude without some speculation what practical effects dis-
missal might have” on whether DHS would have an obliga-
tion under ORS 419B.498(1) to file a petition to terminate
parental rights. T. J. N., 323 Or App at 268-69. The court
then assumed, without deciding, that it had discretion to
decide the otherwise moot cases under ORS 14.175, but it
summarily declined to do so. Id. at 270.
The parties’ original briefing in this court addressed
whether the Court of Appeals had correctly dismissed the
cases as moot. It then came to our attention that the juve-
nile court had since dismissed the dependency petitions
altogether, so we invited supplemental briefing on the ques-
tion of whether the cases are now moot, even if they had not
previously been moot in the Court of Appeals. Turning to
those questions, we will explain why we disagree with the
Court of Appeals’ approach to the question of mootness but
are persuaded that DHS has met its burden in this court to
prove that the cases are now moot.
II. ANALYSIS
As we have explained, “[w]hether a case is moot
depends on whether a justiciable controversy exists.” Rogue
Advocates, 362 Or at 272. A justiciable controversy requires
both that the interests of the parties are adverse and that
a decision on the “matter will have some practical effect
on the rights of the parties to the controversy.” Rains v.
Stayton Builders Mart, Inc., 359 Or 610, 624, 375 P3d 490
(2016) (internal quotation marks omitted). Thus, “[g]ener-
ally speaking, a case becomes moot when a court’s decision
will no longer have a practical effect on the rights of the par-
ties.” State v. K. J. B., 362 Or 777, 785, 416 P3d 291 (2018)
(internal quotation marks omitted).
This “court is not necessarily required to dismiss
moot cases, ‘at least not in public actions or cases involving
Cite as 371 Or 650 (2023) 657
matters of public interest.’ ” Rogue Advocates, 362 Or at 272(quoting Eastern Oregon Mining Association v. DEQ, 360 Or
10, 15, 376 P3d 288 (2016) (some internal quotation marks
omitted)); see also Couey v. Atkins, 357 Or 460, 520, 355 P3d
866 (2015) (“We * * * do not hold that moot cases will no lon-
ger be subject to dismissal. We hold only that Article VII
(Amended), section 1, [of the Oregon Constitution] does not
require dismissal in public actions or cases involving mat-
ters of public interest.” (Emphasis in original.)). But “when it
becomes clear that resolving the merits of a claim will have
no practical effect on the rights of the parties,” this court
may dismiss the case. Dept. of Human Services v. P. D., 368
Or 627, 631, 496 P3d 1029 (2021).
As a practical matter, our mootness cases in recent
years often have turned on the requirement that the party
moving for dismissal bears the burden of establishing that
resolving the case will have no practical effect on the rights
of the parties. See, e.g., Dept. of Human Services v. A. B.,
362 Or 412, 426-27, 412 P3d 1169 (2018) (describing bur-
den and explaining why court was persuaded that DHS had
met its burden). In both the Court of Appeals and in this
court, DHS attempted to meet that burden by relying on
subsequent decisions in the dependency cases to establish
that reversing the original substitute-care judgments would
have no practical effect on the parties.
The moving party’s burden to prove that resolving
the case will have no practical effect “includes the burden of
establishing that any collateral consequences either do not
exist or are legally insufficient.” K. J. B., 362 Or at 786 (cit-
ing A. B., 362 Or at 426). The moving party is not “required
to imagine all possible collateral consequences and then
disprove each of them.” Id. Rather, the nonmoving party
must identify “any collateral consequences that he or she
contends has the effect of producing the required practical
effects of a judicial decision.” Id. Once the nonmoving party
does so, the party moving for dismissal must demonstrate
that “those identified collateral consequences either [do] not
exist or [are] legally insufficient.” Id.
Ultimately, “[i]t will be up to the appellate court to
determine the existence and significance” of the identified
658 Dept. of Human Services v. T. J. N.
collateral consequences. A. B., 362 Or at 426; see also Garges
v. Premo, 362 Or 797, 802, 421 P3d 345 (2018) (“Whether a
case has become moot will depend on a factual determina-
tion regarding the potential impact of the court’s decision on
the parties.”). But unless the moving party “persuades the
appellate court that the dismissal is warranted,” the appeal
is not moot. A. B., 362 Or at 427.
A. Whether DHS Met Its Burden in the Court of Appeals
In the Court of Appeals, DHS pointed to the juve-
nile court’s placement orders following the new dependency
petitions as demonstrating that a reversal of the first sub-
stitute-care placement determination would have no prac-
tical effect on the parties. The Court of Appeals agreed,
describing the original placement judgments as having
been “superseded” by the new jurisdictional judgments. T.
J. N., 323 Or App at 269. In doing so, the court relied on an
earlier case in which it had held that the appeal of a decision
placing siblings in substitute care had become moot after
the juvenile court had entered a permanency judgment that
again determined that the siblings should remain in substi-
tute care. Id. at 269 (discussing Dept. of Human Services v.
J. G., 239 Or App 261, 264, 244 P3d 385 (2010)).
We have emphasized, however, that, when an appeal
challenges a decision made during the course of a depen-
dency case, even dismissal of the dependency case “does not
necessarily render the appeal moot.” A. B., 362 Or at 414.
Instead, “whether dismissal is appropriate will depend on
the particular circumstances presented.” Id. Here, the cir-
cumstances include a statutory timeclock moving certain
dependency cases toward a petition to terminate parental
rights. Parents identified that timeclock as the source of
collateral consequences flowing from the challenged judg-
ments, and parents contended that the collateral conse-
quences produced the required practical effect to prevent the
cases from becoming moot. Thus, even assuming that one or
more of the juvenile court’s subsequent placement decisions
for the children “superseded” the judgments that parents
were challenging on appeal, the question was whether DHS
demonstrated that the identified collateral consequence
Cite as 371 Or 650 (2023) 659
“either [did] not exist or [was] legally insufficient.”2 See K. J.
B., 362 Or at 786 (describing burden).
It is helpful to briefly describe the operation of the
statutory timeclock, ORS 419B.498, before turning to the
parties’ arguments regarding whether the effect of the juve-
nile court’s placement decision on that statutory timeclock
qualifies as a collateral consequence that prevented the cases
from being moot in the Court of Appeals. ORS 419B.498(1)
(a) sets out a general timeline that DHS “shall * * * file a
petition to terminate the parental rights of a child or ward’s
parents * * * if,” among other things, the child (or ward) “has
been in substitute care under the responsibility of [DHS]
for 15 months of the most recent 22 months[.]”3 That filing
requirement is not absolute, however. For example, even
when a child has been in substitute care for 15 of the most
recent 22 months, DHS may not file a TPR petition under
ORS 419B.498(1) unless the juvenile court has determined,
following a permanency hearing, that the permanency plan
for the child should be adoption. ORS 419B.498(3).4 In addi-
2
Children assert in a footnote in their respondents’ brief on the merits in
this court that J. G.—the case on which the Court of Appeals relied for its conclu-
sion that the challenged placement determinations had been “superseded” and
rendered moot—was wrongly decided. They also observe that an initial substi-
tute-care placement “will be reflected in subsequent orders,” possibly suggest-
ing that the successive orders were, themselves, a collateral consequence of the
challenged placement determinations. We note that the petitions for review did
not ask us to address whether the Court of Appeals correctly held that the sub-
sequent placement determinations superseded the challenged determinations or
whether the subsequent orders are a collateral consequence that could prevent
the cases from being dismissed as moot. Because we ultimately agree with par-
ents’ argument that the addition of three months to the TPR timeclock is a col-
lateral consequence that prevented dismissal in the Court of Appeals, we need
not resolve whether those questions were properly presented to us or whether the
dismissal may have been in error for the reasons identified by children.
3
ORS 419B.498(1)(a) provides:
“Except as provided in subsection (2) of this section, [DHS] shall simul-
taneously file a petition to terminate the parental rights of a child or ward’s
parents and identify, recruit, process and approve a qualified family for adop-
tion if the child or ward is in the custody of [DHS] and:
“(a) The child or ward has been in substitute care under the responsibil-
ity of [DHS] for 15 months of the most recent 22 months[.]”
4
ORS 419B.498(3) provides:
“No petition to terminate the parental rights of a child or ward’s parents
pursuant to subsection (1) of this section * * * may be filed until the court has
determined that the permanency plan for the child or ward should be adop-
tion after a permanency hearing pursuant to ORS 419B.476.”
660 Dept. of Human Services v. T. J. N.
tion, ORS 419B.498(2) provides exceptions to DHS’s filing
requirement, which include the existence of a compelling
reason, documented in the case plan, that filing a TPR peti-
tion would not be in the child’s best interests.5
As noted above, when DHS moved to dismiss these
cases in the Court of Appeals, parents responded that the
original substitute-care judgments were not moot—even
if superseded by new substitute-care orders three months
later—because the three months of substitute care result-
ing from the original judgments would affect how soon DHS
would be required to move to terminate parental rights pur-
suant to the 15-of-the-most-recent-22-month formula under
ORS 419B.498(1)(a). DHS did not dispute parents’ premise
that three months would be subtracted from the TPR time-
clock if the Court of Appeals were persuaded that the origi-
nal placement judgments were erroneous.
5
ORS 419B.498(2) provides:
“[DHS] shall file a petition to terminate the parental rights of a parent in
the circumstances described in subsection (1) of this section unless:
“(a) The child or ward is being cared for by a relative and that placement
is intended to be permanent;
“(b) There is a compelling reason, which is documented in the case plan,
for determining that filing such a petition would not be in the best interests
of the child or ward. Such compelling reasons include, but are not limited to:
“(A) The parent is successfully participating in services that will make it
possible for the child or ward to safely return home within a reasonable time
as provided in ORS 419B.476(5)(c);
“(B) Another permanent plan is better suited to meet the health and
safety needs of the child or ward, including the need to preserve the child’s or
ward’s sibling attachments and relationships;
“(C) If the child is an Indian child, the court finds that tribal customary
adoption, as described in ORS 419B.656, is an appropriate permanent plan
for the child and the Indian child’s tribe consents to the tribal customary
adoption; or
“(D) The court or local citizen review board in a prior hearing or review
determined that while the case plan was to reunify the family [DHS] did
not make reasonable efforts or, if the child or ward is an Indian child, active
efforts, as described in ORS 419B.645, to make it possible for the child or
ward to safely return home; or
“(c) [DHS] has not provided to the family of the child or ward, consistent
with the time period in the case plan, such services as [DHS] deems neces-
sary for the child or ward to safely return home, if reasonable efforts to make
it possible for the child or ward to safely return home are required to be made
with respect to the child or ward.”
Cite as 371 Or 650 (2023) 661
Instead, DHS argued that the practical effect of
reversing the original placement judgments was “purely
speculative.” DHS emphasized that there are “other provi-
sions of ORS 419B.498, which authorize [it] to defer filing
termination petitions if certain circumstances are present”
and that, regardless of the time children spend in substi-
tute care, DHS would not be authorized to file a termination
petition until the juvenile court “determined that the perma-
nency plan” for the children should be adoption, citing ORS
419B.498(3). Thus, DHS asserted, it was speculative that the
children would remain in substitute care long enough to trig-
ger the requirement for DHS to file a termination petition and
that, even if the children reached the 15-of-22-month limit, it
was “speculative that DHS would choose to pursue termina-
tion of parental rights at that time, and equally speculative
that the juvenile court would determine that the children’s
permanency plans should be changed to adoption.” According
to DHS, those uncertainties made the appeals moot.
The Court of Appeals agreed, reasoning that “there
are too many variables that go into whether and when a TPR
petition must be filed to conclude without some speculation
what practical effects dismissal might have” on whether DHS
would have an obligation under ORS 419B.498(1)(a) to file a
petition to terminate parental rights. T. J. N., 323 Or App
at 268-69. To explain why DHS ultimately might not file a
petition, the court pointed to the fact that the juvenile court’s
most recent judgment had included “favorable findings about
mother’s progress and the likelihood that [the] children could
be safely returned home to her within a reasonable period
of time.” Id. at 268. The court then reasoned that, “[i]f those
findings remain true at some future date when [the] children
will have been in substitute care for 15 out of 22 months, they
would suggest the existence of a compelling reason under
ORS 419B.498(2)(b) for DHS not to file a TPR petition.” Id.
The court added that, if the juvenile court were to continue to
make such findings, then “the permanency plan likely would
not be changed to adoption,” which would mean that DHS
could not file a petition to terminate parental rights. Id.
In this court, parents insist that they identified col-
lateral consequences on which an appellate decision would
662 Dept. of Human Services v. T. J. N.
have a practical effect and that the Court of Appeals erred
in dismissing the case as moot.6 Their argument depends, in
part, on the shifting burdens that govern a court’s assess-
ment of whether a case is moot. According to parents, the
Court of Appeals asked the wrong question when it focused
on variables that could affect whether and when a TPR
petition must be filed under ORS 419B.498. Because of that
focus, parents argue, the court failed “to hold [DHS] to its
burden to prove that parents would not be prejudiced by the
additional three months in the substitute-care calculation”
and, instead, incorrectly held that “parents’ failure to prove
that they would not prevail at the permanency hearing ren-
dered their appeal moot.” We agree.
As set out above, once parents identified a collateral
consequence that they “contend[ed had] the effect of produc-
ing the required practical effects of a judicial decision,” it
became DHS’s burden to demonstrate that the identified
collateral consequence “either [did] not exist or [was] legally
insufficient.” K. J. B., 362 Or at 786. Parents did enough to
trigger that additional burden for DHS when they asserted
that an answer to whether the children erroneously spent
the first three months in substitute care would affect the
calculation of when the children reached the statutorily sig-
nificant measure of 15 months in substitute care. See A. B.,
362 Or at 426 (“[T]he appellant parent must identify any
continuing practical effects or collateral consequences that,
in the parent’s view, render the appeal justiciable.”).
DHS insists that it met its burden to prove that the
cases were moot by identifying exceptions and prerequisites
to its obligation under ORS 419B.498 to file a petition to ter-
minate parental rights. In other words, DHS did not dispute
that the consequence existed—that reversal of the original
placement judgments would affect how soon the children
would reach 15 months in substitute care.7 But it attempted
6
Children have filed their own briefing in this court and argue that “the
practical effect correctly identified by parents is that a period of removal accel-
erates the ticking clock established by ORS 419B.498” so that “the ongoing legal
effect of the removal is not speculative.”
7
In this court, DHS raises the possibility that the ORS 419B.498 timeclock
includes all time that children spend in substitute care, regardless of whether the
placement decision was in error—in other words that parents were wrong that
a successful challenge to the placement judgments could have a practical effect
Cite as 371 Or 650 (2023) 663
to demonstrate that the consequence was insufficient to pre-
vent the case from being moot by showing that the ultimate
significance of the statutory timeclock—DHS filing a peti-
tion to terminate parental rights—was speculative. To sup-
port that assertion, DHS raised three possible alternatives
in the Court of Appeals: (1) it was possible that the children
might be returned home before the 15-month threshold had
been met; (2) even if the children were to remain in sub-
stitute care for 15 months, it was possible that DHS would
not “choose to pursue termination of parental rights at that
time”; or (3) the juvenile court might determine, for a variety
of reasons, that the children’s permanency plans should not
be changed to adoption—eliminating a prerequisite to DHS
filing a petition to terminate parental rights.
In agreeing with DHS that whether it would end up
filing a termination petition involved “too many variables”
to prevent the case from being moot, the Court of Appeals
relied on its own case law for the proposition that a collateral
consequence must have a “ ‘significant probability of actually
occurring.’ ” T. J. N., 323 Or App at 269 (quoting Smith v.
Board of Parole, 305 Or App 773, 776, 472 P3d 805, rev den,
367 Or 387 (2020) (“[A] collateral consequence must have a
significant probability of actually occurring; a speculative
or merely possible effect is not enough.” (Internal quotation
marks omitted.))). But this court has never held that a case is
moot unless there is a “significant probability” that a decision
will have a practical effect on the parties. See, e.g., K. J. B.,
362 Or at 785 (case moot when a decision “ ‘will no longer
have a practical effect on the rights of the parties’ ” (quoting
Brownstone Homes Condo. Assn. v. Brownstone Forest Hts.,
358 Or 26, 30, 361 P3d 1 (2015))); Rogue Advocates, 362 Or
at 272 (case “moot ‘[i]f, because of changed circumstances, a
decision no longer will have a practical effect on or concern-
ing the rights of the parties’ ” (quoting State v. Hemenway,
353 Or 498, 501, 302 P3d 413 (2013))); see also Eastern
on the statutory timeclock. Even now, however, DHS does not develop a statutory
construction argument to support its new assertion that the appeals would have
no practical effect. But this case does not require us to undertake that exercise of
statutory construction independently, because our inquiry is focused on whether
DHS demonstrated to the Court of Appeals that resolution of the appeals would
have no practical effect on the parties. And in the Court of Appeals, DHS con-
tended only that the practical effect was speculative.
664 Dept. of Human Services v. T. J. N.
Oregon Mining Association, 360 Or at 15 (“[C]ases ‘in which
a court’s decision no longer will have a practical effect on or
concerning the rights of the parties * * * will be dismissed
as moot.’ ” (Quoting Brumnett v. PSRB, 315 Or 402, 406, 848
P2d 1194 (1993).)).
Moreover, by asking whether a collateral conse-
quence has a “significant probability” of occurring, the
Court of Appeals effectively placed the burden on parents to
demonstrate that the judgment will have a practical effect.
That too is inconsistent with our case law. As we explained
in A. B., once “a parent identifies practical effects or collat-
eral consequences that the parent believes will result from
the judgment, * * * [t]he burden is on [DHS] to prove that a
jurisdictional judgment will have no practical effect on the
rights of the parties and is therefore moot.” 362 Or at 414.
We made a similar point in K. J. B., in which we explained
that we did not need to examine whether the petitioner was
correct that “social stigma” was a consequence of the chal-
lenged civil commitment judgment, because the state had
“simply asserted—without support of any kind—that the
social stigma of which [the] petitioner [had] complain[ed]
[did] not exist,” which was “not adequate to establish that
there [were] no collateral consequences.” 362 Or at 788-89.
A comparison of the practical consequences identi-
fied in the Court of Appeals with the practical consequences
identified in our other mootness decisions in the dependency
context illustrates why DHS did not meet its burden by
simply pointing to reasons that the identified consequence
might not come to pass. For example, in P. D., we recently
applied the shifting-burden framework described in A. B.
to evaluate whether the mother’s appeal from dependency
judgments establishing jurisdiction and wardship over her
children had become moot after the juvenile court termi-
nated its jurisdiction and the wardships during the pen-
dency of the appeal. 368 Or at 629. We explained that the
mother had “assert[ed] that the existence of a jurisdictional
judgment in Oregon [would] prejudice her in any future
domestic relations or dependency proceeding in California.”
Id. at 632. We observed that the mother had offered “no
detailed explanation as to why that would be so,” but that
she had identified one California decision in which the court
Cite as 371 Or 650 (2023) 665
had described “assertions of prejudice of the type that [the]
mother [had] identified” as “highly speculative,” but, never-
theless, sufficient to prevent the California appeal from
being moot. Id. at 632-33 (internal quotation marks omit-
ted). And we emphasized that “DHS concede[d] that it would
be unable to prove that the existence of an Oregon judgment
would not have collateral consequences in a future domes-
tic relations or dependency proceeding in California.” Id. at
632. On that record, we were not persuaded that continu-
ing the appeal would have no practical effect on the parties’
rights, and “we decline[d] to dismiss [the] mother’s appeal as
moot.” Id. at 633.
We also considered whether a parent had identi-
fied collateral consequences that prevented his appeal from
a dependency judgment from being rendered moot in Dept.
of Human Services v. G. D. W., 353 Or 25, 32, 292 P3d 548
(2012). There, the juvenile court had terminated the depen-
dency case, but we agreed with the father’s assertions that,
because the challenged judgments included a finding that
he had sexually abused his child, allowing that finding to
remain a matter of record could “have real and adverse
effects on [the] father, and that those adverse effects may
be prevented if the findings are judicially overturned.” Id.
at 32. We explained that there were three potential adverse
effects that could be prevented if the findings were over-
turned on appeal: (1) the challenged dependency judgment
made it easier for the state to terminate the father’s paren-
tal rights in the future; (2) because the findings “likely”
caused the circuit court—in a different case—to award sole
custody of the father’s children to their mother, “[i]f the find-
ings and judgments were to be vacated, [the] father’s ability
to reopen the custody and parenting time judgment might
be positively affected”; and (3) “although perhaps not suffi-
cient by itself,” the “social stigma that [the] father suffer[ed]
as a result of the judicial finding that he sexually abused his
daughter [was] significant.”8 Id. Given our conclusion that
8
We emphasized in A.B. that “the findings necessary to a jurisdictional
judgment are not equally stigmatizing[,]” and we declined to assume that such
judgments “are so inherently stigmatizing that they justify our adoption of a cat-
egorical rule” that appeals of those judgments will continue to have a practical
effect “in all but extraordinary circumstances.” 362 Or at 425-26.
666 Dept. of Human Services v. T. J. N.
“those adverse effects may be prevented if the findings are
judicially overturned[,]” we concluded that the appeal was
not moot. Id. (emphasis added).
Even in A. B., we emphasized that the mother had
“done what is necessary by identifying the collateral conse-
quences that she believes she will face”—that, left to stand,
the findings of neglect that supported the challenged juris-
dictional judgment would disadvantage her in any future
case DHS might file against her. 362 Or at 427. And we
were persuaded that the case was moot because DHS had
demonstrated that the finding in the challenged judgment
would not be “significantly disadvantageous” to the mother.
Id. at 427-28. As we explained, we were “persuaded that, if
[DHS] considers allegations concerning [the] mother in the
future, the existence of the findings and judgment [would]
not be significantly disadvantageous,” because DHS “would
consider not only the finding that, at one point in time,
[the] mother had neglected some of her parental duties, but
also the findings that her child [was] ‘extremely attached’
to her[,]” that she “quickly took advantage of and benefit-
ted from” services, and that the dependency case resolved
early with a “finding that [DHS] had no continuing safety
concerns.” Id. at 428. Thus, our mootness case law in the
dependency context does not support the Court of Appeals’
conclusion that DHS could meet its burden by persuading
the court that there was less than a “significant probability”
that DHS would file a petition to terminate parental rights.
DHS, nevertheless, contends that the approach
taken by the Court of Appeals is supported by this court’s
decision in Couey, in which we explained that, “[i]n the con-
text of a declaratory judgment action, a justiciable contro-
versy requires a dispute based on present facts, not facts
that may or may not happen in the future.” 357 Or at 470(internal quotation marks omitted). DHS derives from
Couey the broader proposition that “[t]he mere possibility
that a decision could someday have collateral consequences
is not enough to overcome mootness when the possibility is
based on facts that may or may not happen in the future.”
(Internal quotation marks omitted.) But there is a difference
between the kind of consequence identified in Couey, which
Cite as 371 Or 650 (2023) 667
was so dependent on assumptions as to be merely specula-
tive, and consequences that are simply less than certain to
occur. And Couey does not support DHS’s proposition that
both kinds of uncertainty will make an identified collat-
eral consequence legally insufficient to prevent a case from
becoming moot.
In Couey, the plaintiff filed an action for declaratory
relief to challenge the constitutionality of a statute that pro-
hibited a person who was registered to collect initiative peti-
tion signatures for pay from collecting “at the same time”
signatures on other petitions for which the person was not
being paid. Id. at 462. During the pendency of the litigation,
however, the plaintiff stopped working as a paid signature
collector, and his registration expired. Id. The Secretary of
State contended that, given those circumstances, the plain-
tiff’s challenge to the statute had become moot. Id. The
plaintiff attempted to defeat that conclusion by filing an affi-
davit in which he averred that he had recently re-registered
and intended to collect signatures for pay in the next elec-
tion cycle, that he “might be willing” to collect signatures on
other petitions at the same time on a voluntary basis, and
that he “would like to have the right and freedom” to do so.
Id. at 466-67.
On review, we ultimately concluded that the con-
sequences that the plaintiff identified were insufficient to
prevent the case from being moot. But we first emphasized
that the question of mootness was arising in the context of
a declaratory judgment action, for which “relief is available
only when it can affect in the present some rights between the
parties.” Id. at 470 (emphasis in original; internal quotation
marks omitted). We then reasoned that “[a]ny suggestion
of possible harm is a matter of no more than speculation,
depending entirely on a series of assumptions unsupported
by any evidence in the record.” Id. at 471. And we empha-
sized why the plaintiff had failed to identify harm that could
prevent his declaratory action from being moot:
“Giving plaintiff every beneficial inference, the best that
the evidence shows is that, if plaintiff obtained employ-
ment as a signature collector, and if another measure deal-
ing with protecting the environment were filed, and if that
668 Dept. of Human Services v. T. J. N.
measure garnered the requisite number of sponsors, and if
that measure obtained a certified ballot title, then plaintiff
‘would like to support it,’ presumably by collecting petition
signatures on a volunteer basis.
“That is the epitome of contingent and speculative facts.
There is no evidence that plaintiff is currently harmed, or
even under current threat of harm[.]”
Id. (emphases in original).
Even assuming that the declaratory judgment stan-
dard governs the mootness determination here, the appeals
before us arise in a context that makes the identified con-
sequences qualitatively different from the unsupported
“suggestion of possible harm” that we rejected in Couey.9
Id. Once a child comes within the dependency jurisdiction
of the juvenile court, “a series of complex statutes and pro-
ceedings come into play” that “seek to protect the safety and
well-being of children.” Dept. of Human Services v. S. J. M.,
364 Or 37, 50, 430 P3d 1021 (2018); see also ORS 419B.090(2)
- (4) (describing the statutory and constitutional rights of
parents and children). Although Oregon law recognizes a
“strong preference that children live in their own homes
with their own families,” the law also recognizes that “it is
not always possible or in the best interests of the child or the
public for children who have been abused or neglected to be
reunited with their parents.” S. J. M., 364 Or at 50-51 (inter-
nal quotation marks omitted). In those circumstances, “the
state has an ‘obligation to create or provide an alternative,
safe and permanent home for the child.’ ORS 419B.090(5).”
S. J. M., 364 Or at 51. As part of that obligation, the Oregon
legislature has established timelines for DHS and the
juvenile court to follow in dependency cases to move chil-
dren quickly toward a permanent situation. See, e.g., ORS
419B.470(2) (specifying that, when a child (or ward) is in
substitute care, the juvenile court must hold “a permanency
hearing no later than 12 months after the ward was found
9
We have never addressed whether Couey’s “current” harm or threat of
harm standard is a requirement outside of the context of a declaratory judgment
action, in which justiciability focuses on a “present” effect on rights between the
parties. See 357 Or at 471. But we need not resolve that question here, because a
shortened time in which to address parenting deficiencies before facing a termi-
nation petition is a current harm or threat of harm.
Cite as 371 Or 650 (2023) 669
within” the court’s jurisdiction or “14 months after the child
or ward was placed in substitute care, whichever is the ear-
lier”). The notable timelines that the legislature has estab-
lished for dependency cases include ORS 419B.498(1), which
“requires DHS to file a petition to terminate parental rights
and proceed with adoption when a ‘child or ward has been
in substitute care under the responsibility of [DHS] for 15 of
the most recent 22 months,’ unless some exception applies.”
S. J. M., 364 Or at 51 (quoting ORS 419B.498(1)(a) (empha-
ses in original)).
Thus, unlike the plaintiff in Couey, who could
point only to a “suggestion of possible harm” that depended
“entirely on a series of assumptions unsupported by any
evidence in the record,” 357 Or at 471, parents in this case
point to an entire statutory scheme that sets in motion cer-
tain “permanency” timelines for children who are in substi-
tute care. There may be variables that make it impossible to
predict the ultimate outcome of any particular dependency
case, but there is no lack of certainty about the rules that
will govern that outcome. Nor is there any dispute that one
of those rules is a statutory default requirement that DHS
file a termination petition once a child has been in substitute
care for “15 months of the most recent 22 months,” unless an
exception applies. ORS 419B.498(1)(a). Under the reasoning
in S. J. M., when the 15-month deadline is reached, DHS
must take some action with regard to termination—as per-
tinent here, DHS “shall file” a TPR petition unless, among
other things, “[t]here is a compelling reason, which is doc-
umented in the case plan, for determining that filing such
a petition would not be in the best interests of the child or
ward.” ORS 419B.498(2). That clock, in turn, sets a limit
on the time that parents can count on having to address
their parenting deficiencies so that their children can safely
return home. Those are consequences for the parties, despite
the fact that there are statutory exceptions or conditions
that mean DHS might not file the termination petitions. See
A. B., 362 Or at 427 (following approach of asking whether
parents have “raised the potential for continuing practical
effects and collateral consequences” and, if so, whether DHS
is able to “persuade us that those effects and consequences
were factually incorrect or legally insufficient”).
670 Dept. of Human Services v. T. J. N.
Thus, we agree with parents that the Court of
Appeals erred in concluding that DHS had met its burden
to prove that parents’ appeals were moot. But that does not
end our analysis of mootness in this case.
B. Whether the Case Is Now Moot
As we noted at the outset, while the appeals were
pending in this court, the juvenile court terminated ward-
ship and dismissed the underlying dependency cases. DHS
contends that those judgments further cut off any practical
effect to resolving this appeal, because parents effectively
have been granted the relief that they seek: the children
are in their parents’ custody and are no longer wards of
the court at all. And parents do not dispute that, at least in
this court, the subsequent judgments mean that addressing
the original substitute-care placements will have no direct
practical effect on the parties.
But, as emphasized above, dismissal of an underly-
ing dependency petition “ ‘does not necessarily render’ ” moot
the appeal from a judgment entered during the course of
the dependency case, if the parents identify collateral conse-
quences of the challenged judgment that would have a prac-
tical effect on their rights. P. D., 368 Or at 632 (quoting A. B.,
362 Or at 414). Here, parents and the children suggest differ-
ent approaches to the question of whether the dismissals in
this case might, nevertheless, leave collateral consequences
to the original substitute-care placement determination
that would prevent the appeals from being moot. Parents
assert that, to the extent that ORS 419B.498(1)(a) refers to
15 of the most recent 22 months in an ongoing dependency
case, the dismissal of the cases renders the appeals moot.
That implies a question about whether dismissal of depen-
dency petitions always will eliminate that collateral conse-
quence, and children, in fact, argue that the plain text of
the 15-month rule in ORS 419B.498(1)(a) does not require
that “those months occur during a single dependency case.”
Nonetheless, children acknowledge that the judgments in
these cases “confirm that the children have now been in a
parent’s care” for long enough that the original, challenged
three-months in substitute care would not cause the chil-
dren to reach the threshold of “ ‘15 of the most recent 22
Cite as 371 Or 650 (2023) 671
months’ in substitute care that would trigger the mandate
of ORS 419B.498.” Given the present circumstances and the
arguments of the parties in this court, we conclude that no
party has identified collateral consequences that would have
a practical effect on the parties and prevent these appeals
from now being moot.
Parents, nevertheless, urge this court to exercise
our discretion under ORS 14.175 to consider their challenges
to the judgments of the juvenile court and to the mootness
ruling of the Court of Appeals. That statute provides:
“In any action in which a party alleges that an act, pol-
icy or practice of a public body, as defined in ORS 174.109
* * * is unconstitutional or is otherwise contrary to law, the
party may continue to prosecute the action and the court
may issue a judgment on the validity of the challenged act,
policy or practice even though the specific act, policy or
practice giving rise to the action no longer has a practical
effect on the party if the court determines that:
“(1) The party had standing to commence the action;
“(2) The act challenged by the party is capable of rep-
etition, or the policy or practice challenged by the party
continues in effect; and
“(3) The challenged policy or practice, or similar acts,
are likely to evade judicial review in the future.”
The decision to address the merits in a moot case
under ORS 14.175 is a discretionary one. As we explained
in Couey, the statute “leaves it to the court to determine
whether it is appropriate to adjudicate an otherwise moot
case under the circumstances of each case.” 357 Or at 522;
see also Penn v. Board of Parole, 365 Or 607, 613, 451 P3d
589 (2019) (“[C]ourts are not required to decide any and
every moot case that falls within the terms of ORS 14.175.”
(Emphasis in original.)).10
10
We have previously noted that “ORS 14.175 may not represent ‘the full
scope of a court’s constitutional authority to decide moot cases.’ ” Woodland, 371
Or at 336 n 2 (quoting Penn, 365 Or at 613 n 2). Although parents argue that we
have “inherent authority independent of ORS 14.175 to decide a moot case under
the capable of repetition doctrine even without a statutory basis,” we conclude, as
we did in Penn, that “there is no need to look beyond ORS 14.175 for authority to
decide” parents’ appeal. 365 Or at 613 n 2.
672 Dept. of Human Services v. T. J. N.
Here, even if we assume that ORS 14.175 gives this
court authority to address parents’ arguments about the
validity of the juvenile court’s judgments changing their
children’s placement preference to substitute care, we would
decline to exercise our discretion to do so. Parents contend
that the merits of their challenge to the original substi-
tute-care placement presents such an important question
about whether the juvenile court applied the correct stat-
utory standard that this court should decide it in the first
instance, but we are not persuaded. In seeking review, par-
ents urged this court to hold that the Court of Appeals erred
in dismissing the appeals as moot. We granted the petitions
for review to address that question, and we have now held
that the Court of Appeals erred in dismissing the appeals.
Had the cases not become moot for other reasons, we would
have remanded for the Court of Appeals to address the mer-
its of these appeals. But the cases are now moot, and we
leave the parties’ novel questions of statutory construction
to a future case in which those questions can be resolved in
the first instance by the Court of Appeals.
The decision of the Court of Appeals is reversed.
The appeals are dismissed.