Dept. of Human Services v. M. B. ( 2024 )

No. 463 July 3, 2024 587
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of Z. E.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
M. B.,
fka M. M. E.,
Appellant.
Multnomah County Circuit Court
17JU07682
Petition Number
D2022015
A182269
Morgan Wren Long, Judge.
Argued and submitted May 8, 2024; on respondent’s motion
to dismiss fifth assignment of error as moot filed June 7,
2024; appellant’s response to the respondent’s motion to dis-
miss fifth assignment of error as moot filed June 20, 2024;
and respondent’s reply to appellant’s response to motion to
dismiss fifth assignment of error as moot filed June 28, 2024.
M. M. B. argued the cause and filed the briefs pro se.
Stacy M. Chaffin, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
MOONEY, J.
DHS’s Motion to Dismiss Fifth Assignment of Error as
Moot denied. Permanency judgment reversed and remanded;
order denying motion to dismiss reversed and remanded;
otherwise affirmed.
588 Dept. of Human Services v. M. B.
Cite as 333 Or App 587 (2024) 589
MOONEY, J.
This juvenile dependency case is factually and pro-
cedurally complex. It began seven years ago as a voluntary
case when mother placed her daughter, Z, with mother’s
sister. Z was six years old at that time, and the placement
with her maternal aunt was due to mother’s alcohol abuse
and resulting neglect of Z. Within the first year of removal,
mother engaged in two outrageous behavioral events that
were singularly disruptive and that traumatized Z. Z is now
a teenager, and she has refused to have contact with her
mother for over four years. The case nevertheless remains
open, and the permanency plan continues to be reunifica-
tion. Mother appeals the following judgments and orders of
the juvenile court:
1. Judgment of jurisdiction and disposition signed July
27, 2023.
2. Order denying mother’s motion to dismiss jurisdiction
signed July 27, 2023.
3. Order denying mother’s motion to modify or set aside
judgment signed August 24, 2023.
4. Permanency judgment signed September 18, 2023.
5. Order limiting discovery signed October 12, 2023.
Mother raises 10 assignments of error. We reject assign-
ments three, six, seven, eight, and nine as unpreserved or
undeveloped. Although preserved, we reject assignment 10
on the merits, without discussion.
In mother’s first and second assignments, she chal-
lenges the juvenile court’s conclusions that the Department
of Human Services (DHS) made reasonable efforts to
reunify the family and that mother made insufficient prog-
ress to make it possible for Z to safely return home. In her
fourth assignment, mother challenges the court’s exercise of
jurisdiction on a new allegation under ORS 419B.100(1)(c),
and in her fifth assignment, she argues that the trial court
erred by denying her motion to dismiss without affording
her a hearing on that motion. After this matter was argued,
DHS filed a Motion to Dismiss Fifth Assignment of Error as
Moot, and mother filed a response objecting to that motion.
590 Dept. of Human Services v. M. B.
As we will explain, the juvenile court did not err
when it concluded that it had jurisdiction over Z based upon
the new allegation of estrangement in DHS’s second petition.
Mother’s fifth assignment of error is not moot, and we deny
DHS’s motion to dismiss that assignment. Mother was enti-
tled to a hearing on her motion to dismiss jurisdiction with
respect to the original jurisdictional bases, and we reverse
and remand for the juvenile court to hold the required hear-
ing. With respect to the permanency judgment, we reverse
as to the agency reasonable efforts finding and remand for
further proceedings.
I. STANDARD OF REVIEW
We review original and continuing jurisdictional
determinations for legal error. Dept. of Human Services v.
J. C. H., 299 Or App 212, 213, 450 P3d 577 (2019) (review-
ing for legal error the juvenile court’s determination that
dependency jurisdiction exists); Dept. of Human Services v.
A. R. S., 258 Or App 624, 634, 310 P3d 1186 (2013), rev dis-
missed, 355 Or 668 (2014) (noting that the standards gov-
erning review of a juvenile court’s continuing and original
jurisdictional determinations are the same). As we conduct
that review, we “view the evidence in the light most favor-
able to the court’s disposition to determine if it supports the
court’s legal conclusions.” Dept. of Human Services v. T. F.,
331 Or App 682, 684, 548 P3d 510 (2024) (internal quotation
marks omitted). We draw the relevant facts and procedural
history from the record, and we do so in accordance with
that standard of review.1
II. THE FACTS
This case was opened in 2016 when the family came
to the attention of DHS through reports that mother was
abusing alcohol and neglecting Z. After a second allegation
in 2017, mother voluntarily placed Z with her sister (Z’s
maternal aunt). That summer, Z’s aunt arranged to take Z
to Utah to visit her maternal grandmother. Mother did not
approve of that trip. She contacted law enforcement author-
ities and accused her sister of kidnapping Z, which set into
1
We decline mother’s request for de novo review because it is not warranted.
ORS 19.415(3); ORAP 5.40(8)(c).
Cite as 333 Or App 587 (2024) 591
motion a series of events including a criminal investigation
and the issuance of an AMBER Alert, all of which were
traumatizing for Z.
DHS filed a dependency petition and jurisdiction
was established in 2018 when mother admitted the follow-
ing allegations:
“The mother’s mental health issues, which include
trauma and emotional distress, interfere with her ability to
safely parent the child. The mother must continue engag-
ing in mental health services to rectify her mental health
issues.
“The mother’s alcohol abuse, currently in remission,
interferes with her ability to safely parent the child. The
mother needs to continue a prolonged period of sobriety in
order to safely parent the child.”
Additional allegations that mother’s anger control issues
and residential, employment, and financial instability inter-
fered with her ability to safely parent Z were neither admit-
ted nor proved, and the court dismissed them. Z was placed
in the legal custody of DHS and continued in the placement
with her maternal aunt.
The permanency plan was designated to be reuni-
fication. Among other things, DHS was ordered to develop
a comprehensive case plan, establish a regular visitation
schedule for mother and Z, and to make appropriate refer-
rals for court-ordered services. Mother was ordered to com-
plete a drug and alcohol evaluation, submit to random drug
and alcohol testing (UAs), enroll in parenting classes, obtain
stable housing, undergo a neuropsychological evaluation,
maintain contact with DHS, and participate in Z’s therapy
as recommended by Z’s therapist.
By the fall of 2018, mother was making progress
toward reunification. She had successfully completed par-
enting classes and a substance abuse treatment program
that required her to submit to urinalysis. Although anger
control was not a basis of jurisdiction, DHS requested, and
mother completed, an anger management course. A neuro-
psychologist, Dr. Poppleton, conducted a neuropsychological
examination and a psychological evaluation of mother in
592 Dept. of Human Services v. M. B.
the summer of 2018. He diagnosed mother with alcohol use
disorder in sustained remission, unspecified depression and
trauma, and generalized anxiety. Mother engaged with and
consistently attended therapy. As part of the reunification
plan, Z and mother were having regular overnight visits
and DHS was working to transition Z back to mother’s care.
Progress toward reunification halted after an inci-
dent during a scheduled pick-up the day after Thanksgiving
in 2018. When mother arrived at her sister’s house, a disagree-
ment between the sisters arose and escalated, and mother
became physically assaultive toward her sister. Mother made
several 9-1-1 calls from outside her sister’s home accusing her
sister of kidnapping Z and her nephew of sexually abusing Z.
Z was present for this altercation, and she was traumatized
by it. Mother’s sister obtained a restraining order against
mother after that incident and the allegations against the
nephew were found to be without merit. The restraining
order did not prohibit contact between mother and Z.
After that incident, Z began refusing to have con-
tact with her mother. By the following spring, Z also started
refusing to meet with her therapist, and DHS referred her to
a new therapist, Hansa Gutierrez, at Options Therapy. DHS
facilitated two family decision meetings in January 2019
to discuss a path forward. DHS arranged for Poppleton to
see mother again in September 2019, at which time he rec-
ommended reunification therapy, evaluation of mother by a
physician to consider the possibility of psychopharmacologic
treatment (medication), continued UAs, and a skill-based
therapy course known as dialectical behavior therapy (DBT).
By October 2019, Z was willing to restart visitation
with mother every other month. Visits resumed and overall
went smoothly. After three successful visits, the DHS case-
worker arranged an increase in visits, but Z did not agree
and has refused contact with her mother since March 2020.
Mother relapsed and was arrested for DUII in
December 2020. After that, she completed additional drug
and alcohol treatment and a full course of DBT.
In February 2021, Z underwent a mental health eval-
uation at the Kinship House, resulting in recommendations
Cite as 333 Or App 587 (2024) 593
that she not be forced to have contact with her mother
because that would likely cause Z to regress emotionally,
behaviorally, and academically. According to the Kinship
House evaluation, Z’s need for permanency with her aunt
should be honored.
DHS asked the court to change the permanency
plan from reunification to adoption, and in June 2021, a
juvenile court referee granted that request. On rehearing,
the juvenile court judge reversed the referee’s order, con-
tinued the plan of reunification, and ordered the parties to
engage in family reunification therapy. Seven months later,
when Z was 12 years old, DHS arranged for a reunifica-
tion therapist, Gina Silva at Reunification Works, to work
with mother and Z. Mother agreed not to attend the ini-
tial sessions to allow Z an opportunity to get acquainted
with the therapist and the process. Z’s individual therapist,
Gutierrez, attended the first sessions with Z and, despite a
productive first session, Z became emotionally dysregulated
during the second session. Gutierrez attributed Z’s dysregu-
lation to Silva’s therapeutic technique. Gutierrez offered the
following testimony specific to that reunification therapy:
“Q [COUNSEL FOR DHS]: Okay. Now, from your
understanding of what therapy is, was this—was this
work that was being done, did that meet the definitions of
therapy?
“A [GUTIERREZ]: No. After—after—I mean, that was
my first time experiencing something called, Reunification
therapy. So no, I would not say that was therapeutic.
“Q: And why not?
“A: How it appeared to me, and because of [Z]’s reac-
tion, it appeared to be interrogation. And [Z] expressed
that much to me afterwards.
“Q: So [Z] reacted in the session itself. Did she also
react in the months following those sessions?
“A: She appeared in subsequent therapy sessions with
me to be more closed off to talking about her emotions.
“Q: And did you talk to her about that?
“A: Yes, lightly.
594 Dept. of Human Services v. M. B.
“Q: In which—
“A: The—the job of the therapist is not to make a client
talk about things that are very uncomfortable for them. So
I just—I’ve been taking it just at her pace.
“Q: Okay. So following those two sessions, was there
an exacerbation of [Z]’s mental health issues?
“A: Yes, increased Anxiety.”
DHS requested that Silva be removed from the case, at
which point, Reunification Works withdrew from the case
altogether, indicating that its therapeutic model “conflict[s]
with ODHS practice on several fronts.” For the next year or
so, Gutierrez continued to attribute an increase in Z’s anxi-
ety to the Silva therapy session.
On July 21, 2022, mother filed a motion to dismiss
jurisdiction and terminate wardship. DHS did not file a
written response in opposition to that motion, but on August
16, 2022, it filed a “Second Petition” that sought to add the
following jurisdictional allegation:
“As a result of the mother’s chronic mental health issues
and substance abuse disorder, among other things, the child
experienced neglect and trauma while in the mother’s care,
including additional trauma caused by her mother while in
foster care, resulting in an irreparable break-down in the
parent child relationship. Return of the child to the mother
would result in serious emotional harm to the child.”
The parties agreed to proceed with a trial on DHS’s second
petition before taking up mother’s motion to dismiss. Mother
was still represented by legal counsel at that point. With
respect to the break-down in the mother-child relationship,
Gutierrez testified as follows during the jurisdictional trial:
“Q [COUNSEL FOR DHS]: And from your work with
[Z], are you able to attribute or identify what may be the
cause for that estrangement?
“* * * * *
“A [GUTIERREZ]: * * * [Z] has expressed to me that
she is adamant about not wanting contact with her mother.
And she’s told me about specific experiences as an explana-
tion of why she doesn’t want that contact.
Cite as 333 Or App 587 (2024) 595
“Q: And what experiences did she specifically point to?
“A: Let’s see. And that has come out more recently. For a
long time, she refused to give details about things. She has
talked about her mother passing out or zoning out.
“* * * * *
“She recently shared memories of her mother passing
out, or—or what she called, zoning out, and not being able
to rouse her. She expressed memories of not having enough
food in the house, or the dog not being cared for, and feces
being on the carpet. She expressed fear in remembering
those things. And she expressed she doesn’t think that her
mother is any different now.”
Gutierrez further testified that she had no “indication” that
mother’s sister contributed to the estrangement between
mother and Z.
Dr. Karina Peters, a psychologist with the Children’s
Program, testified that she evaluated Z, that Z’s attach-
ment to her mother had been “disrupted,” that Z did not feel
safe with her mother, and that Z was not willing to have
contact with her mother. She also testified that it would
be “extremely difficult, complex, and take a lot of time for
[Z] to repair the relationship with her mother and to feel
safe,” and that “[i]f external forces other than [Z] pushed
th[at] process,” it would cause more damage to Z. Peters is
not trained in “EMDR[,] * * * a psychotherapy that enables
people to heal from the symptoms of emotional stress that
result from disturbing life experiences” and is “designed
to alleviate distress associated with traumatic memories,”
however, she thinks that Z would benefit from such therapy.
By all accounts, mother has engaged in and com-
pleted all court-ordered treatment and services offered by
DHS. Mother’s therapists have reported to DHS that she is
completing treatment goals and has made progress towards
acknowledging her role in Z’s trauma. With the help of a ther-
apist, and at the request of DHS, mother prepared a clarifi-
cation letter for Z which was provided to Z’s therapist. Z has
declined to read the letter, although she apparently indi-
cated that she might be willing to do so when she turns 18.
DHS caseworkers testified that although mother completed
596 Dept. of Human Services v. M. B.
all court-ordered services, they are concerned about whether
mother benefitted from those services because she continues
to minimize the severity of her own behavior and because
she tends to cast blame on others.
Mother testified and acknowledged that her alcohol-
fueled emotional outbursts traumatized Z and she admit-
ted that she was the initial source of Z’s trauma and that
she continues to be a significant source of that trauma.
Specifically, she testified:
“Q [COUNSEL FOR CHILD]: Okay. What is the
source of [Z]’s trauma?
“A [MOTHER]: I think it’s multifaceted.
“Q: Okay.
“A: I think it’s multifaceted.
“Q: Okay. I heard you. What are all those facets?
“A: Well I think exposure to my drinking was a trauma.
I think that was, perhaps, the initial trauma. I think there
were emotional outbursts that she witnessed that were trau-
matizing. I think the November 2018 * * * incident, regardless
of whose version of it you would believe, was traumatizing.
“But—and all of those involved me, right? So I think
that I am one of the multiple—and a significant one—of the
multiple sources of trauma. But I think this case, I mean
I’ve read some of the case notes, [Z] has made it clear that
she just wants this case to end. She’s having panic attacks
about it and sobbing in her resource parents’ homes. And
you guys are bringing a new case. I think that’s traumatic.
“Q: Do you think it would be traumatic for [Z] to
be removed from [her aunt’s] home?
“A: I think it would be as traumatic for her to be
removed from her home, when she has now the fear that
she has of me, as it was for her to be removed from my home
when she had the fear she had at that time of the foster
resource. So, yes, I think it was traumatic then, and I think
it would be traumatic now.”
Following the eighteen-day trial that commenced
in November 2022 and concluded in May 2023, the court
concluded that it had jurisdiction over Z based upon the
Cite as 333 Or App 587 (2024) 597
following modified jurisdictional allegation contained in the
Second Petition:
“As a result of the mother’s chronic mental health issues
and substance abuse disorder, among other things, the child
experienced neglect and trauma while in the mother’s care.
As a result of the mother’s chronic mental health issues,
the child has continued to experience additional trauma
caused by mother while in foster care. This has resulted
in an extreme, potentially irreparable, breakdown in the
parent child relationship. Return of the child to the mother,
or forced contact between the child and the mother against
the child’s wishes, would result in serious emotional harm
and damage to the child.”
The juvenile court made credibility findings in its
jurisdictional judgment to which we generally defer because
the trial judge is in a better position than we are to observe
and experience the witness’s nonverbal cues, including non-
language characteristics of speech such as tone and pace as
well as accompanying body language. See Dept. of Human
Services v. T. L. B., 294 Or App 514, 516, 432 P3d 343 (2018),
rev den, 365 Or 556 (2019) (“[W]e give considerable weight
to the findings of the trial judge who had the opportunity to
observe the witnesses and their demeanor in evaluating the
credibility of their testimony.” (Internal quotation marks
omitted)). The court found mother’s testimony to lack credi-
bility. Among other things, it concluded that:
“In addition to Mother’s ongoing pattern of explo-
sive angry outbursts, Mother also has a clear pattern of
threatening and manipulative behavior toward others.
Convincing evidence was presented regarding numerous
instances of Mother threatening litigation when she does
not like someone’s actions, threatening to accuse someone
of rape or child sexual abuse, and actually accusing mul-
tiple people of rape and/or child sexual abuse. The most
striking was when Mother called the police to report that
her nephew, the teenage son of Resource Parent, was sexu-
ally abusing [Z] less than 24 hours after the Thanksgiving
Incident. It is abundantly clear that this was an entirely
baseless claim without a shred of evidence that was made
entirely in retaliation for nephew attempting to protect
Resource Parent and defuse the situation during the
Thanksgiving Incident. This pattern of threatening and
598 Dept. of Human Services v. M. B.
manipulative behavior was observed by the Court during
the pendency of the trial, as evidenced by Mother’s exces-
sive subpoenas, threats to call [Z]’s attorney, and various
cease and desist letters sent to witnesses. Though this
behavior is not as directly harmful to [Z] as Mother’s angry
and violent outbursts, there is a very real potential that
this could be damaging to [Z] in the future if Mother con-
tinues this behavior towards teachers, service providers,
and community partners involved in [Z]’s life. Moreover, it
highlights that Mother has yet to fully address the behav-
ioral issues that place [Z] at risk of harm.”
The court ultimately added the new jurisdictional basis,
continuing wardship and the plan of reunification.
The juvenile court issued an order denying moth-
er’s motion to dismiss the original bases for jurisdiction as
moot the same day it issued its jurisdictional judgment. DHS
did not file a response opposing the motion to dismiss and it
offered no arguments in opposition to that motion. Indeed,
there was no hearing on the motion. The jurisdictional trial
focused on the additional allegation DHS sought to add by
the Second Petition, but it did not specifically address con-
tinuing jurisdiction on the existing jurisdictional bases. The
judgment and order were entered on the last day of July 2023.
The court conducted a permanency hearing on
August 30, 2023. On September 18, 2023, the court signed
its permanency judgment in which it concluded that DHS
had made reasonable efforts to reunify mother and Z and
that mother had made insufficient progress toward reuni-
fication; it continued the permanency plan of reunification.
The juvenile court specifically ordered mother to participate
in mental health treatment that focuses on “interpersonal
effectiveness, healthy emotional regulation, externalization
of blame, and empowerment to create strategies to avoid
future victimization with a mental health provider who has
the ability and willingness to confront Mother about her role
in past events[.]” It ordered DHS to refer mother to a differ-
ent “provider” who would “provide the therapy to Mother as
outlined in the jurisdictional judgment” and it ordered DHS
to provide a copy of that judgment to the new provider.
This appeal followed.
Cite as 333 Or App 587 (2024) 599
III. ANALYSIS
A. Overview of Relevant Legal Principles
The juvenile court has exclusive original jurisdic-
tion in any case involving a person under the age of 18 who,
among other things, is beyond the control of their parents,
whose own behavior endangers their welfare, whose condi-
tion or circumstances endangers their welfare, whose par-
ents have abandoned them or subjected them to cruelty, or
who is a runaway. ORS 419B.100(1). We commonly see these
cases filed with allegations that the child’s condition or cir-
cumstances, attributed to unsafe parenting issues, bring
them within the jurisdiction of the court. That is the case
here.
Once the juvenile court made Z a ward of the court,
a whole host of statutory requirements came into play. See
ORS 419B.090(2) - (4) (describing constitutional and stat-
utory rights of children and parents). There is a “strong
preference that children live in their own homes with their
own families,” although that “is not always possible.” ORS
419B.090(5). “[T]he statutes governing dependency jurisdic-
tion are intended to protect the interests of children and par-
ents and to promote family reunification, in all but extreme
cases[.]” Dept. of Human Services v. T. L., 287 Or App 753,
761, 403 P3d 488 (2017). The Supreme Court explained the
respective roles of the juvenile court and DHS in dependency
cases as follows:
“[I]t is the policy of the state ‘to offer appropriate reuni-
fication services to parents and guardians to allow them
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(5). When
the juvenile court places a ward in the legal custody of
DHS, the juvenile court has authority to ‘specify the partic-
ular type of care, supervision or services to be provided by
[DHS] to wards placed in [DHS’s] custody and to the par-
ents or guardians of the wards’; however, ‘the actual plan-
ning and provision of such care, supervision or services is
the responsibility of [DHS].’ ORS 419B.337(2).”
Dept. of Human Services v. F. J. M., 370 Or 434, 441-42, 520
P3d 854 (2022) (brackets in original). Disruptions in a child’s
600 Dept. of Human Services v. M. B.
life are often an unavoidable part of the dependency process
and those disruptions can be traumatizing. Fortunately, the
juvenile code establishes timelines “to move children quickly
toward a permanent situation.” Dept. of Human Services v.
T. J. N., 371 Or 650, 668, 540 P3d 540 (2023).
Permanency proceedings are an essential part of the
juvenile dependency process once jurisdiction is established:
“The purpose of a permanency hearing is to determine, or
update, the permanency plan for the child and to establish
the timetable and conditions for accomplishing that plan.
Permanency hearings provide court oversight of the per-
manency plan, DHS’s efforts, and the parent’s progress in
making the child’s safe return home possible.”
Dept. of Human Services v. Y. B., 372 Or 133, 145, 546 P3d
255 (2024) (citations omitted). Agency efforts are reviewed
by focusing on DHS’s conduct, measuring the reasonable-
ness of those efforts “through the lens of the adjudicated
bases for jurisdiction[,]” Dept. of Human Services v. S. M. H.,
283 Or App 295, 305, 388 P3d 1204 (2017) (internal quota-
tion marks omitted), and basing the review “on the total-
ity of the circumstances.” Dept. of Human Services v. M. K.,
257 Or App 409, 411, 306 P3d 763 (2013). Parental prog-
ress toward safe family reunification is measured by what
the parent has done to ameliorate the circumstances that
led to juvenile court jurisdiction. ORS 419B.476(2)(a). Both
determinations—agency efforts and parental progress—are
legal conclusions that are “heavily fact-driven.” Y. B., 372 Or
at 149. As mentioned above, we review those conclusions for
legal error.
B. The Jurisdictional Judgment
We begin with the 18-day jurisdictional trial on
DHS’s Second Petition and the resulting judgment of juris-
diction. Although DHS did not use the word “estrangement”
in its proposed new jurisdictional basis, and the court did
not use that word in its modified version, that new basis of
jurisdiction has, and continues to be, characterized as one
of estrangement. As presented, it characterizes mother’s
mental health and alcohol abuse “issues” as “chronic,” and
adds language that those chronic health issues continue
Cite as 333 Or App 587 (2024) 601
to traumatize Z, resulting in the breakdown of the parent-
child relationship, and that “forced contact” between Z and
her mother will result in further harm to Z.
Mother contends that the juvenile court erred (1) in
finding that DHS had proved the new jurisdictional basis
and (2) in permitting DHS to present evidence supporting
the new jurisdictional basis on the basis of collateral estop-
pel or res judicata. We reject as unpreserved and undevel-
oped mother’s arguments regarding collateral estoppel and
res judicata. But even if she had preserved such arguments,
they fail on the merits. While it is accurate that estrange-
ment is alleged to be a consequence of the same mental
health and alcohol abuse issues that formed the basis for
jurisdiction years ago, the new allegation is that those
issues are “chronic,” and that that chronicity has resulted
in additional trauma to Z and the potentially irreparable
breakdown of the parent-child relationship. That is a new
allegation addressing a new circumstance that endangers
Z’s welfare if it is not remediated.
Mother’s reliance on T. L., does not compel a differ-
ent conclusion. In T. L., we reversed the juvenile court’s deci-
sion to change the permanency plan away from reunifica-
tion on the basis of estrangement when “estrangement” had
not been a basis of jurisdiction and was “not fairly implied
by the jurisdictional petition or judgment.” 287 Or App at
765. Here, DHS sought to add estrangement as an addi-
tional allegation of jurisdiction, no doubt to avoid the notice
problem presented at a later phase of the case in T. L. When
viewed in the light most favorable to the juvenile court’s dis-
position, the evidence supports the new allegation.
C. The Order Denying Mother’s Motion to Dismiss
The juvenile court summarily denied mother’s
motion to dismiss without a hearing, even though the motion
specifically requested a hearing and oral argument. It con-
cluded that the establishment of the new jurisdictional basis
also necessarily meant that Z remained at risk of serious
loss or injury from the original bases of jurisdiction. We
agree that the establishment of the new jurisdictional basis
would prevent termination of the wardship, but it does not
602 Dept. of Human Services v. M. B.
necessarily follow that mother no longer had a right to a
hearing on her motion to dismiss the original bases of juris-
diction. She was entitled to a hearing on her motion and the
trial court erred in denying the motion without that hearing.
The proper remedy would be to “remand[ ] to the
juvenile court for a hearing to be held on the * * * motion to
dismiss” to allow “both parties the opportunity to present
or dispute evidence, and the juvenile court could then deter-
mine whether DHS continued to sustain its burden on the
jurisdictional * * * bases.” Dept. of Human Services v. N. F. M.,
315 Or App 596, 598, 502 P3d 782 (2021). We are aware,
however, and take judicial notice of the fact, that mother
filed a new motion to dismiss jurisdiction that is now pend-
ing in the juvenile court and for which a hearing has been
scheduled. OEC 201(b)(2); see also Dept. of Human Services
v. S. A. B. O., 291 Or App 88, 91, 417 P3d 555 (2018) (taking
judicial notice that DHS petitioned for jurisdiction on var-
ious grounds in earlier related petitions not in the record
of the case). DHS has since filed a motion to dismiss this
assignment of error as moot relying, in part, on Hamel v.
Johnson, 330 Or 180, 184, 998 P2d 661 (2000) (explaining
that our decisions “must have some practical effect on the
rights of the parties to the controversy” and that “a case
becomes moot when an event occurs that renders it impos-
sible for the court to grant effectual relief”) (internal quota-
tion marks and brackets omitted)). But although the hearing
has been scheduled, at the time of this opinion’s publication,
it has not yet occurred. We therefore reverse and remand for
the juvenile court to hold the required hearing, and we deny
DHS’s pending motion regarding mootness. Assuming that
the hearing that is currently scheduled proceeds, mother is
not entitled to further relief on this assignment.
D. The Permanency Judgment
Mother does not challenge the juvenile court’s deci-
sion to continue the permanency plan of reunification, and
we agree that the court committed no error in doing so.
Mother instead challenges the court’s conclusions that DHS
made reasonable efforts to reunify mother and Z, and that
mother failed to make sufficient progress toward the safe
return of Z to her care.
Cite as 333 Or App 587 (2024) 603
The salient facts, summarized above, do not provide
sufficient support for the juvenile court’s legal conclusion
that DHS made reasonable efforts to reunify mother and Z.
Jurisdiction was established through mother’s admissions
of the circumstances that made it unsafe for her to parent Z;
namely, alcohol abuse and mental health issues. Mother
engaged in disturbing behavior that traumatized Z in the
early years of jurisdiction, followed by a period of sustained
sobriety. Mother completed all court-ordered services, and
even after the traumatizing incident in 2018, reunification
efforts were progressing until, in March 2020, Z refused all
further contact with mother. That refusal came after the
caseworker told Z that DHS planned to increase visits with
her mother.
DHS efforts shifted to requesting a change in the
permanency plan which was ultimately denied by the juve-
nile court. It took seven months after that before the first
session of reunification therapy ordered by the court was
held. Mother agreed not to participate in that first session
that included Z, the reunification therapist, and Gutierrez.
Z became emotionally “dysregulated” because of the thera-
peutic style of the therapist, and DHS discontinued reuni-
fication therapy before mother ever had a chance to partic-
ipate. In the meantime, mother completed the additional
services she was asked to do, but there were no more efforts
by DHS to facilitate reunification therapy. To be sure, the
juvenile court found that despite mother’s completion of ser-
vices, she continued to demand more time with Z without
recognizing Z’s need for “space,” and she had not “honestly”
acknowledged her own role in Z’s removal from her care.
And while there is support in the record for those findings,
the reasonable efforts inquiry must focus on the agency’s
conduct, not mother’s. S. M. H., 283 Or App at 306.
The parties have hit a confounding impasse that is
reflected in Z’s continuing refusal to have contact with her
mother. DHS relies on that refusal to argue that its efforts
to reunify mother and Z have been reasonable. It emphasizes
that it is “following [Z’s] treatment providers’ recommenda-
tions regarding contact with mother.” But we are aware of no
legal authority suggesting that a therapist’s recommendations
604 Dept. of Human Services v. M. B.
relieve DHS of its statutory obligation to make reasonable
efforts to accomplish the court-ordered permanency plan.
And even if such authority existed, the evidence is that con-
tact between mother and Z had resumed in 2019 and was pro-
ceeding in a positive direction. Z’s renewed refusal of contact
came only after she learned that visits with her mother were
set to increase in frequency and after she attended reunifica-
tion therapy and experienced anxiety in response to the ther-
apeutic style of the therapist. Given that sequence of events,
and the fact that it was DHS that had arranged for those
changes, the current impasse cannot be attributed solely to
mother’s conduct. And given that the permanency plan con-
tinued to be reunification, DHS was obligated to continue
making reasonable efforts toward that plan. But it stopped
doing so, and there has been no contact between mother and
Z since March of 2020. The juvenile court erred in concluding
that the agency’s efforts were reasonable.
In light of our conclusion that DHS failed to make
reasonable efforts, we need not reach mother’s second
assignment of error regarding the juvenile court’s determi-
nation that she failed to make sufficient progress. See Dept.
of Human Services v. D. M. R., 301 Or App 436, 443, 455 P3d
599 (2019) (“Before the juvenile court may change a perma-
nency plan from reunification to adoption, the court must
determine that * * * (1) DHS made reasonable efforts for the
child to safely return home, and (2) despite those efforts, par-
ents have not made sufficient progress to allow the child to
safely return home.” (Emphasis added.)); see also Dept. of
Human Services v. H. K., 321 Or App 733, 746-47, 517 P3d
1044 (2022) (noting that DHS’s efforts afford a parent “the
requisite reasonable opportunity to address the jurisdic-
tional bases”); see also M. K., 257 Or App at 419 (declining to
consider assignment of error challenging the juvenile court’s
sufficient progress determination because the conclusion that
DHS’s failure to make reasonable efforts “is dispositive”).
IV. CONCLUSION
In sum, of the five orders and judgments mother has
appealed, we conclude that she is entitled to relief on two of
them. We reverse the order denying mother’s motion to dis-
miss jurisdiction and remand for the juvenile court to hold
Cite as 333 Or App 587 (2024) 605
the required hearing. In addition, because we conclude that
the juvenile court erred in its reasonable efforts determina-
tion, we also reverse the permanency judgment and remand
for correction of that determination.
DHS’s Motion to Dismiss Fifth Assignment of
Error as Moot denied. Permanency judgment reversed and
remanded; order denying motion to dismiss reversed and
remanded; otherwise affirmed.