Dept. of Human Services v. M. A. T. ( 2024 )

294 October 2, 2024 No. 693
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of K.S.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
M. A. T.,
Appellant.
Multnomah County Circuit Court
20JU03829;
Petition Number 114102;
A182963 (Control)
In the Matter of W. S.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
M. A. T.,
Appellant.
Multnomah County Circuit Court
20JU03830;
Petition Number 114102;
A182964
In the Matter of G. S.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
and
G. S.,
Respondent,
v.
M. A. T.,
Appellant.
Cite as 335 Or App 294 (2024) 295
Multnomah County Circuit Court
20JU03831;
Petition Number 114102;
A182965
In the Matter of T. S.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
and
T. S.,
Respondent,
v.
M. A. T.,
Appellant.
Multnomah County Circuit Court
20JU03832;
Petition Number 114102;
A182966
In the Matter of C. S.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
M. A. T.,
Appellant.
Multnomah County Circuit Court
20JU03833;
Petition Number 114102;
A182967
In the Matter of D. S.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
M. A. T.,
Appellant.
296 Dept. of Human Services v. M. A. T.
Multnomah County Circuit Court
20JU03834;
Petition Number 114102;
A182968
In the Matter of T. S.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
M. A. T.,
Appellant.
Multnomah County Circuit Court
20JU03835;
Petition Number 114102;
A182969
Francis G. Troy, II, Judge.
Argued and submitted June 26, 2024.
Elena C. Stross, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Shannon Storey,
Chief Defender, Juvenile Appellate Section, Oregon Public
Defense Commission.
Emily N. Snook, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
POWERS, J.
Affirmed.
Cite as 335 Or App 294 (2024) 297
298 Dept. of Human Services v. M. A. T.
POWERS, J.
In this consolidated juvenile dependency case,
mother appeals from judgments changing the permanency
plans away from reunification for seven children. Advancing
14 assignments of error, mother argues that the juvenile
court erred in determining that the Department of Human
Services (DHS) made reasonable efforts to ameliorate the
jurisdictional bases and make it possible for the children to
safely return to her care. Specifically, mother contends that
the court erred because there was no evidence related to
DHS’s efforts after the referee hearing and up through the
final permanency judgments following the juvenile court’s
rehearing. As explained below, we conclude that, because
the parties agreed that the juvenile court would consider
only the evidence presented to the referee to make its deci-
sion on rehearing—thereby limiting the timeframe of the
rehearing—any error by the juvenile court in failing to con-
sider DHS’s efforts following the referee hearing was invited
by mother. Further, mother’s arguments on appeal do not
convince us that the juvenile court erred in changing the
permanency plans away from reunification. Accordingly, we
affirm.
The relevant facts are undisputed and primarily
procedural. In October 2020, the juvenile court first asserted
jurisdiction over mother’s 10 children. Over the course of the
case, some of the children had been returned to mother’s
and father’s care but were later removed again.1 After a per-
manency hearing that took place over the course of several
months from January to May 2023, the referee entered a
single order in June 2023 changing the permanency plans
away from reunification for nine of the 10 children.2 Mother
then moved for a rehearing under ORS 419A.150 in front of
a juvenile court judge challenging the referee’s order.
1
Father is not a party to this appeal.
2
During the proceedings before the referee, mother moved to dismiss juris-
diction over all 10 children, and the referee issued an order denying the motion to
dismiss jurisdiction over nine of the 10 children. On rehearing, the juvenile court
upheld the order denying the motion to dismiss. Mother appealed the denial of
the motion to dismiss as to seven of the children, and we affirmed the juvenile
court’s denial of the motion to dismiss. Dept. of Human Services v. M. A. T., 334
Or App 292 (2024) (nonprecedential memorandum opinion).
Cite as 335 Or App 294 (2024) 299
In July 2023, following mother’s rehearing motion,
the parties discussed with the juvenile court how to pro-
ceed with the rehearing. DHS explained that the parties
intended for the court to consider the testimony and exhibits
from the permanency hearings before the referee and that
no party intended to put on additional evidence. Mother
agreed that the court was to consider only the evidence from
the permanency hearings, explaining:
“Pretty much everything that is on the record and
before the Court was pretty thoroughly argued. Case law
cited and everything there. I don’t anticipate there being
anything in addition to that but—to be presented.
“So this is essentially rehearing on the record to review.
And then determine whether the conclusions of law and
findings of fact, with respect to both of the segments of the
case, were decided correctly.”
The juvenile court asked mother what “de novo” review
means under ORS 419A.150(8), which requires a rehearing
to be “conducted de novo,” and mother responded that “this
court will be reviewing the evidence and making a determi-
nation based on the evidence.” Mother added, “I believe it’s
possible to relitigate based on stipulated evidence and the
exhibits. I would—I would anticipate that what would be
presented would be as was previously presented.”
At a status check hearing in August 2023, the par-
ties discussed the status of the transcript and exhibits from
the referee hearings, and no party offered any additional
evidence or made arguments. Thus, no party presented
any new evidence before the juvenile court as part of the
rehearing.
In the judgments that were signed on October 27
and entered on November 6, 2023, the juvenile court upheld
the referee’s ruling and issued judgments changing the chil-
dren’s permanency plans away from reunification. In mak-
ing its ruling, the court noted that it reviewed the transcript
and exhibits from the hearings before the referee.
On appeal, mother argues that the juvenile court
erred in ruling that DHS’s efforts to reunify her with
her children qualified as reasonable and in changing the
300 Dept. of Human Services v. M. A. T.
permanency plans away from reunification for seven of her
children. In arguing that DHS’s efforts were not reason-
able, mother contends that between January and November
2023—the period of time from when the referee hearing
began to when the juvenile court entered its judgments on
rehearing—DHS made little to no efforts to assist mother
in ameliorating the jurisdictional bases. Moreover, mother
asserts that DHS’s choice not to present any evidence at the
rehearing prevented the juvenile court from concluding that
DHS’s efforts qualified as reasonable because there was no
evidence that DHS made any efforts to assist the parents in
the six months between the conclusion of the referee hearing
in May 2023 and the entry of the permanency judgments in
November 2023.3
DHS remonstrates that, to the extent mother
argues that the court could not have found reasonable efforts
because of the lack of evidence of DHS’s efforts between
May and November 2023, mother invited that error because
she agreed that the juvenile court was to consider only the
evidence from the referee hearing at the rehearing. Two
of mother’s children filed a joint respondents’ brief in this
appeal adopting DHS’s answering brief in full.
As explained below, we reject mother’s reasonable-
efforts argument because any error caused by the juvenile
court’s failure to consider DHS’s efforts following the hearing
by the referee was invited by mother. Further, mother has
not demonstrated that the juvenile court erred in changing
the permanency plans for her children away from reunifica-
tion. Accordingly, we affirm.
When a party moves to change a child’s permanency
plan away from reunification, the juvenile court must deter-
mine whether DHS “has made reasonable efforts * * * and
whether the parent has made sufficient progress to make it
possible for the ward to safely return home.” ORS 419B.476
(2)(a). It is DHS’s burden to prove that it made reasonable
efforts “over the life of the case.” Dept. of Human Services
3
Throughout the course of the case, there were several delays between the
first permanency hearing in front of the referee in January 2023 and when the
final permanency judgments were entered 11 months later in November 2023.
The cause of those delays or the court’s compliance with ORS 419A.150(8) is not
at issue in this appeal.
Cite as 335 Or App 294 (2024) 301
v. S. S., 278 Or App 725, 735, 375 P3d 556 (2016) (internal
quotation marks and brackets omitted). Because mother’s
challenge involves a rehearing under ORS 419A.150, we
begin by briefly outlining the statutory framework for when
a party requests a rehearing in front of a juvenile judge.
Under ORS 419A.150(1), juvenile court judges “may
appoint one or more persons as [a] referee of the juvenile
court.” A juvenile court judge may direct a case or class of
cases to be “processed or heard in the first instance by a
referee,” who then transmits findings, recommendations, or
an order to the juvenile court judge. ORS 419A.150(2). A ref-
eree’s order is “immediately effective, subject to the right
of review” described in ORS 419A.150(4) or to a rehearing
on the juvenile judge’s own motion under ORS 419A.150(6).
A referee’s order becomes a final order of the juvenile court
“upon expiration of 10 days following its entry, unless a
rehearing is ordered or requested.” ORS 419A.150(4).
ORS 419A.150(7) specifies that “a child, ward,
youth, adjudicated youth, the parent, guardian, district
attorney, Department of Human Services, juvenile depart-
ment or other party affected by the order” may request a
rehearing of a referee’s order. The statutory framework pro-
vides for an expedited timeline, requiring that a rehearing
occur within 30 days after the filing of the request and in no
event later than 45 days after the filing of the request. ORS
419A.150(8).
Important to this case, the statutory framework
for a rehearing does not specify the contents of the record
that the court must consider on rehearing; rather, the par-
ties play an integral role in identifying the scope of the
record that the juvenile court should consider for a rehear-
ing. Specifically, the framework provides that a rehearing
“may be determined on the same evidence introduced before
the referee if a stenographic transcript of the proceedings
was kept, but, in any case, additional evidence may be pre-
sented.” ORS 419A.150(3); see also Dept. of Human Services v.
J. R. D., 286 Or App 55, 62-63, 398 P3d 489 (2017) (conclud-
ing that the phrase “may be presented” in ORS 419A.150(3)
means litigants have permission to present evidence but are
not required to do so). We explained in J. R. D. that the
302 Dept. of Human Services v. M. A. T.
statutory framework “allows a court to make a decision on
rehearing on the record before the referee if a transcript is
available and the parties choose not to present any addi-
tional evidence.” 286 Or App at 63.
In short, the statutory framework allows a juvenile
court to conduct a rehearing based solely on the evidence
received by the referee if the parties choose not to offer any
additional evidence on rehearing. Although this case differs
from a typical rehearing case because there were delays
that resulted in the final permanency judgments occur-
ring 11 months after the initial referee hearing began, the
scope of the record on rehearing was not affected by that
delay. Thus, although there is no evidence of DHS’s efforts
between the end of the hearing before the referee and the
juvenile court’s final permanency judgments, the gap in the
evidence was invited by mother and thus does not provide a
basis for reversal.
It is axiomatic that a party on appeal cannot take
a position inconsistent with the position that party invited
the trial court to take. See, e.g., State v. Kammeyer, 226
Or App 210, 214, 203 P3d 274, rev den, 346 Or 590 (2009)
(explaining that the goal of the doctrine of invited error is
“to ensure that parties who make intentional or strategic
trial choices do not later blame the court if those choices
prove to be unwise” (internal quotation marks omitted)). For
example, in State v. Ferguson, 201 Or App 261, 269-70, 119
P3d 794 (2005), rev den, 340 Or 34 (2006), we explained that,
if a party was actively instrumental in bringing about an
asserted error, that party cannot complain about that error
on appeal. The invited error doctrine ordinarily applies in
cases where a party “has invited the trial court to rule in a
particular way, under circumstances that suggest that the
party will be bound by the ruling or at least will not later
seek a reversal on the basis of it.” Id. at 270. Moreover, even
if a party’s invitation to the court to rule a particular way
involves a misstatement of the law, the party’s statements
constitute invited error. State v. K. K. V., 306 Or App 644,
645, 475 P3d 118 (2020).
In this case, both parties agreed that the juvenile
court would consider only the record before the referee and
Cite as 335 Or App 294 (2024) 303
that neither party would present additional evidence or
arguments. The rehearing began in July 2023, and a status
check occurred in August 2023. Both hearings presented
an opportunity for mother to present additional evidence or
to argue that DHS had not made reasonable efforts since
the referee hearing, and mother chose not to do so. In fact,
mother explained that she anticipated that any new evi-
dence presented at the rehearing “would be as was previ-
ously presented” and that the juvenile court’s role on rehear-
ing was to “determine whether the conclusions of law and
findings of fact [made by the referee], with respect to both
of the segments of the case, were decided correctly.” Given
those circumstances, we readily conclude that mother was
instrumental in limiting the timeframe for the rehearing to
the same timeframe considered by the referee.
Mother contends on appeal that, because DHS had
the burden to prove reasonable efforts, DHS was required
to demonstrate that it made reasonable efforts in the period
following the referee hearing, and mother at no point agreed
that DHS’s efforts were reasonable. She asserts that DHS
chose not to offer additional evidence and that she had no
obligation to instruct DHS to make its case against her.
Although we agree that mother had no obligation to instruct
DHS to make its case, mother’s argument on appeal fails to
account for her role in limiting the timeframe for the juve-
nile court to consider on rehearing. If mother did not want to
limit the timeframe to the same one the referee considered,
she could have clearly articulated her intentions to the juve-
nile court that she was asking for the rehearing to include
circumstances beyond what was considered by the referee.
Here, however, she did not do so. Because the statute pro-
vides that the juvenile court may consider only the evidence
from the referee hearings and because the parties agreed
not to present additional evidence or arguments, any claim
of error that the juvenile court failed to account for DHS’s
efforts beyond the agreed-upon timeframe was invited error.
This case serves as a cautionary tale that, in the future,
it would behoove the parties and the juvenile court to be
explicit about what time period the court should consider
when conducting a rehearing.
304 Dept. of Human Services v. M. A. T.
Finally, we reject mother’s arguments that the
juvenile court erred in changing the permanency plans
away from reunification for seven of her children. We have
reviewed the record and conclude that, under the totality
of the circumstances, there was sufficient evidence for the
juvenile court to conclude that DHS’s efforts were reason-
able from October 2020 through May 2023. Accordingly, the
juvenile court did not err.
Affirmed.