Dept. of Human Services v. R. R. , 322 Or. App. 427 ( 2022 )

427
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted September 15, affirmed October 19, 2022, petition for
review denied February 9, 2023 (370 Or 740)
In the Matter of J. R. L.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
R. R.,
Appellant.
Linn County Circuit Court
20JU01457; A178222
Brendan J. Kane, Judge.
Ginger Fitch argued the cause for appellant. Also on the
briefs was Youth, Rights & Justice.
Inge D. Wells, 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, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
428 Dept. of Human Services v. R. R.
ORTEGA, P. J.
Mother appeals from a judgment dismissing this
dependency case and terminating wardship over her 15-year-
old daughter, J. She raises three assignments of error, two
of which challenge the bases for dismissal. In her other
assignment, she contends that the juvenile court erred in
failing to conduct an adequate permanency hearing pro-
ducing an order containing the determinations required
by ORS 419B.476(5)—specifically, that the efforts made by
the Department of Human Services (DHS) to effectuate
reunification were reasonable. As we will explain, we con-
clude that dismissal of juvenile court jurisdiction was cor-
rect given that the bases for jurisdiction were ameliorated
and that, consequently, dismissal of J’s commitment to the
legal custody of DHS was also not in error; any error in the
court’s reasoning as to the latter was harmless. Finally, any
error in failing to conduct a permanency hearing and make
a reasonable-efforts finding was also harmless under these
circumstances. Accordingly, we affirm.
The juvenile court took jurisdiction over J based on
mother’s admissions that she was not a custodial resource
for J and that both parents could not meet J’s mental health
and behavioral needs.1 As part of its disposition, the juvenile
court committed J to the legal custody of DHS, and she was
placed in a residential treatment facility. While at the facil-
ity, J committed acts that, if committed by an adult, would
constitute fourth-degree assault and second-degree crimi-
nal mischief and, as a consequence, a juvenile delinquency
petition was filed. Ultimately, J was adjudicated delinquent
and was placed in the legal custody of the Oregon Youth
Authority (OYA) for a period not to exceed three years.
J then moved to dismiss the dependency case. Mother
objected to dismissal, arguing that she wanted to “retain
her right to contest the reasonable efforts that DHS made”
before any decision on dismissal. The juvenile court held
that it could not order concurrent custody of a youth to both
OYA and DHS and thus “doesn’t have any authority to keep
the case going.” The court then dismissed the dependency
1
Father is not a party to this appeal.
Nonprecedential Memo Op: 322 Or App 427 (2022) 429
case and terminated wardship, and also dismissed commit-
ment to DHS custody. Mother makes three challenges to
that decision.
We begin with mother’s second assignment of error,
which challenges dismissal of the dependency case and ter-
mination of wardship over J. When a motion to dismiss is
filed, the juvenile court “must determine whether the origi-
nal bases for jurisdiction continue to pose a current threat of
serious loss or injury” and, if so, the court must “assess the
likelihood that that risk will be realized.” Dept. of Human
Services v. T. L., 279 Or App 673, 685, 379 P3d 741 (2016). If
the motion is filed when a child’s permanency plan is reuni-
fication, the proponent of continuing jurisdiction “has the
burden of showing that the conditions that were originally
found to endanger the child persist.” Dept. of Human Services
v. J. M., 260 Or App 261, 267, 317 P3d 402 (2013). When the
basis of jurisdiction has ceased to exist, the juvenile court
must terminate the wardship and dismiss the case. T. W. v.
C. L. K., 310 Or App 80, 90, 483 P3d 1237, rev den, 368 Or
515 (2021).
Here, dependency jurisdiction was based on mother’s
admissions that she was not a custodial resource for J and
that both parents were unable to meet her needs. Now that
J is in the legal custody of OYA—and indeed, mother agrees
that J “will be best served” by that commitment—the bases
for jurisdiction have been ameliorated. Mother has not met
her burden to establish that the conditions that were origi-
nally found to endanger J for purposes of dependency juris-
diction persist. Consequently, the juvenile court did not err
in dismissing the case.
In her third assignment of error, mother contends
that the juvenile court erred in determining that it could
not keep J in both DHS and OYA custody. Mother is cor-
rect that the juvenile court had the discretion to dismiss the
commitment to DHS and continue J as a ward of the court in
the dependency case but was not required to do so. See ORS
419B.337(7)(b) (providing that the juvenile court “may dis-
miss commitment of a ward to [DHS] if * * * [t]he ward has
been committed to the custody of [OYA]”). However, because
the court correctly dismissed dependency jurisdiction given
430 Dept. of Human Services v. R. R.
that the conditions giving rise to wardship had been ame-
liorated, dismissal of commitment to DHS was not in error.
Even if the juvenile court mistakenly believed that it was
required to dismiss the commitment to DHS in the depen-
dency case, any error was harmless given its dismissal of
the dependency case.
Finally, mother argues that the court was required
to hold the case open for a permanency hearing. Unhappy
with care J received while in DHS custody, mother wanted
the court to hold a permanency hearing and determine that
DHS had failed to make reasonable efforts to reunify the
family as required by ORS 419B.476(5). DHS argues that
mother did not preserve all of her arguments but, in any
event, any error is harmless. Mother has not made a show-
ing that the lack of a reasonable-efforts finding has any
effect on her rights under the circumstances presented here
and, therefore, any error is harmless.
Affirmed.