Dept. of Human Services v. J. M. R. ( 2024 )

No. 548 August 7, 2024 255
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of R. C. R., fka B. B. R.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
J. M. R.,
Appellant.
Klamath County Circuit Court
23JU00271; A183142
Stephen R. Hedlund, Judge.
Argued and submitted June 14, 2024.
Kyle Sessions, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Shannon Storey, Chief
Defender, Juvenile Appellate Section, Oregon Public Defense
Commission.
Kyleigh M. Gray, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General,
and Jeff J. Payne, Assistant Attorney General.
Before Mooney, Presiding Judge, Pagán, Judge, and
Hadlock, Senior Judge.
MOONEY, P. J.
Affirmed.
256 Dept. of Human Services v. J. M. R.
MOONEY, J.
In this juvenile dependency case, mother appeals
a judgment that changed the permanency plan for her
10-month-old child, R, from reunification to adoption. She
assigns error to the juvenile court’s ruling that she had
made insufficient progress for R to return to her care and
to its decision to change the plan away from reunification.
As to both assignments, mother argues more particularly
that the juvenile court improperly shifted the burden to her
to prove that she had made sufficient progress when it held
a hearing on the Department of Human Services’ (DHS)
motion to change the permanency plan from reunification
to adoption. Mother objected generally to a change in the
permanency plan, but, as she acknowledges, she did not spe-
cifically argue below that the trial court improperly shifted
the burden of proof onto her, and we thus conclude that she
failed to preserve her burden-shifting argument. She never-
theless seeks plain error review. We affirm.
It would be of no service to the bench, bar, or the
public to recite the facts of this case. Suffice it to say that
R was placed in substitute care shortly after he was born
prematurely, addicted to the fentanyl that mother had used
daily while pregnant with him, and after she left the hospi-
tal without R. Jurisdiction was established and mother was
offered services that she neither attempted nor completed.
The juvenile court heard testimony and received evidence
at the permanency hearing in question, and after closing
arguments, it ruled from the bench indicating its decision
to change the plan away from reunification. It also engaged
mother in a discussion and challenged her to “prove” that
she could care for R. The written permanency judgment was
prepared and recorded in due course.
Mother asks us to review her claims of error as
plain. To be “plain,” an error must (1) be one of law, (2) be
obvious, and (3) appear on the record. ORAP 5.45(1); Dept.
of Human Services v. H. F. E., 288 Or App 609, 611, 410 P3d
1108 (2017). While the law is clear that DHS had the burden
of proof on its motion to change the permanency plan, it is
not at all obvious that the juvenile court improperly shifted
that burden to mother. Indeed, the colloquy on which mother
Nonprecedential Memo Op: 334 Or App 255 (2024) 257
relies occurred after the court indicated that it would be
changing the plan away from reunification and in the con-
text of advising mother, correctly, that with that change in
plan, it would be her burden moving forward to establish
her parental progress should she seek to change the plan
back to reunification or to dismiss jurisdiction. See, e.g.,
Dept. of Human Services v. T. L., 279 Or App 673, 677, 379
P3d 741 (2016) (“If the permanency plan for a child is some-
thing other than reunification, a parent seeking dismissal
of dependency jurisdiction on the ground that the jurisdic-
tional bases no longer endanger the child bears the burden
of proving that the bases for juvenile court jurisdiction no
longer endanger the child[.] * * * [A] permanency plan other
than return to parent gives rise to a presumption that the
child cannot return safely home. * * * [A] parent seeking dis-
missal of dependency jurisdiction must overcome that pre-
sumption by proving that the parent has ameliorated the
jurisdictional bases to the degree that they no longer pose a
threat to the child that is reasonably likely to be realized.”).
We decline to review mother’s unpreserved claims because
the trial court did not plainly err.
Affirmed.