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In re N.S.

Court of Appeals of Oregon

September 25, 2013

In the Matter of N.S., aka N. D. S.-T., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, and S.D.-V., Respondent,
v.
A.R.S.; and N.S., aka N.D.S.-T., Appellants.

Argued and submitted on June 04, 2013.

Washington County Circuit Court J070280, Petition Number No. 02J070280, James Lee Fun, Jr., Judge.

Shannon Storey, Senior Deputy Public Defender, argued the cause for appellant A. R. S. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Megan L. Jacquot argued the cause and filed the brief for appellant N. S.

Cecil A. Reniche-Smith, Senior Assistant Attorney General, argued the cause for respondent Department of Human Services. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Erin Galli argued the cause and filed the brief for respondent S. D.-V.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

ORTEGA, P. J.

This is the third time that we have considered an appeal in this juvenile dependency case. In the first appeal, we reversed and remanded a permanency judgment because the juvenile court had analyzed mother's progress to allow child to return to her care under an incorrect legal standard--that is, the court incorrectly determined that a parent's ability to parent independently is a legal requirement for parental fitness. Dept. of Human Services v. A. R. S., 249 Or.App. 603, 605-06, 278 P.3d 91 (2012) (ARS I). In the second appeal, we reversed and remanded another permanency judgment because the court had relied on a circumstance that was not alleged or established as a basis for jurisdiction in assessing mother's progress toward reunification--i.e., mother's purported personality disorder. Dept. of Human Services v. A. R. S., 256 Or.App. 653, 664, 303 P.3d 963 (2013) (ARS II). While that appeal was pending, the court held a review hearing at which it addressed motions by mother and child to dismiss the wardship. The court declined to dismiss the wardship and entered a review hearing judgment that continued the permanency plan of reunification. Mother and child (collectively, appellants) separately appeal that ruling.

Appellants challenge the court's refusal to dismiss the wardship and certain determinations in the court's review hearing judgment. In their first assignment of error, appellants assert that the juvenile court should have dismissed the wardship because the facts that gave rise to jurisdiction have been ameliorated. In their second assignment of error, appellants claim that the court, in its review judgment, erroneously determined that mother had not made sufficient progress to allow child to return to her care within a reasonable time. In their third assignment of error, appellants contend that the court erred in overruling the child's objection, based on the Fourteenth Amendment to the United States Constitution, to being "removed" from the United States to live with his father in Mexico. Child also raises additional assignments of error. Those are that the juvenile court erred when it determined that the Department of Human Services (DHS) had made reasonable efforts to reunify the family and that the court erred when it determined that it was in child's best interests to continue the wardship. DHS and father respond that the juvenile court properly denied appellants' motions to dismiss jurisdiction and that several of appellants' other assignments of error should not be considered in this appeal. Because we conclude that the court erred by denying appellants' motions to dismiss the wardship, we address only appellants' first assignment of error. Therefore, we reverse and remand with instructions to dismiss the wardship.

As an initial matter, we decline child's request for de novo review. Child does not provide any reason why this case merits de novo review, and we do not perceive any reason for it. See ORAP 5.45(8)(c) (stating that we exercise de novo review only in "exceptional" cases). Accordingly, we view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome. Dept. of Human Services v. N. P., 257 Or.App. 633, 639, __ P.3d___ (2013). We describe the facts in accordance with that standard.

Although the history of this case is extensive, we provide only the background necessary to address the issues before us. At the time of the review hearing, child, age five, continued to live in the foster home of his maternal grandmother with his two half-siblings, both of whom were adopted by grandmother when mother's parental rights to them were terminated several years ago. Father, after a visit to his home by immigration officials, left the United States to return to Mexico in late 2010 and remains there.

DHS first became involved in the family's life in 2007. As we explained in ARS II:

"DHS first filed a dependency petition with respect to child on July 24, 2007, four days after his birth. In a shelter/preliminary hearing order, the juvenile court granted DHS temporary custody of child and approved placement of child with mother in child's maternal grandmother's (foster mother) home. Jurisdiction was established in September 2007; as to mother, it was based on mother's substance abuse problem, exposure of child to controlled substances while pregnant, and relinquishment of parental rights to her two older children. Jurisdiction as to father was based on his substance abuse, his status as legal father, and because his parenting capacity was 'unknown.' Child remained placed with mother in foster mother's home. In October 2008, the juvenile court ruled that mother had made sufficient progress to ensure child's safe return to her and terminated its wardship of child. A year later, however, after mother left child with foster mother for five days without telling her when she would return, foster mother called DHS, and DHS again took protective custody of child. In October 2009, DHS filed a new dependency petition. The juvenile court entered new jurisdictional judgments over child in November 2009 (relating to father) and February 2010 (relating to mother). Child has lived with foster mother ever since.
"As it relates to mother, the court established dependency jurisdiction over child based on the following facts:
"'A. The mother has had residential instability since July of 2009, which impairs her ability to ...

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