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In re D. J. B.

Court of Appeals of Oregon

November 29, 2017

In the Matter of D. J. B., a Child. S. H., Appellant. In the Matter of B. G., a Child. S. H., Appellant. In the Matter of S. H., a Child. S. M. H., Appellant.

          Argued and submitted September 26, 2017

         Deschutes County Circuit Court BENDES09; GEEBLA13; HENSAY15; Stephen P. Forte, Judge.

         Petition Numbers 14JV0194; 14JV0194; 15JV0084; (Control)

          Shannon Storey, Chief Defender, Juvenile Appellate Section, argued the cause for appellant. With her on the brief was Holly Telerant, Deputy Public Defender, Offices of Public Defense Services.

          Before Egan, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

          [289 Or.App. 89] Case Summary:

         In this consolidated juvenile dependency case, mother appeals orders of the juvenile court denying her motions to set aside guardianship over her three children. She asserts that, in light of the Court of Appeals decision in Dept. of Human Services v. S. M. H., 283 Or.App. 295, 388 P.3d 1204 (2017), in which the court reversed the underlying permanency judgments changing the plan for her children from reunification to adoption, the juvenile court was required to grant her motions. Held: In light of the Court of Appeals' reversal of the underlying permanency judgments, the juvenile court had no discretion to deny mother's motions to set aside the guardianship judgments.

         Reversed and remanded.

          [289 Or.App. 90]

          EGAN, P. J.

         In this consolidated juvenile dependency case, mother appeals orders of the juvenile court denying her motions to set aside guardianship over her three children. She asserts on appeal that, in light of our decision in Dept. of Human Services v. S. M. H.. 283 Or.App. 295, 388 P.3d 1204 (2017), in which we reversed the underlying permanency judgments changing the plan for her children from reunification to adoption, the court was required to grant her motions. As explained below, we agree with mother and reverse and remand.

         This case relates to mother's three children, D, B, and S. As stated in our earlier opinion, "D and B have different legal fathers; S has no legal father." Id. at 298. At the time of the permanency hearing in March 2016, all three parents were incarcerated. And, at that time, the children had been living with their maternal aunt and uncle for approximately one year. As a result of that hearing, the court entered permanency judgments, over the parents' objections, changing the plan for the children from reunification to guardianship. The parents appealed the permanency judgments, assigning "error to the juvenile court's determination that the Department of Human Services (DHS) made reasonable efforts to make reunification possible as required by ORS 419B.476(2)(a)." Id. at 297.

         While the appeal was pending, DHS filed petitions for the juvenile court to establish a guardianship and appoint aunt and uncle as the children's legal guardians. Mother filed motions to stay, asserting that she was likely to prevail on appeal because DHS had failed to "provide reasonable efforts to support reunification." She further contended that "all parties and participants would be ill-served by the establishment of a guardianship that might then be swiftly overturned upon reversal." The court denied the motions to stay and, in September 2016, proceeded to hold a hearing on DHS's motions to establish guardianship. At the hearing, mother stipulated to orders appointing aunt and uncle as guardians with the understanding that she was "still appealing the permanency hearing change of plan, " but that, "if a guardianship is allowed to stand, certainly [289 Or.App. 91] this relative foster placement is [an] appropriate party to act in that capacity." The court heard testimony from aunt and observed that, although there was "an appeal pending about the permanen[cy] plan, " the parties did not object to the "orders and judgments that have been presented." The court further informed the parties that it would "be signing the order[s] and judgments" establishing guardianship and, thereafter, it did so.

         In January 2017, we reversed the underlying permanency judgments, concluding that the record lacked "sufficient evidence to support the trial court's conclusion that DHS made reasonable efforts within the meaning of" ORS 419B.476(2)(a).[1] S. M. H., 283 Or.App. at 297. Specifically, we held that there was insufficient evidence to support the juvenile court's determination that DHS made reasonable efforts with respect to mother and, accordingly, the court incorrectly changed the plan away from reunification. Based on that conclusion, we reversed the permanency judgments for all three children and remanded the case to the juvenile court. Id. at 311-12.

         In February 2017, based on our reversal of the underlying permanency judgments, mother moved under ORS 419B.923 to set aside the guardianship orders and judgments in this case.[2] She also requested a new permanency hearing. Counsel for the state and both fathers supported the relief mother requested, and the children's attorney took no position. The juvenile court, despite our decision reversing the permanency judgments for lack of reasonable ...


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