In the Matter of J. B., a Child.
A. B. Petitioner on Review. DEPARTMENT OF HUMAN SERVICES, Respondent on Review,
review from the Court of Appeals.[*] CC J150426, CA A161125
and submitted November 7, 2017
Peterson, Deputy Public Defender, Offce of Public Defense
Services, Salem, argued the cause and fled the briefs for
petitioner on review. Also on the brief was Shannon Storey,
D. Wells, Assistant Attorney General, Salem, argued the cause
and fled the brief for respondent on review. Also on the
brief were Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General.
Balmer, Chief Justice, and Kistler, Walters, Nakamoto, Flynn,
and Nelson, Justices, and Shorr, Judge of the Court of
Appeals, Justice pro tempore. [**]
Or. 413] Case Summary: Mother appealed a jurisdictional
judgment making the Department of Human Services the legal
custodian of her child. While mother's appeal was
pending, the juvenile court determined that jurisdiction over
mother's child was no longer warranted and entered a
judgment dismissing the petition. The Court of Appeals
dismissed mother's appeal as moot. Held: Whether
dismissal of a wardship renders an appeal moot will depend on
the particular circumstances of the case. If a parent
identifies practical effects or collateral consequences that
the parent believes will result from the judgment, the burden
is on the department to prove the jurisdictional judgment
will have no practical effects on the rights of the parties
and is therefore moot. In this case, the department met that
decision of the Court of Appeals is affrmed.
Or. 414] WALTERS, J.
parent appeals from a jurisdictional judgment making the
Department of Human Services (the department) the legal
custodian of the parent's child and that wardship is
subsequently terminated, the department may file a motion to
dismiss the appeal as moot. In this case, we conclude that
termination of such a wardship does not necessarily render
the appeal moot; whether dismissal is appropriate will depend
on the particular circumstances presented. If a parent
identifies practical effects or collateral consequences that
the parent believes will result from the judgment, then the
department has the burden to persuade the appellate court
that those consequences are factually incorrect or legally
insufficient. The burden is on the department to prove that a
jurisdictional judgment will have no practical effect on the
rights of the parties and is therefore moot. In this case, we
conclude that the department met that burden. The decision of
the Court of Appeals is affirmed. Dept. of Human Services
v. A.B., 283 Or.App. 907, 389 P.3d 409 (2017).
AND PROCEDURAL HISTORY
the facts from the uncontested juvenile court records and the
express findings of the juvenile court.
2005, the child who is the focus of this proceeding was born.
He has an autism spectrum disorder, developmental delays,
including speech delays, and other significant health issues.
2010, when the child was five years old, his mother and
father divorced. Mother had been his primary caretaker, and
she was awarded sole legal custody.
2015, when the child was 10 years old, the department
investigated reports that mother was neglecting the
child's basic needs and risking his safety by allowing
him to have contact with her significant other, L. The
department issued a "founded disposition" based on
its administrative determination that mother had neglected
the child through a "[l]ack of supervision and
protection." The department then filed a petition to
obtain dependency jurisdiction over [362 Or. 415] the child
and, in allegations A through I, set out specific conditions
and circumstances pertaining to both mother and father that,
the department alleged, endanger the child's welfare.
contested jurisdiction, and a trial was held based on
documentary exhibits submitted by the parties. On August 28,
2015, the juvenile court issued a letter opinion. At the
outset, the court stated that the case posed "a unique
and challenging set of circumstances" because of the
child's autism diagnosis and the fact that he is
nonverbal. The court also noted that the child "is
extremely attached" to mother. After reciting certain
other factual findings, the court directed that three of the
allegations in the petition- allegations A, B, and I-be
amended. The court concluded that those allegations, as
amended, had been proved. The court also concluded that a
fourth allegation-allegation G-had been proved; it dismissed
the remaining allegations.
A was directed to mother's conduct. As amended, it read:
"The mother is aware that her domestic partner has a
conviction for a sex offense, has threatened to kill her and
her child, has engaged in a pattern of violent, threatening
and mentally unstable behavior that presents a threat to
[the] child's safety because the mother continues to
allow him in the home and around the child." The court
sustained that allegation based on the following findings: L
had been convicted of rape in 1992. In December 2014, mother
had applied for and obtained a restraining order against L
alleging that he had made threats to kill her and her child.
Police reports indicated that, around that time, L had thrown
a brick at mother's door. And, in June 2015, L had left
at least two threatening voice mail messages with the
B and G also were directed to mother's conduct. As
amended, allegation B read: "The child is in need of
therapeutic treatment that the mother has failed to
provide." Allegation G alleged that mother "failed
to provide for the educational needs of the child." The
court sustained both allegations based on the following
findings: The child has autism and a severe developmental
language delay for which treatment is medically necessary.
Mother participated [362 Or. 416] in a speech therapy
evaluation in January 2014 and therapists recommended a
12-month treatment regimen at two-to three- times per month.
Although mother and her child attended a couple of
appointments in January and February 2014, there was no
evidence that mother was following through, creating a risk
of harm that the child's therapeutic needs were not being
met. Mother was home schooling the child and was enrolled
with the home school program in Multnomah County. However,
mother had recently moved to Washington County, and there was
no evidence that the child was enrolled in an educational
program there. Mother worked with a non-profit organization
and agreed to have a developmental disabilities service
worker come to the home once a month. There was no evidence
to suggest that mother was following through with the
child's speech therapy, and the child's current home
schooling/educational posture was unknown.
I pertained to father. As amended, it alleged that father
"is willing to be a custodial resource, but does not
have sole legal custody of the child and is unable to protect
him from the mother's abusive and neglectful
behaviors." Father admitted that allegation.
on its letter opinion, the juvenile court entered an amended,
corrected judgment nunc pro tunc on September 9,
2015, finding the child to be within the jurisdiction of the
court. The court committed the child to the legal custody of
the department for in-home placement with mother, pursuant to
a safety plan. The court ordered the department to conduct
three unannounced home visits in the next 90 days, noted its
expectation that the department ...