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In re S. R. R.

Court of Appeals of Oregon

December 18, 2019

In the Matter of S. R. R., a Child.
v.
C. M. H., Appellant. 301 Or.App. 487 DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

          Argued and Submitted March 11, 2019

          Benton County Circuit Court 18JU06113; Locke A. Williams, Judge.

          Sarah Peterson, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.

          Cecil A. Reniche-Smith argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General.

          Before Ortega, Presiding Judge, and Powers, Judge, and Landau, Senior Judge.

         Case Summary: In this juvenile dependency case, appellant challenges the juvenile court's judgment that disestablished her parentage of child. Appellant argues that ORS 419B.395(1) does not confer subject matter jurisdiction on the juvenile court to decide the issue of parentage before adjudicating whether the child is within its dependency jurisdiction. The Department of Human Services (DHS) argues that the juvenile court had subject matter jurisdiction to enter the judgment of non parentage but raises the preliminary question of whether the Court of Appeals has jurisdiction because that judgment does not ft under any of the dispositions listed as judgments in ORS 419A.205');">419A.205(1). Held: The Court of Appeals has jurisdiction to hear the appeal from a judgment of parentage or non-parentage. ORS 419A.205');">419A.205(1) does not limit the type of juvenile court judgments that may be appealed under ORS 419A.200');">419A.200(1). Appellant's rights or duties are [301 Or.App. 488] adversely affected by the judgment, and the juvenile court was authorized under ORS 419B.395(1) to issue the judgment. Because the juvenile court had subject matter jurisdiction when child was taken into protective custody, it had subject matter jurisdiction to adjudicate the parentage dispute before making a determination on whether to assert dependency jurisdiction.

         [301 Or.App. 489] POWERS, J.

         Appellant challenges the juvenile court's decision that disestablished her parentage of child, S, who was born while appellant was married to S's biological mother. Appellant asserts that the juvenile court lacked subject matter jurisdiction to disestablish her parentage because, when it did so, it had not yet taken dependency jurisdiction of child. In response, the Department of Human Services (DHS) argues that the juvenile court had subject matter jurisdiction at the time the court entered the judgment of parentage and nonparentage. As explained below, we conclude that the juvenile court had subject matter jurisdiction to adjudicate parentage under ORS 419B.395(1), and accordingly, we affirm.

         We review claims involving subject matter jurisdiction for errors of law. Campbell v. Tardio, 261 Or.App. 78, 80, 323 P.3d 317 (2014). Challenges to subject matter jurisdiction can be raised at any stage even if it has not been raised before. Id.

         Although dependency is not an issue on appeal, this case comes to us as a juvenile dependency case. Child was born when appellant was married to child's biological mother, although they were no longer cohabitating. JR is child's biological father. In February 2018, shortly after child was born, appellant traveled to California and obtained a judgment that (1) dissolved her marriage to biological mother and (2) awarded shared legal custody to appellant and biological mother.[1]

         In July 2018, DHS removed child from biological mother's care based on methamphetamine use. DHS then filed a dependency petition that included allegations involving biological mother, biological father, and appellant, who was identified as "legal parent" in the dependency petition. The juvenile court issued a shelter order and placed child in [301 Or.App. 490] temporary custody of DHS for care, placement, and supervision under ORS 419 B.809(5).

         Before the contested shelter hearing, DHS filed a motion for an order to show cause regarding a judgment of nonparentage of child under ORS 419B.395.[2] In the motion, DHS requested that the court determine the status of appellant's parentage of child. Appellant responded to DHS's motion and argued, under an estoppel theory, that she should continue to be considered the legal parent of child- regardless of the physical evidence that father was, in fact, the biological father-because she had attempted to maintain a relationship with biological mother and child.

         On September 19, 2018, the court issued a letter opinion that provided, in part:

"(1) [Appellant] and [biological mother] were a legally married same-sex couple on November 18, 2017, when [child] was born to [biological mother]. [Appellant] and [biological mother] were subsequently divorced on February 1, 2018, in Lassen County, California, which judgment of dissolution was reviewed and upheld by the same court on June 22, 2018;
"(2) Pursuant to ORS 109.070(1), [appellant's] parentage of [child] is rebuttably presumed because [appellant] was married to [biological mother] at the time of [child's] birth;
"(3) Notwithstanding ORS 109.070(2), DHS has standing to challenge [appellant's] parentage of [child] because [appellant] and [biological mother] are no longer married, ...

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