Dept. of Human Services v. M. L.

• Court: Court of Appeals of Oregon
• Decided: April 15, 2026
• Docket: A188157
• Status: Published

Opinion

494 April 15, 2026 No. 303

IN THE COURT OF APPEALS OF THE STATE OF OREGON

In the Matter of C. P., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent Cross-Appellant, v. M. L., aka M. A. L., Appellant Cross-Respondent. Clackamas County Circuit Court 22JU05987; A188157

Colleen F. Gilmartin, Judge. Argued and submitted February 18, 2026. Gabe Newland, Deputy Public Defender, argued the cause for appellant-cross-respondent. Also on the com- bined reply and cross-answering brief was Shannon Storey, Chief Defender, Juvenile Appellate Section, Oregon Public Defense Commission. On the opening brief was Shannon Storey, Chief Defender, Juvenile Appellate Section, Oregon Public Defense Commission. Stacy M. Chaffin, Assistant Attorney General, argued the cause for respondent-cross-appellant Department of Human Services. Also on the brief were Dan Rayfield, Attorney General, and Benjamin Gutman, Interim Deputy Attorney General. Before Shorr, Presiding Judge, Powers, Judge, and O’Connor, Judge. O’CONNOR, J. On appeal, reversed and remanded; on cross-appeal, dis- missed as moot. Cite as 348 Or App 494 (2026) 495 496 Dept. of Human Services v. M. L.

O’CONNOR, J. In this juvenile dependency case, mother appeals from the permanency judgments in which the juvenile court changed the permanency plan for her son, C, from reunifi- cation to placement with a fit and willing relative and the subsequent permanency judgment continuing that plan. She raises four assignments of error: (1) the juvenile court erred in ruling that the efforts of the Oregon Department of Human Services (ODHS) were reasonable as to jurisdic- tional basis 4(n); (2) the juvenile court erred in instructing itself that it should evaluate ODHS’s reunification efforts as to an individual basis for jurisdiction and make separate rulings as to the efforts directed toward each basis for juris- diction; (3) the juvenile court erred in changing the perma- nency plan; and (4) the court erred in continuing the perma- nency plan that was in place after having erroneously been changed. In a cross-appeal, ODHS asserts that the juvenile court erred when it ruled that ODHS did not make reason- able efforts to help mother learn to meet C’s high needs (jurisdictional basis 4(a)). For the reasons explained below, on mother’s appeal, we reverse and remand, and we dismiss ODHS’s cross-appeal as moot. The underlying procedural facts are not in dis- pute. C, age 11 at the time of the permanency hearing, was removed from his parents’ care in February 2023. C has disabilities, including a mild intellectual delay and a speech-and-language impairment. He needed to wear a diaper to school and required ongoing help with self-care, toileting, brushing his teeth, and hygiene. On March 14, 2023, the juvenile court asserted jurisdiction over C based on mother’s and father’s admissions to certain allegations. The three jurisdictional bases relative to mother are the following: • 4(a) “The child has developmental needs that require structure, supervision, and/or treatment that the mother failed to provide.” • 4(b) “The child is in need of medical treatment that the mother failed to provide.” Cite as 348 Or App 494 (2026) 497

• 4(n) “The mother needs to participate in a drug and alcohol evaluation and any recommended treatment without which there’s risk of harm as the child tested positive for controlled substances during a period he was in the care and custody of the parents.” In May 2023, C was placed in a resource home that specialized in working with children with disabilities. Father died in September 2023. C was returned to moth- er’s care in December, but he was ultimately removed from mother’s care again and returned to the resource home in April 2024, where he remained at the time of the perma- nency hearing. The juvenile court held a hearing on February 18, 2025, at which ODHS asked the court to change the perma- nency plan from reunification to placement with a fit and willing relative. See ORS 419B.476(5)(b)(D) (“fit and will- ing relative” placement as plan option). C agreed with the change of plan. Mother objected to the change of plan and asked the court to schedule a contested permanency hear- ing, which the court did. That contested hearing was held on April 18, 2025. After hearing testimony and receiving evidence on April 18, the juvenile court took the matter under advise- ment. The court issued a written letter decision on June 11, 2025, in a document titled “permanency judgment.” The court subsequently entered a permanency judgment dated July 16, 2025, using the model permanency judgment form; that judgment also refers to the April 18 hearing.1 In the June 11 letter decision, the court separately addressed two of the three jurisdictional bases as to mother and was silent as to the third. As to basis 4(a) the court stated, in part, 1 At a hearing on July 16, 2025, the court explained to the parties that her office was contacted by the Attorney General, who asked for a “permanency judgment in the form typically used,” so the court had issued that judgment and wanted to inform the parties that that had been done but that “nothing has changed.” We observe that in the form judgment dated July 16, the court checked the boxes on page four indicating that ODHS has and has not made reasonable efforts to reunify the family and finalize the permanent plan of reunification, which is consistent with the earlier judgment it had signed. 498 Dept. of Human Services v. M. L.

“While the court finds that historically [mother] has not provided the structure, supervision and treatment to address the child’s specific needs, the court finds ODHS did not provide reasonable efforts regarding this specific jurisdictional basis and there is insufficient evidence for the court to decide as to whether further services would ameliorate the issue.” Regarding jurisdictional basis 4(n), the court stated, in part, “Based on the evidence the court finds ODHS has provided extensive services to assist the mother in addressing her substance use issue, including referrals to treatment, a par- ent mentor, and UA testing.” The court went on to state that “[mother’s] lack of understanding or appreciation for the risk of harm to her child by her continued substance use has resulted in her child testing positive and continues to be a barrier to a return home within a reasonable amount of time. There is no evidence before the court that additional services would support a determination under Oregon law that further efforts will make it possible for the child to return home within a reasonable time.” Based on those determinations, the court ordered that the plan be changed from reunification to placement with a fit and willing relative. At the next permanency hearing, on July 16, 2025, the juvenile court continued the permanent plan of placement with a fit and willing relative. Mother appealed from the three judgments. As noted above, she raises four assignments of error on appeal; she provides a combined argument. We begin with her sec- ond assignment of error because it is dispositive. In that assignment, she contends that the juvenile court erred by evaluating the reasonable efforts of ODHS as to two juris- dictional bases separately and not making a determination on the third jurisdictional basis. She argues that Oregon law requires the court to evaluate the department’s efforts as to the adjudicated bases under the totality of the circum- stances. In mother’s view, under the totality of the circum- stances, ODHS did not meet its burden to show that it had made reasonable efforts. She asks that we reverse all three judgments, return the parties to the status quo ante, and remand with instructions for the juvenile court to conduct a new permanency hearing. Cite as 348 Or App 494 (2026) 499

In response, ODHS agrees with mother that the juvenile court legally erred when it did not make a singular reasonable-efforts determination based on the totality of the circumstances. Despite that error, ODHS urges us to affirm the juvenile court’s determination to change the plan. In the event we are not inclined to affirm the change of plan, ODHS asks us, in the alternative, to reverse with instruc- tions to the juvenile court to correct its determination that ODHS did not make reasonable efforts. The Oregon Supreme Court has explained the stan- dard of review that applies here. It stated, “ORS 419B.476 governs the conduct of permanency hearings and changes to permanency plans. * * * [T]he juvenile court is directed to ‘determine whether [DHS] has made reason- able efforts * * * to make it possible for the ward to safely return home and whether the parent has made sufficient progress to make it possible for the ward to safely return home.’ ORS 419B.476(2)(a). ORS 419B.476 also provides that, in making that determination, ‘the court shall consider the ward’s health and safety the paramount concerns.’ Id. If the court concludes that DHS has made reasonable efforts to reunify the family and that the parents have not made suffi- cient progress to permit the safe return of the child, then the court may change the permanency plan to something other than reunification * * *. ORS 419B.476(5)(b)(B)-(E).” Dept. of Human Services v. C. H., 373 Or 26, 45-46, 559 P3d 395 (2024) (second ellipsis and second brackets in original; footnote omitted). The court noted that it had not previously addressed whether a “reasonable efforts” determination is a factual finding or a legal conclusion; it ultimately concluded that “the juvenile court’s determination of reasonable efforts * * * is a legal conclusion” that is reviewed for errors of law. Id. at 47, 48-49. Neither party requests de novo review.2 As such, “we are bound by the juvenile court’s factual findings if there is any evidence in the record to support them” and “we consider the evidence in the light most favorable to the juvenile court’s disposition to determine whether it supports that court’s legal conclusions.” Id. at 46, 47.

2 We have discretion to conduct de novo review under ORS 19.415(3)(b), which permits de novo review in equitable actions or proceedings other than termina- tion of parental rights proceedings. We do not conduct de novo review here. 500 Dept. of Human Services v. M. L.

In C. H., the court also explained that “assessing the reasonableness of DHS’s efforts to assist parents in that endeavor is most fairly accomplished by inquiring into DHS’s efforts over the course of the agency’s involvement with the family,” and held that “the court must consider the totality of the circumstances related to that issue.” Id. at 51. In accordance with that requirement, we agree with both parties here that the juvenile court erred when, rather than determining whether ODHS’s efforts were reasonable under the totality of the circumstances, it made separate determi- nations as to two of the three jurisdictional bases—conclud- ing that reasonable efforts had been made as to one and not made as to the other—and did not address the third. We are not persuaded by ODHS’s argument that we should affirm despite the juvenile court’s legal error. Although ODHS acknowledges that the juvenile court erred when it determined that ODHS both made and did not make reasonable efforts, it argues that because the juvenile court changed the permanency plan, that reveals that the juvenile court determined under the totality of the circumstances that ODHS made reasonable efforts.3 We do not draw that inference from the record. The juvenile court made a legal determination that there were no reasonable efforts as to one of the jurisdiction bases. We cannot say, on this record, that the juvenile court would have concluded that ODHS made reasonable efforts if the court understood that the reasonable-efforts determination is a single determination based on the totality of the circumstances. We recognize that ODHS provides services to address the established indi- vidual jurisdictional bases. When making the single deter- mination required under ORS 419B.476(2)(a) based on the totality of the circumstances, a juvenile court should con- sider any efforts ODHS has made as to the individual bases. See Dept. of Human Services v. H. C., 344 Or App 302, 310- 11, 580 P3d 342 (2025), rev den, ___ Or ___ (2026) (whether ODHS has made reasonable efforts “will inevitably arise out

3 ODHS also argues that the evidence in the record is sufficient to support a determination that ODHS made reasonable efforts under the totality of the circumstances. Given our ultimate disposition reversing and remanding the per- manency judgments, and the subsequent judgment continuing the plan, for the juvenile court to apply the correct legal test, we do not reach that assertion. Cite as 348 Or App 494 (2026) 501

of the jurisdictional bases”). And in some cases, a jurisdic- tional basis (for example, mental health or substance abuse) might be causing the other bases. In that situation, a juve- nile court may properly conclude that ODHS has made rea- sonable efforts towards reunification when ODHS focused its efforts on that foundational basis. Id. at 304 (conclud- ing that “ODHS may focus its ameliorative efforts toward reunification on one of two jurisdictional bases, based on its determination that the two bases are so connected that cur- ing one depends on first curing the other”). In every case, however, the juvenile court must ultimately make a single reasonable-efforts determination under the totality of the circumstances. C. H., 373 Or at 50-51; see also H. C., 344 Or App at 311 (“Ultimately, whether ODHS’s efforts are reason- able will depend on the totality of circumstances of the case, in light of all of the existing bases for jurisdiction[.]”). The juvenile court did not make that determination in this case. We thus agree with mother that the proper disposi- tion here is to reverse the judgments, and we remand for the juvenile court to make the single reasonable-efforts deter- mination in the first instance. See Dept. of Human Services v. S. S., 283 Or App 136, 388 P3d 1178 (2016) (reversing and remanding permanency judgment that changed the perma- nency plan when juvenile court failed to conduct the legal analysis required by ORS 419B.476(5) and ORS 419B.498(2) to determine most appropriate permanency plan). Mother also contends that we should instruct the juvenile court to conduct a new permanency hearing under the correct framework rather than remand for applica- tion of that framework to the “stale record from the April 2025 hearing.” She relies on our decision in Dept. of Human Services v. S. E. D., 337 Or App 448, 563 P3d 1014 (2025), in support of that contention. In S. E. D., we concluded that the juvenile court had erred in failing to make sufficient find- ings as required by ORS 419B.476(2)(a), and we reversed and remanded a permanency judgment in which the court had changed the child’s permanency plan from reunification to guardianship. Id. at 449. There, the permanency hear- ings were continued and took place over the course of eight months. At the last of the hearings, the court had relied on 502 Dept. of Human Services v. M. L.

“five- or eight-month-old conclusions regarding efforts and progress when making the determination to change the per- manency plan.” Id. at 455. We explained that “the court was required to make findings about [ODHS’s] efforts and eval- uate [the] mother’s progress as of the time of the change in the plan, and not simply conclude that the efforts had been reasonable and mother’s progress was insufficient many months earlier.” Id. at 455-56. ODHS relies on Dept. of Human Service v. S. E., 338 Or App 110, 565 P3d 480, rev den, 373 Or 736 (2025), to support its argument that, if our decision is to reverse and remand, the juvenile court may properly reevaluate the evidence from the April 2025 permanency hearing—with- out holding a new permanency hearing—and reconsider its reasonable-efforts determination based on a correct applica- tion of the law. In S. E., we reversed and remanded two of the three dependency judgments that had changed the per- manency plans for the mother’s three children. Id. at 112. We concluded that the juvenile court had not erred when it deter- mined that the mother had made insufficient progress and changed the plan. Id. However, we concluded that the juve- nile court had erred when it changed the permanency plans for two of the children to a fit and willing relative because its determination was based on ODHS’s misrepresentation of the law that the children’s group homes qualified as fit and willing relatives under the applicable statute. Id. at 112, 119. We reversed and remanded “for the juvenile court to recon- sider its determination of the appropriate plans based on a correct understanding of the law.” Id. at 122. This case is more similar to S. E. D. than to S. E. On remand, the juvenile court will be tasked with consid- ering the totality of the circumstances regarding reason- able efforts in order to correctly make that determination, which is one of the necessary determinations to be made, along with assessing mother’s progress, before the court can change the permanency plan. See ORS 419B.476(2)(a) (“If the case plan at the time of the hearing is to reunify the family, [the court shall] determine whether [ODHS] has made rea- sonable efforts * * * to make it possible for the ward to safely return home and whether the parent has made sufficient Cite as 348 Or App 494 (2026) 503

progress to make it possible for the ward to safely return home. * * *”). The court may consider the history of the case, including the evidence from the prior permanency hearing, as part of the totality of the circumstances. But the juvenile court must also consider current information as of the time of the plan change and cannot base its determination solely on information from a hearing that took place in April 2025. S. E. D., 337 Or App at 455-56. Therefore, we remand for a new permanency hearing. We briefly address ODHS’s cross-appeal in which it contends that the juvenile court erred when it ruled that ODHS did not make reasonable efforts to help mother learn to meet C’s high needs. Although ODHS agrees that the court erred when it determined that ODHS both did and did not make reasonable efforts, it maintains its position that under the totality of the circumstances ODHS provided mother with reasonable efforts. ODHS relies, in part, on H. C., for that argument.4 ODHS argues that the appropri- ate remedy is either to affirm the juvenile court’s judgment because it correctly changed C’s plan or to remand with instructions for the juvenile court to delete its determina- tion that ODHS did not provide reasonable efforts to help mother address C’s high needs. H. C. does not apply here. As we explained above, the juvenile court determined that ODHS had not made reasonable efforts as to one jurisdictional basis, had made reasonable efforts as to the second, and did not address a third. Unlike in H. C., the juvenile court in this case did not determine that ODHS’s efforts toward reunification were reasonable overall because ODHS had reasonably focused on a foundational jurisdictional basis. Additionally, given our resolution of mother’s appeal that the matter needs to be retried at a new hearing with current information, the relief that ODHS seeks cannot be provided. For that reason, we dismiss the cross-appeal as moot. See Garges v. Premo, 362 Or 797, 801, 421 P3d 345 (2018) (“Mootness results when a change in circumstance or some intervening event has eliminated the possibility that the requested relief can be provided.”) 4 For its cross-appeal, ODHS relies on its arguments in its answering brief. 504 Dept. of Human Services v. M. L.

In sum, the juvenile court erred as asserted in mother’s second assignment of error, and we reverse the judgments and remand for a new permanency hearing. Mother’s third and fourth assignments are resolved by that disposition, which also obviates the need to reach mother’s first assignment. ODHS’s cross-appeal is dismissed as moot. On appeal, reversed and remanded; on cross-appeal, dismissed as moot.