dissenting.
On appeal, youth argues that the trial court erred in transferring him from a residential treatment facility to a youth correctional facility. Because youth was returned to a residential treatment facility after he filed his appeal, the issue that he has raised on appeal is moot. The lead opinion would hold, however, that collateral consequences keep this case alive. It reasons that, as a result of youth’s having once been placed in a youth correctional facility, any future determination as to whether he should be returned to that facility will be made administratively rather than judicially. That possibility is, in the lead opinion’s view, sufficient to keep this case alive. We do not know, however, whether youth will, in the future, act in such a way that anyone will recommend that he be returned to the youth correctional facility. Because the possibility that the collateral consequence that the lead opinion envisions will ever come to pass is speculative, I would dismiss this appeal as moot.
On August 12, 1999, the trial court placed youth in the legal custody of the Oregon Youth Authority (OYA) for a period not to exceed 22 years or until youth reached the age of 25. The court ordered that the commitment be served in a program other than a youth correctional facility. Pursuant to that order, youth was placed in a residential treatment program at Parrot Creek. While there, youth suffered significant behavioral difficulties, and the decision was made to transfer him to a more appropriate facility. Upon learning that he was going to be transferred, youth became violent. He threatened *292to hurt others and to take his own life. After the police arrived, youth surrendered and was taken into custody.
Youth spent a brief time in a hospital before he was transferred to a detention facility in Pendleton. While he was being transferred, youth acted out in a way that led to the February 15, 2000, hearing that gives rise to this appeal. At that hearing, the trial court ordered that youth be placed in a youth correctional facility. Youth then filed this appeal from the February 2000 order.
While this appeal was pending, youth was returned to a residential treatment center. Youth, however, could not remain at that center “because * * * youth’s half-brother had just been placed there.” He accordingly was returned to the youth correctional facility with the expectation that he would be “placed somewhere outside the youth correctional facility within 60 days.” The state has informed us that youth has since been placed in another residential treatment center. Given those developments, the state argues, and I would hold, that youth’s appeal is moot.
In analyzing that question, it is important to clarify what is and is not at issue. The trial court placed youth in the legal custody of OYA approximately six months before the February 2000 hearing that youth challenges on appeal. See ORS 419C.478(1). The outcome of this appeal thus will have no effect on whether youth remains in OYA’s custody. Rather, the most that youth can achieve as a result of this appeal would be a determination, on remand, that he should not be transferred to a youth correctional facility but instead should remain in a residential treatment center. However, because youth has already been returned to a residential treatment center, his appeal is moot unless there are sufficient collateral consequences flowing from the February 2000 hearing to keep the appeal alive. See Barnes v. Thompson, 159 Or App 383, 386, 977 P2d 431, rev den 329 Or 447 (1999) (“Even if the main issue in a controversy has been resolved, collateral consequences may prevent the controversy from being moot under some circumstances.”) (emphasis in original).
Youth identifies one potential collateral consequence. He argues that, if he had never been placed in the *293youth correctional facility, he could be transferred to such a facility “only when the juvenile court having jurisdiction so recommends.” ORS 419C.495(1).1 Youth reasons that, because he has been placed in a youth correctional facility, he may now be returned there by means of an administrative rather than a judicial hearing. See OAR 416-300-0030; OAR 416-300-0100. Youth does not argue that the substantive standard that a court would employ in recommending that he be placed in a youth correctional facility differs from the substantive standard that OYA would employ in recommending that he be returned to a youth correctional facility,2 nor does he argue that the administrative proceeding would not provide him with all the protections that due process requires. Rather, youth’s argument turns solely on the proposition that “an appellate decision favorable to * * * youth would mean that before he could again be placed in a youth correctional facility there would have to be a judicial, not [an] administrative, proceeding.”3
*294Even if a judicial proceeding might provide some advantage to youth that an administrative hearing would not, the difficulty with youth’s argument is that we do not know whether youth will, in the future, act in such a way that anyone will recommend that he be returned to the youth correctional facility. Put another way, we cannot know whether youth will be subject in the future to an administrative hearing to determine whether he should be returned to a youth correctional facility. The single collateral consequence that youth invokes here is no different from the collateral consequence that the court found insufficient in Brumnett v. PSRB, 315 Or 402, 848 P2d 1194 (1993).
In Brumnett, the petitioner challenged his commitment to the Psychiatric Security Review Board (PSRB). Although the petitioner had been released from PSRB’s jurisdiction while his action was pending, he claimed that his action was not moot because he was still subject to collateral consequences flowing from the PSRB commitment. He reasoned that the state could seek to recoup the costs of his confinement pursuant to a statute making people within PSRB’s jurisdiction “ ‘liable for the full cost of their care’ ” depending on their ability to pay. 315 Or at 406 (quoting OAR 309-012-0030(1)). The court held, however, that the “mere possibility” that the state would seek to recoup the costs of the petitioner’s care did not prevent the case from becoming moot on his release. Id. at 407.
In Barnes, we explained the rationale underlying Brumnett’s holding. See 159 Or App at 387. We observed that “the court [in Brumnett] could not know if there would be a ‘waiver of collection’ of any amount the petitioner was liable to pay pursuant to the statute!.]” Id. We also observed that the court “did not speculate on how ‘probable’ it was that the state would seek to recoup its costs at some point.” Id. *295Instead, as we explained in Barnes, the Brumnett court held that, in light of that uncertainty, committing the petitioner to PSRB did not have a sufficient continuing practical effect on him to keep his case alive. See id.
Similarly, in Barnes, we held that the claimed collateral consequence in that case — that the Board of Parole might have changed Barnes’s parole status in that case from active to inactive supervision if he had been released earlier, as he claimed he should have been — was not sufficient to keep his case alive. Id. We reasoned: “[W]e can not know if there would be a change from active to inactive supervision, given that the Board has discretion to determine whether a person will be changed to inactive supervision.” Id.; see also Odle v. Thompson, 174 Or App 506, 510, 26 P3d 177 (2001); State v. Dick, 169 Or App 649, 10 P3d 315 (2000). Conversely, collateral consequences are sufficient to keep a case alive when those consequences do “not result from the exercise of Board discretion but, instead, folio [ic] automatically from the revocation of parole.” Perdue v. Board of Parole, 165 Or App 751, 754, 997 P2d 277 (2000) (emphasis added); see Odie, 174 Or App at 510-11 (distinguishing Barnes and Perdue).
Applying the principle announced in Brumnett and explained in Barnes, I would hold that youth’s appeal is moot. Unlike Perdue, the one collateral consequence that youth identifies in this case does not “follow automatically” from his transfer to a youth correctional facility. See Perdue, 165 Or App at 754. Rather, youth will be subject to an administrative proceeding to determine if he should be returned to the correctional facility only if, at some point in the future, he either violates the conditions of his parole or if “youth’s health or welfare or the best interest of the community requires [his] return.” OAR 416-300-0030; OAR 416-300-0020(1)(e). We cannot know whether either of those conditions will occur. The possibility that they may do so is as speculative as the collateral consequences the petitioner invoked in Barnes and also in Dick.4 See Dick, 169 Or App at 650; Barnes, 159 Or App at 387.
*296Indeed, the question whether youth will be subject to administrative proceedings to return him to a youth correctional facility turns on how he chooses to conduct himself in the future. Unlike the petitioner in Brumnett, who had no control over whether the state would seek to recoup the costs of his custody, youth retains the ability to avoid the single collateral consequence that he has identified here. Cf. O’Shea v. Littleton, 414 US 488, 496-97, 94 S Ct 669, 38 L Ed 2d 674 (1974).5 The possibility that youth may be subject to that collateral consequence in the future is not sufficient to keep his appeal alive. I would dismiss it as moot.
Deits, C. J., and Landau and Haselton, JJ., join in this dissent.ORS 419C.495(1) provides:
“A youth offender placed in the legal custody of the Oregon Youth Authority may be placed in a youth correction facility or in a private institution operated as a facility for youth offenders requiring secure custody only when the juvenile court having jurisdiction so recommends.”
As noted, ORS 4190.495(1) provides that a youth offender may be placed in a youth correctional facility “only when the juvenile court having jurisdiction so recommends.” Once a youth has been paroled from a youth correctional facility, the youth may be returned to the facility if he or she either violates the terms of parole or “if in the opinion of the superintendent [of the youth correctional facility] the youth’s health or welfare or the best interest of the community requires the youth’s return.” OAR 416-300-0030(1); OAR 416-300-0020(l)(e). The statute does not specify the criteria that a court may consider in recommending that a youth be placed in a youth correctional facility, and youth does not argue that those unspecified criteria differ from the criteria set out in OAR 416-300-0030 and OAR 416-300-0020 for returning him to the facility.
The concurring opinion would hold that youth’s “appeal is not moot, because his status as a parolee subjects him to the possibility of a higher level of custody in a correctional facility should his parole again be revoked.” 180 Or App at 289 (Brewer, J., concurring) (emphasis in original). In this case, however, youth does not argue that the conditions of his parole differ from the conditions of his probation. A violation of either could result in his being placed in a youth correctional facility, and youth does not contend that the standard to be employed in determining whether he should be placed initially in a youth correctional facility for violating a condition of probation differs from the standard to be employed in determining whether he should be returned there for violating a condition of parole. On the facts of this case, youth’s present status as a parolee is for all practical purposes no different from his status before the hearing.
*294The only possible difference between youth’s past and present status is the prospect that, if he should violate the conditions of his parole in the future, he will receive an administrative rather than a judicial hearing to determine the appropriate placement. On that point, the concurrence would weigh the “type and probability” of the collateral consequence’s occurring and hold that this case is not moot. Id. (emphasis in original). I am not aware of any case, and the concurrence cites none, in which we have held that the question of mootness turns on the importance of a collateral consequence, discounted by its probability.
The defendant in Dick appealed from an order revoking his probation and returning him to custody. Even though the defendant had completed his sentence by the time his appeal was decided, the defendant argued that the appeal was not moot
*296“ ‘because defendant’s “prior violation history” may be considered by a court in deciding what sentence to impose should defendant have future legal problems. Accordingly, defendant faces continuing collateral consequences as the result of the illegal revocation of his probation in this case.’ ”
169 Or App at 650 (quoting the defendant’s argument). We dismissed that argument, reasoning that “the mere possibility of future adverse consequences does not render a case justiciable.” Id. In my view, the same reasoning applies equally here.
In O’Shea, the plaintiffs alleged that the defendants were administering the criminal laws unequally. In ruling that their claims were speculative, the Court noted that the plaintiffs faced no pending charges. 414 US at 496. It then observed: ‘We assume that [the plaintiffs] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said tobe followed by [the defendants].” Id. at 497.