588 October 11, 2023 No. 535
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of A. S.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
L. N. S.
and A. S.,
Appellants.
Douglas County Circuit Court
22JU04496; A180424
Ann Marie Simmons, Judge.
Submitted July 12, 2023; on respondent’s motion to dis-
miss filed July 31, 2023, appellant L. N. S.’s response to
respondent’s motion to dismiss filed August 14, 2023, and
respondent’s reply filed on August 21, 2023.
Shannon Storey, Chief Defender, Juvenile Appellate
Section, and Sean Connor, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant
L. N. S.
Ginger Fitch and Youth, Rights & Justice filed the brief
for appellant A. S.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Emily N. Snook, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Motion to dismiss granted; appeal dismissed as moot.
Cite as 328 Or App 588 (2023) 589
590 Dept. of Human Services v. L. N. S.
ORTEGA, P. J.
In this juvenile dependency case, mother and her
child, A, appeal from the juvenile court judgment asserting
jurisdiction under ORS 419B.100 and making A a ward of
the court. On appeal, mother and A challenge the court’s
denial of their joint motion to dismiss the dependency peti-
tion, as well as the court’s rulings on the three allegations
underlying the jurisdictional judgment. While this appeal
was pending, the juvenile court dismissed jurisdiction and
terminated the wardship, and the Department of Human
Services (DHS) moved to dismiss this appeal as moot. In
response, mother contends that her appeal is not moot.1 She
identifies two collateral consequences—that the jurisdic-
tional judgment will disadvantage her in possible domestic
relations proceedings brought by nonparents and in future
child welfare investigations and proceedings. We conclude
that those collateral consequences are legally insufficient
to render this appeal justiciable. We therefore grant DHS’s
motion to dismiss, which obviates the need to address the
merits of mother’s and child’s appeal.
DHS filed a dependency petition when A was
approximately 20 months old after learning that A accessed
mother’s pain pills when mother left A unsupervised for
several minutes. DHS asserted that the “condition and cir-
cumstances * * * [we]re such as to endanger [A’s] welfare.”
See ORS 419B.100(1)(c) (granting the juvenile court “exclu-
sive original jurisdiction in any case involving a person
who is under 18 years of age” under those circumstances).
Less than two months later, DHS filed an amended peti-
tion.2 At the close of DHS’s case at the ensuing jurisdictional
hearing, mother moved to dismiss the dependency petition,
and A joined the motion. The court denied mother’s motion
and asserted jurisdiction over A, making her a ward of the
court. The court ruled that DHS had proved the following
allegations:
1
A did not respond to DHS’s motion to dismiss as moot.
2
DHS’s amended dependency petition refers to A as a nine-month-old child.
The record, however, indicates that A was born in January 2021 and DHS’s orig-
inal dependency petition is dated September 2022, so A was approximately a
20-month-old child at the time that the original dependency petition was filed
and approximately 22 months old at the time of the amended petition.
Cite as 328 Or App 588 (2023) 591
“[3A -] [M]other has a pattern of leaving [A] unat-
tended which presents a safety threat to [A].
“[3B -] Despite having participated in services
designed to improve * * * mother’s parenting skills, she is
unable to safely parent [A].
“[3C -] [M]other’s cognitive ability and/or mental
health, including substance use, affects her ability to pro-
vide a safe environment for [A].”
In ruling that mother had a pattern of leaving A unattended,
the court noted that mother had participated in services
and had participated in multiple conversations with DHS
about that same subject with respect to A and to mother’s
older child, E.3 The court then entered a judgment reflecting
its rulings and granting custody of A to DHS for care, place-
ment, and supervision.
Mother and A appeal. In five assignments of error,
mother challenges the juvenile court’s ruling on her motion
to dismiss the dependency petition, its jurisdictional judg-
ment, and its rulings on allegations 3A, 3B, and 3C. A
assigns error to the denial of mother’s motion to dismiss and
to the court’s judgment.
After this appeal was commenced, the juvenile court
dismissed A’s wardship and closed the case. The judgment
of dismissal contained no additional findings but indicated
that based upon DHS’s request, “and good cause appearing,”
the court found that A’s “best interest” would be “served by
a dismissal of the wardship.”
DHS asserts that this appeal is moot, contending
that our decision on the merits of mother’s arguments would
have no practical effect on mother’s rights. According to
DHS, because A has no legal father and there are no pend-
ing custody proceedings involving A, the juvenile court’s
finding of jurisdiction has no ongoing impact on mother in
light of the dismissal of the wardship.4
3
E was under DHS’s custody and living with a relative at the time of the
jurisdictional proceedings at issue and is not involved in this appeal.
4
A juvenile court’s termination of its jurisdiction and a wardship ordinarily
renders moot an appeal of the underlying jurisdictional judgment.” Dept. of
Human Services v. C. T., 288 Or App 593, 599, 406 P3d 191 (2017), rev den, 362 Or
482, and rev den, 362 Or 545 (2018).
592 Dept. of Human Services v. L. N. S.
Mother objects, urging two reasons for us to decide
the merits of her appeal. She first contends that the fact
that A has no legal father does not preclude nonparents
from petitioning for custody, guardianship, or right of vis-
itation, which she asserts would have a practical effect on
her rights. Mother points to ORS 109.119, which allows non-
parents to petition for or intervene in matters related to cus-
tody, guardianship, and visitation, or other matters related
to the child under specific circumstances. Second, mother
argues that the juvenile court’s rulings in the jurisdictional
judgment “will disadvantage” her in any future child wel-
fare investigations and proceedings.
In reply, DHS first contends that mother’s asser-
tions as to why this appeal is not moot are speculative
because they identify only mere possibilities that are insuf-
ficient to demonstrate justiciability. Second, DHS argues
that the juvenile court’s rulings will not impact mother’s
future interactions with DHS. According to DHS, mother
will suffer no additional consequences from the proceedings
regarding A that she would not already have from the pro-
ceedings regarding E, who is in substitute care and with
whom DHS had been involved “continuously” for over three
years.5 We agree with DHS.
As we have explained:
“An appeal is moot when the court’s decision no longer
will have a practical effect on the rights of the parties. On
5
The record before the juvenile court shows that between 2019 and 2023,
the Oregon Citizen Review Board, which helps courts review cases of children
in foster care, on at least three occasions issued findings and recommendations
regarding E, who entered care in 2018. The board’s written reports indicated that
the juvenile court exercised jurisdiction over E because “mother’s mental health
interfere[d] with her ability to safely parent” E and that mother had “exposed”
E to “violence and/or domestic violence which create[d] a [then] current risk of
harm” to E. Those reports further indicated that E could not return to mother’s
care at the time due to safety concerns. The record also shows that mother’s 2019
psychological evaluation in connection to the proceedings regarding E diagnosed
her with bipolar disorder, post-traumatic stress disorder, substance use disorder,
child neglect, and child physical abuse. In 2020, another psychological evaluation
diagnosed mother with bipolar disorder and posttraumatic stress disorder but
indicated that mother had made positive progress regarding the other diagno-
ses, including her prior diagnosis as a child abuser. Also, multiple juvenile court
judgments involving E, including a March 2023 judgment, indicate that E could
not “safely return to [mother] within a reasonable time” and should remain under
guardianship.
Cite as 328 Or App 588 (2023) 593
a motion to dismiss for mootness, the party moving for
dismissal bears the burden of proof. When DHS takes the
position that termination of a wardship renders an appeal
moot and demonstrates that the child is no longer subject
to department control, the parent must then identify the
practical effects or consequences that the parent believes
will result from the underlying jurisdictional decision. In
order to prevent a case from being considered moot, a col-
lateral consequence must be something beyond mere spec-
ulation. A collateral consequence must have a significant
probability of actually occurring; a speculative or merely
possible effect is not enough. Once the parent identifies col-
lateral consequences, DHS retains the burden of persua-
sion on its motion, and it must demonstrate that the effects
or consequences that the parent identifies are either legally
insufficient or factually incorrect. It will be up to the appel-
late court to determine the existence and significance of
those effects or consequences and to decide, as a prudential
matter, whether an appeal is moot.”
Dept. of Human Services v. J. A., 324 Or App 445, 448-49,
525 P3d 1245 (2023) (internal citations, quotation marks,
brackets, and ellipsis omitted). As we explain below, we con-
clude that DHS has demonstrated that the consequences
that mother identified are legally insufficient to render her
appeal justiciable.
We begin with the first consequence mother has iden-
tified—that the court’s judgment may affect mother’s rights
against nonparents under ORS 109.119(1), (3)(a) and (b).
As DHS argues, there is only a mere possibility that the
court’s rulings could affect mother’s rights in the manner
that she claims. That is because there is little likelihood
that the rulings that mother challenges on appeal—that she
failed to properly supervise A, was unable to safely parent
A, and had abused substances—can “affect the standard”
to be applied “in evaluating mother’s conduct” in a possi-
ble proceeding brought by a nonparent under ORS 109.119.
Dept. of Human Services v. A. B., 362 Or 412, 428, 412 P3d
1169 (2018).
In granting a nonparent’s petition for intervention
concerning custody, placement or guardianship, or an order
providing for other type of relief, a court is required to “pre-
sum[e] that the legal parent acts in the best interest of the
594 Dept. of Human Services v. L. N. S.
child.” ORS 109.119(2)(a). In deciding whether that presump-
tion has been rebutted, the court may—but is not required
to—consider several factors. ORS 109.119(4)(a), (b) (listing
those factors). However, the factors that could negatively
impact mother in a possible ORS 109.119 proceeding require
present circumstances, not past conduct. The jurisdictional
allegations at issue in this appeal would not bear on a future
proceeding under ORS 109.119. Accordingly, there is no sig-
nificant probability that the rulings that mother challenges
will “affect the legal standards for evaluating” her care in
the future or will have an actual adverse consequence to her
rights against nonparents under ORS 109.119. See Dept. of
Human Services v. L. C., 303 Or App 37, 45, 462 P3d 323,
rev den, 366 Or 552, and rev den, 366 Or 552 (2020) (reach-
ing a similar conclusion). We therefore agree with DHS that
the first collateral consequence that mother identifies is
legally insufficient to render her appeal justiciable.
We turn to the second consequence—that the juve-
nile court’s rulings will affect mother in future child welfare
investigations and proceedings. Although mother cites sev-
eral cases in support of that argument,6 we understand moth-
er’s argument here to be limited to the general assertion that
the juvenile court’s rulings will affect her in future child wel-
fare matters. Mother’s broad argument fails to explain how
each case specifically relates to her particular circumstances.
So framed, we agree with DHS that mother’s general asser-
tion—that the juvenile court judgment will affect her rights
in future child welfare investigations or proceedings—does
not identify a real and adverse effect or probable collateral
consequence that can be prevented by our decision on the mer-
its of her arguments in this appeal. Dept. of Human Services
v. A. H., 275 Or App 788, 790-91, 365 P3d 1183 (2015) (“[a]
collateral consequence for purposes of mootness is a probable
adverse consequence to a party as a result of the challenged
action” (internal quotation marks and brackets omitted)).
Mother’s general concern regarding the conse-
quences of the court’s rulings to her possible interactions
6
See Dept. of Human Services v. P. D., 368 Or 627, 496 P3d 1029 (2021); see
also Dept. of Human Services v. A. B., 362 Or 412, 412 P3d 1169 (2018); Dept. of
Human Services v. A. H., 275 Or App 788, 365 P3d 1183 (2015); State ex rel Juv.
Dept. v. L. B., 233 Or App 360, 226 P3d 66 (2010).
Cite as 328 Or App 588 (2023) 595
with DHS and the court in the future, although understand-
able, identifies no consequence that has a significant prob-
ability of actually occurring. As DHS argues, the circum-
stances of this case indicate that any adverse consequences
of the challenged rulings relating to A would be no greater
than the consequences arising from mother’s prior history
with DHS and with the court regarding her older child, E.
See J. A., 324 Or App at 452 (concluding that the juvenile
court’s determinations that could otherwise affect the par-
ent’s rights in the future did not render the appeal justi-
ciable because there was “little likelihood” that the effect
would occur in light of other facts known to the court and
DHS outside of the challenged determinations).
Indeed, in light of mother’s record with DHS and
with the juvenile court, there is little likelihood that the rul-
ings regarding A would disadvantage mother in future child
welfare investigations or proceedings. A. B., 362 Or at 428
(the court’s rulings would not be “significantly disadvanta-
geous” to the mother in future investigations because DHS
would consider all the facts in the record and, in light of
other facts available, there was “little likelihood” that the
juvenile court’s rulings would have “a significant practical
effect” on the mother’s rights). Like in A. B., in a future
child welfare investigation or proceeding against mother, it
is possible that DHS will consult its records and those of the
juvenile court, which would include both disadvantageous
and mitigating findings regarding mother. Those facts not
only include evidence that mother neglected and was not
able to safely parent E and then A, but also that mother
made significant progress during E’s proceedings and that
the juvenile court dismissed A’s wardship over A because it
understood that there was good cause to do so.
In the absence of a more specific consequence,
mother’s assertion that the juvenile court’s findings could
disadvantage her in future investigations and proceedings
indicate a mere possibility rather than a real adverse effect.
See Brumnett v. PSRB, 315 Or 402, 407, 848 P2d 1194 (1993)
(the “mere possibility” of an adverse consequence is “not suf-
ficient to make dismissal inappropriate”); compare A. B.,
362 Or at 428 (the future consequences that the mother
596 Dept. of Human Services v. L. N. S.
identified did not have real adverse effect and did not render
her appeal justiciable where the decision being challenged
on appeal would have no further significant practical effect
on her rights in light of other circumstances that could also
be considered) with Dept. of Human Services v. G. D. W., 353
Or 25, 32, 292 P3d 548 (2012) (the father’s appeal was not
moot because the juvenile court’s finding that the father had
sexually abused one of his children, which was incorporated
into the judgment, could “have real and adverse effects on
[the] father” as the state could more easily terminate the
father’s parental rights in the future). Hence, the second
consequence that mother identifies is legally insufficient to
render her appeal justiciable.
Accordingly, we agree with DHS that each of those
two collateral consequences identified by mother amount to
a mere possibility with no significant probability of actually
occurring rather than a continuing and real adverse effect
on mother’s parental rights.
Motion to dismiss granted; appeal dismissed as
moot.