Chapter 419B

 

      Chapter 419B

 

NOTES OF DECISIONS

 

      Due process rights of parents are always implicated in construction and application of provisions of this chapter. Department of Human Services v. J.R.F., 351 Or 570, 273 P3d 87 (2012)

 

      419B.020

 

NOTES OF DECISIONS

 

Under former similar statute

 

      Report that some unspecified children in small group were possible abuse victims was sufficient to create special relationship between CSD and children in group and impose special duty of care on CSD. Blachly v. Portland Police Dept., 135 Or App 109, 898 P2d 784 (1995)

 

In general

 

      Department of Human Services authority to investigate claim of child abuse does not allow warrantless entry into residence. State v. Weaver, 214 Or App 633, 168 P3d 273 (2007), Sup Ct review denied

 

      To take protective custody of child, Department of Human Services or law enforcement agency must have warrant, exception to warrant requirement or court order. Greene v. Camreta, 588 F3d 1011 (9th Cir. 2009)

 

      419B.025

 

NOTES OF DECISIONS

 

Under former similar statute

 

      “Anyone ... making report” is not limited to persons having statutory obligation to make report. Franson v. Radich, 84 Or App 715, 735 P2d 632 (1987)

 

      Immunity applies to statements of reporting person made as part of report, not to abusive actions by reporting person described in statements. State v. Pierce, 120 Or App 234, 852 P2d 198 (1993), Sup Ct review denied

 

ATTY. GEN. OPINIONS

 

Under former similar statute

      Liability of private individual for reporting suspected child abuse, (1978) Vol 38, p 2039

 

      419B.035

 

NOTES OF DECISIONS

 

Under former similar statute

 

      Children’s Services Division is forbidden to release information concerning day care facility being investigated to prospective users of facility. Brasel v. Children’s Services Div., 56 Or App 559, 642 P2d 696 (1982)

 

      Where defendant sought disclosure of statements made by state’s prospective witnesses and requested in camera inspection by court of Children’s Services Division case records relating to victim, court erred when it failed to review files for exculpatory evidence. State v. Warren, 304 Or 428, 746 P2d 711 (1987); State v. Wattenbarger, 97 Or App 414, 776 P2d 1292 (1989), Sup Ct review denied

 

      To be entitled to immunity, witness must invoke right to refuse to testify and commission must then decide whether to issue post-invocation order. 7455 Incorporated v. OLCC, 310 Or 477, 800 P2d 781 (1990)

 

      Trial judge was required to personally undertake in camerainspection of Children’s Services Division case records rather than delegate inspection to party or party’s counsel. State ex rel Carlile v. Lewis, 310 Or 541, 800 P2d 786 (1990)

 

      Under ORS 135.815, prosecutor was required to disclose portions of Children’s Services Division files containing written memoranda of statements of witnesses state intended to call, even though files were confidential. State v. Wood, 112 Or App 61, 827 P2d 924 (1992), Sup Ct review denied

 

      419B.040

 

NOTES OF DECISIONS

 

Under former similar statute

 

      Marital communications privilege is statutorily abrogated in criminal prosecutions involving child abuse. State v. Suttles, 287 Or 15, 597 P2d 786 (1979)

 

      A court has no authority to direct commencement of termination of parental right proceedings. State ex rel Juv. Dept. v. H.B.D., 55 Or App 912, 640 P2d 660 (1982)

 

      Statutory exception to psychotherapist-patient privilege for “evidence regarding a child’s abuse, or the cause thereof,” applies in criminal proceedings to both exculpatory and incriminating evidence. State v. Hansen, 304 Or 169, 743 P2d 157 (1987)

 

In general

 

      Listed privileges are abrogated for all judicial proceedings, including proceedings against person who could otherwise claim privilege. State ex rel Juvenile Dept. v. Spencer, 198 Or App 599, 108 P3d 1189 (2005)

 

      Where defendant, charged with sexual abuse, sought records detailing Department of Human Services involvement with victim and victim’s placement in foster care, which predated alleged sexual abuse, this section does not require pretrial release of those records. State v. Wixom, 275 Or App 824, 366 P3d 353 (2015), Sup Ct review denied

 

LAW REVIEW CITATIONS

 

Under former similar statute

      57 OLR 444 (1978)

 

      419B.090

 

NOTES OF DECISIONS

 

      Due process rights of parents are always implicated in construction and application of provisions of this chapter. Department of Human Services v. J.R.F., 351 Or 570, 273 P3d 87 (2012)

 

      419B.100

 

NOTES OF DECISIONS

 

Under former similar statute

 

      Juvenile court may exercise jurisdiction over children notwithstanding determination of their custody by a prior divorce decree so long as statutory prerequisites for such jurisdiction are met. State ex rel Juvenile Dept., Clackamas County v. Christy, 7 Or App 608, 492 P2d 476 (1972)

 

      Action of babysitters in administering unduly severe physical punishment to children was not sufficiently attributable to mother so as to authorize court to assume jurisdiction and make children wards of juvenile court. State ex rel Juvenile Dept. v. Guier, 12 Or App 293, 506 P2d 724 (1973)

 

      The finding that a juvenile is “out of control of his parents” is sufficient to create juvenile court jurisdiction to commit the juvenile to a mental health facility. Parker v. Talkington, 17 Or App 147, 521 P2d 25 (1974)

 

      The juvenile court was empowered to render an alternative order requiring the Children’s Services Division to secure treatment for the child or to certify to the court that it was without funding to do so. State ex rel Juvenile Dept. of Multnomah County v. L., 24 Or App 257, 546 P2d 153 (1976)

 

      Evidence that 12-year-old boy was found hitchhiking in mid-September, lacking socks or jacket and with clothes in filthy condition, was sufficient to give juvenile court jurisdiction. State ex rel Juvenile Department v. Currie, 31 Or App 727, 571 P2d 190 (1977)

 

      Whether conditions and circumstances are attributable to mother or father is not relevant for jurisdictional purposes. State ex rel Juv. Dept. v. Jordan, 36 Or App 817, 585 P2d 753 (1978)

 

      Existence of legal guardianship over child while mother, who retained custody, was in jail was not sufficient to defeat jurisdiction. State ex rel Juv. Dept. v. Moyer, 42 Or App 655, 601 P2d 821 (1979), Sup Ct review denied

 

      Where mother was incarcerated and therefore unavailable to care for child, she “failed to provide” for child, rendering jurisdiction proper. State ex rel Juv. Dept. v. Moyer, 42 Or App 655, 601 P2d 821 (1979), Sup Ct review denied

 

      Petition alleging that: daughter stated father had had sexual intercourse with her; that daughter stated she was afraid further contact with father would result in his establishing regular sexual relationship with her; and that mother stated that father had sexual contact with daughter and she had failed to protect daughter was not sufficient to bring daughter within jurisdiction of juvenile court. State ex rel Juvenile Dept. v. Boyce, 47 Or App 759, 615 P2d 385 (1980)

 

      Where child’s life was endangered, juvenile court properly assumed jurisdiction and directed performance of surgery over parents’ contention that surgery would violate their right to free exercise of religion. State ex rel Juv. Dept. v. Jensen, 54 Or App 1, 633 P2d 1302 (1981)

 

      Juvenile court had jurisdiction over child even though petition alleged only “claims” of sexual abuse rather than acts themselves, where court, after defendant’s objections to pleadings, informed defendants that proof of claimed acts would be required and defendants did not object on grounds of variance or lack of notice. State ex rel Juv. Dept. v. Rise, 54 Or App 725, 635 P2d 1369 (1981)

 

      Where appellant was under 18 and had not otherwise complied with the statutory emancipation procedures, juvenile court did not lack jurisdiction over her solely because she was married. State ex rel Juv. Dept. v. Williams, 55 Or App 951, 640 P2d 675 (1982)

 

      Shelter care center to which child was legally assigned was her “home” for purposes of exercising jurisdiction over child as runaway. State ex rel Juv. Dept. v. Williams, 55 Or App 951, 640 P2d 675 (1982)

 

      Where mother stipulated in court that stepfather had sexually abused child, petition alleging stepfather was still residing at same address as mother and child was sufficient to bring child within court’s jurisdiction and to allow state to attempt to show stepfather as continuing threat to child. State ex rel Juv. Dept. v. Carver, 71 Or App 107, 691 P2d 107 (1984)

 

      Where father had prior history of sexually abusing his children and, since original proceeding, additional evidence existed that abuse continued and mother refused to acknowledge possibility of abuse, trial court erred in returning children to parents and in not providing protective services. State ex rel Juv. Dept. v. Gates, 96 Or App 365, 774 P2d 484 (1989), Sup Ct review denied

 

      Allegations in petition to make child ward of court that mother used drugs and that child’s sibling was born with controlled substances in her system, in absence of factual allegations showing how drug usage endangers welfare of child, were insufficient to establish jurisdiction over child. State ex rel Juv. Dept. v. Randall, 96 Or App 673, 773 P2d 1348 (1989)

 

      State proved circumstances that endanger child’s welfare where evidence established mother did not take child to doctor and mother continued to accept boyfriend’s explanation that injuries were self-inflicted. State ex rel Juv. Dept. v. Nelson, 116 Or App 611, 842 P2d 447 (1992)

 

      Where state established that child was abused while mother and boyfriend lived together and when mother and boyfriend continued to live together, state proved by preponderance of evidence that welfare of child was endangered. State ex rel Juv. Dept. v. Froats, 117 Or App 467, 844 P2d 917 (1992)

 

      Conditions or circumstances are sufficient to endanger welfare of child where, under totality of circumstances, court finds reasonable likelihood child will be harmed directly or subjected to harmful environment. State ex rel Juv. Dept. v. Smith, 316 Or 646, 853 P2d 282 (1993); State ex rel Juv. Dept v. Brammer, 133 Or App 544, 892 P2d 720 (1995), Sup Ct review denied

 

In general

 

      Placement decision by Children’s Services Division was reviewable by juvenile court to determine whether division failed to provide for child’s physical, mental or emotional well-being. Adams v. CSD, 131 Or App 396, 886 P2d 19 (1994), Sup Ct review denied

 

      Where state seeks to interfere with parent-child relationship through termination or dependency proceeding, interests of child are adverse to state. State ex rel Juvenile Dept. v. Cowens, 143 Or App 68, 922 P2d 1258 (1996), Sup Ct review denied

 

      Juvenile court may order agency to provide adoptive home studies to attorney of dependent child prior to agency issuance of placement report. State ex rel State Office for Services to Children and Families v. Williams, 168 Or App 538, 7 P3d 655 (2000)

 

      Where jurisdiction over one child in household is based on failure to respond to special needs of child, risk of harm to child does not automatically provide basis for exercising jurisdiction over other children not having special needs. State ex rel Department of Human Services v. Shugas, 202 Or App 302, 121 P3d 702 (2005)

 

      State is not required to meet individualized burden of proof with respect to each parent in order to establish that totality of circumstances regarding welfare of child supports dependency finding. State ex rel Juvenile Department v. T.S., 214 Or App 184, 164 P3d 308 (2007), Sup Ct review denied

 

      Existence of physical abuse exceeding ordinary discipline is circumstance that endangers welfare of child. G.A.C. v. State ex rel Juvenile Department, 219 Or App 1, 182 P3d 223 (2008)

 

      Exclusion of improperly obtained evidence against parent is not available in juvenile dependency hearing. State ex rel Department of Human Services v. W.P., 345 Or 657, 202 P3d 167 (2009)

 

      Where findings of allegations pertaining to mother and father are partially interdependent, either parent may challenge all jurisdictional findings on appeal, even those findings pertaining to other parent. Department of Human Services v. S.P., 249 Or App 76, 275 P3d 979 (2012)

 

      Where juvenile court’s jurisdiction is based solely on parent’s substance abuse, evidence in record that shows parent is not credible is legally insufficient to show parent had substance abuse problem at time of jurisdictional hearing demonstrating that, under totality of circumstances there was current risk of harm to welfare of child. Department of Human Services v. E.M., 264 Or App 76, 331 P3d 1054 (2014)

 

      Where petitioner was under 18 years of age at time of adjudication of jurisdictional allegations in jurisdictional judgment, juvenile court did not lose authority to continue to exercise jurisdiction when petitioner turned 18 years of age because juvenile court’s exclusive original jurisdiction over dependency case involving person who is under 18 years of age attaches at initiation of proceedings and is not thereafter lost merely because child turns 18 years old before wardship is established. State v. L.P.L.O., 280 Or App 292, 381 P3d 846 (2016)

 

LAW REVIEW CITATIONS

 

Under former similar statute

 

      12 WLJ 557 (1976)

 

      419B.112

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 419A.170)

 

      Where suitable adoptive placement is sought for child, court has discretion to order disclosure to court appointed special advocate of home study information submitted to adoption committee for consideration. State ex rel State Office for Services to Children and Families v. Mitchell, 182 Or App 402, 49 P3d 838 (2002), Sup Ct review denied

 

      Where child is no longer candidate for adoption, court may not order disclosure of adoption home studies to child’s attorney or court appointed special advocate. State ex rel State Office for Services to Children and Families v. Morgan, 183 Or App 140, 51 P3d 637 (2002)

 

      Court appointed special advocate continues to be party to case for as long as juvenile court retains jurisdiction over child. State ex rel Dept. of Human Services v. Guldager, 187 Or App 543, 69 P3d 764 (2003)

 

      419B.150

 

NOTES OF DECISIONS

 

      Because officers relied on Department of Human Services protective-custody determination, made no independent decisions regarding protective-custody determination and merely assisted DHS in securing children, officers were entitled to qualified immunity for entering residence without warrant. Sjurset v. Button, 810 F3d 609 (9th Cir. 2015)

 

      419B.165

 

NOTES OF DECISIONS

 

Under former similar statute

 

      Where CSD had temporary custody of children, parent committed custodial interference under ORS 163.245 by removing her children from CSD’s custody. State v. Gambone, 93 Or App 569, 763 P2d 188 (1988)

 

      419B.310

 

NOTES OF DECISIONS

 

Under former similar statute

 

      Due process does not require that parents or children be granted the right to demand a jury trial in termination proceedings. State ex rel Juvenile Dept. v. F.S., 26 Or App 209, 552 P2d 586 (1976), Sup Ct review denied

 

In general

 

      Exclusion of improperly obtained evidence against parent is not available in juvenile dependency hearing. State ex rel Department of Human Services v. W.P., 345 Or 657, 202 P3d 167 (2009)

 

      419B.325

 

NOTES OF DECISIONS

 

      Exception in subsection (2) of this section for admission of evidence otherwise barred under Oregon Evidence Code does not apply to jurisdictional determination. Dept. of Human Services v. J.B.V., 262 Or App 745, 327 P3d 564 (2014)

 

      419B.337

 

NOTES OF DECISIONS

 

      Court may order parent to undergo psychological evaluation to be provided under Department of Human Services case plan if psychological services have rational connection with basis for juvenile court jurisdiction. State ex rel Juvenile Department v. G.L., 220 Or App 216, 185 P3d 483 (2008), Sup Ct review denied

 

      Where juvenile court took dependency jurisdiction over children, this section authorizes only Department of Human Services, not juvenile court, to determine “actual” care provided to children, so court may not order department to place children with great-grandmother. Department of Human Services v. S.E.K.H./J.K.H., 283 Or App 703, 389 P3d 1181 (2017)

 

      419B.340

 

NOTES OF DECISIONS

 

      In determining whether state efforts to assist parents were reasonable and adequate, consideration is given to services provided both before and immediately after state took custody. State ex rel State Office for Services to Children and Families v. Frazier, 152 Or App 568, 955 P2d 272 (1998), Sup Ct review denied

 

      Aggravated circumstances that relieve Department of Human Services from further reasonable reunification efforts include intentional or nonintentional actions and conditions producing serious direct or indirect harm or detriment to subject or other child. State ex rel Juvenile Dept. v. Risland, 183 Or App 293, 51 P3d 697 (2002)

 

      Where parent is incarcerated for crime that is not listed, and incarceration constitutes aggravated circumstance, incarceration may be basis for excusing Department of Human Services from making reasonable efforts to reunify family. State ex rel Juvenile Department v. Williams, 204 Or App 496, 130 P3d 801 (2006)

 

      Incarceration of parent, without more, does not excuse Department of Human Services from making reasonable efforts to reunify family. State ex rel Juvenile Department v. Williams, 204 Or App 496, 130 P3d 801 (2006)

 

      At dispositional stage, juvenile court must assess for each parent, individually, reasonableness of efforts of Department of Human Services to prevent or eliminate need for removal of child from home. Department of Human Services v. J.F.D., 255 Or App 742, 298 P3d 653 (2013)

 

      419B.343

 

NOTES OF DECISIONS

 

      Court may order parent to undergo psychological evaluation to be provided under Department of Human Services case plan if psychological services have rational connection with basis for juvenile court jurisdiction. State ex rel Juvenile Department v. G.L., 220 Or App 216, 185 P3d 483 (2008), Sup Ct review denied

 

      419B.352

 

NOTES OF DECISIONS

 

      Pursuant to medical advice, court may order child to be immunized. Department of Human Services v. S.M., 256 Or App 15, 300 P3d 1254 (2013), aff’d 355 Or 241, 323 P3d 947 (2014)

 

      419B.365

 

NOTES OF DECISIONS

 

      Juvenile court initiating guardianship must proceed under guardianship statute found in juvenile code, not guardianship statute under probate code. Kelley v. Gibson, 184 Or App 343, 56 P3d 925 (2002)

 

      419B.366

 

NOTES OF DECISIONS

 

      Hearing for purpose of determining guardianship is independent from permanency hearing. Department of Human Services v. K.H., 256 Or App 242, 301 P3d 427 (2013), Sup Ct review denied

 

      Hearing for purpose of determining guardianship must be fundamentally fair and provide opportunity to be heard at meaningful time and in meaningful manner. Department of Human Services v. K.H., 256 Or App 242, 301 P3d 427 (2013), Sup Ct review denied

 

      If original basis for jurisdiction of juvenile court ceases, ward’s approved guardianship must be vacated without regard to ORS 419B.368. Dept. of Human Services v. J.C., 289 Or App 19, 407 P3d 969 (2017), Sup Ct review allowed

 

      Once permanency plan is invalidated, court must set aside ward’s guardianship without regard to ORS 419B.368 test until new permanency plan is approved. In re: D.J.B., 289 Or App 88, 407 P3d 972 (2017)

 

      419B.368

 

NOTES OF DECISIONS

 

      Statutory guardianship test is not applicable and guardianship is automatically terminated if original basis for juvenile court’s jurisdiction ceases. Dept. of Human Services v. J.C., 289 Or App 19, 407 P3d 969 (2017), Sup Ct review allowed

 

 

      419B.376

 

ATTY. GEN. OPINIONS

 

Under former similar statute

 

      Authority of Children’s Services Division to use social security, veterans’ and other benefits to defray care costs of guardianship children, (1981) Vol. 42, p 146

 

      419B.443

 

NOTES OF DECISIONS

 

Under former similar statute

 

      Even when child is ward of court, preference for placement with natural parents is still recognized, therefore standard is compelling circumstances for removal rather than best interest of child. State ex rel Juv. Dept. v. Lauffenberger, 308 Or 159, 777 P2d 954 (1989)

 

      419B.449

 

NOTES OF DECISIONS

 

      Final order is not appealable unless meeting criteria of ORS 419A.200 that order substantially changes conditions of wardship or adversely affects rights or duties of appellant by ruling on motion. State ex rel Juvenile Dept. v. Vockrodt, 147 Or App 4, 934 P2d 620 (1997); State ex rel Juvenile Dept. v. Brown, 175 Or App 1, 27 P3d 502 (2001), Sup Ct review denied

 

      Where suitable adoptive placement is sought for child, court has discretion to order disclosure to court appointed special advocate of home study information submitted to adoption committee for consideration. State ex rel State Office for Services to Children and Families v. Mitchell, 182 Or App 402, 49 P3d 838 (2002), Sup Ct review denied

 

      419B.476

 

NOTES OF DECISIONS

 

      Where incarceration, immigration detention or other changes relevant to reunification occur during assessment period, Department of Human Services “reasonable efforts” require inquiry into, and arrangement for, services available under circumstances. State ex rel Dept. of Human Services v. H.S.C., 218 Or App 415, 180 P3d 39 (2008)

 

      Petitioner is not required to preserve error in order to challenge lack of statutorily required findings of fact in court order. State ex rel Department of Human Services v. M.A., 227 Or App 172, 205 P3d 36 (2009)

 

      Juvenile court must expressly explain reasons for making change in permanency plan. Department of Human Services v. L.B., 246 Or App 169, 265 P3d 42 (2011)

 

      Juvenile court’s failure to make findings required by ORS 419B.476 (5)(b)(B) does not render judgment defective on its face; findings regarding when ward will be placed for adoption and when petition for termination of rights will be filed does not reflect on substance of juvenile court’s permanency determination or reflect bases for court’s reasoning or ultimate decision. Dept. of Human Services v. T.R., 251 Or App 6, 282 P3d 969 (2012), Sup Ct review denied

 

      Juvenile court has authority to correct error in permanency judgment more than 20 days after permanency hearing. Department of Human Services v. A.J.M., 256 Or App 547, 301 P3d 962 (2013), Sup Ct review denied

 

      When read together with ORS 419B.498, juvenile court must first determine that no compelling reasons exist to not terminate parental rights before changing child’s permanency plan from reunification to adoption. Dept. of Human Services v. S. J. M., 283 Or App 367, 388 P3d 417 (2017), Sup Ct review allowed; Dept of Human Services v. J.M.T.M., 290 Or App 635, 415 P3d 1154 (2018)

 

      Juvenile court erred by relying on evidence of estrangement between child and father in making permanency determination when estrangement was not established as basis for jurisdiction in case. Dept. of Human Services v. T.L., 287 Or App 753, 403 P3d 488 (2017)

 

      Statutory guardianship test is not applicable once ward’s permanency plan is invalidated, and guardianship must be set aside until new permanency plan is approved. In re: D.J.B., 289 Or App 88, 407 P3d 972 (2017)

 

 

      419B.498

 

NOTES OF DECISIONS

 

      Permanency plan under which adoption is likely outcome is necessary to terminate parental rights. State v. L.C., 234 Or App 347, 228 P3d 594 (2010)

 

      Child’s or ward’s placement with relative that is intended to be permanent is placement with relative other than adoption. Department of Human Services v. H.R., 241 Or App 370, 250 P3d 427 (2011)

 

      Where Department of Human Services intends to terminate parental rights, juvenile court must first carefully evaluate permanency plan of adoption for permanency judgment before department files termination petition. Juvenile court may change or continue existing plan of adoption after permanency hearing as necessary to achieve positive outcome for child. Department of Human Services v. M.H., 266 Or App 361, 337 P3d 976 (2014)

 

      When read together with ORS 419B.476, juvenile court must first determine that no compelling reasons exist to not terminate parental rights before changing child’s permanency plan from reunification to adoption. Dept. of Human Services v. S. J. M., 283 Or App 367, 388 P3d 417 (2017), Sup Ct review allowed; Dept of Human Services v. J.M.T.M., 290 Or App 635, 415 P3d 1154 (2018)

 

      419B.500 to 419B.524

 

NOTES OF DECISIONS

 

Under former similar statutes

 

      Due process does not require the appointment of “independent counsel” to represent the child in every adoption or termination of parental rights proceeding. F. v. C., 24 Or App 601, 547 P2d 175 (1976)

 

      When second termination of parental rights proceeding was not itself barred, proof was not limited by res judicata or collateral estoppel principles to facts or evidence which was not considered in or which came in to being after first proceeding. State ex rel Juvenile Dept. v. Newman, 49 Or App 221, 619 P2d 901 (1980), Sup Ct review denied

 

      419B.500

 

NOTES OF DECISIONS

 

      For purposes of filing petition, “child” includes child’s attorney acting on behalf of child. Caldwell v. Lucas, 170 Or App 587, 13 P3d 560 (2000), Sup Ct review denied

 

      419B.502

 

NOTES OF DECISIONS

 

Under former similar statute

 

      “Neglected without just and sufficient cause” requires proof that parent failed to perform parental duties for required statutory period and that neglect was voluntary. State ex rel Juvenile Dept. v. Draper, 7 Or App 497, 491 P2d 215 (1971), Sup Ct review denied; State ex rel Juvenile Dept., Marion County v. Mack, 12 Or App 570, 507 P2d 1161 (1973)

 

      Continuing relationship with child abuser can be grounds for termination. State ex rel Juv. Dept. v. Herman, 69 Or App 705, 687 P2d 812 (1984)

 

      419B.504

 

NOTES OF DECISIONS

 

Under former similar statute

 

      Upon raising objection to admission of voluminous Children’s Services Division file on mother, mother had duty to inform court with particularity which portions of document were inadmissible. State ex rel Juvenile Department v. Robinson, 31 Or App 1097, 572 P2d 336 (1977), Sup Ct review denied

 

      Evidence of parental conduct or of conditions seriously detrimental to child is not limited to time prior to initial hearing. State ex rel Juvenile Department v. Robinson, 31 Or App 1097, 572 P2d 336 (1977), Sup Ct review denied

 

      Termination requires some present inadequacy as parent and cannot be based solely on prognosis of future inadequacy. State ex rel Juvenile Department v. Wyatt, 34 Or App 793, 579 P2d 889 (1978), Sup Ct review denied

 

      Where petition is based on mental illness of parent, judge must find, based upon evidence from qualified psychotherapist, that mental illness is probably permanent and that condition will probably render parent incapable of caring for child for extended period of time. State ex rel Juv. Dept. v. Habas, 299 Or 177, 700 P2d 225 (1985)

 

      Because words “any child” are used regarding abusive, cruel or sexual conduct, danger to child can be proven by instances of such conduct toward others. State ex rel Juv. Dept. v. Miglioretto, 88 Or App 126, 744 P2d 298 (1987)

 

      Where parent is in foster care, state has no obligation to provide full-time surrogate parenting through mutual foster care. State ex rel Juv. Dept. v. Scott, 100 Or App 172, 785 P2d 779 (1990)

 

In general

 

      Whether conduct or condition of parent renders parent unfit depends on detrimental effect on child at time of termination hearing. State ex rel State Office for Services to Children and Families v. Stillman, 333 Or 135, 36 P3d 490 (2001)

 

      Court must determine parent to be unfit before proceeding to consider whether integration of child into home is improbable within reasonable time due to conduct or conditions not likely to change. State ex rel State Office for Services to Children and Families v. Stillman, 333 Or 135, 36 P3d 490 (2001)

 

      Fitness of parent is determined based on combined effect of established conduct and conditions on child. State ex rel State Office for Services to Children and Families v. Mellor, 181 Or App 468, 47 P3d 19 (2002), Sup Ct review denied

 

      Past failure of parent to establish relationship with child does not, by itself, make parent presently unfit. State ex rel Department of Human Services v. Rardin, 340 Or 436, 134 P3d 940 (2006)

 

LAW REVIEW CITATIONS

 

Under former similar statute

 

      8 WLJ 284 (1972)

 

In general

 

      35 WLR 797 (1999)

 

      419B.506

 

NOTES OF DECISIONS

 

      Six-month period ending on petition filing date is closed period for assessing whether parent neglected child, therefore court may not consider subsequent acts. State ex rel State Office for Services to Children and Families v. Armijo, 151 Or App 666, 950 P2d 357 (1997)

 

      Finding of neglect must be based on factors relating to parent’s failure to maintain personal or financial contact with child. State ex rel Department of Human Services v. Squiers, 203 Or App 774, 126 P3d 758 (2006)

 

      419B.518

 

NOTES OF DECISIONS

 

Under former similar statute

 

      Any challenges to adequacy of trial counsel appointed under this section must be reviewed on direct appeal. State ex rel Juv. Dept. v. Geist, 310 Or 176, 796 P2d 1193 (1990)

 

      Standard for adequacy of appointed counsel is ability to provide proceeding that was fundamentally fair. State ex rel Juv. Dept. v. Geist, 310 Or 176, 796 P2d 1193 (1990)

 

      419B.521

 

NOTES OF DECISIONS

 

Under former similar statute

 

      In termination of parental rights proceeding, court may refuse to allow parent to call child as witness on parent’s behalf. State ex rel Juv. Dept. v. Beasley, 314 Or 444, 840 P2d 78 (1992)

 

In general

 

      Where Indian child is involved, all facts that form basis for termination of parental rights are subject to beyond reasonable doubt standard. Department of Human Services v. K.C.J., 228 Or App 70, 207 P3d 423 (2009)

 

      419B.524

 

NOTES OF DECISIONS

 

      Failure to file appeal from termination order does not prevent parent from appearing as parent in other legal proceedings challenging termination. State ex rel Juvenile Department v. Kopp, 180 Or App 566, 43 P3d 1197 (2002)

 

      419B.529

 

NOTES OF DECISIONS

 

      Juvenile court may order agency to provide adoptive home studies to attorney of dependent child prior to agency issuance of placement report. State ex rel State Office for Services to Children and Families v. Williams, 168 Or App 538, 7 P3d 655 (2000)

 

      Where suitable adoptive placement is sought for child, court has discretion to order disclosure to court appointed special advocate of home study information submitted to adoption committee for consideration. State ex rel State Office for Services to Children and Families v. Mitchell, 182 Or App 402, 49 P3d 838 (2002), Sup Ct review denied

 

      419B.555

 

NOTES OF DECISIONS

 

Under former similar statute

 

      Preliminary hearing may be waived depsite express waiver provision being applicable only to final hearing. State ex rel Juv. Dept. v. Adams, 114 Or App 133, 834 P2d 492 (1992), Sup Ct review denied

 

      419B.815

 

NOTES OF DECISIONS

 

      Where parents failed to appear personally for jurisdictional hearing, parents’ attorneys could not appear on parents’ behalf to make evidentiary objections. Dept. of Human Services v. S. C. T., 281 Or App 246, 380 P3d 1211 (2016), Sup Ct review denied

 

      419B.819

 

NOTES OF DECISIONS

 

      Where parent is physically present at and attempts to participate without counsel in earlier fact-finding proceeding, juvenile court may not at later proceeding enter default judgment against parent for failure to appear at earlier proceeding. Juvenile court has authority only to enter default judgment for failure to appear at proceeding at proceeding when parent actually failed to appear. Dept. of Human Services v. A.D.G., 260 Or App 525, 317 P3d 950 (2014)

 

      419B.823

 

NOTES OF DECISIONS

 

      Department of Human Services properly served parents with summons “in a manner reasonably calculated...to apprise the person served,” as required under this statute, when department caseworker served parents with summons by posting summons on door to parents’ home, e-mailing summons to parents and mailing summons to parents’ home. Dept. of Human Services v. K.L., 272 Or App 216, 355 P3d 926 (2015)

 

      419B.824

 

NOTES OF DECISIONS

 

      Where Department of Human Services did not serve summons using methods enumerated under this statute, service is valid so long as methods used meet due process standard provided under ORS 419B.823. Dept. of Human Services v. K.L., 272 Or App 216, 355 P3d 926 (2015)

 

      419B.875

 

NOTES OF DECISIONS

 

      Where guardian ad litem appears on behalf of incapacitated parent and objects to summary termination of parental rights, court may not summarily adjudicate termination petition but must proceed to full adversarial trial. State ex rel Juvenile Dept. v. Cooper, 188 Or App 588, 72 P3d 674 (2003)

 

      “Right to participate” under this section includes incarcerated parent’s right to testify at permanency hearing on own behalf via telephone from place of incarceration. Representation by counsel does not satisfy right to participate. Dept. of Human Services v. D.J., 259 Or App 638, 314 P3d 998 (2013)

 

      Juvenile court denied father’s right to participate, as required under this section, when court proceeded with hearing in father’s absence, after being unable to arrange for father’s participation by telephone, in final day of permanency hearing at which father’s testimony was critical to presentation of evidence that court would have considered in making determination about whether to change permanency plan. Dept. of Human Services v. A.E.R., 278 Or App 399, 374 P3d 1018 (2016)

 

      419B.918

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 419B.917)

 

      Where guardian ad litem appears on behalf of incapacitated parent and objects to summary termination of parental rights, court may not summarily adjudicate termination petition but must proceed to full adversarial trial. State ex rel Juvenile Dept. v. Cooper, 188 Or App 588, 72 P3d 674 (2003)

 

      419B.923

 

NOTES OF DECISIONS

 

      In evaluating whether motion to modify or set aside order or judgment was filed within reasonable time, court may consider length of delay, reason for delay and other circumstances surrounding filing. State ex rel Juvenile Department v. D.J., 215 Or App 146, 168 P3d 798 (2007)

 

      Whether motion to modify or set aside order or judgment was filed within “reasonable time” is matter committed to discretion of court. State ex rel Juvenile Department v. D.J., 215 Or App 146, 168 P3d 798 (2007)

 

      Excusable neglect encompasses parent’s reasonable, good faith mistake as to time or place of a dependency proceeding. State ex rel Dept. of Human Services v. G.R., 224 Or App 133, 197 P3d 61 (2008)

 

      Considerations reasonably guiding and restricting exercise of discretion to deny a motion to set aside order or judgment include (1) nature and magnitude of interest adjudicated and “forfeited” in movant’s absence; (2) movant’s promptness in attempting to rectify his or her nonappearance; (3) extent to which interests of other parties and court would be prejudiced if motion were granted, including because of intervening detrimental reliance on judgment; and (4) whether movant can present colorable defense on merits. State ex rel Dept. of Human Services v. G.R., 224 Or App 133, 197 P3d 61 (2008)

 

      Inherent power of court to modify order or judgment is subject to express prohibition against modifying order that places child in state custody or otherwise directs disposition of child after termination of parental rights. Department of Human Services v. B.A.S./J.S., 232 Or App 245, 221 P3d 806 (2009), Sup Ct review denied

 

      Juvenile court has broad authority in termination of parental rights proceeding to modify or set aside its own order or judgment for reasons other than listed in subsection (1)(a) of this section, including colorable claim of violation of parent’s due process rights caused by juvenile court’s misinterpretation of court authority. Dept. of Human Services v. A.D.G., 260 Or App 525, 317 P3d 950 (2014)

 

      Where standing is limited, under this statute, to persons or entities with status as party to proceeding at time motion to set aside is filed and state’s party status is terminated by court order, state has no entitlement to due process or standing to challenge application of statute to it on constitutional grounds. Dept. of Human Services v. B.M.C., 272 Or App 255, 355 P3d 190 (2015)

 

      Under interpretive method of ejusdem generis, specific examples provided as “reasons” for modifying or setting aside order or judgment listed under subsection (1) of this section serve to narrow scope of reasons authorizing juvenile court to act under this statute. Dept. of Human Services v. K.W., 273 Or App 611, 359 P3d 539 (2015), Sup Ct review denied

 

      Allegations of changed circumstances since entry of judgment terminating parental rights does not authorize court to set aside judgment because change in circumstance does not share common characteristic with specific examples provided as “reasons” to set aside judgment under subsection (1) of this statute. Dept. of Human Services v. K.W., 273 Or App 611, 359 P3d 539 (2015), Sup Ct review denied

 

      Where father’s appointed counsel failed to appear at permanency hearing, this section allowed father to bring inadequate assistance of counsel claim for first time on direct appeal from judgment regarding placement of father’s children. Department of Human Services v. T. L., 358 Or 679, 369 P3d 1159 (2016)