Dept. of Human Services v. M. L. - Permanency Plan Reversal

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April 15, 2026 Get Citation Alerts Download PDF Add Note

Dept. of Human Services v. M. L.

Court of Appeals of Oregon

• Citations: 348 Or. App. 494
• Docket Number: A188157
• Judges: O'Connor

• Disposition: On appeal, reversed and remanded; on cross-appeal, dismissed as moot.

• Opinion

• Authorities (3)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.5K)

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Disposition

On appeal, reversed and remanded; on cross-appeal, dismissed as moot.

Combined 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.