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March 11, 2026 Get Citation Alerts Download PDF Add Note

Dept. of Human Services v. J. N.

Court of Appeals of Oregon

• Citations: 347 Or. App. 567
• Docket Number: A187934
• Judges: Ortega

• Disposition: Affirmed.

• Opinion

• Authorities (2)

• Cited By (0)

• Summaries (0)

• Similar Cases (6.8K)

• PDF

Disposition

Affirmed.

Combined Opinion

                        by [Darleen Ortega](https://www.courtlistener.com/person/8195/darleen-ortega/)

No. 176 March 11, 2026 567

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

In the Matter of S. A. N.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
J. N.,
Appellant.
Klamath County Circuit Court
23JU02761; A187934 (Control)
In the Matter of M. M. N.-G.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
J. N.,
Appellant.
Klamath County Circuit Court
23JU02763; A187935
In the Matter of D. J. N.-G.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
J. N.,
Appellant.
Klamath County Circuit Court
23JU02765; A187936

Andrea M. Janney, Judge.
Submitted December 17, 2025.
G. Aron Perez-Selsky filed the brief for appellant.
568 Dept. of Human Services v. J. N.

Dan Rayfield, Attorney General, Benjamin Gutman,
Interim Deputy Attorney General, and Inge D. Wells,
Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
Cite as 347 Or App 567 (2026) 569

ORTEGA, P. J.
In this juvenile dependency proceeding, mother
appeals judgments establishing durable guardianships for
her three children, S, D, and M. Because the children are eli-
gible and enrolled members of the Klamath Tribes, this case
is governed by the federal Indian Child Welfare Act (ICWA),
and the Oregon Indian Child Welfare Act (ORICWA). See
Indian Child Welfare Act of 1978, 25 USC §§ 1901 - 1963;
Oregon Indian Child Welfare Act, Or Laws 2020, ch 14, §§ 1
- 66 (Spec Sess 1) (codifying new provisions at ORS chapter
419B.600 to ORS 419B.665 and amending portions of ORS
chapters 350, 418, 419A, and 419B). Mother argues that the
Oregon Department of Human Services (ODHS) failed to
prove, by clear and convincing evidence, that it is likely that
the children will suffer “serious emotional or physical dam-
age” if returned to her custody or that the children could
not be safely returned to mother within a reasonable time.
Because we conclude that clear and convincing evidence
supports those findings, we affirm the judgments.
In this case, mother has not requested de novo review,
and we conclude that this is not an exceptional case warrant-
ing such review. ORS 19.415(3)(b); ORAP 5.40(8)(c). Thus, we
are bound by the juvenile court’s “explicit and implicit find-
ings of historical fact if there is any evidence in the record
to support them.” Dept. of Human Resources v. K. C. W.,
347 Or App 425, 430, ___ P3d ___ (2026). We summarize the
facts in accordance with that standard.
In June 2023, ODHS took the three children in this
case into protective custody, following mother’s arrest in
May for driving while intoxicated while the children were in
the car with her. During the arrest, mother assaulted one of
the officers in view of the children. At that time, S was nine
years old, D was six years old, and M was four years old.
The children were placed into substitute care with a mater-
nal relative, Weiser, who is also a member of the Klamath
Tribes. In June 2023, mother was again arrested for driv-
ing while intoxicated, among other offenses. Mother was
later convicted of offenses related to both the May and June
incidents. At the time of the children’s removal, mother was
struggling with substance use, particularly alcohol use.
570 Dept. of Human Services v. J. N.

In August 2023, the juvenile court took jurisdiction
over each of the three children based on the following proven
allegations that pertain to mother:
“A. The mother * * * has a substance abuse problem which
is not ameliorated and hinders her ability to adequately
and appropriately parent and protect the child. This condi-
tion places the child under a threat of harm.
“B. The mother * * * does not understand the needs of
the child and lacks the parenting skills necessary to ade-
quately and appropriately parent and protect the child.
This condition places the child under a threat of harm.
“C. The mother * * * assaulted another adult which
occurred in the presence of the child. This condition places
the child under a threat of harm.
“D. The mother * * * has been subjected to domestic vio-
lence by [the father of D and M] some of which has occurred
in the presence of the child. This condition places the child
under a threat of harm.”
Also in August 2023, mother completed a 30-day
inpatient drug and alcohol treatment and started outpatient
treatment. After a relapse in late October, which involved
mother drinking until she passed out, mother completed a
second inpatient treatment program. She was diagnosed
with severe alcohol use disorder and severe cannabis use
disorder. Mother also began, but did not complete, classes
in hands-on parenting, anger management, and outpatient
substance use treatment. She attended supervised visits
with the children that went well, but in April 2024, mother
disengaged from all services and, after several occasions
when she failed to call or appear for visits, ODHS removed
her from the visitation schedule in July 2024. In August
2024, the court changed the children’s permanency plans
from reunification with mother to guardianship. And, in
November, ODHS moved to establish a durable guardian-
ship for each child, under ORS 419B.366, with Weiser as
the guardian. The court held a hearing on the motions in
May 2025, about two years after the children were placed in
Weiser’s care.
At the time of the hearing, mother resided in
Portland where she had been since late October 2024 after
Cite as 347 Or App 567 (2026) 571

serving some jail time, while the children and Weiser
remained in Klamath County. After her release from jail,
mother started substance abuse treatment with Native
American Rehabilitation Association (NARA). She com-
pleted residential treatment in February 2025, and, two
days before the guardianship hearing in May 2025, she
completed outpatient treatment while staying in transi-
tional housing. NARA confirmed through urinalysis testing
that mother had maintained her sobriety since October 29,
2024, and mother testified that she had been sober since she
was in jail, for a total of nine months. Mother’s counselor at
NARA testified that mother had maintained sobriety and
had community support to help her keep sober.
While in residential treatment at NARA, mother
also completed “positive Indian parenting,” which required
compliance with treatment, completing three steps of
Alcoholics Anonymous or Wellbriety, completing a relapse
prevention plan, and attending all groups. Mother also com-
pleted anger management through NARA. Mother is no lon-
ger with father of D and M, and ODHS has no knowledge of
mother experiencing domestic violence since then. Mother
also testified that she is an active member at Painted Horse
Recovery and that she is engaged in cultural activities. She
currently is in transitional housing that does not allow chil-
dren, but she contacted Native American Youth and Family
Services (NAYA) in Portland, and she testified that they
could take her and the children in one to two days.
After completing residential treatment, in March
2025, mother began having weekly half-hour video calls with
the children. Her first in-person visit with the children since
April 2024 occurred on April 18, 2025, about a month before
the guardianship hearing, and she later saw the children,
accompanied by Weiser, at a different time at a powwow.
ODHS offered mother additional visits in Klamath County,
along with lodging, on two other dates in early May 2025,
but she did not respond. Mother also cancelled a planned
visit with the children for a Mother’s Day powwow. However,
mother did have another in-person visit with S and M, which
D was unable to attend, while she was in town for the guard-
ianship hearing. It is undisputed that mother has a bond
572 Dept. of Human Services v. J. N.

with the children and that she does well with the children
during visits. However, S has reported that mother places
some of the parenting responsibilities on her during visits.
The children have been doing well in Weiser’s care.
Weiser has connected the children to tribal culture, to other
tribal members, and to family. They have become more con-
fident, are doing well in school, and are happy. S is learning
to be a kid and not the parent, and D is learning how to cope
with his emotions. The children have a well-established sup-
port system in their current placement with school, ther-
apy, family ties, friends, culture, and community. The ups
and downs of the case have caused them anxiety. Weiser
testified that the children have been excited to visit their
parents and were depressed when their parents did not
show and hurt when the frequency of visitation decreased. S
expressed to Weiser that she did not want to go home with
mother and wanted to stay with Weiser.
All three children were also attending individual
therapy, and all three have been diagnosed with an adjust-
ment disorder. At the time of the hearing, D had been seeing
his therapist for five months and was working on address-
ing his emotional dysregulation, emotional awareness, and
appropriate coping skills to express his emotions safely. D
had been expressing emotion with aggressive physical and
verbal behavior and engaged in self-harming behavior when
frustrated. His therapist reported that D was improving
but that a change in placement could result in regression to
aggression or emotional dysregulation. D expressed in ther-
apy that he appreciates the cultural connection he has, that
he loves mother and wants to reconnect, but that he wanted
to do that through visits, while staying in his current living
situation.
Both S and M have been with the same therapist
for three months. M is working on displaying the full range
of emotions without a loss of control. S has struggled with
honesty and with taking on a parenting role as she feels
strongly that she needs to be in charge of her siblings and
that her parents expected that of her. S has shown a lot of
improvement with self-esteem, sharing her feelings, and
trying new things. The therapist testified that both children
Cite as 347 Or App 567 (2026) 573

needed consistent routine and rules to feel safe. S experi-
ences anxiety around visits with mother but enjoys seeing
her; however, S is concerned about things going back to how
they were before she was placed with Weiser and expressed
that she wants to stay with Weiser. M loves mother and
is happy to see her. The children’s therapist also testified
that a change in placement would risk setting them back
to the beginning of therapy with emotional and behavioral
problems and academic difficulties if they were to change
schools.
The ODHS caseworker for the family, Warnstaff,
testified that S is “really skeptical” of going home with
mother, that she struggles with that relationship and with
trust, and that she is fearful of mother finding out how
she feels. S has been firm in wanting to stay with Weiser.
Warnstaff further testified that the children need a care-
giver that understands their needs and puts them first, and
who is able to cooperate and communicate with their sup-
port system, and that it would be a detriment to the children
to lose the tribal connection that they now have. Warnstaff
testified that she has concerns that mother “still lacks the
parenting skills and understanding of what the children’s
needs are ongoing as evidence[d] by her not attending the
visitation that was offered to her and then not attending the
Oregon Institute of Technology relationship [program].”
Warnstaff also testified that mother “continues to
struggle to control her emotion and aggressive behaviors” and
“to take accountability for her behaviors, interactions, and
emotions and [to] understand how they impact her children.”
For example, a courtesy caseworker, Kilkenny, reported that
after the April visit with the children, mother became emo-
tional and then angry and aggressive to Kilkenny about a
conversation Kilkenny had with Weiser when they dropped
off the children. Mother expressed that Kilkenny was “sup-
posed to be” on her side and demanded that Kilkenny not
talk to Weiser. Warnstaff testified that the biggest barrier
to mother being a safe parent is her behavior, and that she
lacks the skills to safely parent. In a meeting the day before
the guardianship hearing, mother told Warnstaff that she
was not planning on participating in mental health services.
574 Dept. of Human Services v. J. N.

Warnstaff opined that the children cannot be safely returned
to mother until she makes further progress in her behavior
and engages in hands-on parenting services.
The Klamath Tribes representative and qualified
expert witness, Ruiz, testified that, although mother had
made progress, it would be detrimental to the children for
them to go home with her. She was concerned about moth-
er’s unwillingness to cooperate, her tendency to manage
anger poorly, and her unwillingness to engage in mental
health services. Prior to the hearing, Ruiz had anticipated
that she would ask the court to give mother more time, but
after mother arrived late to the hearing and after listening
to the testimony, the tribe’s position was that the children
could not safely return to mother within a reasonable time.
Mother objected to the guardianships based on the
services she completed, arguing that she had family and com-
munity in Painted Horse and Wellbriety that would support
her and the children and expressing a concern that Weiser
is not physically capable of taking care of the children. She
also testified that she disagreed with ODHS that she was
aggressive or did not have control of her anger, arguing that
it was a matter of perception. She also denied being aggres-
sive with Kilkenny and expressed that she had been treated
unfairly. She also testified that she would address the chil-
dren’s transition to Portland with family counseling through
NAYA, which she was “pretty sure” would happen immedi-
ately, and would “just be[ ] active in their school adventures.”
When asked, mother could not identify what school the chil-
dren would attend in Portland, because she did not know in
which house NAYA would place her and the children.
The juvenile court, in establishing the guardian-
ships for the children, made several findings. The court
remarked that mother’s engagement has been a roller
coaster, that she was blaming other people, “throwing out
random ideas” and “making stuff up,” and that she had no
real plan for the children. The court also found that mother
was staying clean and sober through structured inpatient
and structured outpatient, but that she has not been able
to do it “with nobody watching.” The court remarked that
mother did not address the children’s concerns, particularly
Cite as 347 Or App 567 (2026) 575

S, who has real concern and fear about returning to mother.
As relevant here, the court determined that the children
could not safely be returned to mother within a reasonable
time, because after two years in substitute care, they needed
to achieve a sense of permanency. The court also determined
that returning custody to mother would likely result in seri-
ous emotional and physical harm to the children.
Mother now appeals the resulting judgments estab-
lishing guardianships for the children.
A juvenile court may establish a guardianship under
ORS 419B.366—often referred to as a “durable” guardian-
ship—if the court has approved a plan of guardianship
under ORS 419B.476 and, after a hearing, determines:
“(a) The ward cannot safely return to a parent within
a reasonable time;
“(b) Adoption is not an appropriate plan for the ward;
“(c) The proposed guardian is suitable to meet the
needs of the ward and is willing to accept the duties and
authority of a guardian; and
“(d) Guardianship is in the ward’s best interests. In
determining whether guardianship is in the ward’s best
interests, the court shall consider the ward’s wishes.”
ORS 419B.366(6).
When the proceeding involves an Indian child, the
juvenile court must, as relevant here, also determine, “by
clear and convincing evidence, including testimony of quali-
fied expert witnesses, that the continued custody of the child
by the parent * * * is likely to result in serious emotional or
physical damage to the child.” 25 USC § 1912 (e); see also
ORS 419B.366(4)(a)(C)(i) (requiring the court to determine,
“by clear and convincing evidence, including the testimony
of one or more qualified expert witnesses * * * that the con-
tinued custody of the Indian child by the child’s parent * * *
is likely to result in serious emotional or physical damage to
the Indian child”). That evidence “must show a causal rela-
tionship between the particular conditions in the home and
the likelihood that continued custody of the child will result
in serious emotional or physical damage to the particular
576 Dept. of Human Services v. J. N.

child who is the subject of the child-custody proceeding.”
25 CFR § 23.121 (c); see also ORS 419B.366(4)(b) (requiring
that the evidence “must show a causal relationship between
the particular conditions in the Indian child’s home and the
likelihood that custody or continued custody of the Indian
child will result in serious emotional or physical damage to
the particular Indian child who is the subject of the child
custody proceeding”).
On appeal, mother argues that the juvenile court
erred in establishing durable guardianships for her three
children. Mother makes two arguments: (1) ODHS failed to
prove, by clear and convincing evidence, that mother’s cus-
tody of the children “is likely to result in serious emotional
or physical damage” to the children, and (2) ODHS failed to
prove, by clear and convincing evidence, that the children
could not be safely returned to mother within a reasonable
time.
We first address preservation. Although mother pre-
served her second argument in the juvenile court, mother
did not adequately preserve her first argument. However,
under 25 USC section 1914, a parent may bring an unpre-
served ICWA challenge to a guardianship established under
ORS 419B.366, when that challenge is premised on a viola-
tion of 25 USC section 1912 (e). K. C. W., 347 Or App at 431-
32 (explaining that the mother could raise, for the first time
on appeal, her argument that ODHS failed to prove a nexus
between her substance abuse and the likelihood of serious
emotional or physical damage to the children, as required by
25 USC section 1912 (e)). Accordingly, we proceed to address
both of mother’s arguments on the merits.1
1
We note that mother only cited to ORS 419B.366 in her briefing, while rely-
ing on 25 USC section 1914 to bring her unpreserved argument. Under 25 USC
section 1914, a parent of an Indian child “may petition any court of competent
jurisdiction to invalidate such action upon a showing that such action violated
any provision of sections 1911, 1912, and 1913 of this title.” That provision, by its
terms, applies to challenges to a foster care placement, which includes a guard-
ianship established under ORS 419B.366, based on violations of ICWA, not based
on violations of ORICWA. See K. C. W., 347 Or App at 431-32 (citing Dept. of
Human Services v. J. G., 260 Or App 500, 512, 317 P3d 936 (2014)). However,
because the wording of the relevant provision in ICWA, 25 USC § 1912 (e), and
ORICWA, ORS 419B.366(4)(a)(C)(i), are identical, and mother relies solely on that
wording and not any development of state law, we proceed to address mother’s
unpreserved challenge.
Cite as 347 Or App 567 (2026) 577

In her first argument, mother asserts that ODHS
submitted insufficient evidence for the juvenile court to deter-
mine that mother’s resumption of custody of the children
was likely to result in serious emotional or physical damage
to the children. Mother emphasizes that, by the time of the
hearing, she had completed substance abuse treatment, had
sustained sobriety for nine months, had completed anger
management treatment, had ended her relationship with
the father of D and M, and had completed NARA’s positive
Indian parenting program. She also emphasizes that the
children are bonded to her and that she interacted appro-
priately with them. Mother argues that there was no evi-
dence that she would expose the children to violence or that
any parenting deficit she might have would lead to serious
emotional or physical damage. She also argues there was
no evidence of what parenting deficit the hands-on parent-
ing program, which ODHS had emphasized as a significant
omission in her work, would address.
In addressing mother’s argument, we evaluate the
juvenile court’s findings “in the light most favorable to the
juvenile court’s disposition and assess whether, when so
viewed, the totality of evidence in the record was legally
sufficient to permit any rational juvenile court to find that
it is highly likely that facts exist indicating that continued
custody by the child’s parent is likely to result in serious
emotional or physical damage to the Indian child.” Dept. of
Human Services v. A. R. E., 340 Or App 73, 76, 571 P3d 211
(2025). We also defer to the juvenile court’s credibility find-
ings, id., which in this case were adverse to mother.
Under that standard, we affirm the juvenile court.
As articulated by the witnesses, mother continued to strug-
gle with behaviors that underlie three of the jurisdictional
bases in this case: a substance abuse problem that hinders
her ability to safely parent, not understanding the needs of
the children and lacking parenting skills to safely parent,
and having assaulted another adult in the presence of the
children. The evidence supports the juvenile court’s findings
that, at the time of the hearing, mother did not understand
the needs of the children and lacked parenting skills to par-
ent them safely.
578 Dept. of Human Services v. J. N.

All three children experienced anxiety over the ups
and downs of the case and were in therapy to address their
emotional struggles. D in particular struggled with his emo-
tions and D’s therapist testified that a change in placement
could result in D regressing to aggression and emotional
dysregulation that historically included self-harm. Both S
and D had told their therapists that they were not ready to
go home with mother. S in particular had expressed anxi-
ety and concerns about going home with mother, that she
was fearful of mother learning of her feelings, and that she
wanted to remain with Weiser. The evidence established
that all three children had improved and were doing well
in Weiser’s care and that they had developed family, school,
and tribal community connections that were important to
them, the importance of which mother minimized.
Mother, by contrast, had only begun to reconnect
with the children after not seeing them for a year. In those
restarted visits, which occurred only one month before the
guardianship hearing, S reported that mother delegated to S
some of the responsibilities for parenting her siblings, respon-
sibilities that S had been working with Weiser and her thera-
pist to release. In testifying about her plan for the children to
move to Portland with her, mother did not address S’s or D’s
concerns, offered instead a vague transition plan of family
counseling and being active in school adventures, and could
not identify which school they would likely be attending,
demonstrating a lack of insight into the needs of the children
in transitioning them to her care in a distant city.
ODHS also put on evidence that mother continued to
struggle with her emotions and aggressive behavior but was
not willing to engage in mental health services. Mother’s
testimony showed that she lacked insight into those behav-
iors and how they could affect the children, having denied
being aggressive in general and in her recent interaction
with Kilkenny in particular, claiming it was a matter of
perspective.
With regard to her substance use, mother has made
important steps in addressing it. However, ODHS offered
evidence that supports the juvenile court’s finding that
mother struggles to maintain sobriety when she is not in
Cite as 347 Or App 567 (2026) 579

a controlled setting, and that, when she is not sober, she
cannot safely parent. Mother had completed inpatient treat-
ment twice before during the course of the case but relapsed
outside of that setting. As of the hearing, mother was still
living in a controlled setting, having completed her outpa-
tient treatment only two days prior to the hearing. We agree
with mother that ODHS did not show that her substance use
itself was “likely to result in serious emotional or physical
damage to” the children at the time of the hearing; however,
mother’s pattern of relapse outside of a treatment setting is
part of mother’s behaviors that the juvenile court could, and
did, consider in determining if returning the children to her
custody would likely result in serious emotional or physical
damage to the children.
Warnstaff testified that custody by mother would
result in serious emotional or physical harm because of
mother’s behaviors and lack of parenting skills. Ruiz, a qual-
ified expert for the Klamath Tribes, testified that it would
be unsafe and detrimental for the children to go home with
mother based on the evidence that she heard at the guard-
ianship hearing.
Based on the totality of the evidence in the record,
we conclude that the evidence was legally sufficient to per-
mit the juvenile court to determine that it is highly likely
that a resumption of custody by mother would result in seri-
ous emotional or physical damage to the children.
In her second argument, mother argues that ODHS
submitted insufficient evidence to show that the children
could not be safely returned to her in a reasonable time. In
addition to the programs she had completed, mother argues
that she was positioned to obtain housing through NAYA
within one to two days and that the children did not have
special needs requiring more than a minimally adequate
parent to safely care for them. In particular, mother argues
there was no evidence that the children’s need for perma-
nency could not wait a few more months while mother fin-
ished any remaining required services.
Under ORS 419A.004(27), a “reasonable time” is
defined as “a period of time that is reasonable given a child
580 Dept. of Human Services v. J. N.

or ward’s emotional and developmental needs and ability to
form and maintain lasting attachments.” Here, the evidence
supports the juvenile court’s findings that the children,
after two years in substitute care, needed permanency.
In addition to the evidence discussed above, the children’s
therapists testified that the children needed stability to
feel safe and other evidence showed that the children were
improving, making important tribal connections, and doing
really well in their current placement. Warnstaff testified
that mother needed more time maintaining sobriety and to
address her behaviors and parenting skills before the chil-
dren could be safely returned to her care. Mother had only
just begun to reconnect with the children and lacked insight
into the children’s needs. Mother was also unresponsive to
ODHS when additional visitation was offered and was not
willing to engage in mental health services; she also dis-
agreed that she was not in control of her anger or that she
was aggressive. Based on this record, the juvenile court did
not err in determining that the children could not be safely
returned to mother in a reasonable time.
In sum, the juvenile court did not err in establish-
ing durable guardianships for the children.
Affirmed.