415 P.3d 1154
Or. Ct. App.2018Background
- Mother and three children are wards in substitute care; juvenile court changed each child's permanency plan from reunification to adoption.
- DHS sought the plan change and the juvenile court found there were no compelling reasons to forgo filing a petition to terminate parental rights, as required by ORS 419B.476(5)(d) and ORS 419B.498(2).
- Under S. J. M. and related precedent, DHS bears the burden to prove there are no compelling reasons not to file a termination petition before the court may change a plan to adoption.
- The trial evidence supported that reunification was not viable (lengthy foster care, likely harm, unlikely timely reunification).
- Mother and children argued guardianship would better preserve sibling, parental, and extended-family attachments; DHS presented no evidentiary proof that guardianship was not a better plan.
- The record contained only counsel argument that there were no guardian resources, which the court cannot treat as evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DHS met its burden to prove there were no compelling reasons not to file a termination petition under ORS 419B.498(2) | DHS: Evidence shows reunification is not viable and no compelling reason precludes termination filing | Mother: DHS failed to disprove other permanent plans (e.g., guardianship) that better preserve sibling and family attachments | Reversed: DHS failed to present evidence that guardianship was not a better plan; finding that no compelling reasons existed is unsupported |
| Whether the record permits a rational finding that “another permanent plan” is not better suited to the child’s health, safety, and sibling relationships (ORS 419B.498(2)(b)(B)) | DHS: Adoption appropriate because reunification infeasible and children harmed by foster care delay | Mother: Uncontroverted evidence of sibling/extended-family bonds and lack of identified adoptive resources supports guardianship as better plan | Court: Evidence insufficient to rule out guardianship; counsel statements are not evidence, so court erred in changing plan to adoption |
Key Cases Cited
- Dept. of Human Services v. S. J. M., 283 Or. App. 367, 388 P.3d 417 (Or. App. 2017) (holding proponent must prove no compelling reasons to forgo termination filing)
- Dept. of Human Services v. M. S., 284 Or. App. 604, 393 P.3d 270 (Or. App. 2017) (discussing burden allocation under S. J. M.)