Department of Human Services v. N. M. S.
246 Or. App. 284
| Or. Ct. App. | 2011Background
- Three children, F, R, and T, were removed in Nov. 2009 after T sustained non-accidental bruising; jurisdiction filed Dec. 2009.
- Mother admitted non-accidental injury to T; father incarcerated with earliest release date in 2017 and unable to care for F.
- Jurisdictional judgments entered Jan. 12, 2010, based on endangerment in unsafe environment; custody remained with DHS.
- Permanency hearing held Jan. 4–5, 2011; plan to reunify; DHS sought adoption; F placed separately due to sexual aggression.
- Trial court found DHS reasonable efforts toward reunification but held mother made insufficient progress to safely return children.
- Court relied on factors including hygiene, parenting skills, judgment, and mental health; adopted concurrent plan of adoption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court err by basing the permanency decision on extrinsic facts outside the jurisdictional basis? | Mother argues GE controls; reliance on extrinsic facts violates notice. | DHS contends GE is inapplicable or that broader facts may be considered for health and safety paramount concerns. | Reversed and remanded for proper scope of jurisdictional basis. |
| If the jurisdictional basis is limited, may the court rely on related but outside facts to change plans? | Mother claims change relies on unalleged facts not tied to jurisdictional basis. | State argues services and progress can be evaluated within the case plan and ongoing concerns. | Remand to apply proper test and amend petition if needed. |
Key Cases Cited
- Dept. of Human Services v. G. E., 246 Or.App. 136 (2011) (limits on continuing jurisdiction based on facts not in petition; requires amendment if substantial rights affected)
- State ex rel. Juv. Dept. v. K. D., 228 Or.App. 506 (2009) (parental progress assessed against basis for reunification; continued efforts may be required)
- Dept. of Human Services v. D. D., 238 Or.App. 134 (2010) (basis for jurisdiction; liberal petition construction; amendment possible)
- Dept. of Human Services v. C. Z., 236 Or.App. 436 (2010) (note on substantial rights and review of factual assertions)
- State ex rel. Juv. Dept. v. Froats, 117 Or.App. 467 (1992) (liberal construction of petitions; notice and substantial justice)