Department of Human Services v. T. L.
279 Or. App. 673
| Marion Cty. Cir. Ct., O.R. | 2016Background
- T, age 3, was made a ward after both parents admitted ORS 419B.100(1)(c) grounds: mother’s substance abuse and mental‑health issues; father’s substance abuse and incarceration.
- DHS placed T in substitute care and, ~1 year later, the juvenile court changed the permanency plan from reunification to adoption (permanency judgment).
- About eight months later parents moved to dismiss dependency jurisdiction; they conceded they had not remediated the original admissions but relied on T’s paternal aunt ("aunt") as a caregiver who would mitigate risks.
- The juvenile court denied the motion, reasoning the court’s inquiry was limited to whether the original jurisdictional conditions continued (which they did).
- On appeal the court (full court) addressed two recurring questions: (1) legal standard for motions to dismiss dependency jurisdiction and whether evidence that a third party can mitigate risk is relevant; (2) whether, after a permanency plan is changed away from reunification, such a motion is cognizable and who bears the burden of proof.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal standard for motion to dismiss dependency jurisdiction | Father: court should consider whether third‑party caregiver (aunt) would mitigate the risk so jurisdiction no longer continues | DHS/T: motion focuses on whether original jurisdictional bases persist and so third‑party evidence is irrelevant | Court: Two‑part test — (1) do jurisdictional bases pose a current threat of serious loss/injury, and (2) is that threat reasonably likely to be realized; evidence that a third party can mitigate risk is relevant to the second prong and must be considered |
| Relevance of third‑party caregiver evidence | Father: aunt’s concrete plan and capacity make dismissal proper despite parents’ unremediated conditions | DHS: such evidence is irrelevant because the inquiry must focus on whether the original grounds persist | Court: Third‑party mitigation evidence is probative of likelihood that the adjudicated risk will be realized and may not be excluded as categorically irrelevant |
| Cognizability and burden after permanency plan is not reunification | Father: burden should remain on proponent of jurisdiction; parents shouldn’t bear extra burden because plan changed | DHS: change in permanency plan away from reunification should shift burden to parents seeking dismissal | Court: Motions to dismiss remain cognizable; where permanency plan is not reunification, proponents may invoke a rebuttable presumption (operating assumption) that child cannot safely return home, and the parent seeking dismissal bears the burden to prove by a preponderance that the jurisdictional bases no longer pose a current and reasonably likely threat |
Key Cases Cited
- State ex rel Juv. Dept. v. Smith, 316 Or. 646 (establishes the reasonable‑likelihood standard for endangerment)
- Dept. of Human Services v. J. V.-G., 277 Or. App. 201 (motion‑to‑dismiss two‑part inquiry — current threat and likelihood)
- Dept. of Human Services v. A. F., 243 Or. App. 379 (discusses endangerment under predecessor statute)
- Dept. of Human Services v. J. N., 253 Or. App. 494 (evidence rules apply to motions to dismiss jurisdiction)
- Dept. of Human Services v. A. R. S., 258 Or. App. 624 (jurisdiction terminates when bases cease to exist)
- Dept. of Human Services v. T. L., 358 Or. 679 (permanency hearing significance; effect of changing plan from reunification)