Mother appeals judgments changing the permanency plan for her children, who are in the state’s custody, from reunification with her to adoption. She argues that the juvenile court erred in entering the judgments because they do not include the finding required by ORS 419B.476(5)(d)— namely, a finding as to whether “[t]here is a compelling reason * * * for determining that filing such a petition [to terminate parental rights] would not be in the best interests of the child or ward.” ORS 419B.498(2)(b) (cross-referenced in ORS 419B.476(5)(d)). Mother concedes that she did not raise that issue below, and the Department of Human Services (DHS) contends that, as a result, we should affirm the judgments. We exercise our discretion to review the claimed error and reverse the judgments.
Mother makes two arguments concerning preservation of error in the juvenile court. She first argues that she had no practical opportunity to object to the lack of the finding, considering that the error did not appear until judgment was entered
after
the permanency hearing.
See State ex rel DHS v. M. A. (A139693),
DHS, for its part, concedes that the permanency judgments lack the requisite finding under ORS 419B.476(5) and are therefore deficient on their face. DHS further acknowledges that this court’s practice has been to reverse and remand in the case of judgments like these, notwithstanding a parent’s failure to object below. However, DHS argues that this case is distinguishable from cases like
M. A.
because, in this instance, mother was provided with the forms of judgment before they were entered. Moreover, DHS points out, the juvenile court, at the close of the permanency hearing, specifically asked mother whether she wanted the court to make any further findings, and mother did not mention the findings required by ORS 419B.476(5). Thus, DHS argues, not only was mother required to object under the circumstances, but her lack of an objection is reason enough for this court to decline to review for plain error.
See State ex rel Dept. of Human Services v. J. N.,
We need not resolve the parties’ preservation dispute because, even if ordinary preservation principles were to apply to this circumstance, we would nonetheless exercise our discretion to correct the plainly erroneous judgments.
Cf. State v. Clay,
None of the boxes within the “Compelling Reasons” section of the judgments were checked in this case, and, given the forms, it is unsurprising that neither the parties nor the court discovered that error. Based on the judgments, we can only infer, from the court’s ultimate conclusion to change the plan as to each child, that it actually made the specific, predicate finding for a change of plan set out in ORS 419B.476(5)(d) — namely, that there are not compelling reasons for determining that filing a petition to terminate parental rights would not be in the best interests of the child or ward.
The statute, however, demands more than inferences from a permanency judgment. As we explained in
M. A.,
ORS 419B.476(5) expresses the legislature’s intent that “the trial court carefully evaluate DHS’s decision to change a permanency plan for a child in order to ensure that the decision is one that is most likely to lead to a positive outcome for the child.”
Reversed and remanded.
Notes
Adding to the confusion, the form phrases the relevant findings in terms of what DHS “has demonstrated” or “failed to demonstrate,” whereas ORS 419B.498(2)(b) is simply phrased in terms of whether the circumstance exists — i.e., whether “there is a compelling reason * * *.”
Whether the agency has or has not provided services is a relevant “circumstance” under ORS 419B.498(2)(c), but it is not, téchnieally speaking, one of the “compelling reasons” for not moving toward termination listed in paragraph (2)(b) of the statute. In that sense, the “Compelling Reasons” title within the form is somewhat inaccurate; that section of the form more accurately pertains to the “circumstances in ORS 419B.498(2),” and “compelling reasons” are among those circumstances.