Mоther appeals a permanency judgment, assigning error to the juvenile court’s denial of her motion to dismiss jurisdiction and wardship over her daughter, A, and the change of the permanency plan from reunification to adoption. A was a ward of the court based on mother’s admissions relating to exposure of A to risks of sexual abuse by A’s father, a lack of suitable housing, and a failure to meet A’s educational needs. Mother contends that the wardship should have been dismissed because she had adequately addressed those bases for jurisdiction and because the juvenile court improperly relied on a different basis for continuing jurisdiction — mother’s mental health — as to which mother had not received required notice. In part, mother challenges the change of plan on the same basis, arguing that the Department of Human Services (DHS) failed to establish the insufficiency of mother’s progress toward ameliorating the bases for jurisdiction that had been pleaded and proved. We conclude that the juvenile court erred in relying on facts extrinsic to the jurisdictional judgment in denying mother’s motion to dismiss and in its determination of the permanency plan for A. Accordingly, we do not reach mother’s other аrguments, and we reverse and remand.
The parties do not request that we exercise our discretion to review this case de novo, ORS 19.415(3)(b), and we decline to do so. See ORAP 5.40(8)(c) (we exercise de novo review “only in exceptional cases”). Accordingly, we are bound by the juvenile court’s findings of historical fact as long as there is “any evidence” to support them. State v. S.T.S.,
In 2010, DHS removed A, who was almost seven years old, from mother’s custody and filed a petition for the juvenile court to assume jurisdiction over A. Father was a convicted “predatory sex offender” and, as a condition of his parole, was ordered not to have contact with any minors, including A. Although mother was aware of father’s condition of parole, she allowed him to have contact with A. At that time, mother and father were married and had been homeless for nearly two-and-one-half months, living in their van. While the family was homeless, A had not attended school.
At the juvenile dеpendency proceeding in March 2011, mother did not contest the allegations in the petition as amended. Mother stipulated to the following facts:
“2(a) The mother has allowed the father, a registered sex offender, to live with her and her daughter which places the child at risk of harm.
“2(b) The mother is in need of education and counseling to appreciate the risk of harm father presents to the child and learn how to protect the daughter from the father.
“2(c) The mother lacks safe and stable housing in which to raise the child.
“2(d) The mother failed to meet the educational needs of the child.”
In Mаrch 2011, the juvenile court entered a combined jurisdictional and dispositional judgment based on those admissions, making A a ward of the court. The court’s judgment stated that the case plan was reunification with mother and the concurrent plan was
The form that was attached to thе jurisdictional judgment was entitled “Services Requested”; it contained a column of various preprinted items and two columns headed “MOTHER” and “FATHER.” Some of the items under the column for mother had been checked off, including the following services or activities: “[psychological *** [e]valuation,” with a handwritten notation stating, “Follow all recommendations”; ensure that A have no contact with father; participate in individual counseling, again with the addition, “Follow all recommendations”; seek and maintain steady employment or reliable income adequate for self-support; “[s]afe and [s]table [bjousing”; and continue with counseling at Options Counseling Services (Options).
After A was placed in DHS’s custody, mother cut off contact with father. Additionally, pursuant to DHS’s request, mother participated in the Family Sex Abuse Treatment (FSAT) program, a program provided at Options that is geared towards educating mother, a nonoffending parent, to appreciate the risk of harm that a sex offender like father presented to A. Although mother’s attendance was inconsistent at times, she successfully completed the program.
Mother also completed parenting counseling through Options and a separate рarenting class with another agency. Mother participated in individual counseling, albeit inconsistently, through Clackamas County Behavioral Health (CCBH). Mother was unsuccessful in obtaining employment and, although she eventually secured housing with friends, she did not have her own apartment or another housing situation, such as a place in a family shelter, that could safely accommodate both her and A.
In June 2011, mother participated in a psychological evaluation. Dr. Gillis, a licensed psychologist, evaluated mother and prepared a written report. Gillis determined that mother met the criteria for “Mаjor Depressive Disorder, Recurrent, Moderate” and recommended that mother participate in individual therapy aimed at decreasing symptoms of depressed moods and continue with medication management of her mood symptoms. Gillis concluded that mother’s “symptoms of depression are currently interfering with her ability to meet daily responsibilities. And, the [test] results * * * suggest that a high level of distress is increasing the risk of neglectful or abusive parenting.” In response to DHS’s specific referral questions, Gillis determined that mother’s “prognosis for benefitting from mental health services is good; however, it is difficult to detеrmine with a sufficient degree of certainty whether she will actually address the concerns that resulted in DHS involvement (i.e., keeping [A] safe from unsafe adults).”
Several months later, in August 2011, DHS submitted a report to the court summarizing mother’s situation since the last court hearing. DHS stated that mother was diagnosed with depression and suggested that her “lack of follow through in multiple areas since the opening of this case * * * is likely a result of her untreated depression.” In subsequent reports to the court, DHS noted that mother continued to suffer from depression and anxiety and that those mental health issues were related to her lack of follow through in finding employment and housing.
In August 2012, a year after DHS first notified the juvenile court that mother had been diagnosed with depression and 20 months after the court assumed jurisdiction over A, DHS advised the court and mother that it sought to change the permanency plan from reunification to adoption. The court held a permanency hearing that same month.
At no time before the hearing did DHS recommend to the juvenile court that mother be ordered to begin mental health counseling for depression to achieve any expected outcome with respect to the bases for jurisdiction. DHS did not file аn additional or an amended petition for jurisdiction over A to encompass mother’s mental health issues. Nor did DHS seek to provide mother and the
Evidence presented at the permanency hearing, in part, concerned mother’s mental health and whether she had focused on imprоving her mental health. Gillis’s report was part of a marked exhibit, which the juvenile court considered. Lawrence, the assigned DHS caseworker, testified that she was assigned to the case in March 2011 and her understanding at that time was that mother needed to address her lack of housing, lack of employment, lack of understanding related to allowing safe people around A, and “ [d] epression and anxiety as well.” Lawrence stated that DHS had provided mother with information for self-referral to CCBH for individual counseling, referred mother for a psychological evaluation, and provided ongoing monthly bus pаsses to help mother get to the visitation center and counseling. When asked what mother would need to do so that A could be returned to her care, Lawrence replied, “We would like to see her actively engaged in mental health counseling. * * * We also would like for her to have safe and stable housing that would be appropriate for [A] to be returned to, and ideally a job so she can continue to sustain safe and stable housing.” Mother testified at the hearing, and DHS’s cross-examination focused on mother’s mental health. Mother testified that she was taking several antidepressants but had stoрped going to mental health treatment and CCBH because she wanted to focus on seeking employment.
With regard to the jurisdictional issue of stable housing, Lawrence testified that DHS provided mother with shelter referral lists and phone numbers of various housing opportunities. DHS also contacted Bridges to Housing, a family shelter, but learned that it was not a housing option for mother because the waitlist was not then open. Mother had, at times, been homeless or had temporary places to stay after A was placed in DHS custody, but mother had been living in a house with friends since a prior hearing in May 2012 and had not rеquested any housing assistance after that. Mother admitted that her current housing was not safe for A but said that she would be willing to live in a family shelter with A. Lawrence explained that DHS would not return A to mother or offer mother a chance to go to a family shelter, which mother would presumably be eligible to receive if A was in her care, because mother has not adequately addressed her “depression and anxiety * * * that underlies the lack of housing and lack of employment.” Lawrence also agreed that, if A were with mother, they would be entitled to receive “TANF” (Temporary Assistance for Needy Families) bеnefits and food stamps, a stable source of income.
At the end of the permanency hearing, mother moved to have jurisdiction and wardship over A dismissed because the conditions or circumstances alleged in the jurisdictional judgment no longer existed. Regarding the condition that mother lacked safe and stable housing, mother argued that, if DHS was willing to reunite A with mother, mother and A would be able to live together at a family shelter. Mother further argued that she had addressed the other conditions and circumstances in the jurisdictional judgment adequately. Mother asserted that she had not allowed father to live with or visit A and had completed the educational and counseling services provided by DHS to appreciate the risk of harm father presented to A. Mother explained that, regarding A’s educational needs, she could meet those needs once she received housing through a family shelter.
The juvenile court denied mother’s motion to dismiss wardship of A and changed the permanency plan to adoption. In support of its decision, the juvenile court stated:
“Well, if I go through each and every review, perm[anency] hearing, every single step of the way, it’s been the mental health piece. And why that was not an allegation is not totally clear to me because I kind of inherited the case. But it is clear to me thatMother understood and Mother has essentially agreed along the way that she needed mental health treatment in order to achieve safe and stable housing and to appreciate the risk of harm that she put [A] in.
“*** I took judicial notice of the *** psychological evaluation from Dr. Kathleen Gillis. * * * And it’s very apparent from Dr. Gillis’[s] report, which may be, albeit, needs to be updated since Ability and some other things have been on board there. But Mother had some major issues concerning stress. * * *
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“So here we are, 14 months from Dr. Gillis’[s] report, and my understanding is that [Mother] has made very sporadic attempts at mental health treatment, that she has not followed through with the CCBH despite the fact that she still confesses to having anxiety and other things that impair her ability to manage her daily life functions. And by that I mean, there are some people that have major mental illnesses and they’re just out of touch with reality. It appears [Mother] is in touch with reality, knows what her limitations are, and knows that she gets overwhelmed and then she freezes up, as she puts it, and that keeps her from doing what normal people do in order to be adequate parents. So progress has been made, but it’s been made in such a small degree that it’s still clear to this court that [A] cannоt safely be returned. And it’s not just a matter of putting [A] there and saying okay, now you’ve got [A], get some TANF, get some food stamps, whatever. It’s the chicken and egg sort of thing. Do you risk [A] getting back into a home that is not, at this point, appropriate for her? So I don’t know how that happens.
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“And furthermore, we’re at the 20 month mark, and so there is a rebuttable presumption, * * * it is rebuttable, that’s it’s been too long. And the conversation in January was at the 12 month or some mark from removal, and it really has been too long and that’s why we have that rebuttable presumption. I don’t believe that presumption has been rebutted given the faсt that we’re still not at a point — you didn’t get the job.”
(Emphasis added.) The juvenile court emphasized that mother had not made progress in addressing her mental health issues:
“So again, I keep coming back to the notion that this must be something else. And if it isn’t the mental health piece, I don’t know what it is. But that’s the only opinion that I have from Dr. Gillis is that you needed intensive constant treatment for six to nine months, if not longer, and that she did not believe that you could safely parent [A] without that.”
The court then stated its conclusion that the plan should change from reunification to adoption.
In the permanency judgment, the juvenile court noted that “Mother is involved in the case and has not made sufficient progress toward meeting the expectations set forth in the service agreement, letter of expectation and/or case plan, and the child cannot be safely returned to mother’s care.” (Emphasis omitted.) In additional findings, the juvenile court stated, “Mother’s depression and anxiety are significant and require intensive [treatment] for several months or up to 1-2 [years]. Mother has not consistently engaged in mental health [treatment].”
On appeal, mother contends that the juvenile court erred in denying her motion to dismiss jurisdiction and wardship. Mother contends that she had ameliorated all the conditions and circumstances that served as the bases for jurisdiction over A and that the juvenile court failed to limit its assessment of mother’s progress to the factual bases for the court’s jurisdiction identified in the jurisdictional judgment. Mother argues that the juvenile court’s reliance on her mental health issues was erroneous because she was not given adequate notice that she needed to address those concerns. Citing Dept. of Human Services v. G. E.,
We begin our analysis with a brief discussion of the statutory provisions governing jurisdiction and wardship to provide context, and then focus on G. E., one of the cases on which mother relies and the case that frames our analysis of whether the juvenile court correctly relied on mother’s lack of progress in mental health treatment or counseling in denying her motion to dismiss wardship and in changing the permanency plan for A. The juvenile court has jurisdiction over a child who is under 18 years old and “[w]hose condition or circumstances are such as to endanger the welfare of the person or of others[.]” ORS 419B.100(l)(c). In a petition alleging jurisdiction, DHS “must set forth in ordinary and concise language * * * the facts that bring the child within the jurisdiction of the court, including sufficient information to put the parties on notice of the issues in the proceeding” ORS 419B.809(4)(b) (emphasis added). The court determinеs whether the facts alleged in the petition, if proved, are sufficient to establish jurisdiction. ORS 419B.100. The court, on its own motion or a motion by an interested party, may amend the petition; however, “[i]f the amendment results in a substantial departure from the facts originally alleged, the court shall grant such continuance as the interests of justice may require.” ORS 419B.809(6).
In G. E., we addressed whether a parent was given adequate notice of the factual bases on which the court continued jurisdiction and wardship. In that case, the mother argued that she had ameliorated all the circumstances in the jurisdictional judgment, namely, thаt the mother “needed to find safe housing where dangerous people did not live or visit and that was not below community standards of sanitation, and she needed to participate in recommended substance abuse treatment.”
Juvenile courts are authorized to disregard errors or defects in petitions or other documents or proceedings only when the error or defect “does not affect the substantial rights of the adverse party.” ORS 419B.857(2). Under the test articulated in G. E., to avoid affecting the substantial rights of a parent, a juvenile court cannot base its jurisdictional decision on facts that depart from the petition or jurisdictional judgment when neither the petition nor the jurisdictional judgment would put a reasonable parent on notice of what the parent must do to prevent the state from asserting or continuing jurisdiction over the child. Id. at 481. In N. M. S.,
The jurisdictional judgment stated four conditions and circumstances sufficient for jurisdiction as to mother: (1) mother allowed father, a registered sex offender to live with her and A, which places A at risk of harm; (2) mother is in need of education and counseling to appreciate the risk of harm father presents to A and to learn how to protect A from father; (3) mother lacks safe and stable housing; and (4) mother failed to meet the educational needs of A. None of them identifies mother’s depression, anxiety, or mental health generally as a condition that endangered A. As to that condition, our determination therefore reduces to whether the jurisdictional judgment fairly implies that mother’s mental health was a condition or circumstance that would justify continued jurisdiction.
Mother argues that the adjudicated grounds for jurisdiction in the judgment did not put her and would not have put a reasonable parent on notice that hеr depression and anxiety would warrant the court’s continuation of jurisdiction and wardship over A. In response, DHS contends that mother was aware that her mental health issues related to her inability to obtain safe and stable housing and that mother’s depression and anxiety are the reasons that she had not been able to find safe and stable housing and employment during the 20 months after the court assumed jurisdiction over A.
We agree with mother that she was not given adequate notice that her progress toward obtaining safe and stable housing could be measured by her progress in addressing her mental health issues. Initially, we reject DHS’s argument that mother, regardless of the jurisdictional judgment, had actual notice and that is sufficient. N. M. S.,
Relying on Dept. of Human Services v. M. M. B.,
In M.M.B., we held that, when the juvenile court ordered DHS and the parent to enter into and to abide by a written action agreement and the court attached that document to the jurisdictional judgment, the parent was on notice that her progress could be measured based on the action agreement.
This case is distinguishable fromM. M. B. First, DHS relies on periodic reports to the court, not on any documents attached to the jurisdictional judgment, to support its argument that mother was given adequate notice that she needed tо address her depression and anxiety issues. Second, even if DHS had relied on the Services Requested form that was in fact attached to the jurisdictional judgment, we would conclude that it did not adequately direct mother to ameliorate her symptoms of depression and anxiety. The form alerted mother to participate in a psychological evaluation, which she completed, and to attend individual counseling, which she did. With regard to both of those services, the form included a handwritten notation stating, “Follow all recommendations,” but unlike the action agreement in M. M. B., which stated the specifiс problems that the parent needed to address, such as her violent or impulsive behavior and her negative perceptions of her child, the services for those problems, and how the mother’s progress in addressing her problems would be evaluated, in this case, the Services Requested form is not specific. It is unclear from the Services Requested form why mother needed to attend individual counseling. Based on the jurisdictional judgment and Gillis’s understanding of why mother was required to undergo a psychological evaluation (her problem “keeping [A] safe from unsafe adults”), it may well be that mother was directed tо attend counseling specifically to appreciate the risk of harm father presented to A and not to address depression and anxiety. There is no dispute that she has addressed that significant problem as identified in the jurisdictional judgment. DHS neither recommended to the court that mother be ordered to begin mental health treatment for depression and anxiety, nor revised its Services Requested form to include individual counseling for mother’s depression and anxiety issues and obtained its incorporation in a judgment. Mother was not given adequate notice from the jurisdictional judgment, or from the Services Requested document incorporated in the judgment, that her failurе to address her mental health issues could be a basis for the court to continue jurisdiction over A.
At the time of the combined hearing, mother had addressed concerns that she would not protect A from father, a sex offender. In addition, A was in school, and mother pointed out that, if A were returned to her, A would attend an appropriate school. Therefore, the parties focus on the lack of “safe and stable housing” as an alternative potential basis for continuing jurisdiction and for the change in the permanency plan. In DHS’s view, that was a separate and proper ground for the juvenile court to continue jurisdiction over A. Mother argues that she should not be penalized for her lack of housing, because DHS improperly opposed As return to mother based on mental health grounds, and mother would be able to obtain safe family shelter housing, but only if A is permitted to return to her. The juvenile court recognized that the availability of housing in a family shelter
Because the court based its decision to continue jurisdiction, in large part, on mother’s mental health, a fact extrinsic to the jurisdictional judgment, and bеcause it is unclear whether the court would have reached the same conclusion — that mother failed to find safe and stable housing— without considering mother’s mental health issues, we cannot conclude that the court’s error was harmless. See N. T.,
In addition, the court’s decision to change the permanency plan from reunification to adoption was similarly based, in large part, on mother’s mental health issues. In the permanency judgment, the court determined that mother had not made sufficient progress in meeting the expectations in the “services agreement” letter and that her “depression and anxiety are significant.” Again, on this record, we are unable to determine whether the court would have reached the same conclusion as to mother’s рrogress based solely on the permissible jurisdictional bases and without considering mother’s mental health issues. See N. M. S.,
Reversed and remanded.
Notes
That contention is similar to the juvenile court’s conclusion that mother needed “mental health treatment in order to achieve safe and stable housing” and that mother had actual notice of that fact.