T. W. v. C. L. K.

                                      80

      Argued and submitted December 30, 2020, reversed and remanded
      March 17, petition for review denied August 26, 2021 (

)


                     In the Matter of M. J. B.,
                              a Child.
                               T. W.
                             and S. F.,
                      Guardians-Respondents,
                                and
                             M. J. B.,
                            Respondent,
                                 v.
                              C. L. K.
                           and S. L. B.,
                            Appellants.
                    Lane County Circuit Court
                   16JU05239; A174204 (Control)
                      In the Matter of M. S. B.,
                                a Child.
                                 T. W.
                               and S. F.,
                      Guardians-Respondents,
                                  and
                               M. S. B.,
                             Respondent,
                                   v.
                                C. L. K.
                             and S. L. B.,
                              Appellants.
                     Lane County Circuit Court
                        16JU05240; A174205
                                 

    In this consolidated juvenile dependency case, mother and father appeal
from a judgment denying father’s motion to dismiss jurisdiction and terminate the court’s wardships over their two children. The juvenile court’s jurisdiction depended upon father being “out of state” and “unable to be a resource
due to his criminal convictions and attendant consequences.” In two combined
assignments of error, both parents challenge the juvenile court’s order, raising
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related arguments that the juvenile court erred in denying father’s motion to dismiss because, even though father had ameliorated the jurisdictional bases, the
court erred in looking beyond those bases to make its determination. Children
respond that parents did not satisfy their burden to prove that children were no
longer exposed to a current threat of serious loss or injury due to conditions or
circumstances expressly stated or fairly implied by the jurisdictional judgment.
Held: Because the juvenile court based its decision to continue jurisdiction, at
least in part, on facts extrinsic to the jurisdictional bases, the court’s denial of
father’s motion to dismiss was reversed and remanded for the court to reconsider
father’s motion without reliance on those extrinsic facts of which father did not
receive adequate notice.
    Reversed and remanded.



    Jay A. McAlpin, Judge.
   Tiffany Keast, Deputy Public Defender, argued the cause
for appellant S. L. B. Also on the briefs was Shannon Storey,
Chief Defender, Juvenile Appellate Section, Office of Public
Defense Services.
   Erica Hayne Friedman argued the cause and filed the
brief for respondent children.
    George W. Kelly filed the brief for appellant C. L. K.
    No appearance for respondents T. W. and S. F.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
    JAMES, J.
    Reversed and remanded.
    Kamins, J., dissenting.
82                                                         T. W. v. C. L. K.

           JAMES, J.
         In this consolidated juvenile dependency case,
mother and father appeal from a judgment denying father’s
motion to dismiss jurisdiction and terminate the court’s
wardships over their two children. The juvenile court’s
jurisdiction depended upon father being “out of state” and
“unable to be a resource due to his criminal convictions and
attendant consequences.”1 Both parents challenge the juvenile court’s order, raising related arguments. Relying on
Dept. of Human Services v. J. C., 

, 

(2018), father asserts that, because uncontested evidence
established that father now lived in Oregon and that his last
criminal conviction was in 2014, the safety risk posed by the
factual bases that gave rise to dependency jurisdiction had
been ameliorated. Mother, also relying on J. C., contends
that the juvenile court erred in denying father’s motion to
dismiss because the court looked beyond the specific jurisdictional bases alleged in the dependency petition to make
its determination. Mother contends that, if there are presently any conditions or circumstances that endanger the
children, they were not previously alleged in the dependency
petition. Ultimately, both parents argue that the juvenile
court erred in ruling that the jurisdictional bases applicable to father continued to exist. For the reasons discussed
below, we agree and accordingly reverse.
         The parties do not request that we exercise our discretion to engage in de novo review, and we decline to do so.
ORS 19.415(3)(b); ORAP 5.40(8)(c) (we conduct de novo review
only in “exceptional” cases). We assume the correctness of
the juvenile court’s explicit findings of historical fact if there
is any evidence in the record to support them, and further,
whether those findings, including nonspeculative inferences
consistent with the findings, are legally sufficient to support
    1
      The juvenile court also asserted jurisdiction over the children regarding
their relationship with mother. Although mother supported father’s motion to
dismiss, mother did not file a motion of her own. On appeal, mother acknowledges
that amelioration of the jurisdictional bases applicable to her was not pleaded
below; therefore, the juvenile court correctly focused its inquiry on the amelioration of father’s circumstances. Subsequently, the scope of both mother’s and
father’s appeals are limited to the juvenile court’s denial of father’s motion to
dismiss the jurisdictional bases applicable to him, and we do not assess the amelioration of the jurisdictional bases related to mother.
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its ruling. Dept. of Human Services v. N. P., 

, 

, adh’d to on recons, 

 (2013).
If the juvenile court did not expressly resolve a factual question, and resolution of that factual dispute was necessary
to its ruling, we presume that the juvenile court implicitly
made a finding consistent with its ruling. 

 Accordingly,
the facts, consistent with the juvenile court findings and
rulings, are set forth below.
        Mother and father’s children, J and S, were born in
2011 and 2012, respectively. At the time of the June 2020
hearing on father’s motion to dismiss jurisdiction and terminate the wardships, the children were seven and eight
years old.
         In June 2016, the department filed dependency petitions regarding the children, who were living with mother
at the time, while father lived in Vermont.
At that time, father was living in Vermont because he was
on parole or probation for a driving while intoxicated (DUII)
conviction in the state two years earlier, in 2014, and his
supervising authority would not permit him to relocate to
Oregon. Although he sought to have the children brought to
Vermont, he was unsuccessful in doing so.
         The juvenile court ruled that the children were
within its jurisdiction regarding their relationship with
mother because her “substance abuse interfere[d] with her
ability to safely parent.” As to father, however, while the
petition to assert jurisdiction originally contained allegation (G), that father’s “substance abuse remains a threat of
harm and requires continued treatment,” that allegation
was dismissed.
        Rather than substance abuse, the allegations
against father were set forth in paragraphs (F) and (H):
      “(F) The father is out of state and unable to be a
   resource
      “…
      “(H) The father[’s] criminal behaviors and attendant
   consequences interfere with his ability to safely parent.”
84                                                   T. W. v. C. L. K.

However, and critically for purposes of our analysis here,
allegation (H) was dismissed by the department. Allegation
(F) was altered by the court to reflect the proof at the jurisdiction hearing to the following:
        “(F) The father is out of state and unable to be a
     resource is currently unable to be a resource due to his
     criminal convictions and attendant consequences.”
         The record reflects that the terms of father’s supervision included requirements that he complete alcohol treatment, which he did via one-on-one counseling, and submit
to urine and breath testing. Father understood that, after
completing counseling, the conditions of his supervision
allowed him to “socially drink” as long as it did not get him
“in any trouble.”
        In September 2018, the juvenile court entered orders
establishing guardianships for the children with maternal
grandfather, T. W., and grandmother, S. F. Between that
time and the time of the hearing at issue, father conducted
video chats with the children twice per week, and, with the
permission of his Vermont supervising authority, father
came to Oregon three times for visits with the children,
during which times he stayed in the guardians’ home.
         In January 2020, after completing the requirements of his Vermont supervision, father returned to Oregon
to seek custody of the children. The parents married upon
father’s return.
         In March 2020, father filed a motion to dismiss jurisdiction and terminate the wardships. The motion alleged:
     “In this case, the original basis of jurisdiction for the father
     was the father is out of state and unable to be a resource
     due to his criminal convictions and attendant consequences. The declaration of counsel shows that [father]
     has completed parole and probation requirements in the
     State of Vermont and has relocated to Oregon. This basis of
     jurisdiction has been ameliorated. Consequently, this case
     should be dismissed.”
         At the hearing on the motion to dismiss, father initially testified that he had not drank alcohol since 2014, but
later clarified that he meant that he had not “abused” alcohol
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since 2014, but had engaged in some social drinking since
that time. At the time of the June 2020 hearing, father was
in diversion for a misdemeanor citation for driving without a
license, which he received in September 2019 while driving
to work in Vermont. Father no longer drove and instead he
used Lyft, public transportation, or mother provided transportation with her vehicle.
         Although mother did not separately file a formal
motion to dismiss the jurisdictional bases and terminate the
wardships, at the hearing, she supported father’s motion.
Mother’s testimony revealed that she had graduated from
a drug treatment program, completed a parenting training
class, and has a steady job. Her employer testified that she
is always on time, is reliable, and has never exhibited signs
of drug use.
          T. W. testified that “most if not all” of father’s contact with the children “[went] well.” T. W., a law enforcement
officer, never reported any “bad things” happening in visits.
S. F., however, thought that father used slurred words and
“looked drunk” during calls with the children, but guardians never felt it necessary to stop a visit between father
and the children. T. W. testified that, in approximately July
2019, father called guardians’ home with “slurred speech,”
which father denied. According to T. W., in August 2019,
father told T. W. that he was “still drinking a half case a
day.”
         The juvenile court denied father’s motion, reasoning
that the jurisdictional obligation incorporates the “entire
picture” of threat of harm to the children, which included
father’s noncredible testimony about his drinking habits.
      “THE COURT: I think it is an open question about how
   much of the factual basis of the jurisdictional allegation the
   Court is allowed to get to and whether it does—is purely
   from a language of the jurisdictional basis, or whether it
   looks a little bit behind the curtain and looks at the facts.
      “I find that the Court should start with the language
   that the parent either admitted or was found, and that that
   can be supplemented by the record and I think reasonable
   inferences. And in fact I didn’t get everyone in this case did
   just that. [sic] They just want to draw the line at different
86                                                    T. W. v. C. L. K.

     places, right? So Mom and Dad want me to draw the line at
     the factual basis of the jurisdictional obligation was housing and letting them come to Oregon. [Children’s counsel]
     wants me to expand that.
        “I think [children’s counsel’s] reading is the more appropriate one to apply in this case. First, starting just with
     the factual basis itself, it’s the Father’s out of state and is
     currently unable to be a resource due to his criminal convictions, plural, and attending consequences.
         “Father was technically only limited from leaving
     Vermont because of a conviction, but that conviction was
     built up under a number of other previous convictions, and
     I think the plain language of the jurisdictional obligation
     incorporates that entire picture.
         “And the testimony was is [sic] that those convictions
     were for driving under the influence, that were repeated
     on each—on themselves, and so I think the plain language
     of the jurisdictional obligation, plus looking at the factual
     basis of the jurisdictional obligation does warrant considering whether the Father has ameliorated that jurisdictional
     basis and a more broad sense then just whether is his [sic]
     physically now in Oregon.
         “I think the same thing goes with the attending consequences. That is consequences included some period of
     incarceration, they included some period of supervision in
     which his freedom to move was excluded, for those attending consequences also resulted in geographic, and for lack
     of a better word, emotional distance from his children. And
     so I think it’s appropriate to consider that as well as an
     intended consequence.
        “…
         “And so looking at it at [sic] a bigger picture, I don’t find
     Father has ameliorated the jurisdictional basis. I agree
     with [children’s counsel] that I found his testimony as to
     the amelioration of that jurisdictional basis to be less than
     fully credible. The testimony that I remember—I remember
     quite well was that he hadn’t had anything to drink since
     2014, and then that has expanded and it kind of expanded
     more and more as we went on today, and there were explanations and excuses that I don’t find credible.
        “So I don’t find the Father’s met their [sic] burden of
     proof. I don’t think I need to make any determination about
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   Mother ameliorating her jurisdictional basis because that’s
   not a question that’s in front of me today. So the guardianship will continue and the wardship of the Court will
   continue.”

          This timely appeal followed. Asserting two combined assignments of error, father contends that undisputed
evidence presented at the hearing on father’s motion to dismiss established that father now lived in Oregon and that
his last criminal conviction was in 2014; thus, father argues,
the jurisdictional bases have been ameliorated, requiring
dismissal of the case. In mother’s single assignment of error,
she asserts that the juvenile court erred in denying father’s
motion to dismiss because the court looked beyond the specific jurisdictional bases alleged in the dependency petition
to make its determination, including the emotional distance
between father and the children caused by geographical
distance and father’s testimony about his present use of
alcohol, which changed during the trial. Mother contends
that, if there are presently conditions or circumstances that
endanger the children that were not previously alleged and
proved, the dependency petition must be amended to reflect
those additional bases, thus triggering the burden on the
Department of Human Services (DHS) to prove those additional bases as opposed to a burden on father to disprove
them as part of a motion to dismiss.
         Children respond that the parents’ reading of J. C.
is too narrow, and rather, the burden was on the parents to
prove that the children were no longer exposed to a current
threat of serious loss or injury due to conditions or circumstances expressly stated or fairly implied by the jurisdictional judgment. Although children acknowledge that the
juvenile court’s ability to rely on particular facts implied by
the jurisdictional bases is constrained by a parent’s right to
due process, children nevertheless contend that the jurisdictional bases encompassed father’s alcohol use because it
was implied by the jurisdictional judgment. Therefore, children contend, the court properly considered facts beyond
the express words of the jurisdictional bases in its denial of
father’s motion to dismiss. Guardians did not file an answering brief or appear for oral argument.
88                                            T. W. v. C. L. K.

         As we have repeatedly emphasized, children in
Oregon “ ‘are individuals who have legal rights.’ ” Dept.
of Human Services v. T. L., 

, 

 (2016) (quoting ORS 419B.090(2)(a)). Those rights
include “the right to permanency with a safe family; the
right to freedom from physical, sexual or emotional abuse
or exploitation; and the right to freedom from substantial
neglect of basic needs.” 

 (internal quotation marks omitted). Oregon’s dependency statutes serve to “protect and
enforce those rights while simultaneously safeguarding
parents’ Fourteenth Amendment liberty interest in parenting their children.” 

 (citing ORS 419B.090).
         A juvenile court has dependency jurisdiction over
a child whose “condition or circumstances are such as to
endanger” the child’s welfare. ORS 419B.100(1)(c). A child’s
welfare is “endangered” within the meaning of the statute
if the child is exposed to a “current threat of serious loss or
injury” and that threat is “reasonably likely to be realized.”
Dept. of Human Services v. G. J. R., 

, 

 (2013); see also Dept. of Human Services v. C. Z., 

, 

 (2010) (“The key inquiry in
determining whether conditions or circumstances warrant
jurisdiction is whether, under the totality of circumstances,
there is a reasonable likelihood of harm to the welfare of
the child.” (Internal quotation marks, brackets, and citation
omitted.)).
         In a petition alleging jurisdiction, the proponent
“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.” Dept. of Human Services v.
J. R. L., 

, 

 (2013) (citing
ORS 419B.809(4)(b) (emphasis in J. R. L.)). When a dependency case is initiated, the proponent of jurisdictional bases
under ORS 419B.100(1)(c) bears the burden not only to prove
the existence of conditions or circumstances that present a
threat of harm to the child, but also that the threat of harm
is current, nonspeculative, and that there is a “connection
between the allegedly risk-causing conduct and the harm to
the children.” Dept. of Human Services v. F. Y. D., 

, 

 (2020). Accordingly, we have repeatedly
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emphasized the importance of the language used to allege
the basis for jurisdiction. “[T]he alleged and proven jurisdictional basis becomes critical language—arguably the critical language—around which the entire juvenile case orbits.”
Dept. of Human Services v. L. A. K., 

, 

 (2020) (emphasis in L. A. K.).
         The court determines whether the facts alleged in
the petition, if proved, are sufficient to establish jurisdiction. ORS 419B.100. If the juvenile court concludes that the
proponent of dependency jurisdiction has met its burden,
the court shall make that child a ward of the court. ORS
419B.328(1). “It is the pleaded and proven jurisdictional
basis that delineates the authority of the court.” L. A. K.,

. Further, it is “the pleaded and proven
jurisdictional basis [that] sets the expectation of services
provided by DHS.” 

         As the Oregon Supreme Court has made clear, “[i]f
circumstances change and a ward would be endangered by a
return to a parent even though original factual bases for the
juvenile court’s jurisdiction no longer exist, the court may be
able to assert jurisdiction based on the new circumstances.”
J. C., 

.
   “Thus, if a court originally asserts jurisdiction over a child
   based on endangerment due to a parent’s controlled substance use, but circumstances change and give rise to additional reasons the child would be endangered if returned
   to the parent, the juvenile court could assert jurisdiction
   over the child based on those additional reasons and the
   parent’s elimination of the problems resulting from the
   parent’s controlled substance use would not be enough to
   terminate the court’s wardship and jurisdiction over the
   child.”

 Importantly, however, the Oregon Supreme Court noted
the possibility of asserting a new jurisdictional basis within
the procedural confines of ORS 419B.809(6), which provides that “[t]he court on motion of an interested party or
on its own motion, may at any time direct that the petition
be amended.” Thus, while the pleaded and proven jurisdictional bases govern the juvenile case, those bases may evolve
over time, but only by following the procedural channels of
ORS 419B.809(6), which requires a motion to amend—an
90                                            T. W. v. C. L. K.

important part of the due process to which parents are
entitled.
         The court retains jurisdiction only so long as the
pleaded and proven jurisdictional bases continue to “pose
a current threat of serious loss or injury, and there [is] a
reasonable likelihood that the threat will be realized.” Dept.
of Human Services v. J. V.-G., 

, 

 (2016). “It is axiomatic that a juvenile court may not
continue a wardship ‘if the jurisdictional facts on which it
is based have ceased to exist.’ ” State v. A. L. M., 

, 

 (2009) (quoting State ex rel Juv. Dept. v.
Gates, 

, 

, rev den, 

(1989)). When the basis for jurisdiction has ceased to exist,
then the juvenile court must terminate the wardship and
dismiss the case, thereby returning the child to the care and
legal custody of the child’s parents or legal guardians. Dept.
of Human Services v. A. R. S., 

, 

 (2013), rev dismissed, 

 (2014).
          When a parent moves to dismiss jurisdiction after
the court has changed the child’s permanency plan from
reunification to some other plan, the parent bears the burden of proving that the jurisdictional bases no longer exist.
T. L., 

 (“[O]nce a permanency plan has
been changed away from reunification, a parent seeking
dismissal of dependency jurisdiction must prove that the
bases for jurisdiction no longer pose a current threat of loss
or harm to the child that is reasonably likely to be realized ….”). As we have explained, a parent’s motion to dismiss dependency jurisdiction “involves a two part inquiry.”
T. L., 

. First, the court “must determine
whether the original bases for jurisdiction continue to pose
a current threat of serious loss or injury.” 

. Only
if the answer to that first question is “yes” does the court
proceed to the second part of the inquiry—assessing “the
likelihood that that risk will be realized.” 

         With that framework in mind, we turn to the facts
in this case. Here, in father’s motion to dismiss, father contended that he had ameliorated the jurisdictional bases that
he was “out of state” and “unable to be a resource due to his
criminal convictions and attendant consequences.” Since he
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had moved back to Oregon, father argued, those jurisdictional bases no longer pose a risk to his children. The juvenile court denied father’s motion to dismiss those jurisdictional bases, relying on father’s alcohol consumption, in light
of his previous DUII convictions, and the fact that father’s
testimony on the subject had changed during the course of
the hearing. On appeal, father argues that the juvenile court
erred in its reliance on evidence extrinsic to the jurisdictional bases to make that determination. Children respond
that those extrinsic facts were fairly implied by the jurisdictional judgment, thus providing father adequate notice of
continued jurisdictional bases founded upon those implied
allegations. We agree with father that the court erred in
relying on evidence extrinsic to the jurisdictional bases.
         In J. R. L., we specified that 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 Dept. of Human Services v. G. E., 

, 

, adh’d to as modified on recons, 

, 

 (2011), 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.” J. R. L.,

 (emphasis added).
         As we explained in J. R. L., the relevant inquiry to
determine whether allegations extrinsic to those expressly
alleged in the jurisdictional petition can nevertheless be
fairly implied is whether parents received adequate notice.

 (holding that the juvenile court improperly relied on facts
that were extrinsic to jurisdictional judgment and for which
mother lacked adequate notice). Accordingly, we examine the
bases for a juvenile court’s decision and the jurisdictional
judgment and determine whether the judgment would put a
reasonable parent on notice that those bases would be used
to continue jurisdiction over a child and to change the permanency plan for a child. 

92                                            T. W. v. C. L. K.

         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, that 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 that she needed to participate in
recommended substance abuse treatment.” 

; see also, J. R. L., 

. Noting that “[i]t
is axiomatic” that “a juvenile court may not continue a
wardship based on facts that have never been alleged in
a jurisdictional petition,” we concluded that determination
that the mother lacked adequate notice that her failure to
address newly specified safety concerns (related to her inattention when with the child) would allow the court to continue jurisdiction and wardship. G. E., 

(citing ORS 419B.809(4)(b)).
         Here, in asserting jurisdiction, the juvenile court
explicitly struck the reference to father’s “criminal behaviors” and rewrote the stated basis to focus solely on father’s
presence out of state as a consequence of his “criminal convictions” and “attendant consequences.” The effect of that
change was to squarely place the basis for jurisdiction not
on father’s behavior, but upon his presence in Vermont as a
result of his convictions. The language used by a court to
assert jurisdiction over a family has meaning. It delineates
the authority of the court, it sets the expectation of services
by DHS, and it places the parents and the public on notice
of what needs to be ameliorated to terminate the wardship.
The department’s contention that, regardless of what was
actually pleaded and proven, separate and alternative bases
can be unspoken yet “fairly implied” in the jurisdictional
judgment is contrary to ORS 419B.857.
         In denying father’s motion to dismiss those jurisdictional bases, the juvenile court relied on father’s alcohol
consumption, in light of his previous DUII convictions, and
the fact that father’s testimony on the subject had changed
during the course of the hearing. From this limited record,
we cannot conclude that father was provided adequate notice
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that facts pertaining to his current alcohol consumption
were a part of the jurisdictional basis—especially a basis
that explicitly rejected an allegation based on “behavior.”
         If a juvenile court erroneously relied on facts extrinsic to the jurisdictional bases to continue jurisdiction, the
remedy is for the judgment to be reversed and remanded so
the juvenile court can reconsider the motion to dismiss without reliance on those extrinsic facts. J. R. L., 

 (so ordering).
          Because the court based its decision to continue
jurisdiction, in large part, on father’s alcohol use, a fact
extrinsic to the jurisdictional bases, and because it is
unclear whether the court would have reached the same
conclusion—that father continued to be “unable to be a
resource due to his criminal convictions and attendant
consequences”—without considering jurisdictional bases for
which father had not received adequate notice—we cannot
conclude that the court’s error was harmless. See Dept. of
Human Services v. N. T., 

, 

(2012) (concluding that, “because the court did not indicate
that mother’s and father’s lack of progress in addressing
their substance abuse, mental health, and housing issues
… was independently sufficient to warrant changing the
plans for the children to adoption,” the error was not harmless); see also, J. R. L., 

. For that reason,
we reverse the court’s denial of father’s motion to dismiss
and remand reconsideration in light of our opinion.
         Reversed and remanded.
         KAMINS, J., dissenting.
         I respectfully dissent from the majority opinion
because I disagree that father’s alcoholism was a fact extrinsic to the jurisdictional basis of the juvenile court. Although
father’s alcoholism was not explicitly named in the language
of the jurisdictional judgment, it was “fairly implied,” providing sufficient notice to father that it was part of the basis for
jurisdiction. See Dept. of Human Services v. A. R. S., 

, 

, rev den, 

 (2013) (trial
court can continue jurisdiction on basis “fairly implied” by
jurisdictional judgment). Moreover, the record reflects that
94                                            T. W. v. C. L. K.

father had actual notice of the importance of addressing his
alcoholism in ameliorating the basis for jurisdiction.
          As a preliminary matter, I agree with the majority
about the importance of precision in articulating the basis
for the juvenile court’s jurisdiction. As we have previously
observed, “the wording of the jurisdictional basis set forth in
the judgment matters.” Dept. of Human Services v. L. A. K.,

, 

 (2020) (emphasis in original). “The alleged and proven jurisdictional basis becomes
critical language—arguably the critical language—around
which the entire juvenile case orbits.” 

 (emphasis
in original). The jurisdictional basis is what delineates the
authority of the juvenile court and provides the lens through
which we evaluate the reasonableness of DHS’s efforts.

; Dept. of Human Services v. D. M. R., 

, 

 (2019). It also provides a parent
notice “as to what, exactly, he or she is supposed to be doing
in order to terminate the authority of the state to act as the
child’s surrogate parent.” Dept. of Human Services v. G. E.,

, 

, adh’d to as modified on
recons, 

, 

 (2011).
         Accordingly, it is essential that DHS takes care, not
only in crafting the language used in the basis for jurisdiction, but also in ensuring that the language continues to
reflect the current risk to the children’s welfare over the life
of a case. Because “dependency cases involve complicated
human lives and relationships, and … the juvenile court
may be involved over a period of several years,” the basis for
the juvenile court’s jurisdiction often evolves from what was
specified in the original judgment. L. A. K., 

. In such cases, DHS must remain vigilant and seek to
amend the jurisdictional basis when appropriate. Failing to
do so can result in the juvenile court losing legal authority to
continue overseeing the case or the parents being deprived
of the resources necessary to reunite with their children.
         And nowhere is the need for active management of
the jurisdictional basis more evident than in cases where
a child’s permanency plan later changes from reunification to another placement. “[O]nce a permanency plan has
been changed away from return to parent to adoption,
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guardianship, or other permanent placement, the legislature has made clear that DHS’s primary job is to work to
implement that alternative plan.” Dept. of Human Services v.
T. L., 

, 

 (2016). Critically,
DHS no longer works to reunify the family or monitor the
parents’ progress. 

. Accordingly, if the basis for
jurisdiction requires amendment once the permanency
plan changes, that responsibility is likely to fall on another
interested party, such as a guardian. And guardians are
ill-equipped to shoulder that burden. Guardians are frequently family members who lack the knowledge, resources,
or incentive to make the necessary amendments to manage the case in DHS’s stead. As a result, it is all the more
important for DHS to ensure that the jurisdictional basis
specified in the judgment accurately reflects the risk to a
child’s welfare before the child’s permanency plan changes.
         All of that said, here, the language of the jurisdictional basis still provided father sufficient notice of the need
to address his alcoholism. As the majority explains, a juvenile court’s decision to continue jurisdiction based on facts
that depart from the petition is permissible so long as it does
not “substantially affect a parent’s rights.” G. E., 

. To avoid substantially affecting a parent’s rights,
the jurisdictional judgment must provide the parent notice
“as to what he or she must do in order to prevent the state
from assuming or continuing jurisdiction over the child.” 

Thus, a juvenile court’s basis for jurisdiction includes more
than just the specific facts and circumstances listed in the
judgment of jurisdiction; it also includes the “conditions or
characteristics that those facts demonstrate or exemplify” if
a reasonable parent would have had notice that the jurisdictional basis encompassed them. 

.
         The majority concludes that a reasonable parent
would not have understood father’s alcoholism to be part of
the basis for jurisdiction because the juvenile court “explicitly struck the reference to father’s ‘criminal behaviors’ and
rewrote the stated basis to focus solely on father’s presence
out of state as a consequence of his ‘criminal convictions’ and
‘attendant consequences.’ ” 310 Or App at 92. In the majority’s view, those amendments “squarely place the basis for
96                                            T. W. v. C. L. K.

jurisdiction not on father’s behavior, but upon his presence
in Vermont as a result of his conviction.” Id. (emphasis in
original). I disagree.
         The majority is correct that the only specific circumstance described in the basis for jurisdiction is father’s
inability to leave Vermont, but the basis for jurisdiction also
extends to the condition that that circumstance exemplifies—
namely, father’s alcoholism. Father’s alcoholism was the
reason for his multiple DUII convictions and probation,
the reason he underwent substance abuse treatment, the
reason he was “unable to be a resource” in parenting his
children, and, most importantly, the reason he was not
permitted to leave Vermont. The replacement of “criminal
behavior” with “conviction” and “attendant consequences”
does nothing to alter the fundamental role that father’s
alcoholism played in that conviction, let alone render father
unaware that his substance abuse played a major obstacle to reunification. Indeed, it seems an understandable
edit—the juvenile court was less concerned with the criminal behavior itself (driving under the influence of alcohol)
and more concerned with the condition exemplified by the
conviction—dependence on alcohol.
         Importantly here, the judgment taking jurisdiction
over the children would have confirmed to a reasonable parent that addressing dependence on alcohol was critical to
ameliorating the basis for jurisdiction. See Dept. of Human
Services v. M. M. B., 

, 

(2012), rev den, 

 (2013) (concluding 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). In the judgment of jurisdiction and disposition on August 22, 2016, the juvenile court
ordered father to “comply with all terms and conditions of
alcoholic probation … (4) participate in and successfully
complete drug and alcohol treatment with a DHS/CWP
approved provider, if requested by his supervising probation/
parole officer, follow any and all recommendations for treatment, including relapse prevention and/or aftercare; …
and demonstrate a drug-free lifestyle.” In later judgments,
Cite as 

 (2021)                                97

the court ordered father to “[p]articipate in and successfully
complete Substance Abuse treatment with a DHS approved
provider.” Every judgment also provided that father was to
“[s]ubmit to drug and alcohol testing, if requested by his
supervising probation/parole officer.”
         The permanency judgment on January 17, 2018, also
contained a section titled “Case Compliance and Progress”
with notes about any progress that father was making
toward reunification. In those notes, one condition listed
as a barrier to reunification was the fact that the children
could not be placed with father in Vermont because father
was denied a home study required under the Interstate
Compact for the Placement of Children (ICPC). According
to DHS records, one of the primary reasons that father was
denied an ICPC study was his “extensive … substance
abuse histor[y].” Knowing that the ICPC study was critical
to reunification and that it had been denied because of his
substance abuse problems should have put father on notice
of the importance of addressing his alcoholism in ameliorating the basis for jurisdiction.
         In addition to putting a reasonable parent on notice,
the record also reflects that father had actual notice of the
role that his alcoholism played in the basis for jurisdiction.
During the hearing on father’s motion to dismiss jurisdiction, the children’s aunt testified that father had told her
during a recent family camping trip that “he wanted to stop
[drinking] to be able to get the girls back.” Similarly, T. W.,
one of the children’s guardians, testified that, after confronting father about how he had been drunk on a phone call
with one of the children, father admitted that he was “still
drinking a half case a day” and that he needed “to get [his]
shit together.” Father’s comments evince an understanding
of the problematic role that alcohol played in his relationship with his children and of the need to address it in order
to regain custody.
         In sum, although father’s alcoholism was not
expressly listed as one of the circumstances necessitating
the juvenile court’s jurisdiction, it was fairly implied by the
jurisdictional judgment. A reasonable parent in father’s
position would have understood his alcoholism to be part
98                                          T. W. v. C. L. K.

of the basis for jurisdiction and the record indicates that
father himself had actual notice of the need to address his
drinking. So understood, the record is sufficient to support
the trial court’s determination that the jurisdictional basis
that gave rise to dependency jurisdiction as to father had
not been ameliorated. I respectfully dissent.