Full Opinion (html_with_citations)

                                  258

Argued and submitted September 21, appeals dismissed as moot December 14,
       2022, petitions for review allowed March 30, 2023 (
370 Or 827
)
                        See later issue Oregon Reports


                 In the Matter of P. J. N.,
                          a Child.
          DEPARTMENT OF HUMAN SERVICES,
                  Petitioner-Respondent,
                            and
                          P. J. N.,
                        Respondent,
                              v.
                          T. J. N.
                and D. L. P., aka D. L. P.,
                        Appellants.
               Lane County Circuit Court
              21JU03559; A178300 (Control)
                In the Matter of L. E. N.,
                  aka L. E. N., a Child.
          DEPARTMENT OF HUMAN SERVICES,
                 Petitioner-Respondent,
                           and
                        L. E. N.,
                      aka L. E. N.,
                       Respondent,
                            v.
                         T. J. N.
                and D. L. P., aka D. L. P.,
                       Appellants.
               Lane County Circuit Court
                  21JU03560; A178305
                In the Matter of P. R. N.,
                         a Child.
          DEPARTMENT OF HUMAN SERVICES,
                 Petitioner-Respondent,
                           and
Cite as
323 Or App 258
 (2022)                                             259

                              P. R. N.,
                            Respondent,
                                  v.
                              T. J. N.
                      and D. L. P., aka D. L. P.,
                             Appellants.
                     Lane County Circuit Court
                        21JU03561; A178307
522 P3d 914

    Mother and father appeal from post-jurisdiction juvenile dependency review
judgments that change the placement preference for their children from in-home
with mother to substitute care. Department of Human Services (DHS) disagrees
with parents on the merits of their appeals but urges the Court of Appeals to
dismiss the appeals as moot and, therefore, not reach the merits. Parents oppose
the motions, arguing that if the court erred when it changed the placement pref-
erence, that error could impact the timing of when DHS might be required to file
termination of parental rights (TPR) petitions against parents. Held: The appeal
is moot, and the Court of Appeals dismisses it. Whether dismissal will have a
practical effect on the parties requires speculation.
   Appeals dismissed as moot.



   Bradley A. Cascagnette, Judge.
   On respondent Department of Human Services’s motion
to dismiss filed July 27, 2022, appellant T. J. N.’s response to
motion to dismiss filed August 10, 2022, appellant D. L. P.’s
response to motion to dismiss filed August 10, 2022, and
respondent Department of Human Services’s reply to
response to motion to dismiss filed August 15, 2022.
   Kristen G. Wilson argued the cause and filed the briefs
for appellant T. J. N.
   Elena Cristina Stross, Deputy Public Defender, argued
the cause for appellant D. L. P. Also on the briefs was
Shannon Storey, Chief Defender, Juvenile Appellate Section,
Office of Public Defense Services.
   Inge D. Wells, Assistant Attorney General, argued the
cause for respondent Department of Human Services. Also
on the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
260                    Dept. of Human Services v. T. J. N.

   Ginger Fitch argued the cause for respondent children.
Also on the brief was Youth, Rights & Justice.
  Before Shorr, Presiding Judge, and Mooney, Judge, and
PagĂĄn, Judge.
  MOONEY, J.
  Appeals dismissed as moot.
Cite as
323 Or App 258
 (2022)                                            261

           MOONEY, J.
         Mother and father appeal from the juvenile court’s
March 3, 2022, disposition review judgments entered in the
dependency cases concerning their three children, which
have been consolidated for purposes of appeal.1 They assign
error to the juvenile court’s decision to change the desig-
nated “placement preference” for their children from in-home
with mother under the terms of a safety plan to foster care.
Mother and father specifically argue that the juvenile court
was without authority to “remove” children from mother’s
home because the evidence before the court did not demon-
strate that “removal” was in children’s best interest. The
Department of Human Services (DHS), joined by children,
disagrees with parents on the merits and requests that we
affirm. Children make additional arguments concerning the
adequacy of the record for review, and they raise an alter-
native cross-assignment concerning the court’s compliance
with ORS 419A.253. For the reasons that follow, we do not
reach the merits of this appeal because it is moot, and we
dismiss it.
         DHS filed a motion to dismiss this appeal arguing
that events that occurred in the underlying dependency
cases after entry of the March 3 review judgment ren-
dered it moot. Specifically, it notes that the juvenile court
issued a limited review judgment continuing children’s
placement in substitute care one month after issuing the
March 3 judgment. And two months after that, DHS filed
a new dependency petition raising new allegations under
ORS 419B.100(1). In the context of the new petition, the
juvenile court made a best interest finding and designated
substitute care as the placement preference. DHS argues
that the decision being challenged by parents on appeal has
been superseded in each child’s case by the new and subse-
quent placement orders, and that, even if we were to reverse
the March 3 review judgment, our decision would have
no practical effect on the rights of the parties. The place-
ment preference would not change; it would continue to be

    1
      Hereinafter—and simply for ease of reference—we refer to the consolidated
appeals and the pertinent judgments and orders below in the singular, although,
in each instance, separate judgments or orders were entered for each child.
262                       Dept. of Human Services v. T. J. N.

substitute care unless and until the juvenile court changes
that designation.
         Parents oppose dismissal of the appeal, asserting
that “resolution of this appeal [will have] practical effects on
the rights of the parties.” They argue that ORS 419B.498(1)(a)
requires DHS to file a petition to terminate their parental
rights once children have been in substitute care under the
responsibility of DHS “for 15 months of the most recent 22
months” (the 15-out-of-22-month rule), and that reversal
of the March 3 review judgment would “directly affect the
[15-out-of-22] calculation.” They reason that, if they prevail
on appeal and the March 3 review judgment is reversed, the
effect would be to reduce the number of months in substi-
tute care for purposes of that calculation by three. If DHS
prevails on appeal, and the review judgment is not reversed,
then the three months would be included in that calculation.
They argue that, “either way,” a decision from this court
would affect the rights of the parties, and they request that
we deny the motion to dismiss.
          The procedural history of the underlying depen-
dency cases is not in dispute. We take judicial notice of the
official case registers and the linked judgments and orders
on file in the underlying juvenile dependency cases, Case
Nos. 21JU03559, 21JU03560, and 21JU03561. Velasco v.
State of Oregon,
293 Or App 1
, 3 n 3,
426 P3d 114
 (2018),
rev den,
364 Or 407
 (2019) (citing State v. Bennett,
249 Or App 379
, 380 n 1,
277 P3d 586
 (2012), rev den,
353 Or 203
 (2013) (judicial notice taken of the official trial court
case register)); see also Dept. of Human Services v. J. G.,
239 Or App 261, 263
,
244 P3d 385
 (2010) (same in the context of
a juvenile dependency case). The pertinent procedural facts,
chronologically, include:
      •   July 27, 2021 - DHS filed the original dependency
          petition.
      •   July 28, 2021 - The court issued a “Shelter Order”
          placing children in the temporary custody of DHS
          and designating the placement preference as
          in-home with mother subject to the July 28 safety
          plan.
Cite as
323 Or App 258
 (2022)                          263

   •   September 9, 2021 - The court issued a “Judgment
       of Shelter Review” that continued children in the
       temporary custody of DHS, made a best interest
       finding, and changed the placement preference to
       substitute care.
   •   September 14, 2021 - Father filed a motion for an
       expedited placement review hearing.
   •   September 22, 2021 - The court issued a “Judgment
       of Shelter Review” denying father’s motion “as
       moot,” continuing temporary custody of children in
       DHS, and designating “the placement preference
       being in home with the parents as agreed upon by
       the parties” subject to the July 28 safety plan.
   •   September 30, 2021 - The court issued a “Judgment
       of Jurisdiction and Disposition” that memorialized
       the establishment of jurisdiction over children on
       September 22 on the basis of parents’ admissions
       to allegations of inadequate supervision, made chil-
       dren wards of the court, committed them to the
       legal custody of DHS, and found that it was in the
       best interest of children to continue in an in-home
       placement with mother subject to a September 9
       safety plan. The designated permanency plan was
       reunification.
   •   February 14, 2022 - The court issued a “Judg-
       ment of Disposition Review” memorializing a post-
       jurisdiction “shelter review hearing” that took place
       on February 9. It continued jurisdiction, wardship,
       and custody as before, denied DHS’s request for a
       change in placement preference to substitute care,
       and continued the in-home placement preference
       subject to a February 10 safety plan.
   •   March 3, 2022 - The court issued a “Judgment of
       Disposition Review” memorializing the occurrence
       of a February 28 limited review hearing, continued
       jurisdiction, wardship, and custody as before, made
       a best interest finding, and changed the designated
       placement preference to “foster care.”
264                       Dept. of Human Services v. T. J. N.

      •   April 1, 2022 - The court issued a “Limited Review
          Judgment” continuing all orders and further gave
          DHS its approval to return children to an in-home
          plan with mother without an additional hearing if
          DHS deemed such a move “appropriate.”
      •   April 1 and 4, 2022 - Father and mother filed “Notices
          of Appeal” as to the March 3 judgment of disposi-
          tion review.
      •   June 3, 2022 - DHS filed its second dependency peti-
          tion adding allegations that parents’ “domestically
          violent relationship” and lack of parenting skills,
          along with father’s substance abuse, interfered with
          their ability to safely parent their children.
      •   June 8, 2022 - The court issued a “Shelter Order”
          ordering temporary custody in DHS on the new
          petition and designating the placement preference
          as substitute care.
      •   July 8, 2022 - Father and mother filed “Notices of
          Appeal” as to the June 8 shelter order.
      •   July 15, 2022 - The court issued a “Judgment of
          Shelter Review” continuing all orders and place-
          ments as before and setting the jurisdictional trial
          on the new petition for September 12, 2022.
      •   October 4, 2022 - The court issued a “Judgment of
          Jurisdiction and Disposition” entered by agreement
          of the parties. Mother and father each admitted the
          allegations concerning their “domestically violent
          relationship” and, in addition, father admitted the
          substance abuse allegation. The allegations con-
          cerning lack of parenting skills were dismissed.
          Jurisdiction and wardship under the second peti-
          tion was established, legal custody was placed in
          DHS, and the placement preference was designated
          substitute care. The permanency plan was desig-
          nated reunification.
      •   November 10, 2022 - The court issued a “Perma-
          nency Judgment” memorializing an October 10 per-
          manency hearing on both petitions. The designated
Cite as
323 Or App 258
 (2022)                                  265

         permanency plan remained reunification. Place-
         ment continued, in the best interest of children, as
         substitute care. Findings included that DHS was
         working with mother on an in-home plan, that she
         was making progress and that “it is possible for the
         child[ren] to be safely returned to her care in a rea-
         sonable time.” The court set another permanency
         hearing for January 9, 2023.
         To summarize, these dependency cases have been
pending since July 2021. Jurisdiction was initially estab-
lished in September 2021 when children were made wards
of the court and committed to the legal custody of DHS.
The designated permanency plan for each child has always
been reunification. The placement designation for each
child during the first seven months was, for the most part,
in-home with mother subject to various safety plans. The
court changed the placement preference to substitute care in
the March 3 disposition review judgment that is now before
us on appeal. In the months that followed, the juvenile court
repeatedly concluded that placement in substitute care was
in each child’s best interest, and it ordered substitute care
as the placement preference in five subsequent judgments
or orders. We examine the procedural history and status of
the underlying cases and the parties’ respective positions
on the question of mootness in the overall context of ORS
chapter 419B. The Oregon Supreme Court recently provided
this general overview of the statutory framework:
   “ORS chapter 419B provides the juvenile court with ‘unique
   authority over the life of a child who comes before it, begin-
   ning with the authority to determine that a particular
   child falls within one of the categories specified in ORS
   419B.100(1)—a determination that requires the court to
   make the child a ward of the court.’ Dept. of Human Services
   v. C. M. H.,
368 Or 96, 104
,
486 P3d 772
 (2021) (internal
   quotation marks omitted); see also ORS 419B.100(1)(c)
   (providing, in part, that ‘the juvenile court has exclusive
   original jurisdiction’ in any case involving a child ‘[w]hose
   condition or circumstances are such as to endanger the wel-
   fare of the [child]’). Once a child has become a ward of the
   court, ‘a series of complex statutes and proceedings come
   into play’ that ‘seek to protect the safety and well-being
   of children’ and ‘the rights of both children and parents.’
266                        Dept. of Human Services v. T. J. N.

   Dept. of Human Services v. S. J. M.,
364 Or 37, 50
,
430 P3d 1021
 (2018); see ORS 419B.090(2) - (4) (describing the statu-
   tory and constitutional rights of parents and children).
       “Except in cases of extreme conduct under ORS
   419B.502, it is the policy of the state ‘to offer appropriate
   reunification services to parents and guardians to allow
   them the opportunity to adjust their circumstances, con-
   duct or conditions to make it possible for the child to safely
   return home within a reasonable time.’ ORS 419B.090(5).
   When the juvenile court places a ward in the legal custody
   of DHS, the juvenile court has authority to ‘specify the par-
   ticular type of care, supervision or services to be provided
   by [DHS] to wards placed in [DHS’s] custody and to the
   parents or guardians of the wards’; however, ‘the actual
   planning and provision of such care, supervision or ser-
   vices is the responsibility of [DHS].’ ORS 419B.337(2).”
Dept. of Human Services v. F. J. M.,
370 Or 434, 441-42
,
520 P3d 854
 (2022). As particularly pertinent here, the juvenile
court has the continuing obligation and authority through-
out the life of the case to protect the rights of children and
parents and to direct DHS to change a child’s care, place-
ment, and supervision from one type to another (i.e., from
in-home care to substitute care) when the current placement
preference is not in the child’s best interest. ORS 419B.349.
         ORS chapter 419B provides for various types of
hearings, with varying procedural requirements, includ-
ing, for example, prejurisdictional shelter hearings, ORS
419B.183 and ORS 419B.185; jurisdictional hearings, ORS
419B.305 and ORS 419B.310; disposition hearings, ORS
419B.325; hearings to review the child’s circumstances and
to determine whether the court should continue jurisdiction
or order changes in the child’s care, placement, and super-
vision, ORS 419B.449; and permanency hearings, ORS
419B.470 and ORS 419B.476. Juvenile courts issue various
orders and judgments following such hearings, and ORS
419A.205(1) defines which of those orders or judgments
are “appealable,” expressly including, among others, final
orders resulting from ORS 419B.449 review hearings. DHS
does not challenge the appealability of the juvenile court’s
March 3 “Judgment of Disposition Review.” And we are
satisfied that, because that review judgment changed the
Cite as
323 Or App 258
 (2022)                            267

designated placement preference, it is appealable as a final
order from an ORS 419B.449 review hearing.
         But the appeal of an appealable order or judgment
should nevertheless be dismissed if it is moot. The party
moving for dismissal—here, DHS—has the burden to estab-
lish that a case is moot, which includes establishing (1) that
there is a controversy between the parties, and (2) that the
“decision being challenged on appeal will have no further
practical effect on the rights of the parties.” Dept. of Human
Services v. A. B.,
362 Or 412, 426
,
412 P3d 1169
 (2018).
         There is clearly a controversy between the par-
ties regarding the juvenile court’s decision to change chil-
dren’s placement preference from in-home with mother to
substitute care. DHS contends that, because the court
subsequently ordered placement in substitute care, our
decision—even if we were to reverse the March 3 judgment—
would have no effect on the parties and that the appeal is
thus moot. As noted, parents respond that our decision will
determine how the period of time from March 3 (placement
changed to substitute care) until June 8 (placement again
designated as substitute care) will be counted for purposes
of the 15-out-of-22-month rule. Certainly, any time that
children spend in substitute care while they are in the cus-
tody of DHS will add time to the cumulative calculation of
the number of months that they have been in substitute care
during the immediate, past 22-month period, at any given
point in time.
         We turn, then, to ORS 419B.498, which “attempts to
accommodate the rights of parents and children” when chil-
dren are in substitute care “by setting a deadline for DHS
to file a petition to terminate parental rights and proceed
with adoption” while also providing for “an exception that
allows DHS not to file by that deadline if certain determina-
tions are made.” S. J. M.,
364 Or at 51
. The first subsection
provides the 15-out-of-22-month rule already mentioned,
which requires DHS to simultaneously file a termination
of parental rights (TPR) petition and begin the process of
locating, vetting, and approving potential adoptive parents.
Subsection (2) provides exceptions to the filing rule and
subsection (3) bars DHS from filing a TPR petition in cases
268                      Dept. of Human Services v. T. J. N.

where the permanency plan has not yet been changed to
adoption. ORS 419B.498(1) and (2) were enacted to imple-
ment the Adoption and Safe Families Act of 1997 (ASFA),
42 USC §§ 671
, 675, and, like ASFA, provide a “specific dead-
line for moving to permanency” and an “escape clause” for
those situations where there is a “compelling reason” not to
move in that direction at the 15-month point. S. J. M.,
364 Or at 53
. The accommodation built into ORS 419B.498, as
a practical matter, places a measure of pressure on DHS to
move forward with adoption in cases where that is the plan
and avoids children languishing in foster care longer than
necessary while also allowing more time for continued work
toward family reunification when parents are progressing
sufficiently to make reunification possible within a reason-
able timeframe.
          Mother and father argue, however, that no excep-
tions to the filing requirement of ORS 419B.498(1) would
apply here. But that is not something that is possible to know
at this point. Children have been in substitute care for less
than 10 months. A graduated return home plan was put in
place at the jurisdictional hearing in October 2022, and the
record does not reflect the current status of that. Whether
and when DHS would be obligated to file a TPR petition will
depend on a number of circumstances as they exist at the
15-month point—if that point is reached. The most recent
jurisdictional judgment includes favorable findings about
mother’s progress and the likelihood that children could
be safely returned home to her within a reasonable period
of time. If those findings remain true at some future date
when children will have been in substitute care for 15 out of
22 months, they would suggest the existence of a compelling
reason under ORS 419B.498(2)(b) for DHS not to file a TPR
petition. Indeed, those findings would potentially bar the
filing of a TPR petition under ORS 419B.498(3) because the
permanency plan likely would not be changed to adoption
in the face of such a finding. ORS 419B.476(5)(d). While we
do not lightly dismiss parents’ concern about the practical
effect dismissal of this appeal may have on the timing of
some future ORS 419B.498(1) filing requirement, there are
too many variables that go into whether and when a TPR
petition must be filed to conclude without some speculation
Cite as
323 Or App 258
 (2022)                               269

what practical effects dismissal might have. See Smith v.
Board of Parole,
305 Or App 773, 776
,
472 P3d 805
 (2020),
rev den,
367 Or 387
 (2020) (explaining that “it will be up to
the appellate court to determine the existence and signifi-
cance” of the effects or collateral consequences identified by
the responding party “and to decide, as a prudential matter,
whether an appeal is moot” (citing A. B.,
362 Or at 426
));
id.
(to prevent mootness, “a collateral consequence must have a
significant probability of actually occurring; a speculative
or merely possible effect is not enough” (internal quotation
marks and citation omitted)).
         J. G. is instructive to our analysis. J. G. and his four
siblings were wards of the court.
239 Or App at 263
. J. G.
was placed in-home with his mother, but his siblings were
placed in substitute care.
Id.
 J. G. appealed an “order arising
from [the] review hearing,” assigning error to the juvenile
court’s order designating substitute care for his siblings.
Id.
We took judicial notice of the case register and noted that
there was a subsequent permanency judgment.
Id.
 And,
because the court was required to determine the need for
continued care and placement at the permanency hearing
and to include its findings and placement orders in the per-
manency judgment, we concluded that “the determination of
which J. G. complains has been superseded by a subsequent
permanency judgment,” and we dismissed the appeal.
Id. at 263-65
.
         This case is similar to J. G. In each of the judg-
ments or orders entered after the court issued its March 3
review judgment, the court designated substitute care as
the placement preference and made the required best inter-
est findings to support that designation. Importantly, the
June 8 order was issued after a shelter hearing on the new
petition at which the court determined placement and made
the required findings in compliance with ORS 419B.185.
The placement designation reflected in the jurisdictional
judgment of October 4, 2022, was entered by agreement
of the parties. The judgment reflects that, in addition to
jurisdiction, the court issued a disposition order pursuant
to agreement of the parties. In any event, it is clear that
the jurisdictional judgment superseded the earlier March 3
review judgment.
270                      Dept. of Human Services v. T. J. N.

         Parents urge us to nevertheless decide this appeal
under ORS 14.175. Even assuming that the requirements
for deciding an otherwise moot case under ORS 14.175 are
satisfied, we decline to exercise our discretion to do so given
the subsequent jurisdictional and permanency judgments,
which superseded the review judgment in question and are
themselves appealable.
        Appeals dismissed as moot.