Dept. of Human Services v. T. M. G.

117

Argued and submitted August 7, affirmed October 7, 2020

In the Matter of M. M. P.,

fka M. M. H., a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

and

M. M. P.,

fka M. M. H.,

Respondent,

v.

T. M. G.,

fka T. M. P.,

Appellant.

Lane County Circuit Court

18JU06158; A173323

475 P3d 936

Mother appeals a permanency judgment, asserting that the juvenile court

lacked authority to order her to make two of her children, who were not wards of

the juvenile court or otherwise subject to its control, available for visitation with

mother’s daughter, M, who was a ward of the court. Held: Mother did not preserve

the arguments that she advances on appeal. Accordingly, the Court of Appeals

did not consider the merits of her arguments.

Affirmed.

Jay A. McAlpin, Judge.

Elena C. Stross, Deputy Public Defender, argued the

cause for appellant. Also on the briefs was Shannon Storey,

Chief Defender, Juvenile Appellate Section, Office of Public

Defense Services.

Erica Mae Hayne Friedman argued the cause for respon-

dent M. M. P. Also on the brief was Youth, Rights & Justice.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Inge D. Wells, Assistant Attorney

General, filed the brief for respondent Department of Human

Services.

118 Dept. of Human Services v. T. M. G.

Before DeVore, Presiding Judge, and Ortega, Judge, and

DeHoog, Judge.

DeHOOG, J.

Affirmed.

Cite as 307 Or App 117 (2020) 119

DeHOOG, J.

Mother appeals a permanency judgment, asserting

that the juvenile court lacked authority to order her to make

two of her children, who were not wards of the juvenile court

or otherwise subject to its control, available for visitation

with mother’s daughter, M, who was a ward of the court.

Mother contends that the juvenile court had no authority to

enter orders in regard to children who were not subject to its

dependency jurisdiction and that, in light of the presump-

tion that parents act in the best interests of their children,

entry of the order without evidence to overcome that pre-

sumption violated her due process rights as recognized in

Troxel v. Granville, 530 US 57, 120 S Ct 2054, 147 L Ed 2d

49 (2000). In response, the Department of Human Services

(DHS) takes no position regarding the merits of mother’s

arguments; DHS argues, however, that those arguments are

not preserved for appeal. Child appears on appeal and sim-

ilarly contends that mother’s arguments are largely unpre-

served. In any event, child contends, mother’s arguments

lack merit. For the reasons that follow, we conclude that the

arguments mother advances on appeal are not preserved.

Accordingly, we affirm.

The relevant facts are largely procedural and undis-

puted for purposes of this appeal. In September 2018, the

juvenile court took jurisdiction as to mother’s child, M, who

was 14 years old at the time. As bases for the court’s juris-

diction, mother admitted to allegations that her “mental

health interfere[d] with her ability to safely parent” M and

that, “[d]espite having participated in services to improve

mother’s knowledge of domestic violence, she [was] unable to

demonstrate that she can safely parent the child.” In addi-

tion to M, mother has two younger children: N, who is in the

custody of his father, and A, who is in mother’s custody.1

The permanency hearing at issue occurred in

December 2019. At that time, following a series of unsuc-

cessful in-home and out-of-home placements, M was in non-

relative substitute (foster) care. Due to M’s behavior while in

1

M, N, and A all have different fathers. M’s father, as to whom the juve-

nile court also took jurisdiction on the basis of admissions, is not a party to this

appeal.

120 Dept. of Human Services v. T. M. G.

those placements, which mother believed made M a safety

threat to her younger children, mother was not willing to

take M back into her home. Ultimately, the juvenile court

changed M’s permanency plan from reunification to guard-

ianship without objection from either parent.2

At the permanency hearing, the juvenile court con-

sidered child’s request under ORS 419B.337(3) for an order

requiring mother “to facilitate contact/visitation between

[M] and her siblings,” A and N. In support of the motion,

child’s attorney attached a declaration in which he explained

the following:

“I have met with my client, [M], on multiple occasions where

she has requested contact with her half siblings: [N] and

[A]. Consequently, I have requested that DHS caseworker,

Jennifer Brown, arrange contact/visitation time between

[M] and her brothers. I have been informed by Ms. Brown

that she has tried to arrange contact and/or visitation with

[M’s] brothers and [mother] has not cooperated with that

process. As a result, [M] has had very limited contact with

her brothers[,] which is detrimental to her mental health

and well-being.”

Counsel further explained that mother had legal custody of

A and “liberal parenting time with” N, and so had “access”

to those children so as to facilitate visits. In addition to

counsel’s representations regarding the significance of vis-

itation to M, the record included a psychological evaluation

of M completed shortly before the permanency hearing. In

his report, the evaluator, Dr. Sorensen, described mother’s

lack of a protective relationship with M—and, in particu-

lar, mother’s failure to protect M and her siblings from the

collateral effects of domestic violence—which, he opined,

had “led to [M’s] lasting separation from her mother and

younger siblings.” Sorensen further explained:

“[M’s] contact with her younger siblings remains very

limited, and she has no real relationship with her father

either. This has left [M] adrift[,] without firm anchor for

her future, living in a foster home with someone known

years before but not recently.”

2

The juvenile court’s decision to change M’s permanency plan to guardian-

ship is not at issue on appeal.

Cite as 307 Or App 117 (2020) 121

DHS similarly advocated for contact between M and her sib-

lings, as did the Citizen Review Board. Finally, M’s court-

appointed special advocate (CASA), testified at the hearing

that mother’s unwillingness to allow for sibling visitation

was “detrimental to both the boys and to [M].”

Mother opposed child’s motion. Through counsel,

she argued:

“My client has always said that she would allow visita-

tion between the boys and [M] when it’s appropriate and

safe and there are appropriate facilitators. So my client

objects to any Court order for visitation between the boys

and [M]. Those children are not wards of this Court. Those

children have other fathers. One of the children my client

does not even have custody of, and certainly those fathers

have a say in what contact with [M] would look like.

“You know, it’s important to support children on their

journey, but there are consequences for people’s actions.

And sometimes rifts in families are a consequence of our

actions. And so that’s where we are today, and so I will just

put my objection on the record to any order for visitation.”

Later in the proceeding, when the juvenile court indicated

its intent to grant child’s motion for an order compelling vis-

itation with her siblings, mother’s counsel stated that she

would “just renew [her] objection,” then elaborated:

“[Y]our honor. I think that puts my client in an impossi-

ble position, and I have watched this case continue to really

narrow [its] focus on her and what she’s done wrong, and I

just—I don’t think it’s appropriate, and I do not know how

the Court can expect my client to facilitate those visits,

to communicate with the fathers of these children[ ]. The

fathers of these children have a position on this. They have

custodial rights. I just—I guess I’ll just renew my objection

at this time.”

Notwithstanding mother’s objections, the juvenile court

adhered to its decision to grant child’s motion to require

mother “to facilitate contact/visitation between the child,

[M], and her siblings.” This appeal followed.

On appeal, mother argues that the Supreme Court’s

decision in Dept. of Human Services v. J. R. F., 351 Or

570, 273 P3d 87 (2012), precluded the juvenile court from

122 Dept. of Human Services v. T. M. G.

granting child’s motion and compelling mother to make A

and N available for visitation with M. In J. R. F., a case

factually similar to this one, the court considered whether

the juvenile court had authority to order a father, whose

child was a ward of the court, to allow the ward to visit with

the father’s other children (two of whom were related to the

ward), who were not wards of the court. 351 Or at 572. When

the case was before us, we had held that ORS 419B.337(3),

which authorizes orders “regarding visitation by the ward’s

parents or siblings,” was sufficiently broad to support the

juvenile court’s order. Id. at 576 (discussing Court of Appeals

decision). We had also rejected the father’s argument that

construing the statute to confer such authority would vio-

late his due process rights, concluding that that argument

was unpreserved. Id.

The Supreme Court reversed our decision. It held

that, whatever authority ORS 419B.337(3) might confer, the

court was required to construe it in light of a parent’s pro-

tected liberty interests under the Fourteenth Amendment

to the United States Constitution. Id. at 578 (citing ORS

419B.090(4) (“The provisions of this chapter shall be con-

strued and applied in compliance with federal constitutional

limitations on state action * * * with respect to interference

with the rights of parents to direct the upbringing of their

children[.]”)). Those protected rights include “the rights of

parents to make decisions concerning the care, custody, and

control of their children.” J. R. F., 351 Or at 578; see also

Troxel, 530 US at 66 (recognizing the “fundamental right

of parents to make decisions concerning the care, custody,

and control of their children”); id. at 68 (stating “there is

a presumption that fit parents act in the best interests of

their children”). Ultimately, the court in J. R. F. concluded

that the record before it was insufficient to establish that

the order was consistent with those rights, and it vacated

the court’s order. 351 Or at 578-79.

In so holding, the Supreme Court appears to have

relied on the principle, gleaned from Troxel, that, because

a parent is presumed to act in the best interests of his or

her children, a court may not override a parent’s decision

regarding care, custody, or control, unless “there is evidence

sufficient to overcome that presumption.” O’Donnell-Lamont

Cite as 307 Or App 117 (2020) 123

and Lamont, 337 Or 86, 120, 91 P3d 721 (2004), cert den,

543 US 1050 (2005) (discussing Troxel). Mother relies on the

same principle here. She argues that, because she has not

been found to be an unfit parent in regard to A or N, her

parenting decisions regarding them—including whether to

allow M contact with them—are presumed to be in their

best interests.3 Thus, she argues, there must be evidence

to overcome that presumption and, here, she contends, that

evidence is lacking.

In response, child observes that mother preserved

her broad argument that the juvenile court lacked authority

to issue the order. Child argues, however, that mother did

not preserve her argument that the court’s order violated her

constitutional rights or that the court was required to make

certain findings before overriding her parenting decisions

regarding A and N. As child points out, mother’s authority

argument was premised solely on A and N not being wards

of the court. Ultimately, child contends, even assuming that

the juvenile court was required to presume that mother was

acting in A’s and N’s best interests, the record was suffi-

cient to rebut that presumption. As noted, the state takes no

position on the merits of mother’s arguments but, like child,

asserts that those arguments are not preserved.

We conclude that mother did not preserve the argu-

ments that she now makes on appeal. We typically will

not consider unpreserved claims of error, i.e., claims that a

party has not first raised in the trial court. State v. Wyatt,

331 Or 335, 341, 15 P3d 22 (2000); ORAP 5.45(1). As we have

explained,

“We evaluate whether an issue is adequately preserved

in light of the underlying purposes of the preservation

rule—‘to allow the trial court to consider a contention and

correct any error, to allow the opposing party an opportu-

nity to respond to a contention, and to foster a full devel-

opment of the record.’ State v. Clemente-Perez, 357 Or 745,

752, 359 P3d 232 (2015) (citing Peeples v. Lampert, 345

3

In recounting mother’s arguments, we note that, for purposes of Troxel and

its progeny, we understand “fitness” to refer to that term as it is used in Troxel,

and not as it is used in ORS 419B.502 (relating to standard for terminating

parental rights). See Dept of Human Services v. S. M., 256 Or App 15, 24 n 7, 300

P3d 1254 (2013), aff’d, 355 Or 241, 323 P3d 947 (2014) (so distinguishing).

124 Dept. of Human Services v. T. M. G.

Or 209, 219-20, 191 P3d 637 (2008)). In practical terms, a

party’s argument to the trial court must be ‘specific enough

to ensure that the court can identify its alleged error with

enough clarity to permit it to consider and correct the error

immediately, if correction is warranted.’ State v. Wyatt, 331

Or 335, 343, 15 P3d 22 (2000).”

State v. Gray, 286 Or App 799, 806, 401 P3d 1241 (2017),

rev den, 362 Or 482 (2018). Here, mother’s objection to

child’s motion did not serve those purposes. Although child

concedes that mother challenged, in a general sense, the

juvenile court’s authority to issue the requested order, we

do not agree.4 The focus of mother’s arguments was on the

challenges that the order would place on her by, among

other things, requiring her to communicate with A’s and N’s

fathers, who had parenting rights separate from, and poten-

tially at odds with, her own. True, mother stated, without

elaboration, that “[t]hose children are not wards of this

[c]ourt.” However, that unadorned observation would not

have alerted the juvenile court or the opposing parties to

the arguments that mother now advances on appeal—that

the nonward status of her younger children raised a pre-

sumption that her decisions on their behalf were in their

best interests and that, as a result, the court had no lawful

authority to order her to make those children available for

visitation.

To understand mother’s argument in the way that

she presents it on appeal, the juvenile court would have had

to infer that, by noting the nonward status of those children,

mother was arguing (1) that she was a “fit” parent with

regard to them and therefore entitled to the presumption,

(2) that under the Due Process Clause, the juvenile court

had no authority to override her parenting decisions until

the presumption had been rebutted, and (3) that the evi-

dence was insufficient to overcome the presumption. In our

view, the mere observation that the younger children were

not wards of the court was insufficient to trigger anything

4

In any event, even if no party disputed preservation, that would not allevi-

ate our duty to verify that mother preserved her arguments for appeal. See State

v. Savage, 305 Or App 339, 342, 470 P3d 387 (2020) (“[W]e have an independent

obligation to determine whether an argument advanced on appeal was preserved

at trial.” (Internal quotation marks omitted.)).

Cite as 307 Or App 117 (2020) 125

close to that understanding. Cf. id. (explaining that “the

presence of a common thread between an objection at trial

and an argument on appeal does not satisfy the preserva-

tion requirement if the two arguments are qualitatively dif-

ferent” (internal quotation marks omitted)).

Stated differently, the juvenile court would not have

understood mother’s argument to be that it could not issue

the order unless it first evaluated whether the evidence

before it was sufficient to overcome the presumption. As a

result, it had no opportunity to correct its course of action—

if, in fact, correction was warranted—nor were the opposing

parties put on notice of the potential need to make addi-

tional arguments or further develop the evidentiary record.

Under those circumstances, we cannot say that the pur-

poses of preservation were satisfied. That is of particular

significance here, where the record may well have developed

differently had mother brought the alleged deficiencies in

the process to the attention of the court and parties.

Because mother did not preserve the arguments

that she advances on appeal, we will not consider them.

Accordingly, we affirm.5

Affirmed.

5

In light of that disposition, we express no opinion as to the merits of

mother’s arguments regarding the court’s authority to issue the disputed order

or child’s argument that, if the court was required to apply a presumption that

mother acted in the best interests of her children, the evidence here was suffi-

cient to overcome that presumption.