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

> Court of Appeals of Oregon · October 7, 2020 · 307 Or. App. 117

URL: https://www.frixlaw.com/law-library/cases/10600362

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** October 7, 2020
- **Citations:** 307 Or. App. 117; 475 P.3d 936
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** DeHoog
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10600362

## How later opinions describe it (automated extraction)

- holding that an objection to a juvenile court’s visitation order that argued that the terms were too burdensome did not alert the court or oppos- ing party to the argument made on appeal that the court 640 Dept. of Human Services v. S. G. T. had no lawful authority to order th…

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10600362. Public record. Not legal advice.