Dep't of Human Servs. v. A. B. (In Re J. B.)

412 February 8, 2018 No. 6

IN THE SUPREME COURT OF THE

STATE OF OREGON

In the Matter of J. B.,

a Child.

DEPARTMENT OF HUMAN SERVICES,

Respondent on Review,

v.

A. B.

Petitioner on Review.

(CC J150426; CA A161125; SC S064812)

On review from the Court of Appeals.*

Argued and submitted November 7, 2017.

Sarah Peterson, Deputy Public Defender, Office of Public

Defense Services, Salem, argued the cause and filed the

briefs for petitioner on review. Also on the brief was Shannon

Storey, Chief Defender.

Inge D. Wells, Assistant Attorney General, Salem, argued

the cause and filed the brief for respondent on review. Also

on the brief were Ellen F. Rosenblum, Attorney General, and

Benjamin Gutman, Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters,

Nakamoto, Flynn, and Nelson, Justices, and Shorr, Judge of

the Court of Appeals, Justice pro tempore.**

WALTERS, J.

The decision of the Court of Appeals is affirmed.

_______________

**  On appeal from Washington County Circuit Court, Ricardo J. Menchaca,

Judge. 283 Or App 907, 389 P3d 409 (2017).

**  Landau, J., retired December 31, 2017, and did not participate in the deci-

sion of this case. Duncan, J., did not participate in the consideration or decision of

this case.

Cite as 362 Or 412 (2018) 413

Case Summary: Mother appealed a jurisdictional judgment making the

Department of Human Services the legal custodian of her child. While mother’s

appeal was pending, the juvenile court determined that jurisdiction over mother’s

child was no longer warranted and entered a judgment dismissing the petition.

The Court of Appeals dismissed mother’s appeal as moot. Held: Whether dis-

missal of a wardship renders an appeal moot will depend on the particular cir-

cumstances of the case. If a parent identifies practical effects or collateral conse-

quences that the parent believes will result from the judgment, the burden is on

the department to prove the jurisdictional judgment will have no practical effects

on the rights of the parties and is therefore moot. In this case, the department

met that burden.

The decision of the Court of Appeals is affirmed.

414 Dept. of Human Services v. A. B.

WALTERS, J.

When a parent appeals from a jurisdictional judg-

ment making the Department of Human Services (the

department) the legal custodian of the parent’s child and

that wardship is subsequently terminated, the depart-

ment may file a motion to dismiss the appeal as moot. In

this case, we conclude that termination of such a wardship

does not necessarily render the appeal moot; whether dis-

missal is appropriate will depend on the particular circum-

stances presented. If a parent identifies practical effects or

collateral consequences that the parent believes will result

from the judgment, then the department has the burden to

persuade the appellate court that those consequences are

factually incorrect or legally insufficient. The burden is on

the department to prove that a jurisdictional judgment will

have no practical effect on the rights of the parties and is

therefore moot. In this case, we conclude that the depart-

ment met that burden. The decision of the Court of Appeals

is affirmed. Dept. of Human Services v. A.B., 283 Or App

907, 389 P3d 409 (2017).

FACTS AND PROCEDURAL HISTORY

We take the facts from the uncontested juvenile

court records and the express findings of the juvenile court.

In 2005, the child who is the focus of this proceed-

ing was born. He has an autism spectrum disorder, devel-

opmental delays, including speech delays, and other signifi-

cant health issues.

In 2010, when the child was five years old, his

mother and father divorced. Mother had been his primary

caretaker, and she was awarded sole legal custody.

In 2015, when the child was 10 years old, the depart-

ment investigated reports that mother was neglecting the

child’s basic needs and risking his safety by allowing him to

have contact with her significant other, L. The department

issued a “founded disposition” based on its administrative

determination that mother had neglected the child through

a “[l]ack of supervision and protection.” The department

then filed a petition to obtain dependency jurisdiction over

Cite as 362 Or 412 (2018) 415

the child and, in allegations A through I, set out specific con-

ditions and circumstances pertaining to both mother and

father that, the department alleged, endanger the child’s

welfare.

Mother contested jurisdiction, and a trial was held

based on documentary exhibits submitted by the parties.

On August 28, 2015, the juvenile court issued a letter opin-

ion. At the outset, the court stated that the case posed “a

unique and challenging set of circumstances” because of the

child’s autism diagnosis and the fact that he is nonverbal.

The court also noted that the child “is extremely attached”

to mother. After reciting certain other factual findings, the

court directed that three of the allegations in the petition—

allegations A, B, and I—be amended. The court concluded

that those allegations, as amended, had been proved. The

court also concluded that a fourth allegation—allegation

G—had been proved; it dismissed the remaining allegations.

Allegation A was directed to mother’s conduct. As

amended, it read: “The mother is aware that her domestic

partner has a conviction for a sex offense, has threatened to

kill her and her child, has engaged in a pattern of violent,

threatening and mentally unstable behavior that presents

a threat to [the] child’s safety because the mother continues

to allow him in the home and around the child.” The court

sustained that allegation based on the following findings:

L had been convicted of rape in 1992. In December 2014,

mother had applied for and obtained a restraining order

against L alleging that he had made threats to kill her and

her child. Police reports indicated that, around that time, L

had thrown a brick at mother’s door. And, in June 2015, L

had left at least two threatening voice mail messages with

the department.

Allegations B and G also were directed to mother’s

conduct. As amended, allegation B read: “The child is in

need of therapeutic treatment that the mother has failed to

provide.” Allegation G alleged that mother “failed to provide

for the educational needs of the child.” The court sustained

both allegations based on the following findings: The child

has autism and a severe developmental language delay for

which treatment is medically necessary. Mother participated

416 Dept. of Human Services v. A. B.

in a speech therapy evaluation in January 2014 and thera-

pists recommended a 12-month treatment regimen at two-

to three- times per month. Although mother and her child

attended a couple of appointments in January and February

2014, there was no evidence that mother was following

through, creating a risk of harm that the child’s therapeu-

tic needs were not being met. Mother was home schooling

the child and was enrolled with the home school program in

Multnomah County. However, mother had recently moved

to Washington County, and there was no evidence that the

child was enrolled in an educational program there. Mother

worked with a non-profit organization and agreed to have a

developmental disabilities service worker come to the home

once a month. There was no evidence to suggest that mother

was following through with the child’s speech therapy, and

the child’s current home schooling/educational posture was

unknown.

Allegation I pertained to father. As amended, it

alleged that father “is willing to be a custodial resource, but

does not have sole legal custody of the child and is unable to

protect him from the mother’s abusive and neglectful behav-

iors.” Father admitted that allegation.

Based on its letter opinion, the juvenile court

entered an amended, corrected judgment nunc pro tunc on

September 9, 2015, finding the child to be within the juris-

diction of the court. The court committed the child to the

legal custody of the department for in-home placement with

mother, pursuant to a safety plan. The court ordered the

department to conduct three unannounced home visits in

the next 90 days, noted its expectation that the department

would be making the personnel decisions with respect to

in-home care providers, and set a permanency hearing for

June 6, 2016.

Mother appealed to the Court of Appeals, arguing

that the evidence was insufficient to support the juvenile

court’s jurisdictional findings. While her appeal was pend-

ing, on March 23, 2016, the juvenile court entered what it

labelled a “permanency judgment.” The court found that

mother had cooperated and worked with the department;

that mother “is a minimally adequate parent”; that the

Cite as 362 Or 412 (2018) 417

department had noted no safety concerns with mother; that

mother had actually benefitted from departmental inter-

vention; and that she had the child working with develop-

mental disability services, “which will continue.” The court

concluded that no further review was necessary and ordered

that the “petition [be] dismissed.”

In the Court of Appeals, mother’s attorney filed a

notice of probable mootness under ORAP 8.451 informing

the court of the juvenile court’s decision to end the wardship.

The Appellate Commissioner dismissed mother’s appeal, but

mother petitioned for reconsideration. In an affidavit filed

with her petition, mother averred that she had not known of

her attorney’s notice of probable mootness and stated that,

as a result of the court’s jurisdictional judgment, she had

suffered and would suffer what she deemed to be collateral

consequences. In her affidavit, mother stated that the fol-

lowing consequences had occurred or would ensue:

1.  Her ex-husband had stopped paying child support

“while DHS was investigating” her, and he had

made only one small payment since that time. He

had told her that he did not feel he should have to

pay child support because she is a neglectful parent.

2.  When it entered the permanency judgment, the juve-

nile court had advised her ex-husband to “go across

the street and file against [her] in family court,”

and it advised his court-appointed attorney to show

him how to do that. Having a founded case of child

neglect on her record would more than likely count

against her in any child custody cases that happen

in the future.

3.  When she was a minor, 25 years earlier, there was a

founded case of child neglect against her, and, with

the new case of neglect on her record, it would make

it appear as if she were a long-term neglectful parent

and have an impact on any future DHS investigation.

1

“Except as to facts the disclosure of which is barred by the attorney-client

privilege, when a party becomes aware of facts that probably render an appeal

moot, that party shall provide notice of the facts to the court and to the other

party or parties to the appeal, and may file a motion to dismiss the appeal.”

ORAP 8.45 (footnote omitted).

418 Dept. of Human Services v. A. B.

4.  Five years before she signed her affidavit, she had

applied and passed a background check for a volun-

teer position. With a founded child neglect disposi-

tion, she is no longer qualified for that position.

5.  She will be barred from any future employment that

involves working with children, such as foster par-

enting, in-home child care, or working as an educa-

tional assistant.

6.  There is intense social stigma “that goes along with

being involved with DHS.” During the time that

DHS showed up at her door, she was the victim of

harassment by her property managers, and her

neighbors refused to talk with her or her child. She

is constantly concerned with what others will think

if they should find out about the founded allegations,

and she no longer feels comfortable visiting her son’s

providers who were contacted by DHS against her

wishes. She also is very embarrassed about the

friends and family who were consulted by DHS.

The department did not respond to mother’s peti-

tion for reconsideration, and the Appellate Commissioner

granted reconsideration of the order of dismissal and rein-

stated mother’s appeal. The department revived the issue of

justiciability in its answering brief, requesting dismissal of

mother’s appeal as moot. Mother argued otherwise, advanc-

ing the same concerns that she had identified in her petition

for reconsideration before the Appellate Commissioner. The

Court of Appeals agreed with the department and dismissed

mother’s appeal. A.B., 283 Or App at 908. The court issued a

per curiam opinion stating that a “written discussion of the

competing arguments would not assist the parties, bench, or

bar.” Id. The court said that it was “not persuaded that the

circumstances establish the kind of collateral consequences

that prevent this appeal from being moot.” Id. Mother then

filed a petition for review in this court, which we allowed.

ANALYSIS

“Determining mootness is one part of the broader

question of whether a justiciable controversy exists.”

Brumnett v. PSRB, 315 Or 402, 405, 848 P2d 1194 (1993).

Cite as 362 Or 412 (2018) 419

One question in that analysis is “whether the interests of

the parties to the action are adverse.” Id. Another question

in that analysis, the question at issue here, is whether “the

court’s decision in the matter will have some practical effect

on the rights of the parties.” Id.

Although the parties differ in their views about

how that practical effect is determined, they start with the

mutual understanding that there is at least one circum-

stance in which a categorical rule is appropriate. The United

States Supreme Court has held that “a criminal case is moot

only if it is shown that there is no possibility that any collat-

eral legal consequences will be imposed on the basis of the

challenged conviction.” Sibron v. New York, 392 US 40, 57,

88 S Ct 1889, 20 L Ed 2d 917 (1968). Mother contends that a

similar rule should apply for juvenile court determinations

that a child is within its jurisdiction. She asserts that, like

a criminal conviction, a judicial determination of parental

unfitness will have significant legal consequences and is

inherently stigmatizing. Therefore, mother advocates for a

rule that, when a wardship is terminated, the jurisdictional

judgment is moot only if the department shows that there is

no possibility that any collateral legal consequences will be

imposed.

The department takes the opposing view. It con-

tends that, unlike criminal records, juvenile court records

are confidential. And, it argues, a jurisdictional judgment

lacks the direct, adverse legal consequences that a criminal

conviction may impose. As a result, the department contends,

the same presumption of collateral consequences should not

apply. According to the department, when a juvenile court

terminates its jurisdiction and wardship, an appeal of the

underlying jurisdictional judgment ordinarily will be moot.

The department argues that the burden is on the parent to

“establish that non-speculative collateral consequences ren-

der her appeal justiciable.”

This is not the first time that this court has

addressed the question of mootness in this context. In Dept.

of Human Services v. G.D.W., 353 Or 25, 32, 292 P3d 548

(2012), this court considered whether a father’s appeal of a

jurisdictional judgment was rendered moot when the juvenile

420 Dept. of Human Services v. A. B.

court entered a subsequent order releasing his children from

its jurisdiction. The court recognized that the remedy to

which the father ordinarily would be entitled—reversal and

remand for a new jurisdictional hearing—was not available

because the juvenile court had determined that the father’s

children “no longer needed its protection.” Id. However, that

did not necessarily render the father’s appeal moot. Id. The

juvenile court had found that father had sexually abused

one of his children and had incorporated that finding into

its judgment. Id. As a result, the court reasoned, the father’s

appeal was not moot. Id. The court agreed with the father

that the finding and judgment “can have real and adverse

effects on [the] father, and that those adverse effects may be

prevented if the findings are judicially overturned.” Id.

The potential adverse effects on which the court

relied on G.D.W. were threefold. First, the court said, the

state could more easily terminate the father’s parental

rights to the children over whom the court had taken juris-

diction, as well as “any other children he might have in the

future.”2 Id. Second, the court noted, the circuit court had

awarded sole custody of the father’s children to their mother,

with no parenting time to the father. Id. at 31. The court

explained that that decision likely was premised on the

juvenile court’s findings and that, if those findings and the

resulting judgment were to be vacated, the “father’s ability

to reopen the custody and parenting time judgment might

be positively affected.” Id. at 32. Third, the court considered

the social stigma that the father suffers as a result of the

judicial findings to be significant. Id. Although the court

allowed that that stigma might not be sufficient by itself

to preclude mootness, it cited that stigma as an example of

collateral consequences that could follow from the jurisdic-

tional judgment that the father was challenging on appeal.

Id.

Thus, in G.D.W., this court did not adopt a presump-

tion favoring either the father or the department. Instead,

2

The court cited ORS 419B.502 for that proposition. Dept. of Human Services

v. G.D.W., 353 Or 25, 32, 292 P3d 548 (2012). ORS 419B.502 provides that the

rights of a parent may be terminated without any effort by a social service agency

to help the parent adjust his or her conduct if the court finds that the parent is

unfit by reason of a single incident of “extreme conduct toward any child.”

Cite as 362 Or 412 (2018) 421

the court explored both how the termination of the ward-

ship would affect the relief available to the father on appeal

and the father’s argument that, unless the judgment were

reversed, he would suffer other collateral consequences.

Mother does not disagree with that analysis, but, as indi-

cated, urges us to adopt a more categorical rule that would

eliminate the need for a parent to make the arguments that

the father made in G.D.W.

Mother begins by explaining that parents have

a fundamental liberty interest, under the Due Process

Clause of the United States Constitution, in the care, cus-

tody, companionship, and control of their children. Stanley

v. Illinois, 405 US 645, 651, 92 S Ct 1208, 31 L Ed 2d 551

(1972). Mother argues that the department is prohibited

from interfering with that interest unless parents fail to

provide even minimally adequate care. As a result, mother

asserts, a departmental finding of “unfitness” confirmed

in a juvenile court judgment will have legal ramifications

comparable to those that arise from a criminal conviction,

including the following: (1) as long as a jurisdictional judg-

ment stands, it may be judicially noticed in other actions

involving the child and could make it more likely that a

juvenile court would again assert jurisdiction in the future

or that a court would consider it in subsequent custody or

visitation proceedings. ORS 107.137(1)(e) (conferring on a

child’s primary caregiver a preference for sole legal custody

as long as the caregiver is “fit”); ORS 109.119(2)(a) (enti-

tling parent to presumption that the parent acts in the best

interest of child when faced with a third-party custody or

visitation action); (2) a jurisdictional judgment precludes

a parent from challenging an underlying administrative

determination—such as a “founded” disposition—that the

parent abused or neglected her child. See OAR 413-010-

0722(1) (department will not conduct an administrative

review of a founded disposition “when there is a legal find-

ing consistent with the [Child Protective Services] founded

disposition”). Mother contends that a “founded” disposition

may disadvantage the parent in a future departmental

investigation or limit the parent’s employment or volunteer

opportunities. Mother cites for support ORS 419B.035(3)

(authorizing the department to make available its records

422 Dept. of Human Services v. A. B.

if necessary to administer its child welfare services);

OAR 413-015-0212 (requiring employees to consult Child

Protective Services supervisor in certain situations);

OAR 407-007-0210(8) (listing individuals subject to an

“abuse check” by the department); OAR 407-007-0290(11)

(a) (identifying prior abuse and neglect investigations as

“potentially disqualifying abuse” that can prevent parents

from serving as a foster care provider); and OAR 407-007-

0410(5)(e),(f) (permitting the department to conduct “abuse

check” of certain volunteers and employees).

Mother contends that it is only when a court

reverses a jurisdictional judgment of unfitness that a par-

ent is vindicated and safeguarded from those adverse conse-

quences; a judicial ruling terminating a wardship does not

have that effect. According to mother, a ruling terminating

a wardship is nothing more than an acknowledgement that

the circumstances requiring the assertion of jurisdiction are

no longer present. It is not an indication that there was no

basis for assertion of jurisdiction in the first place.

Although mother recognizes that there may be some

circumstances in which the termination of a wardship will

render a parent’s appeal moot, mother contends that those

circumstances are few. For instance, mother suggests, if a

parent challenges only the juvenile court’s disposition and

not its assertion of jurisdiction, a subsequent order termi-

nating the wardship would render the parent’s appeal moot.

Or, mother recognizes, when a parent has been criminally

convicted based on the same conduct that is the basis for

assertion of jurisdiction and does not appeal the conviction,

the parent’s appeal of the jurisdictional judgment may be

moot. In that circumstance, notwithstanding whether the

jurisdictional judgment is reversed, the conviction may

impose the same collateral consequences as the jurisdic-

tion judgment, and thus the jurisdictional appeal may have

no practical effect on the rights of the parties. However,

mother contends, in the ordinary circumstance, a jurisdic-

tional judgment will have significant legally imposed con-

sequences and those consequences should persuade us to

adopt a categorical rule permitting an appeal to proceed

unless the department proves the existence of extraordi-

nary circumstances.

Cite as 362 Or 412 (2018) 423

The department responds that the legally imposed

consequences of a criminal conviction are different in nature

from the consequences that mother identifies. The depart-

ment points out that a criminal conviction can, by virtue of

the conviction itself and without consideration of any mit-

igating circumstances, have specified legal consequences.

For instance, a criminal conviction can make an individual

ineligible to serve as a juror, prohibit an individual from

possessing a firearm, and subject an individual to greater

punishment or deportation. ORS 10.030(3)(a)(E) (person

with felony conviction ineligible to serve as a juror in crim-

inal trial); ORS 166.270(1) (making it a crime for a felon

to possess a firearm); ORS 40.355 (permitting a witness to

be impeached by evidence of conviction of certain crimes);

ORS 813.010(5)(a) (certain prior convictions elevate driving

under the influence to a felony); ORS 137.719(1) (presump-

tive life sentence for multiple sex crime convictions); 8 USC

§ 1227(a)(2) (certain criminal convictions render noncitizen

deportable). According to the department, the legal conse-

quences that arise from entry of a jurisdictional judgment do

not have a similar effect. A founded disposition or jurisdic-

tional judgment may be a factor in further legal proceedings

or decisions about whether a parent will obtain employment

or volunteer positions, but neither requires a particular

adverse decision or triggers an automatic prohibition.

Although we recognize that there are some findings,

such as the findings of sexual assault in G.D.W., that have

consequences comparable to those that accompany a crim-

inal conviction, we agree with the department that not all

findings of “unfitness” are of that nature. At the same time,

we also recognize that, even if the law does not impose spe-

cific automatic consequences, findings of unfitness may have

an adverse effect on future legal proceedings or on parents’

employment or volunteer opportunities. We do not discount

the practical barriers that a parent who has been judged

“unfit” may face, and they may render an appeal justiciable

in a particular case. However, we do not see those barriers

to be so insurmountable or universal that they persuade us

to adopt the categorical rule for which mother contends.

We turn, therefore, to mother’s contention that the

social stigma that accompanies such a judgment justifies

424 Dept. of Human Services v. A. B.

a categorical rule. Mother notes that, in civil commitment

appeals, the Court of Appeals has adopted the view that the

stigma that arises from an order of civil commitment is a

sufficiently material consequence to preclude mootness, not-

withstanding the expiration of the period of commitment.

State v. Linde, 179 Or App 553, 555, 41 P3d 440 (2002);

State v. Van Tassel, 5 Or App 376, 385, 484 P2d 1117 (1971).3

Mother asks that we adopt the same view here.

Making a determination that juvenile court jurisdic-

tional judgments are inherently stigmatizing would require

us to draw conclusions about how society functions. We have

not always been consistent in our approach to such issues.

For instance, in deciding how a “reasonable person” would

act in a particular circumstance, we have relied on our own

experience and judgment. See, e.g., State v. Backstrand, 354

Or 392, 412-13, 313 P3d 1084 (2013) (using experience and

judgment to determine whether “reasonable person” would

believe officer’s questions intentionally and significantly

restricted liberty). We also have taken judicial notice of set-

tled social science data to provide us with legislative facts

relevant to our analyses. See, e.g., State v. Lawson/James,

352 Or 724, 740, 291 P3d 673 (2012) (taking judicial notice

of data as legislative facts in deciding standard for admissi-

bility of eyewitness testimony).

In this case, we understand mother to be asking

that we take the former approach: Mother seems to ask

that we use our experience and judgment to conclude that

a “parental unfitness determination discredits and under-

mines the parent in her protected relationships with her

child and other family members, [and] stigmatizes the

parent with her child, childcare workers, school person-

nel, neighbors, and others.” Mother explains that “[c]hild

neglect and abuse investigations necessarily involve inter-

views and information sharing and gathering with indi-

viduals familiar with the family” and that those persons

“necessarily become aware” of any resulting jurisdictional

judgment. Most profound, mother asserts, is that a judicial

3

Mother also notes that this court has accepted review in State v. K. J. B.,

360 Or 851, 389 P3d (2017), a civil commitment case. In K. J. B., this court is

being asked to adopt the Court of Appeals approach to mootness.

Cite as 362 Or 412 (2018) 425

determination of parental unfitness discredits and under-

mines the parent in relationships with immediate family

members and may incite them to infringe on the existing

parent-child relationship.

There is no disputing the primacy of the parent-child

relationship and the importance of those bonds. But, we are

not convinced that every action that the department takes

to protect children will be accompanied by significant social

stigma. As the department points out, unlike criminal con-

victions, jurisdictional judgments are not a matter of pub-

lic record. Compare Delehant v. Board on Police Standards,

317 Or 273, 280, 855 P2d 1088 (1993) (“Criminal records

that are not expunged are there for all to see.”), with ORS

419A.252(4)(f) and ORS 419A.255(1)(b) (making the “record

of the case,” which includes “[o]rders and judgments of the

court,” confidential and providing that it “shall be withheld

from public inspection[.]”). Although mother is correct that

there are numerous exceptions to that prohibition, see ORS

419A.255(1)(b), ORS 419B.035(1) (providing exceptions), the

general rule of confidentiality provides parents with some

protection against social stigma that individuals convicted

of crimes do not have.

In addition, the findings necessary to a jurisdic-

tional judgment are not equally stigmatizing. For instance,

in this case, the department alleged that father “is willing

to be a custodial resource, but does not have sole legal cus-

tody of the child and is unable to protect the child from

the mother’s abusive and neglectful behaviors.” Father

admitted that allegation, and it was one of the bases for

the juvenile court’s assertion of jurisdiction over the child.

That kind of finding is quite different than a finding that

an individual has violated the law, and we would be hard

pressed to consider that kind of finding to be inherently

stigmatizing. Other findings, like those in G.D.W., are, of

course, at the other end of the spectrum and will certainly

have a stigmatizing effect. In G.D.W., the court expressed

no hesitation in concluding that “the social stigma that

[the] father suffers as a result of the judicial finding that

he sexually abused his daughter is significant.” 353 Or at

32. The range of findings that a juvenile court can make,

however, gives us pause. Mother has not provided us with

426 Dept. of Human Services v. A. B.

settled social science demonstrating—and we are unwill-

ing to conclude based on our own knowledge and experi-

ence—that juvenile court jurisdictional judgments are so

inherently stigmatizing that they justify our adoption of a

categorical rule permitting their appeal in all but extraor-

dinary circumstances.

That does not mean, however, that we adopt the

contrary categorical rule that a juvenile court’s termination

of wardship renders an appeal moot in all but extraordinary

circumstances. The Court of Appeals has said that “a juve-

nile court’s termination of jurisdiction and wardship ordi-

narily renders the parent’s appeal of the underlying juris-

dictional judgment moot.” Dept. of Human Services v. B.A.,

263 Or App 675, 678, 330 P3d 47 (2014). That statement

may or may not be a correct factual statement, but we do

not understand it to indicate that the Court of Appeals has

adopted a presumption of mootness or imposed a burden

on a parent to prove extraordinary circumstances. To the

contrary, the party moving for dismissal has the burden to

establish that a case is moot. See Brumnett, 315 Or at 407

(noting that moving party had met its burden to prove that

case was moot). That includes establishing that the decision

being challenged on appeal will have no further practical

effect on the rights of the parties.

To meet that burden, the department need not imag-

ine all potential collateral consequences that could result

and prove their nonexistence. Rather, when the department

takes the position that termination of a wardship renders

an appeal moot and demonstrates that the child is no longer

subject to departmental control, the appellant parent must

identify any continuing practical effects or collateral conse-

quences that, in the parent’s view, render the appeal justi-

ciable. The department then must meet its burden of persua-

sion. It must demonstrate that the effects or consequences

that the parent identifies are either legally insufficient or

factually incorrect. It will be up to the appellate court to

determine the existence and significance of those effects or

consequences and to decide, as a prudential matter, whether

an appeal is moot. See Couey v. Atkins, 357 Or 460, 355 P3d

866 (2015) (explaining prudential basis for dismissal of most

cases). An appeal is not moot unless the party moving for

Cite as 362 Or 412 (2018) 427

dismissal persuades the appellate court that the dismissal

is warranted.

Thus, in G.D.W., the father argued that his appeal

was not moot and raised the potential for continuing prac-

tical effects and collateral consequences. 353 Or at 32. The

department did not persuade us that those effects and con-

sequences were factually incorrect or legally insufficient,

and we concluded that the father’s appeal was not moot. Id.

We take the same approach here.

Mother contends that the juvenile court’s adjudica-

tion that she abused and neglected her child with special

needs will have the following practical effects or collateral

consequences: (1) it will disadvantage her in any future

departmental child abuse and neglect proceedings and in

any custody proceedings against the child’s father; (2) it

limits her options for employment or volunteer work requir-

ing a background check; and (3) it stigmatizes her with her

child’s service providers. The department responds that the

consequences on which mother relies are speculative and

that mother therefore has failed to establish collateral con-

sequences that render her appeal justiciable.

As we have explained, the burden of persuasion

does not lie with mother. She has done what is necessary

by identifying the collateral consequences that she believes

she will face. The burden is on the department to persuade

us that those consequences are factually incorrect or legally

insufficient. For the reasons that follow, we conclude that

the department has met that burden here.

The first consequence that mother raises is the one

that we find most concerning. It seems to us that the three

findings that the juvenile court made about mother could

affect the department’s evaluation of her conduct in the

future. The court found that (1) mother presented a threat

to her child’s safety because she “is aware that her domestic

partner has a conviction for a sex offense, has threatened to

kill her and her child, has engaged in a pattern of violent,

threatening and mentally unstable behavior that presents

a threat to [the] child’s safety because the mother contin-

ues to allow him in the home and around the child”; (2) the

“child is in need of therapeutic treatment that the mother

428 Dept. of Human Services v. A. B.

has failed to provide”; and (3) mother “failed to provide for

the educational needs of the child.” In a future investigation

of similar conduct, it is possible that the department will

consult its records and those of the juvenile court. In that

instance, the department may be aware of those findings

and could be more inclined to assert jurisdiction because of

them. However, unlike the findings of sexual abuse made

in G.D.W., the findings that the court made in this case do

not affect the standard that the department must apply in

evaluating mother’s conduct or the assistance the depart-

ment must provide. And, we are persuaded that, if the

department considers allegations concerning mother in the

future, the existence of the findings and judgment will not

be significantly disadvantageous. In consulting its records

and the juvenile court records in the future, the department

would consider not only the finding that, at one point in

time, mother had neglected some of her parental duties, but

also the finding that her child is “extremely attached” to her.

The department would be apprised that, when offered assis-

tance, mother quickly took advantage of and benefitted from

the developmental disability services that were provided.

It also would know that the juvenile court had terminated

the child’s wardship before its planned review date and dis-

missed the case based on a finding that the department had

no continuing safety concerns. The challenges that mother

faces in raising a child with the special needs that her child

has are enormous, and the departmental and juvenile court

records demonstrate mother’s sincere commitment to do

everything that she can for him. We are persuaded that the

jurisdictional judgment will not have a significant practical

effect on her rights.

We also are persuaded that there is little likelihood

that the jurisdictional judgment will affect mother’s right to

sole custody in the future. We do not, however, base our deci-

sion solely on the fact that father has not yet filed for custody.

In G.D.W., the father was found to have sexually abused his

daughter, and he in fact lost custody of his children. 353 Or

at 30-31. However, that factual finding was not necessary to

the court’s holding. Id. at 32. The court said that, if the find-

ings and judgments were to be vacated, the “father’s ability

to reopen the custody and parenting time judgment might

Cite as 362 Or 412 (2018) 429

be positively affected.” Id. In this case, mother also might

be in a better position to resist a motion by father if the

jurisdictional judgment were reversed. However, the record

does not establish that father has any interest in challeng-

ing mother’s sole custody or that it would give him any basis

to do so. The record establishes that mother always has been

the child’s primary parent, that he is “extremely attached”

to her, and that, even when the court had concerns about the

child, it placed him with her and not his father. The court

terminated the wardship because it did not have continu-

ing safety concerns and found mother to be a “fit” parent.

Those facts mitigate the effect that the jurisdictional judg-

ment could have in any future domestic relations proceeding

between the parents.

Mother also is concerned about legal limitations

on her options for employment or volunteer work and notes

that various laws or regulations may require a background

“abuse” check, should mother apply for positions in the

future. However, in our view, it is unlikely that the juvenile

court’s findings and judgment would disqualify mother from

positions for which she might apply. Again, our reasoning

is not based on the fact that mother has yet to be turned

down for such a position; a party need not demonstrate that

a collateral consequence already has occurred to maintain

an appeal. Rather, our reasoning is based on our reading of

the law and the limits that it imposes. If the law clearly lim-

ited mother’s options for paid or volunteer work, we would

be persuaded of the judgment’s continuing practical effects.

But we do not interpret the law to which mother points as

establishing such clear limits.

Finally, we consider the social stigma that mother

experiences. Mother relies on the stigma “that goes along

with being involved with DHS.” However, the only stigma

that is relevant to the question of mootness is the stigma

that accompanies entry of the jurisdictional judgment and

that could be affected by its reversal. The child was not

removed from mother’s care, and mother does not claim that

those in her immediate family or those who work with her

child know of, necessarily will know of, or have discredited

her as a result of the jurisdictional judgment. Instead, she

says that she is constantly concerned with what others will

430 Dept. of Human Services v. A. B.

think if they should find out about the founded allegations.

We appreciate mother’s understandable worry, but the law

provides her with some protection against disclosure. Given

the concerns that mother has identified, the department has

met its burden to persuade us that, in this case, the jurisdic-

tional judgment will not have practical effects on mother’s

rights.

The decision of the Court of Appeals is affirmed.