No. 241 April 17, 2024 89

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

In the Matter of E. C. S., 

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

v.

N. A. S.,

Appellant.

Wheeler County Circuit Court

21JU02419; A179842

John A. Wolf, Judge.

Argued and submitted June 08, 2023.

Sean Connor, 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.

Inge D. Wells, Assistant Attorney General, argued the 

cause for respondent. On the brief were Ellen F. Rosenblum, 

Attorney General, Benjamin Gutman, Solicitor General, 

and Erica L. Herb, Assistant Attorney General.

Before Ortega, Presiding Judge, Powers, Judge, and 

Hellman, Judge.

HELLMAN, J.

Affirmed.
90 Dept. of Human Services v. N. A. S.
Cite as 332 Or App 89 (2024) 91

HELLMAN, J.

In this juvenile dependency case, mother appeals a 

judgment that changed the permanency plan for her child, 

E, from reunification to guardianship. Mother contends 

that the juvenile court erred when it determined that she 

had made insufficient progress to ameliorate her pattern of 

substance abuse and, as a consequence, that it erred when 

it changed E’s permanency plan. Because the record supports the juvenile court’s determination that mother’s progress was insufficient, we conclude that the court did not err. 

Accordingly, we affirm.

Mother does not request that we exercise our discretion to undertake de novo review and we decline to do so. See

ORAP 5.480(8)(c) (providing that we exercise our discretion 

“only in exceptional cases”). “We therefore are bound by the 

juvenile court’s findings, so long as there is any evidence in 

the record to support them. Whether mother’s progress was 

sufficient for purposes of ORS 419B.476(2)(a) is a legal question that we review for legal error.” Dept. of Human Services 

v. C. W., 312 Or App 572, 574, 493 P3d 74 (2021) (citation omitted). We state the facts in accordance with that standard.

In December 2016, when E was eight years old, E 

and several family members were involved in a car accident 

that killed E’s father and one of her siblings. Mother, who 

had driven the car, tested positive for methamphetamine at 

the hospital. After the crash, mother spent most days locked 

in her bedroom with her boyfriend. E was frequently absent 

or late to school and community members reported that they 

saw E walking alone at night between different homes.

In April 2021, when E was 12, mother was hospitalized for breathing problems, leaving E unsupervised at 

home. While mother was in the hospital, she tested positive for methamphetamine. DHS thereafter removed E from 

mother’s custody. That summer, the juvenile court asserted 

jurisdiction over E based on mother’s admissions that her 

“pattern of substance abuse interferes with her ability to 

safely parent [E]” and that E’s father was deceased. After 

she was removed, E was diagnosed with severe depression 

that had been untreated for several years.
92 Dept. of Human Services v. N. A. S.

In January 2022, mother completed a mental health 

and substance abuse assessment that recommended, among 

other things, that she participate in weekly therapy and 

that she provide urinalysis tests (UAs).

In July 2022, DHS requested that the juvenile court 

change E’s permanency plan from reunification to guardianship. E supported the change of plan. The juvenile court held 

a permanency hearing in September 2022 and heard testimony from mother and DHS regarding the foregoing facts. 

Mother disputed that she had failed to supervise E, testified that her children “have a tendency to over exaggerate,” 

and argued that illness often prevented her from helping E 

prepare for school. Mother also testified that she had used 

methamphetamine only “a couple dozen” times in the last 25 

years, that she had not used substances since she was hospitalized in 2021, and that “it was the hospital who told [her 

children]” that she had used drugs. Further, mother represented that she had consistently participated in therapy for 

three months but that she stopped in July 2022 when she 

learned that her counselor was leaving the following month.

DHS presented evidence that mother had been hospitalized three times in the past four-and-a-half years and 

that she had tested positive for methamphetamine each 

time. The court also heard testimony that, even though DHS 

referred mother to Addiction and Recovery Team (ART) 

services three times, mother did not engage in those services. Moreover, a DHS caseworker testified that, on the few 

occasions that mother agreed to meet with DHS employees 

in-person, she refused to provide UAs. DHS also offered several exhibits into evidence, including case notes and mother’s mental health and substance abuse assessment.

After considering the testimony and exhibits, the 

juvenile court determined that DHS had made reasonable 

efforts to reunify the family and that mother had not made 

sufficient progress to ameliorate her pattern of substance 

abuse. Specifically, the court found that mother’s substance 

abuse assessment “recommended significant therapy to 

address the [substance abuse disorder] issues, including 

random UAs.” However, the court found that mother “missed 

many of her treatment sessions and did not provide any UAs 
Cite as 332 Or App 89 (2024) 93

(most sessions were virtual)” and “decline[d] to provide a UA 

or a swab on the few occasions one was offered.”

Further, the court found that,

“[mother] frequently demonstrated a failure to recognize 

how her [substance abuse disorder] impacts her ability to 

parent. For example, she is quoted as saying she will use if 

she wants because it is fun. She also continues to attempt 

to excuse her use saying that while she used the children 

were not around. Which, even if true, fails to recognize 

the impact her use has on [E]. [Mother] has failed to reengage with treatment after her counselor left CCS and has 

not made any significant progress in understanding the 

impact her [substance abuse disorder] has on her ability 

to parent.”

Therefore, the court determined that E could not be safely 

returned to mother’s care and changed E’s permanency plan 

to guardianship. This appeal followed.

We begin with a brief overview of the relevant analytical framework. “Absent exceptions not applicable here, 

to change a child’s permanency plan from reunification to 

another permanent plan, the juvenile court must determine 

that (1) DHS has made reasonable efforts to reunify the family; and (2) notwithstanding those efforts, parents have not 

made sufficient progress to permit reunification.” Dept. of 

Human Services v. L. M. K., 319 Or App 245, 252, 510 P3d 278 

(2022); ORS 419B.476(2). As the proponent of the permanency 

plan change, DHS bore the burden of proving both elements by 

a preponderance of the evidence. See Dept. of Human Services 

v. M. K., 285 Or App 448, 455, 396 P3d 294, rev den, 361 

Or 885 (2017) (so explaining). Because mother does not dispute the juvenile court’s determination that DHS made reasonable efforts to reunify the family, the sole issue before us 

is whether the juvenile court erred when it determined that 

mother’s progress was insufficient to permit reunification.

“The determination of whether a parent has made 

sufficient progress is measured in the context of the factual 

bases for jurisdiction as set forth in the jurisdictional judgment.” Dept. of Human Services v. D. W. C., 258 Or App 163, 

171, 308 P3d 316, rev den, 354 Or 490 (2013). “In determining whether the parent has made sufficient progress, the 
94 Dept. of Human Services v. N. A. S.

juvenile court gives the highest priority to a child’s health 

and welfare.” M. K., 285 Or App at 460.

We have explained that a juvenile court “must take 

into consideration whether a parent has attempted to make 

appropriate changes and whether he or she has ignored or 

refused to participate in plans suggested or required by the 

state.” D. W. C., 258 Or App at 171. “[A] parent’s failure to 

complete treatment, in and of itself, does not establish that 

the deficit continues.” C. W., 312 Or App at 582 (emphasis 

added). Conversely, “a parent’s mere participation in services 

** * is not sufficient to establish adequate progress toward 

reunification.” Dept. of Human Services v. S. N., 250 Or App 

708, 718, 282 P3d 901, rev den, 352 Or 564 (2012) (internal 

quotation marks omitted); see also M. K., 285 Or App at 460 

(“[R]egardless of mother’s completion of and progress in the 

required programs, if mother was still engaging in behaviors that would be harmful to her children, the court could 

conclude that mother’s progress was not sufficient for them 

to safely return home.”).

On appeal, mother contends that the juvenile court 

erred when it determined that she had made insufficient 

progress toward ameliorating her pattern of substance 

abuse because DHS failed to present evidence that she had 

used substances since she was hospitalized in 2021. Mother 

argues that her “lack of engagement in court-ordered and 

department-requested services was not sufficient for the 

department to meet its burden” and that the evidence did, 

in fact, establish that she had ameliorated her substance 

abuse. Mother also takes the position that DHS could have 

conducted an investigation and gathered information from 

“individuals that were part of mother’s community” to establish that she had used substances, and that its failure to do 

so resulted in an insufficient record to support the juvenile 

court’s decision.1 We are unpersuaded.

1 Mother also argues that “to the extent the juvenile court relied on mother’s

estrangement from [E] in ruling to change her plan away from reunification, 

it erred.” We decline to address that matter because no legal argument is sufficiently developed in mother’s brief. See Beall Transport Equipment Co. v. 

Southern Pacific, 186 Or App 696, 700 n 2, 64 P3d 1193 (2003) (“[I]t is not this 

court’s function to speculate as to what a party’s argument might be. Nor is it our 

proper function to make or develop a party’s argument when that party has not 

endeavored to do so itself.”).
Cite as 332 Or App 89 (2024) 95

To support her argument, mother relies on C. W., 

312 Or App at 581-83. In that case, we concluded that the 

mere fact that the parent was unwilling to engage in the 

same treatment program that she had already completed 

four times—despite her willingness to provide UAs—was 

insufficient to prove that the parent’s progress toward ameliorating the effects of her substance abuse was inadequate. 

Id. at 578, 581-83. In doing so, we observed that the record 

demonstrated that the parent had made significant progress toward understanding and addressing her substance 

abuse problem and that she consistently engaged in family therapy to support the child. Id. at 579, 581. In addition, DHS had previously determined that the parent did 

not pose a safety threat to the child, even when the parent 

had relapsed, and DHS did not contradict evidence from the 

child’s foster provider and therapist that the parent could 

support the child’s needs. Id. at 582-83. Therefore, we concluded that the juvenile court erred when it changed the 

child’s permanency plan. Id. at 583.

We conclude that C. W. is readily distinguishable 

from this case and that the juvenile court did not err when 

it determined that mother had made insufficient progress. 

Here, mother’s mental health and substance abuse assessment recommended, among other things, that mother participate in weekly therapy and that she provide “random 

UAs.” However, the record demonstrates that mother did not 

consistently participate in therapy, that she frequently cancelled or missed sessions, and that she discontinued therapy before her therapist moved. On the few occasions when 

mother met with DHS employees in-person, she refused 

to provide UAs. Further, the record contained specific evidence—including mother’s failure to engage with multiple 

ART referrals, her quoted statement that she will use drugs 

if she wants because it is fun, and her testimony minimizing 

the effect of her drug use on her children—that supports 

a determination that, unlike the parent in C. W., mother 

did not make sufficient progress toward understanding and 

addressing her substance abuse problem.

 Finally, to the extent that mother argues that 

DHS needed to offer more concrete or direct evidence of 
96 Dept. of Human Services v. N. A. S.

contemporaneous substance abuse, we reject that argument. When, as here, the basis for jurisdiction is a parent’s 

pattern of substance abuse, we have never held that DHS 

must present direct evidence of contemporaneous substance 

abuse before the juvenile court can determine that the parent has made insufficient progress toward ameliorating the 

jurisdictional basis. In fact, the opposite is true. A juvenile 

court may draw reasonable inferences from the evidence to 

support its determination. E.g., Dept. of Human Services v. 

D. M., 310 Or App 171, 185, 483 P3d 1248 (2021); M. K., 

285 Or App at 461. Here, DHS presented evidence of mother’s long-standing pattern of substance abuse, her failure 

to engage in treatment, her refusal to provide UAs, and her 

consistently evasive conduct. That evidence, coupled with 

the absence of any evidence demonstrating a substantial 

change in mother’s behavior, permitted the juvenile court 

to reasonably infer that mother’s pattern of substance abuse 

was unchanged.

In sum, we conclude that the record provides an 

adequate legal basis for the court’s determination that 

mother did not make sufficient progress to ameliorate her 

pattern of substance abuse to allow E to return home safely 

as required by ORS 419B.476(2). The juvenile court did not 

err when it changed E’s permanency plan from reunification 

to guardianship.

Affirmed.