No. 273 May 24, 2023 149

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

In the Matter of J. E. D. V., 

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner below,

and

S. L. D.,

Respondent,

v.

J. E. D. V.,

Appellant.

Clackamas County Circuit Court

20JU01194; A178519 (Control)

In the Matter of E. L. D. V., 

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner below,

and

S. L. D.,

Respondent,

v.

E. L. D. V.,

Appellant.

Clackamas County Circuit Court

20JU01221; A178520

In the Matter of M. J. D. V., 

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner below,

and

S. L. D.,

Respondent,

v.
150 Dept. of Human Services v. J. E. D. V.

M. J. D. V.,

Appellant.

Clackamas County Circuit Court

20JU01191; A178620

In the Matter of J. E. D. V., 

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Appellant,

v.

S. L. D.,

Respondent.

Clackamas County Circuit Court

20JU01194; A178619

In the Matter of E. L. D. V., 

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Appellant,

v.

S. L. D.,

Respondent.

Clackamas County Circuit Court

20JU01221; A178621

In the Matter of M. J. D. V., 

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Appellant,

v.

S. L. D.,

Respondent.

Clackamas County Circuit Court

20JU01191; A178622

Ulanda L. Watkins, Judge.

Argued and submitted November 30, 2022.
Cite as 326 Or App 149 (2023) 151

Christa Obold Eshleman argued the cause for appellants 

children. Also on the briefs was Youth, Rights & Justice.

Inge D. Wells, Assistant Attorney General, argued the 

cause for appellant Department of Human Services. Also on 

the reply brief were Ellen F. Rosenblum, Attorney General, 

and Benjamin Gutman, Solicitor General. On the opening 

brief were Ellen F. Rosenblum, Attorney General, Benjamin 

Gutman, Solicitor General, and Stacy M. Chaffin, Assistant 

Attorney General.

Sarah Peterson, Deputy Public Defender, argued the 

cause for respondent. Also on the brief was Shannon Storey, 

Chief Defender, Juvenile Appellate Section, Office of Public 

Defense Services.

Before Ortega, Presiding Judge, and Mooney, Judge, and 

Hellman, Judge.

ORTEGA, P. J.

Affirmed.
152 Dept. of Human Services v. J. E. D. V.

ORTEGA, P. J.

The Department of Human Services (DHS) and 

mother’s three children involved in these proceedings (M, J, 

and E) appeal judgments dismissing with prejudice petitions 

to terminate mother’s parental rights to the children. The 

juvenile court ruled that DHS failed to prove mother was 

unfit and dismissed the petitions at the close of DHS’s evidence. On appeal, DHS and the children assign error to the 

denial of the children’s motions for mistrial, the dismissal of 

the petitions with prejudice, and the denial of DHS’s motion 

to allow remote testimony of Dr. Miller.

On de novo review, ORS 19.415(3)(a), we find that 

DHS failed to prove by clear and convincing evidence that 

mother is unfit, as would be required to terminate her 

parental rights. We also conclude that the juvenile court did 

not abuse its discretion in denying the children’s motions 

for mistrial, in dismissing the petitions with prejudice at 

the close of DHS’s evidence, or in denying DHS’s motion for 

remote testimony. Accordingly, we affirm.

A complete description of the extensive evidentiary 

record would not benefit the parties, the bench, or the bar. 

Accordingly, aside from the procedural history, we recount 

only those facts necessary to explain our rulings and do so 

in our analysis of each assignment of error.

I. PROCEDURAL HISTORY

As of March 2018, mother had four children: M (born 

in 2010), J (born in 2013), and E (born in 2016), all from a 

prior relationship, and their infant half-sibling L (born in 

2017). DHS had, over a period of four years, received several 

reports of concern regarding the family (at first, mother, M, 

J, E, and their father, and later, mother, the children, L, 

and L’s father), including, most recently, that they had been 

evicted and were living in various hotels. DHS took the children into protective custody after hotel staff twice reported 

to authorities that the children were wandering around 

hotel grounds without supervision and were left unattended 

in the family’s room.
Cite as 326 Or App 149 (2023) 153

In May 2018, the juvenile court ruled that M, J, and 

E were within its dependency jurisdiction1

 based on mother’s admissions that she lacked stable housing, that she has 

a “mental disability that requires evaluation and appropriate treatment in order to effectively parent,” and that the 

children all tested positive for methamphetamine exposure 

shortly after removal, despite being placed in separate, nonrelative foster homes.2

 The juvenile court placed the children 

with their father, who had not been involved with them since 

before E’s birth. The following month, father returned the 

children to DHS custody after deciding that he was unable 

to parent them, and they were again placed in separate, 

nonrelative foster homes.

The parties agree that mother has exhibited open 

hostility and opposition toward DHS throughout the underlying dependency cases. From the outset, DHS imposed 

visit guidelines, such as not talking about the case in the 

children’s presence, not contacting the children’s foster care 

providers, and not using inappropriate language or making 

demeaning statements to the children or to DHS staff, and 

mother regularly violated those guidelines.

As a consequence, the juvenile court granted DHS’s 

requests in April 2018, at the very beginning of the proceedings, to reduce mother’s visits with all three children and, in 

October 2018, to suspend visits with J and E, to reduce visits with M to once weekly, and to confer authority to DHS to 

end those visits at its discretion. Mother’s visits with J and 

E resumed in March 2019, but DHS again suspended visits 

with J in July 2019 at the recommendation of J’s therapist. 

DHS also briefly paused visits with M and E in July 2019 

and again in August 2021, and mother sporadically missed 

visits and refused to visit due to her dissatisfaction with 

DHS guidelines. Mother was limited to video visits for about 

three months (March to May 2020) due to the pandemic. E 

1 The juvenile court also determined it had jurisdiction over L and, later, L’s 

newborn sibling H (born in 2019), but those dependency cases were ultimately 

dismissed when their father was granted sole custody of L and H after a domestic 

relations trial.

2 Mother never tested positive for methamphetamine, and drug use was 

never a jurisdictional basis.
154 Dept. of Human Services v. J. E. D. V.

and M stopped attending visits in April 2021 and December 

2021, respectively.

In January 2020, the juvenile court changed the 

permanency plan from reunification to adoption for all 

three children, and the following month DHS filed petitions 

to terminate mother’s parental rights. The petitions alleged 

(1) lack of effort or failure to obtain or maintain a suitable 

or stable living situation for the children so that return to 

mother’s care is possible; (2) failure to present a viable plan 

for the return of the children to mother’s care and custody; 

(3) failure to learn or assume parenting skills sufficient 

to provide a safe and stable home for raising the children; 

(4) a mental health condition of such nature and duration as 

to render mother incapable of providing proper care for the 

children for extended periods of time; (5) physical and emotional neglect of the children; and (6) failure to effect a lasting adjustment after reasonable efforts by available social 

agencies for such extended duration of time that it appears 

reasonable that no lasting adjustment can be effected.

Trial was scheduled for November 2020 and was 

continued twice to allow DHS additional time to locate 

adoptive placements for the children. The court continued 

trial twice more in July and November 2021 after the court 

appointed new counsel to represent mother.

The termination trial was held over four days in 

March 2022. DHS presented evidence that focused on its 

assertions that mother’s mental health significantly impairs 

her ability to safely parent and renders her unwilling to 

accept feedback on how to meet her children’s needs. At the 

close of DHS’s evidence, the juvenile court found that DHS 

had failed to prove by clear and convincing evidence that 

mother is unfit, and it dismissed the termination petitions 

with prejudice. DHS and the children now appeal the resulting judgments.

II. MISTRIAL

We begin by addressing the children’s first through 

third and DHS’s ninth through eleventh assignments of 

error, which challenge the juvenile court’s denial of the children’s motions for mistrial that were filed three weeks after 
Cite as 326 Or App 149 (2023) 155

trial had concluded. The juvenile court did not abuse its discretion in denying those motions.

Three days into the four-day trial, counsel for J 

and E asked one of the doctors who had evaluated mother, 

Dr. Duncan, a hypothetical question about an incident involving mother experiencing difficulty going through courthouse security. Mother’s counsel objected to the question as 

assuming facts not in evidence, and the juvenile court sustained the objection. The children’s attorney inquired about 

the court’s reasoning, and the court explained that it was 

not a “fair” hypothetical because “those facts you just gave 

to him are not accurate.” Counsel made no objection at that 

time and did not otherwise pursue any issue regarding the 

court’s ruling or statement during the remainder of trial.

On April 8, 2022—21 days after trial had concluded—

the children’s counsel filed motions for mistrial that also 

asked Judge Watkins to recuse herself.3

 The motions were 

supported by a declaration and an affidavit. The declaration, 

submitted by DHS permanency supervisor and trial witness 

Jennifer Delvin, averred that on the first day of trial, Delvin 

saw mother and Judge Watkins speaking to each other in 

the courthouse hallway during a break in the proceedings 

and overheard mother complain to Judge Watkins that she 

wanted “that fat woman,” whom Delvin assumed referred 

to DHS’s attorney, to stop “glaring” and “smirking” at her. 

Delvin further averred that Judge Watkins spoke to mother, 

but that Delvin did not hear what she said. The affidavit, 

submitted by E’s foster mother, averred that either that day 

or the following day, Judge Watkins’s clerk told those in the 

courtroom that mother was “having difficulty going through 

security” and that the judge “had gone down to security to 

see if there was anything she could do to be of assistance” 

to her. E’s foster mother further averred that the children’s 

counsel posed the hypothetical question about mother’s 

3 E and J each filed a written motion captioned “Motion for Finding of 

Mistrial.” M filed a written motion captioned “Child’s Motion for Mistrial.” All 

three motions recited that DHS “joins in this motion.” DHS did not file its own 

separate motion. Each motion contained a request that Judge Watkins recuse 

herself, although no party filed a motion to disqualify for cause under ORS 14.210 

or for perceived bias under ORS 14.250. No motion to disqualify the judge was 

filed in this case.
156 Dept. of Human Services v. J. E. D. V.

difficulty with courthouse security to Duncan when court 

had resumed that day.

The children’s counsel argued in the motions that 

Judge Watkins was required to declare a mistrial and recuse 

herself because the averred facts and Judge Watkins’s statement about the hypothetical posed to Duncan demonstrated 

that Judge Watkins had engaged in improper ex parte communication with mother and had become a trial witness, 

both of which violated the children’s due process rights to 

an impartial tribunal. As noted, the motions were filed more 

than three weeks after the events underlying the allegations said to require a mistrial and a full three weeks after 

Judge Watkins, ruling from the bench at the conclusion of 

the trial, made findings and dismissed the petitions. The 

motions for mistrial were filed on or about the same day that 

DHS filed a motion for reconsideration of the court’s dismissal of the petitions—again, three weeks after the court 

so ruled. The presiding judge declined the children’s request 

that the motions for mistrial be reassigned to another judge, 

and Judge Watkins denied the motions in due course.

A motion for mistrial must be timely made to preserve the issue for appeal. State v. Walton, 311 Or 223, 248, 

809 P2d 81 (1991) (citing State v. Montez, 309 Or 564, 691, 

789 P2d 1352 (1990)). Although mother agrees that the 

claims of error directed to the motions for mistrial were preserved, “we have an independent obligation to assess preservation, regardless of what position the parties take.” State 

v. Taylor, 323 Or App 422, 427 n 3, 523 P3d 696 (2022).

A motion made at the time of the events that give 

rise to the motion for mistrial is timely because “[t]he purpose behind requiring an immediate mistrial motion is to 

allow the court to take prompt curative action if the court 

believes it is warranted.” State v. Veatch, 223 Or App 444, 

453, 196 P3d 45 (2008). A motion for mistrial may also be 

deemed timely “even if not instantaneously made, when 

made under such circumstances that ‘the underlying purpose of that preservation requirement is fulfilled’” in the 

particular case. State v. Cox, 272 Or App 390, 405, 359 P3d 

257 (2015) (quoting Veatch, 223 Or App at 453-54). We take 

a “nuanced approach” to assessing the timeliness of mistrial 
Cite as 326 Or App 149 (2023) 157

motions that considers a number of factors with a view to 

ensuring that the foundational principles of the preservation requirement were met. State v. Sprow, 298 Or App 44, 

49, 445 P3d 351 (2019). Those factors include how much 

time elapsed between the allegedly objectionable basis for 

the motion and the objection itself; whether additional testimony was heard, evidence was received, or issues were discussed; whether the trial court and nonmoving party were 

aware of the moving party’s objection; whether the moving 

party may have made a strategic choice in delaying the mistrial request; whether the trial court had an opportunity 

to take prompt curative action; and whether the nonmoving party objected to the mistrial motion as untimely. Id. at 

49-50.

Applying those factors to this case, we readily 

conclude that the underlying purposes of the timeliness 

requirement were not met. The motions seeking a mistrial 

were filed 21 days after the trial concluded. Although the 

children’s attorneys asserted that the motions were timely 

“because some of the information contained in the declaration and affidavit was not realized or discovered until after 

the conclusion of the trial,” the facts alleged in support of 

the motions occurred on the first three days of trial and 

were witnessed by individuals available to and cooperative 

with the children’s counsel and by the children’s counsel 

themselves. Further, the motions did not explain precisely 

which information was not realized or discovered until after 

trial or precisely when those facts became understood by 

or known to counsel, aside from the vague assertions that 

“some” of the information was not discovered until “after” 

the trial concluded three weeks earlier.

Even assuming that the only facts known to counsel during trial were those relating to the court’s statement 

regarding the hypothetical posed to Duncan, counsel did not 

object at that time or otherwise make the objection known 

to the court during the remainder of the trial in which testimony from eight additional witnesses was heard, nearly a 

dozen exhibits were received, several legal issues were discussed, and judgment was rendered. Counsel no doubt made 

strategic choices as the trial unfolded but, given the sequence 
158 Dept. of Human Services v. J. E. D. V.

of events and the amount of time that passed between the 

statement that allegedly made the judge a witness in the 

proceeding and the court’s dismissal of the TPR petitions, 

the timing of the ultimate motions for mistrial fatally compromised the court’s ability to take prompt curative action.

Our conclusion that the motions were untimely 

would normally preclude our review of the claimed errors 

absent a request for plain error review. See ORAP 5.45(1). 

However, the focus of the motions for mistrial was whether 

the proceeding was fundamentally fair given that the judge 

was allegedly not neutral, as required by due process. We 

have held that, “to ensure due process, a judge’s actual or 

apparent bias must by necessity result in disqualification, 

even when the statutory requirements for recusal have not 

been, or ** * could not have been followed.” State v. Garza, 

125 Or App 385, 388-89, 865 P2d 463 (1993), rev den, 319 Or 

81 (1994) (emphasis in original); see also Lamonts Apparel, 

Inc. v. SI-Lloyd Associates, 153 Or App 227, 235, 956 P2d 

1024 (1998) (explaining that the statutes governing procedures to disqualify a judge “are irrelevant to whether later 

events require recusal as a matter of law”). Of course, Garza

and Lamonts Apparel, Inc. were cases in which motions to 

disqualify the judge were actually made during trial, and 

they are distinguishable for that reason. We nevertheless 

proceed to review the court’s denial of the motions for mistrial here because judgment had not yet been entered when 

the motions were filed and because the motions raised constitutional questions about the fairness of the trial that 

would, if meritorious, require the declaration of a mistrial 

and remand to the juvenile court for further proceedings.

We review the denial of a motion for mistrial for 

abuse of discretion, a “daunting standard of review that 

gives the trial court’s decision great deference.” State v. 

Woodall, 259 Or App 67, 74, 313 P3d 298 (2013), rev den, 

354 Or 735 (2014). Abuse of discretion occurs only when the 

effect of the alleged error denies the party a fair trial. State 

v. Bowen, 340 Or 487, 508, 135 P3d 272 (2006).

Here, the first basis of the motions for mistrial was 

the children’s allegation that the juvenile judge engaged in 

certain “ex parte communications,” rendering her partial or 
Cite as 326 Or App 149 (2023) 159

biased and that a fair trial was no longer possible. Relying 

on Lamonts Apparel, Inc., the children argue that mother’s “request that Judge Watkins intervene in the actions 

of another case participant is a communication concerning 

a pending proceeding” that required the judge to recuse 

herself.

The children’s reliance on Lamonts Apparel, Inc. is 

misplaced. In that case, after a hearing regarding the timeliness of a dispositive motion in which the clerk of court testified as a witness, the trial judge initiated multiple ex parte

contacts with that witness to discuss facts directly relevant 

to the timeliness of that pending motion. 153 Or App at 230. 

The “essential issue” on appeal was whether the alleged 

ex parte contacts, “which the judge initiated, affected his 

decision on the motion” before the court. Id. at 234. We 

explained that the judge’s statement at the hearing on the 

plaintiff’s recusal motion that the contacts did not affect his 

decision was not and could not be evidence, given that OEC 

605 “absolutely forbids” the judge from testifying, subject to 

cross-examination, as to the factors that went into his decision. Id. Because the plaintiff and the judge were “in impossible positions, the judge because he cannot do more than 

simply state that his contacts did not affect his decision, 

[the] plaintiff because it cannot effectively challenge those 

statements,” we held that “[t]he only appropriate response 

to the situation was for [the judge] to recuse himself and 

to allow a different judge, who had no outside contacts on 

the subject of the motion * ** to decide the motion.” Id. at 

234-35. We thus presumed the ex parte contacts were prejudicial because they concerned information relevant to a 

question of law or fact before the court. Id.; accord Trice 

v. Baldwin, 140 Or App 300, 306, 915 P2d 456 (1996) (“We 

conclude that an undisclosed and improper ex parte contact 

with a judge in a bench trial is presumptively prejudicial 

when that contact involves information relevant to a question of law or fact before the court.”).

By contrast, here the alleged conversation between 

mother and Judge Watkins did not involve information 

relevant to a question of law or fact before the court and 

therefore did not constitute ex parte communications. The 
160 Dept. of Human Services v. J. E. D. V.

children argue that mother’s “assertion of misbehavior by a 

participant in the proceeding * * * would be relevant to the 

judge’s role as factfinder and could influence the judge’s factual conclusions.” But that is not the standard. The parties 

do not explain—and the alleged facts do not demonstrate—

how mother’s alleged complaint about the attorney representing DHS was information relevant to the allegations in 

the termination petitions pending before the court. Even 

assuming that the facts alleged in support of the motions for 

mistrial are true for purposes of deciding whether the juvenile court abused its discretion in denying those motions, 

those facts do not support that Judge Watkins engaged in 

ex parte communications with mother. Thus, to the extent 

that ex parte communications were the basis of the motions 

for mistrial, it was not an abuse of discretion to deny the 

motions.

The children further contend that, “[b]y stating 

that the hypothetical courthouse security incident facts that 

[the children’s counsel] posed to an expert witness ‘are not 

accurate,’ Judge Watkins became a witness in the proceeding” because she “had personal knowledge of disputed facts 

about what happened with mother at courthouse security.” 

Again relying on Lamonts Apparel, Inc., the children argue 

that “a judge who had personal knowledge of relevant facts 

might be acting as a witness, and thus might violate [OEC 

605], even if the judge did not formally take the witness 

stand.” 153 Or App at 234. The children argue that they 

were prejudiced because the children’s counsel “would want 

to offer evidence of the judge’s perceptions of the security 

incident but [wa]s precluded from doing so” due to the bar on 

the judge testifying as a witness and because the children 

were denied “the ability to question another witness about 

the implications of the incident,” which “denied children an 

opportunity to be heard regarding evidence relevant to the 

issue of mother’s conduct.” While a closer question, we are 

not persuaded. The children and DHS still do not explain 

how the alleged courthouse security incident involved facts 

actually in dispute in the proceeding. To the extent the 

children and DHS are suggesting that mother’s difficulty 

navigating courthouse security was relevant to the allegations regarding her mental health, we disagree. The test for 
Cite as 326 Or App 149 (2023) 161

parental unfitness focuses on “the detrimental effect of the 

parent’s conduct or condition on the child, not just the seriousness of the parent’s conduct or condition in the abstract.” 

State ex rel SOSCF v. Stillman, 333 Or 135, 146, 36 P3d 490 

(2001). Further, court staff disclosed to those present in the 

courtroom that the judge had facilitated mother’s transition 

through courthouse security, and, given that counsel posed 

the hypothetical about the incident to Duncan when court 

resumed, it is reasonable to infer that counsel was present 

during that disclosure. Given that counsel had that information and that it was not relevant to any issue in the case, 

it is unclear why the security hypothetical was used unless 

perhaps to create a basis for mistrial. It was therefore not 

an abuse of discretion to deny the mistrial motions on that 

basis. Accordingly, we reject children’s first through third 

and DHS’s ninth through eleventh assignments of error.

III. DISMISSAL OF TERMINATION PETITIONS

DHS’s first three assignments of error and the children’s fourth through sixth assignments of error challenge 

the juvenile court’s dismissal of the petitions to terminate 

mother’s parental rights as to M, J, and E at the close of 

DHS’s evidence. As we will explain, the evidence in the 

record does not clearly and convincingly persuade us that 

mother’s mental health conditions are of such nature and 

degree as to render her incapable of providing proper care 

for her children. DHS has likewise failed to meet its burden 

to establish that mother’s conduct or conditions are seriously 

detrimental, rendering her unfit so that termination is warranted. Finally, DHS has not established that mother’s lack 

of stable housing is an independent ground for termination, 

and it has not advanced or developed arguments that any 

of the remaining allegations serve as an independent basis 

on which to terminate mother’s parental rights at this time. 

Accordingly, the juvenile court did not err in dismissing the 

termination petitions.

We begin with the relevant legal standard. To terminate a parent’s rights on the basis of unfitness, a court 

must find that (1) the parent has engaged in conduct or is 

characterized by a condition that is seriously detrimental to 

the child; (2) integration of the child into the parent’s care 
162 Dept. of Human Services v. J. E. D. V.

is improbable within a reasonable time due to conduct or 

conditions not likely to change; and (3) termination is in the 

best interests of the child. ORS 419B.500; ORS 419B.504; 

Stillman, 333 Or at 145-46.

The state must establish the statutory grounds 

for termination by clear and convincing evidence. ORS 

419B.521(1). Evidence is clear and convincing when it 

“makes the existence of a fact highly probable or if it is of 

extraordinary persuasiveness.” Dept. of Human Services v. 

N. H., 322 Or App 507, 514, 520 P3d 424, rev den, 370 Or 

694 (2022). When we review de novo, “we are not performing our more typical appellate-court function of assessing 

whether the evidence before a trial court was legally sufficient to support its ruling.” Dept. of Human Services v. 

L. M. B., 321 Or App 50, 52, 515 P3d 927 (2022). Instead, 

“we are deciding for ourselves whether the case made by the 

party with the burden of persuasion persuades us that that 

party has proven its case.” Id.

In considering whether a parent’s conduct or condition is “seriously detrimental,” the court “focuses on the 

detrimental effect of the parent’s conduct or condition on the 

child, not just the seriousness of the parent’s conduct or condition in the abstract.” Dept. of Human Services v. B. J. J., 282 

Or App 488, 502, 387 P3d 450 (2016) (emphasis in original, 

internal quotation marks and citation omitted). However, a 

condition or conduct can be “seriously detrimental” based on 

the potential for such harm. Id. In each case, the “serious 

detriment” inquiry is “child-specific” and calls for testimony 

regarding the needs of the particular child. State ex rel Dept. 

of Human Services v. Huston, 203 Or App 640, 657, 126 P3d 

710 (2006). Finally, in determining whether DHS has proved 

unfitness, we examine the parent’s conduct and conditions 

at the time of the termination hearing and in combination 

rather than in isolation. B. J. J., 282 Or App at 503.

DHS argues that it proved by clear and convincing 

evidence that mother’s conduct and conditions are seriously 

detrimental to the children. In DHS’s view, the evidence 

clearly and convincingly shows that the children were traumatized by mother’s chronic neglect, lack of supervision, 

untreated mental health issues, and damaging treatment 
Cite as 326 Or App 149 (2023) 163

while in mother’s care; that mother’s mental health conditions and resulting symptoms are harmful to the children, 

mother lacks insight into that harm, and she has not made 

strong attempts to correct her behavior; and that the children have significant special needs due in part to the trauma 

they experienced in mother’s care, which mother fails to 

acknowledge and for which she fails to take responsibility. 

DHS also argues that mother’s housing situation remains 

unstable despite DHS providing her with years of services, 

including housing support and referrals. At oral argument, 

DHS maintained that this is “not a close case” and that the 

juvenile court’s ruling is “inexplicable.”

We have reviewed the entire record de novo and find 

that DHS failed to meet its burden to prove mother’s unfitness. We begin with the evidence regarding mother’s mental 

health conditions because, at trial, DHS’s theory was that 

“mother’s mental health has created all these other conditions” alleged in the termination petitions.

Mother submitted to two neuropsychological evaluations in relation to the underlying dependency proceedings, which DHS submitted as exhibits in the termination 

trial. In September 2018, Dr. Backstrand diagnosed mother 

with bipolar disorder and Attention-Deficit/Hyperactivity 

Disorder (ADHD) and noted that mother displayed characteristics of a personality disorder. Her testing indicated average levels of intellectual functioning and grasp of parenting 

skills, such as expectations of children, empathy, and family 

roles, and also indicated that she practices nurturing parenting skills and concepts regularly. Backstrand explained 

that mother was able to adequately describe her children’s 

needs and has a basic understanding of the knowledge and 

skills of nurturing parenting but that her ability to recognize and meet the children’s needs in practice “appears to 

be variable.” Backstrand observed a visit with the children 

in which mother exhibited moderate warmth and affection, 

was generally responsive and engaged in interacting with 

M, J, and E, offered some encouragement and teaching, and 

was aware of and redirected some of the children’s problem 

behaviors. However, Backstrand opined that mother’s ability to manage stress was poor, evidenced by her emotional 
164 Dept. of Human Services v. J. E. D. V.

reactivity, aggressive outbursts, and DHS’s observations of 

her difficulty managing the “chaos” in visits with all four 

children together and her lack of coping skills.4

 Backstrand 

ultimately opined that mother’s mental health “may impede 

her parenting” without proper treatment, and recommended 

psychotherapy, particularly Dialectical Behavioral Therapy 

(DBT), to address mother’s emotional regulation, stress tolerance, interpersonal effectiveness, and mindfulness.

In February 2020, Duncan again diagnosed mother 

with bipolar disorder and ADHD and also noted that she 

exhibited traits of a personality disorder. Duncan opined 

that mother continues to experience co-occurring mental 

health symptoms and maladaptive personality traits and 

requires mental health treatment to “optimize” her daily 

functioning and parental capacities. Duncan opined that 

mother remains prone to becoming dysregulated and reactive “towards DHS personnel, and possibly towards others,” 

despite her ongoing engagement in individual counseling, 

and that such behavior has negatively interfered with her 

visits with her children and with their ability to feel safe 

and supported by her. Duncan opined that mother has had 

difficulties parenting her children and attending to their 

needs “when she has been under more considerable stress,” 

she continues to have difficulties regulating her emotions 

and behavior and receiving and benefitting from feedback 

from providers, she does not appear to appreciate how her 

“immature, oppositional, and reactive behavior can negatively impact her young children,” and she has not made 

strong attempts to correct such behavior. Duncan ultimately 

opined that mother “continues to be at risk for acting in an 

4 Backstrand also noted that mother had indicated that “part of her reactivity with the DHS staff members is due to feeling anxious and cornered” and that 

“repetition and separating instructions into smaller pieces is helpful for her, as 

well as presenting information in multiple formats.” Backstrand explained that 

“[i]t may be helpful to develop a system in which [DHS] staff members can alert 

[mother] that there is a concern in her visit and then provide her time to address 

the situation before intervening or confronting her.” That system was not put into 

place until August 2021 when, after four meetings between DHS, mother, and 

mother’s attorney, DHS agreed to be “as non-intrusive as possible” and to text 

and email any “non-safety related redirection” after the visit; and to verbally or 

physically intervene only if (1) mother makes a critical, negative, or hurtful comment to a child, (2) a child is not adequately supervised while engaging in unsafe 

behavior, or (3) mother talks negatively about a child’s other family member or 

caregiver.
Cite as 326 Or App 149 (2023) 165

immature, oppositional, and reactive manner in front of her 

children,” and he recommended that she continue individual 

therapy and consider “more intensive DBT.”

At trial, Backstrand testified that mother’s diagnoses “definitely could” impact her ability to safely parent, 

depending on their severity and management, and that 

there was a “longstanding history” of “multiple reports from 

multiple sources” of mother’s continued emotional reactivity, oppositional attitude, adversarial nature, impulsivity, 

and inappropriate behavior in front of the children. Duncan 

testified that mother’s mental health impacts her ability to 

parent “mostly [by] really becoming upset and reactive and 

d[y]sregulated in front of her kids.” Duncan explained that 

when he evaluated mother in 2020, her diagnosis and symptoms made it difficult for her to be mindful and attuned to 

her children’s needs or to appreciate the extent to which she 

was impacting them. He described her condition as “chronic” 

and her prognosis as “poor” because “these are longstanding 

problems” that require “intensive treatment.”

Backstrand testified to a “possibility” that mother 

suffers from a personality disorder and explained that someone with a personality disorder can safely parent unless they 

are unaware of or unwilling to meet their children’s needs or 

to put their children’s needs above their own, or are endangering them due to being reckless, irresponsible, or inattentive. She opined that it is “good” that mother is engaged in 

treatment and observed that mother was using skills in the 

courtroom she most likely learned in DBT classes to control 

her outbursts, such as channeling her energy and attention 

into coloring, and that her ability to maintain composure for 

a considerable amount of time was “encouraging” and “positive.” She testified, however, that she would also like to see 

mother “compliant with DHS requirements,” that visits are 

going well, and that mother’s behaviors are “more appropriate, especially around the children.”

Duncan testified similarly that, “just because 

[mother] has those conditions,” including trauma symptoms, mood symptoms, and personality features, “doesn’t 

mean she can’t parent.” Rather, “[i]t means that she has 

to have adequate treatment and those conditions need to 
166 Dept. of Human Services v. J. E. D. V.

be well-managed to optimize her parental capacities” and 

“having those conditions in better remission just optimizes 

her abilities to parent.”

It is obvious that DHS is not satisfied that mother 

can optimally meet her children’s needs. To be sure, DHS 

records confirm that mother’s ability to use nurturing parenting skills with her children has been variable. However, 

our review of the entire record does not persuade us by clear 

and convincing evidence that mother cannot provide legally 

adequate care for her children for extended periods of time. 

See State ex rel Juv. Dept. v. Johnson, 165 Or App 147, 157, 

997 P2d 231 (2000) (“[W]e look beyond the caseworkers’ conclusions to the empirical information that supports their 

opinions.”). As Duncan noted, mother’s ability to be more 

attuned to her children’s needs may well need to improve in 

order to optimize her parenting skills, but her skills are currently at the required minimally adequate level. Moreover, 

despite evidence of mother’s open hostility toward DHS and 

the added stress that comes with that, the evidence overall, 

including evidence of mother’s engagement with services, 

her conduct during visitation, and the psychological evaluations and testimony, persuades us that mother is both aware 

of and willing to meet her children’s needs.

We also find that, while mother’s longstanding conduct of emotional dysregulation in front of—and at times 

toward—her children is harmful, under these circumstances—and on this record—it does not present a risk of 

the type of seriously detrimental harm to the children that 

justifies or requires termination of mother’s parental rights. 

See State v. McMaster, 259 Or 291, 303-04, 486 P2d 567 

(1971) (“The best interests of the child are paramount; however, the courts cannot sever ** * parental rights when many 

thousands of children are being raised under basically the 

same circumstances ** *. The legislature had in mind conduct substantially departing from the norm.”).5

 Backstrand 

testified that the risk of harm to the children related to 

mother’s mental health conditions may manifest in distress, 

5 The legislature amended ORS 419B.504 after McMaster, but “we and the 

Supreme Court have continued to rely on the McMaster formulation of whether 

the relevant conduct or condition is ‘seriously detrimental.’” B. J. J., 282 Or App 

at 505 n 9.
Cite as 326 Or App 149 (2023) 167

decreased self-esteem, and increased anxiety. DHS caseworkers testified that the children reacted negatively to 

mother’s dysregulated behavior and showed an increase in 

emotional dysregulation, aggressive behavior, and signs of 

stress around visits with mother. However, as the juvenile 

court observed, it is likely that “many thousands of children 

are being raised under basically the same circumstances.” 

See id. at 304; see also State ex rel Dept. of Human Services 

v. Smith, 338 Or 58, 87, 106 P3d 627 (2005) (“Given mother’s 

limitations, perfection in parenting is not attainable (if it is 

for anyone), but neither is it required.”).

There is certainly evidence in the record that the 

children have experienced significant trauma and that they 

have significant trauma-related needs. The evidence, however, does not establish the required link between the children’s trauma and related needs and mother’s parenting. 

In other words, the fact that the children have significant, 

trauma-related special needs does not, without more, prove 

that mother is an unfit parent, and we are not persuaded on 

this record that mother is incapable of adequately meeting 

the children’s current needs, particularly with supportive 

services.

Prior to the incident that led to the children’s 

removal in March 2018, DHS had investigated various allegations involving this family dating back to 2014 and repeatedly judged the family’s living conditions to be adequate and 

concluded that the allegations relating to M, J, and E were 

unfounded. Medical and school records from before the children were removed from mother’s care show that the family 

was receiving numerous services, the children were adequately fed and cared for, and, although both M and J were 

involved in special education programs, none of the children 

exhibited significant troubling behavior. The children’s 

circumstances changed and worsened after DHS removed 

them from their mother’s care in March of 2018. They were 

placed in separate, non-relative foster homes where they 

exhibited difficult and disruptive behavior which, in turn, 

led to DHS repeatedly moving the children at the request 

of foster providers. M had eight placements in the first year 

of care; J had 16 placements in the first 18 months of care, 

including therapeutic group homes where staff regularly 
168 Dept. of Human Services v. J. E. D. V.

placed him in security holds; and E had eight placements 

in the first six months of care, including one home where 

an older foster sibling disclosed that he sexually abused E 

multiple times over the course of a few months. Finally, as 

noted, because mother repeatedly disregarded visit guidelines, her contact with the children was reduced and then 

suspended altogether.

The record does not convince us that mother’s mental health conditions and attendant conduct—even if not 

optimal for these children—render her parenting skills “so 

inadequate as to constitute a serious detriment” to the children, rather than rendering her merely unable “to maximize the child[ren]’s potential.” State ex rel Dept. of Human 

Services v. Squiers, 203 Or App 774, 793, 126 P3d 758 (2006). 

The trauma M, J, and E experienced while in the foster 

care placements arranged by DHS cannot be attributed to 

mother on this record. See Dept. of Human Services v. C. R. P., 

244 Or App 221, 238, 260 P3d 654, rev den, 351 Or 254 

(2011) (“DHS is responsible for making decisions regarding 

the welfare of children in its custody, but the consequences 

of those decisions should not necessarily be attributed to the 

parent in every instance.”).

We next address DHS’s contention that mother’s 

lack of contact with the children at the time of the termination trial establishes that her mental health conditions and 

attendant conduct have been seriously detrimental to the 

children. There is no dispute that mother and the children 

were estranged by the time of the termination trial, nearly 

four years after the children were removed from mother’s 

care. Mother’s relationship with DHS was clearly strained, 

and she was responsible for part of that dynamic. However, 

the record shows that mother has consistently attended 

visits and other meetings throughout the pendency of the 

cases, has objected to visit restrictions, and has advocated 

for increased visits with her children and for parent-child 

interactive therapy, all in an effort to work toward reuniting her family. DHS, for its part, has relied on therapeutic 

recommendations in making placement, treatment, and visitation decisions. But the fact that these cases are medically 

and emotionally complex, with particularly difficult personality conflicts that have worked against the agency’s efforts, 
Cite as 326 Or App 149 (2023) 169

does not make mother’s lack of contact with her children a 

basis for terminating her parental rights.

Finally, we address the allegation that mother lacks 

stable housing. DHS argues that mother “refused to engage 

with numerous housing options and services [that] DHS 

offered.” The record is not entirely clear on where mother 

has lived throughout the underlying dependency cases. Her 

DHS caseworker from 2018 to 2020 testified that she had 

visited mother’s home and had no concerns, so it appears 

that mother was able to secure housing on her own for at 

least some period of time. Mother reported to her therapist 

that she had been evicted in November 2021 and that she 

had reengaged with a county-run clinic to assist her with 

case management and specifically housing assistance, and 

she testified that she was living in a hotel at the time of 

trial. Given her ongoing efforts to secure stable housing 

to accommodate herself and the children, we are not persuaded that mother’s lack of long-term housing is a sufficient independent basis to terminate her parental rights. 

Cf. Dept. of Human Services v. M. H., 256 Or App 306, 331, 

300 P3d 1262, rev den, 354 Or 61 (2013) (concluding that 

“homelessness and unemployment are not, alone, sufficient 

bases” for dependency jurisdiction).6

To summarize, the psychological evidence in the 

record does not persuade us that mother’s mental health conditions are of such nature and degree as to render her incapable of providing proper care for the children for extended 

periods of time. Further, under the circumstances of this 

case, neither the ongoing and at times increasing special 

needs of the children nor mother’s lack of contact with them 

at the time of the termination trial clearly and convincingly 

establish that mother’s emotional dysregulation and reactivity has resulted in or poses a risk of the sort of serious detriment to the children that justifies termination of mother’s 

6 DHS has not advanced or developed arguments that any of the remaining allegations serve as an independent basis on which to terminate mother’s 

parental rights at this time, and we therefore decline to address them. See Beall 

Transport Equipment Co. v. Southern Pacific, 186 Or App 696, 700 n 2, 64 P3d 

1193, adh’d to as clarified on recons., 187 Or App 472, 68 P3d 259 (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.”).
170 Dept. of Human Services v. J. E. D. V.

parental rights. If anything, the evidence establishes that 

mother’s mental health conditions impact her ability to cope 

with the stress of DHS intervention in her family which, 

in turn, impacts her ability to convince DHS that she can 

safely parent her children. However, mother does not bear 

the burden to prove that she is fit; DHS bears the burden of 

proving, by clear and convincing evidence, that she is unfit. 

Cf. State ex rel Dept. of Human Services v. L. S., 211 Or App 

221, 241, 154 P3d 148 (2007) (recognizing DHS’s “difficult 

position” as to “its ability to contact and work with mother” 

but noting that “we cannot ignore the requirements of ORS 

419B.504”). It has failed to do so.

We acknowledge the difficult position all parties to 

these cases are in, particularly the children. Mother cannot 

reasonably expect the children to be returned to her care if 

she continues to alienate DHS staff and providers. At the 

same time, DHS has not met its burden to prove that mother’s mental health conditions and resulting conduct render 

her unfit to parent her children. The juvenile court did not 

err when it dismissed the petitions as to M, J, and E.

IV. DISMISSAL WITH PREJUDICE

We proceed to address DHS’s and the children’s 

fourth through sixth assignments of error, which challenge 

the juvenile court’s dismissal of the termination petitions 

with prejudice. We conclude that the juvenile court did 

not abuse its discretion in dismissing the petitions with 

prejudice.

ORS 419B.890 authorizes a juvenile court, upon 

motion of a party, to adjudicate a petition at the close of the 

petitioner’s evidence:

“(1) After the proponent of the petition has completed 

the presentation of evidence, any other party, without 

waiving the right to offer evidence in the event the motion 

is not granted, may move for dismissal of any or all of the 

allegations of the petition on the ground that upon the facts 

and the law the proponent of the petition has failed to prove 

the allegations or, if proven, the allegations do not constitute a legal basis for the relief sought by the petition. The 

court may order dismissal of the petition or one or more of 
Cite as 326 Or App 149 (2023) 171

the allegations of the petition, or the court may decline to 

render any order until the close of all the evidence.

“(2) Unless the court in its judgment of dismissal 

otherwise specifies, a dismissal under this section operates 

as an adjudication without prejudice.”

Consistent with the permissive language of the statute’s 

text, we review the determination to dismiss the termination petitions with prejudice for abuse of discretion. See 

State ex rel Dept. of Human Services v. S. P. B., 218 Or App 

97, 103, 178 P3d 307 (2008) (applying that standard to other 

petitions filed under the juvenile code).

DHS first contends that the juvenile court’s “brief 

explanation of why it dismissed the petitions with prejudice was not sufficient to support the exercise of discretion” 

because the court “failed to make a record reflecting its 

exercise of discretion and did not specifically address why 

it dismissed the petitions with prejudice.” DHS points out 

that when a trial court renders a judgment of dismissal with 

prejudice under ORCP 54 B(2), the court is required to make 

findings under ORCP 62 so as “to provide a reviewing court a 

basis for determining how and why the trial court concluded 

that a terminal judgment on the merits was appropriate at 

the close of the plaintiff’s case.” Joseph v. Cohen, 61 Or App 

559, 563, 658 P2d 544 (1983). Although DHS acknowledges 

that ORS 419B.890 does not require the court to make findings, it argues that the “general purpose still applies.”

We first observe that ORCP 54 does not apply to juvenile court proceedings. ORS 419B.800(1) (“ORS 419B.800 to 

419B.929 govern procedure and practice in all juvenile court 

proceedings under this chapter. The Oregon Rules of Civil 

Procedure do not apply in these proceedings.”). Further, 

nothing in the text of ORS 419B.890 requires the court to 

make findings at all, much less findings specific to its decision to dismiss with prejudice, and we are not aware of any 

other provision in the juvenile code requiring the court to 

make findings under these circumstances. Finally, having 

considered the juvenile court’s ruling in light of the arguments made by the parties on the merits of whether DHS 

met its burden to prove the allegations in the petitions, we 

conclude that the court made a sufficient record reflecting 
172 Dept. of Human Services v. J. E. D. V.

its exercise of discretion. See State v. Anderson, 363 Or 392, 

404, 423 P3d 43 (2018) (holding that a trial court makes a 

sufficient record to support a discretionary ruling when the 

ruling, considered in light of the parties’ arguments, demonstrates that the court evaluated the appropriate considerations). Indeed, in its oral ruling, the juvenile court set forth 

the applicable legal standards, announced findings of fact, 

and explained how the evidence—or lack thereof—factored 

into its legal conclusions.

DHS next contends that the juvenile court abused 

its discretion to the extent that it “intended the dismissal 

with prejudice to be a sanction for what it viewed as []DHS’s 

failure to make past reasonable efforts to reunify the family.” In DHS’s view, because it was not required to prove past 

reasonable efforts in a termination proceeding under ORS 

419B.504, the court’s reliance on that failure fell outside the 

range of legally permissible outcomes and constituted an 

abuse of discretion.

The juvenile court apparently did base its decision 

to dismiss the petitions with prejudice, at least in part, on its 

view that “we have failed this mother” and “these children” 

given that, in its view, DHS had not “done all that it could do 

** * to reunify this mom with her children and these siblings 

with each other.” However, exercising discretion on such a 

premise is not legally erroneous. Cf. Nationstar Mortgage, 

LLC v. Hinkle, 321 Or App 300, 311-12, 516 P3d 718 (2022) 

(“When a trial court’s exercise of discretion proceeds from 

a mistaken legal premise, its decision does not fall within 

the range of legally correct choices and does not produce a 

permissible, legally correct outcome.”). Although the juvenile court was not required to evaluate DHS’s reunification 

efforts at the termination trial, “DHS’s failure to make reasonable efforts may be relevant to the determination regarding integration.” Dept. of Human Services v. D. M. T., 239 

Or App 127, 140, 243 P3d 836 (2010), rev den, 349 Or 654 

(2011) (citing State ex rel Dept. of Human Services v. Keeton, 

205 Or App 570, 583, 135 P3d 378 (2006)). In other words, 

DHS is required to prove in a termination proceeding that 

integration of the child into the parent’s care is improbable 

within a reasonable time, and its failure to make reasonable 
Cite as 326 Or App 149 (2023) 173

efforts may be relevant to that determination.7

 Thus, the 

juvenile court did not legally err in assessing whether DHS 

made past reasonable efforts in deciding whether to dismiss 

the petitions with prejudice and therefore did not abuse its 

discretion on that basis.

DHS also contends that the juvenile court abused 

its discretion because “dismissal with prejudice is not in the 

best interest of the children,” given that “it creates uncertainty about the children’s future legal status and whether 

[]DHS would be limited in its ability to refile petitions to 

terminate mother’s parental rights.” DHS posits that if it is 

barred from refiling a termination petition—a legal question on which there is no direct controlling authority—the 

children could potentially remain wards of the court until 

their majority.

DHS does not anchor its argument to the specific 

facts of this case or the particular circumstances of these 

children. Rather, DHS appears to argue that uncertainty for 

the child inherent in any dismissal of a petition with prejudice renders such a dismissal an abuse of discretion. DHS 

correctly observes that, “in cases arising under the Juvenile 

Code, the interests of the children will always be a relevant, 

even primary, consideration.” State ex rel Juv. Dept. v. G. A. K., 

225 Or App 477, 487, 201 P3d 930, rev den, 346 Or 157 

(2009). However, if we accepted DHS’s argument, we would 

effectively create a categorical rule that alters the plain text 

of the statute, which expressly allows for dismissal with 

prejudice. See ORS 174.010 (in construing a statute we may 

not “omit what has been inserted”). This case does not call 

for us to determine whether or to what extent DHS may be 

precluded from filing any particular termination petition—

aside from refiling the operative petitions currently before 

us—or from repleading similar allegations or relitigating 

facts that were presented in this proceeding. Those legal 

issues may be properly raised in the event DHS files future 

7 In the underlying dependency proceeding, a juvenile court must determine 

whether DHS has made “reasonable efforts * ** to make it possible for the ward to 

safely return home” at dispositional and permanency hearings. ORS 419B.340(1); 

ORS 419B.476(2)(a). The predicate facts to support a court’s reasonable efforts 

determination must be established by a preponderance of the evidence in the 

record at the time of the hearing. ORS 419B.310(3)(a)(A).
174 Dept. of Human Services v. J. E. D. V.

petitions to terminate mother’s parental rights under the 

specific facts and circumstances that then exist. However, 

we have recognized that, “[w]hen the best interests or welfare of a child are implicated, the interests protected by 

claim and issue preclusion may be relegated to a secondary 

position.” Dept. of Human Services v. T. G. H., 305 Or App 

783, 797, 473 P3d 591 (2020). Moreover, as mother points 

out, the dismissal of the termination petitions with prejudice does not disturb the underlying dependency proceedings, which require periodic permanency hearings at which 

the juvenile court must continually revisit and reevaluate 

the appropriate permanency plan for each child based on 

current circumstances. Nor do we understand the dismissal 

of these petitions with prejudice to override other provisions 

in the juvenile code that allow or require DHS to file a termination petition under certain circumstances.

Finally, to the extent that DHS separately argues 

that the juvenile court abused its discretion in dismissing 

the petitions at the close of DHS’s case, we disagree. We 

have cautioned, in the context of ORCP 54 B(2), that the 

power of dismissal “should be employed sparingly” in order 

“to avoid unnecessary remands for new trials” given that 

the “dynamics of de novo review present the very substantial 

risk that a half-tried case will be remanded for a new trial” 

or “at least, the completion of the trial by way of submission 

for defense and rebuttal evidence.” Venture Properties, Inc. 

v. Parker, 223 Or App 321, 341-42, 356, 195 P3d 470 (2008). 

However, on this record, the juvenile court did not err in 

finding that DHS had not met its burden to prove the allegations in the petitions and therefore did not err in exercising 

its authority to dismiss the petitions at the close of DHS’s 

evidence, as expressly authorized by ORS 419B.890(1).

V. REMOTE LOCATION TESTIMONY

Finally, both DHS and the children claim in their 

seventh assignments of error that the juvenile court erred by 

“reversing—during trial—an order which granted []DHS’s 

motion to permit Dr. Henry Miller to testify remotely under 

ORS 45.400.” However, as mother points out, the juvenile 

court did not reverse an order granting Miller’s remote testimony during trial. Rather, the presiding judge of Clackamas 
Cite as 326 Or App 149 (2023) 175

County issued an order three days before the start of trial modifying court operations in response to changing COVID-19 

pandemic conditions and providing that all TPR proceedings 

were to be held in person, that a party could file a motion for 

remote testimony to be determined by the assigned judge, 

and that the order superseded all prior inconsistent orders. 

Two days later—the day the case was assigned to Judge 

Watkins and the day before trial commenced—the juvenile 

court informed the parties that the Presiding Judge Order 

(PJO) had superseded an order from the prior month granting DHS’s motion for Miller to testify remotely. DHS does 

not assign error to the PJO or to the juvenile court’s ruling 

that the PJO superseded that prior order allowing Miller’s 

remote testimony.

To the extent that DHS means to challenge the juvenile court’s denial of DHS’s renewed motion to allow Miller 

to testify remotely, asserted on the first day of trial, we need 

not decide whether the juvenile court abused its discretion 

in denying that motion, see State v. M. P., 312 Or App 411, 

419, 493 P3d 1051 (2021) (explaining that the 2017 amendment to ORS 45.400 “expressly makes the decision whether 

to allow telephonic testimony in nonjury proceedings a 

matter of trial court discretion except in specified circumstances”), because DHS has not identified how the alleged 

error was prejudicial. On appeal, DHS acknowledges that 

it did not have an active subpoena for Miller’s testimony at 

the time of trial but asserts that “it did not have a mechanism to timely compel [his] attendance at trial,” given the 

timing of the juvenile court’s ruling. Again, we reject DHS’s 

contention that the juvenile court rescinded the prior order 

during trial, and DHS does not explain why it would not 

have been able to timely serve Miller with a subpoena in 

the three remaining days of trial “so as to allow the witness 

a reasonable time for preparation and travel to the place of 

attendance.” ORS 419B.902(1). DHS asserted to the juvenile 

court that it “no longer ha[d] subpoena power to bring him 

in” to testify, but also represented that it knew where to 

serve Miller (Newberg), that it had previously subpoenaed 

him and later notified him that he was relieved of the duty 

to appear on the subpoena when the prior order allowed him 

to appear remotely, but that it had concerns about enforcing 
176 Dept. of Human Services v. J. E. D. V.

a subpoena should he refuse to appear. Accordingly, given 

that DHS has not established that it could not otherwise 

secure Miller’s testimony at trial, we reject DHS’s and the 

children’s seventh assignment of error.

In their eighth assignments of error, DHS and the 

children contend that the juvenile court erred when it did not 

allow them “to make an offer of proof regarding Dr. Miller’s 

testimony.” We conclude that the juvenile court did not err. 

The juvenile court did not exclude Miller’s testimony, but 

rather prescribed the “mode” or form in which that testimony 

could be taken. See ORS 45.010(3) and (4) (providing that 

oral examination and remote location examination under 

ORS 45.400 are two of six modes in which the testimony of a 

witness is taken). Accordingly, DHS has not established that 

it was necessary to make an offer of proof as to the substance

of Miller’s testimony to preserve its claim that the juvenile 

court abused its discretion in denying the motion to allow 

Miller to testify remotely. See State v. Haugen, 349 Or 174, 

191, 243 P3d 31 (2010) (“Making an offer of proof is ordinarily part of preserving an argument that the trial court 

erred in excluding evidence.” (Emphasis added.)); see also 

Dept. of Human Services v. M. T. J., 304 Or App 148, 158-59, 

466 P3d 702 (2020) (noting that the purpose of the rule 

requiring an offer of proof “is to assure that appellate courts 

are able to determine whether it was error to exclude the 

evidence and whether any error was likely to have affected 

the result of the case” (emphasis added; internal quotation 

marks and citation omitted)). We therefore reject DHS’s and 

the children’s eighth assignments of error.

Affirmed.