588 October 11, 2023 No. 535

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

In the Matter of A. S.,

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

v.

L. N. S. 

and A. S.,

Appellants.

Douglas County Circuit Court

22JU04496; A180424

Ann Marie Simmons, Judge.

Submitted July 12, 2023; on respondent’s motion to dismiss filed July 31, 2023, appellant L. N. S.’s response to 

respondent’s motion to dismiss filed August 14, 2023, and 

respondent’s reply filed on August 21, 2023.

Shannon Storey, Chief Defender, Juvenile Appellate 

Section, and Sean Connor, Deputy Public Defender, Office 

of Public Defense Services, filed the briefs for appellant 

L. N. S.

Ginger Fitch and Youth, Rights & Justice filed the brief 

for appellant A. S.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Emily N. Snook, Assistant Attorney 

General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and 

Hellman, Judge.

ORTEGA, P. J.

Motion to dismiss granted; appeal dismissed as moot.
Cite as 328 Or App 588 (2023) 589
590 Dept. of Human Services v. L. N. S.

ORTEGA, P. J.

In this juvenile dependency case, mother and her 

child, A, appeal from the juvenile court judgment asserting 

jurisdiction under ORS 419B.100 and making A a ward of 

the court. On appeal, mother and A challenge the court’s 

denial of their joint motion to dismiss the dependency petition, as well as the court’s rulings on the three allegations 

underlying the jurisdictional judgment. While this appeal 

was pending, the juvenile court dismissed jurisdiction and 

terminated the wardship, and the Department of Human 

Services (DHS) moved to dismiss this appeal as moot. In 

response, mother contends that her appeal is not moot.1

 She 

identifies two collateral consequences—that the jurisdictional judgment will disadvantage her in possible domestic 

relations proceedings brought by nonparents and in future 

child welfare investigations and proceedings. We conclude 

that those collateral consequences are legally insufficient 

to render this appeal justiciable. We therefore grant DHS’s 

motion to dismiss, which obviates the need to address the 

merits of mother’s and child’s appeal.

DHS filed a dependency petition when A was 

approximately 20 months old after learning that A accessed 

mother’s pain pills when mother left A unsupervised for 

several minutes. DHS asserted that the “condition and circumstances *** [we]re such as to endanger [A’s] welfare.” 

See ORS 419B.100(1)(c) (granting the juvenile court “exclusive original jurisdiction in any case involving a person 

who is under 18 years of age” under those circumstances). 

Less than two months later, DHS filed an amended petition.2

 At the close of DHS’s case at the ensuing jurisdictional 

hearing, mother moved to dismiss the dependency petition, 

and A joined the motion. The court denied mother’s motion 

and asserted jurisdiction over A, making her a ward of the 

court. The court ruled that DHS had proved the following 

allegations:

1 A did not respond to DHS’s motion to dismiss as moot.

2 DHS’s amended dependency petition refers to A as a nine-month-old child. 

The record, however, indicates that A was born in January 2021 and DHS’s original dependency petition is dated September 2022, so A was approximately a 

20-month-old child at the time that the original dependency petition was filed 

and approximately 22 months old at the time of the amended petition.
Cite as 328 Or App 588 (2023) 591

“[3A -] [M]other has a pattern of leaving [A] unattended which presents a safety threat to [A].

“[3B -] Despite having participated in services 

designed to improve ** * mother’s parenting skills, she is 

unable to safely parent [A].

“[3C -] [M]other’s cognitive ability and/or mental 

health, including substance use, affects her ability to provide a safe environment for [A].”

In ruling that mother had a pattern of leaving A unattended, 

the court noted that mother had participated in services 

and had participated in multiple conversations with DHS 

about that same subject with respect to A and to mother’s 

older child, E.3

 The court then entered a judgment reflecting 

its rulings and granting custody of A to DHS for care, placement, and supervision.

Mother and A appeal. In five assignments of error, 

mother challenges the juvenile court’s ruling on her motion 

to dismiss the dependency petition, its jurisdictional judgment, and its rulings on allegations 3A, 3B, and 3C. A 

assigns error to the denial of mother’s motion to dismiss and 

to the court’s judgment.

After this appeal was commenced, the juvenile court 

dismissed A’s wardship and closed the case. The judgment 

of dismissal contained no additional findings but indicated 

that based upon DHS’s request, “and good cause appearing,” 

the court found that A’s “best interest” would be “served by 

a dismissal of the wardship.”

DHS asserts that this appeal is moot, contending 

that our decision on the merits of mother’s arguments would 

have no practical effect on mother’s rights. According to 

DHS, because A has no legal father and there are no pending custody proceedings involving A, the juvenile court’s 

finding of jurisdiction has no ongoing impact on mother in 

light of the dismissal of the wardship.4

3 E was under DHS’s custody and living with a relative at the time of the 

jurisdictional proceedings at issue and is not involved in this appeal.

4 A juvenile court’s termination of its jurisdiction and a wardship ordinarily 

renders moot an appeal of the underlying jurisdictional judgment.” Dept. of 

Human Services v. C. T., 288 Or App 593, 599, 406 P3d 191 (2017), rev den, 362 Or 

482, and rev den, 362 Or 545 (2018).
592 Dept. of Human Services v. L. N. S.

Mother objects, urging two reasons for us to decide 

the merits of her appeal. She first contends that the fact 

that A has no legal father does not preclude nonparents 

from petitioning for custody, guardianship, or right of visitation, which she asserts would have a practical effect on 

her rights. Mother points to ORS 109.119, which allows nonparents to petition for or intervene in matters related to custody, guardianship, and visitation, or other matters related 

to the child under specific circumstances. Second, mother 

argues that the juvenile court’s rulings in the jurisdictional 

judgment “will disadvantage” her in any future child welfare investigations and proceedings.

In reply, DHS first contends that mother’s assertions as to why this appeal is not moot are speculative 

because they identify only mere possibilities that are insufficient to demonstrate justiciability. Second, DHS argues 

that the juvenile court’s rulings will not impact mother’s 

future interactions with DHS. According to DHS, mother 

will suffer no additional consequences from the proceedings 

regarding A that she would not already have from the proceedings regarding E, who is in substitute care and with 

whom DHS had been involved “continuously” for over three 

years.5

 We agree with DHS.

As we have explained:

“An appeal is moot when the court’s decision no longer 

will have a practical effect on the rights of the parties. On 

5 The record before the juvenile court shows that between 2019 and 2023, 

the Oregon Citizen Review Board, which helps courts review cases of children 

in foster care, on at least three occasions issued findings and recommendations 

regarding E, who entered care in 2018. The board’s written reports indicated that 

the juvenile court exercised jurisdiction over E because “mother’s mental health 

interfere[d] with her ability to safely parent” E and that mother had “exposed” 

E to “violence and/or domestic violence which create[d] a [then] current risk of 

harm” to E. Those reports further indicated that E could not return to mother’s 

care at the time due to safety concerns. The record also shows that mother’s 2019 

psychological evaluation in connection to the proceedings regarding E diagnosed 

her with bipolar disorder, post-traumatic stress disorder, substance use disorder, 

child neglect, and child physical abuse. In 2020, another psychological evaluation 

diagnosed mother with bipolar disorder and posttraumatic stress disorder but 

indicated that mother had made positive progress regarding the other diagnoses, including her prior diagnosis as a child abuser. Also, multiple juvenile court 

judgments involving E, including a March 2023 judgment, indicate that E could 

not “safely return to [mother] within a reasonable time” and should remain under 

guardianship.
Cite as 328 Or App 588 (2023) 593

a motion to dismiss for mootness, the party moving for 

dismissal bears the burden of proof. When DHS takes the 

position that termination of a wardship renders an appeal 

moot and demonstrates that the child is no longer subject 

to department control, the parent must then identify the 

practical effects or consequences that the parent believes 

will result from the underlying jurisdictional decision. In 

order to prevent a case from being considered moot, a collateral consequence must be something beyond mere speculation. A collateral consequence must have a significant 

probability of actually occurring; a speculative or merely 

possible effect is not enough. Once the parent identifies collateral consequences, DHS retains the burden of persuasion on its motion, and 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.”

Dept. of Human Services v. J. A., 324 Or App 445, 448-49, 

525 P3d 1245 (2023) (internal citations, quotation marks, 

brackets, and ellipsis omitted). As we explain below, we conclude that DHS has demonstrated that the consequences 

that mother identified are legally insufficient to render her 

appeal justiciable.

We begin with the first consequence mother has identified—that the court’s judgment may affect mother’s rights 

against nonparents under ORS 109.119(1), (3)(a) and (b). 

As DHS argues, there is only a mere possibility that the 

court’s rulings could affect mother’s rights in the manner 

that she claims. That is because there is little likelihood 

that the rulings that mother challenges on appeal—that she 

failed to properly supervise A, was unable to safely parent 

A, and had abused substances—can “affect the standard” 

to be applied “in evaluating mother’s conduct” in a possible proceeding brought by a nonparent under ORS 109.119. 

Dept. of Human Services v. A. B., 362 Or 412, 428, 412 P3d 

1169 (2018).

In granting a nonparent’s petition for intervention 

concerning custody, placement or guardianship, or an order 

providing for other type of relief, a court is required to “presum[e] that the legal parent acts in the best interest of the 
594 Dept. of Human Services v. L. N. S.

child.” ORS 109.119(2)(a). In deciding whether that presumption has been rebutted, the court may—but is not required 

to—consider several factors. ORS 109.119(4)(a), (b) (listing 

those factors). However, the factors that could negatively 

impact mother in a possible ORS 109.119 proceeding require 

present circumstances, not past conduct. The jurisdictional 

allegations at issue in this appeal would not bear on a future 

proceeding under ORS 109.119. Accordingly, there is no significant probability that the rulings that mother challenges 

will “affect the legal standards for evaluating” her care in 

the future or will have an actual adverse consequence to her 

rights against nonparents under ORS 109.119. See Dept. of 

Human Services v. L. C., 303 Or App 37, 45, 462 P3d 323, 

rev den, 366 Or 552, and rev den, 366 Or 552 (2020) (reaching a similar conclusion). We therefore agree with DHS that 

the first collateral consequence that mother identifies is 

legally insufficient to render her appeal justiciable.

We turn to the second consequence—that the juvenile court’s rulings will affect mother in future child welfare 

investigations and proceedings. Although mother cites several cases in support of that argument,6

 we understand mother’s argument here to be limited to the general assertion that 

the juvenile court’s rulings will affect her in future child welfare matters. Mother’s broad argument fails to explain how 

each case specifically relates to her particular circumstances. 

So framed, we agree with DHS that mother’s general assertion—that the juvenile court judgment will affect her rights 

in future child welfare investigations or proceedings—does 

not identify a real and adverse effect or probable collateral 

consequence that can be prevented by our decision on the merits of her arguments in this appeal. Dept. of Human Services 

v. A. H., 275 Or App 788, 790-91, 365 P3d 1183 (2015) (“[a] 

collateral consequence for purposes of mootness is a probable 

adverse consequence to a party as a result of the challenged 

action” (internal quotation marks and brackets omitted)).

Mother’s general concern regarding the consequences of the court’s rulings to her possible interactions 

6 See Dept. of Human Services v. P. D., 368 Or 627, 496 P3d 1029 (2021); see 

also Dept. of Human Services v. A. B., 362 Or 412, 412 P3d 1169 (2018); Dept. of 

Human Services v. A. H., 275 Or App 788, 365 P3d 1183 (2015); State ex rel Juv. 

Dept. v. L. B., 233 Or App 360, 226 P3d 66 (2010).
Cite as 328 Or App 588 (2023) 595

with DHS and the court in the future, although understandable, identifies no consequence that has a significant probability of actually occurring. As DHS argues, the circumstances of this case indicate that any adverse consequences 

of the challenged rulings relating to A would be no greater 

than the consequences arising from mother’s prior history 

with DHS and with the court regarding her older child, E. 

See J. A., 324 Or App at 452 (concluding that the juvenile 

court’s determinations that could otherwise affect the parent’s rights in the future did not render the appeal justiciable because there was “little likelihood” that the effect 

would occur in light of other facts known to the court and 

DHS outside of the challenged determinations).

Indeed, in light of mother’s record with DHS and 

with the juvenile court, there is little likelihood that the rulings regarding A would disadvantage mother in future child 

welfare investigations or proceedings. A. B., 362 Or at 428 

(the court’s rulings would not be “significantly disadvantageous” to the mother in future investigations because DHS 

would consider all the facts in the record and, in light of 

other facts available, there was “little likelihood” that the 

juvenile court’s rulings would have “a significant practical 

effect” on the mother’s rights). Like in A. B., in a future 

child welfare investigation or proceeding against mother, it 

is possible that DHS will consult its records and those of the 

juvenile court, which would include both disadvantageous 

and mitigating findings regarding mother. Those facts not 

only include evidence that mother neglected and was not 

able to safely parent E and then A, but also that mother 

made significant progress during E’s proceedings and that 

the juvenile court dismissed A’s wardship over A because it 

understood that there was good cause to do so.

In the absence of a more specific consequence, 

mother’s assertion that the juvenile court’s findings could 

disadvantage her in future investigations and proceedings 

indicate a mere possibility rather than a real adverse effect. 

See Brumnett v. PSRB, 315 Or 402, 407, 848 P2d 1194 (1993)

(the “mere possibility” of an adverse consequence is “not sufficient to make dismissal inappropriate”); compare A. B., 

362 Or at 428 (the future consequences that the mother 
596 Dept. of Human Services v. L. N. S.

identified did not have real adverse effect and did not render 

her appeal justiciable where the decision being challenged 

on appeal would have no further significant practical effect 

on her rights in light of other circumstances that could also 

be considered) with Dept. of Human Services v. G. D. W., 353 

Or 25, 32, 292 P3d 548 (2012) (the father’s appeal was not 

moot because the juvenile court’s finding that the father had 

sexually abused one of his children, which was incorporated 

into the judgment, could “have real and adverse effects on 

[the] father” as the state could more easily terminate the 

father’s parental rights in the future). Hence, the second 

consequence that mother identifies is legally insufficient to 

render her appeal justiciable.

Accordingly, we agree with DHS that each of those 

two collateral consequences identified by mother amount to 

a mere possibility with no significant probability of actually 

occurring rather than a continuing and real adverse effect 

on mother’s parental rights.

Motion to dismiss granted; appeal dismissed as 

moot.