No. 7 March 28, 2024 133

IN THE SUPREME COURT OF THE 

STATE OF OREGON

In the Matter of A. J. A., 

a Child.

DEPARTMENT OF HUMAN SERVICES,

Respondent on Review,

v.

Y. B.,

Petitioner on Review.

(CC 19JU05194) (CA A178747) (SC S069996)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 12, 2023.

Sarah Peterson, Deputy Public Defender, Office of 

Public Defense Services, Salem, argued the cause and filed 

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

Shannon Storey, Chief Defender, Juvenile Appellate Section.

Robert Hansler, Assistant Attorney General, Salem, 

argued the cause and filed the brief for respondent on 

review. Also on the brief were Ellen F. Rosenblum, Attorney 

General, Benjamin Gutman, Solicitor General, and Inge D. 

Wells, Assistant Attorney General.

MASIH, J.

The decision of the Court of Appeals and the judgment of 

the juvenile court are affirmed.

______________

* Appeal from Marion County Circuit Court, Tiffany Underwood, Judge. 

323 Or App 322, 522 P3d 564 (2022).
134 Dept. of Human Services v. Y. B.
Cite as 372 Or 133 (2024) 135

MASIH, J.

In this case, mother challenges a determination

made by the juvenile court under ORS 419B.476(2)(a) concerning the permanency plan for her child, A. In July 

2019, A was made a ward of the court, committed to the 

legal custody of the Department of Human Services (DHS), 

and placed in substitute care.1 Following a three-day permanency hearing in 2022, the juvenile court changed the 

permanency plan for A from reunification to guardianship, 

based on its determination that, despite DHS’s reasonable 

efforts, mother had not made “sufficient progress” under 

ORS 419B.476(2)(a) to make A’s safe return home possible. 

The Court of Appeals affirmed the juvenile court’s ruling 

without a written opinion. Dept. of Human Services v. Y. B., 

323 Or App 322, 522 P3d 564 (2022). We allowed review to 

clarify the nature of the determination assigned to the juvenile court by ORS 419B.476(2)(a) and to address the related 

question of our standard of review for that determination.

For the reasons that follow, we now hold that the 

juvenile court’s “sufficient progress” determination is a legal 

conclusion rather than a finding of fact, and we conclude 

that the record developed in this case is legally sufficient to 

support the juvenile court’s legal conclusion that mother’s 

progress was insufficient to make possible A’s safe return 

home and to support the court’s decision to change the 

permanency plan from reunification to guardianship. We 

therefore affirm the decision of the Court of Appeals and the 

judgment of the juvenile court.

I. BACKGROUND

A. Standard of Review

DHS bears the burden of proof at a permanency 

hearing, and it must prove the facts supporting a change 

to the permanency plan by a preponderance of the evidence. ORS 419B.476(1) (requiring the permanency hearing to be conducted in accordance with ORS 419B.310); 

ORS 419B.310(3)(A) (requiring that “the facts alleged in the 

1 “Substitute care” is an out-of-home placement directly supervised by DHS 

or another agency and includes placement of a child in a foster family home, a 

group home, or another child-caring agency. ORS 419A.004(34)(a). 
136 Dept. of Human Services v. Y. B.

petition showing the child to be within the jurisdiction of 

the court * * * must be established,” as pertinent here, “[b]y 

a preponderance of competent evidence”); Dept. of Human 

Services v. T. L., 358 Or 679, 692, 369 P3d 1159 (2016) (stating that “DHS has the burden to prove that a parent has 

not made sufficient progress to have the children returned 

despite its reasonable efforts”).

In a dependency case in which we do not review 

de novo, we generally review the juvenile court’s legal conclusions for errors of law,2

 and we consider the evidence in 

the light most favorable to the juvenile court’s disposition 

to determine whether it supports that court’s legal conclusions. Dept. of Human Services v. S. J. M., 364 Or 37, 40, 57, 

430 P3d 1021 (2018). In addition, we defer to the juvenile 

court’s findings of fact if there is any evidence in the record 

to support them. Id. at 57 (affirming juvenile court ruling 

because “explicit and implicit factual findings, and the evidence in the record on which they were based, supported 

the juvenile court’s legal conclusions”). And, as we discuss 

further below, we review a legal conclusion that is heavily 

fact-dependent—such as a juvenile court’s determination 

of “sufficient progress”—to determine whether the evidence 

was sufficient to support it. 

B. Historical Facts and Juvenile Court Jurisdictional Bases

The events that led to this dependency proceeding 

began in July 2019. Mother left her son, A, who was then 

about 18 months old, with his regular babysitter for a couple of hours.3

 Mother returned to the babysitter’s home with 

a pizza. When A wandered into the kitchen, where mother 

was preparing to bake the pizza, mother became angry 

and began yelling at him. She grabbed A’s right arm and 

swung him around the kitchen while slapping him on the 

hands and head. The babysitter took A away from mother. 

Mother left the babysitter’s home and did not come back 

that night. The next day, the babysitter called emergency 

2 No party requested de novo appellate review as permitted by ORS 19.415

(3)(b), either in the Court of Appeals or in this court, and we choose to review for 

errors of law. ORS 19.415(1). 

3 A spent a great deal of time at the babysitter’s home, including some overnight stays, to accommodate mother’s shift-work schedule. 
Cite as 372 Or 133 (2024) 137

services because A’s arm was swollen and he avoided moving it. A was transported to the hospital, and, because he 

was alone, authorities contacted DHS. At the hospital, medical personnel determined that A’s arm was fractured. They 

also noted that the right side of his face was bruised and 

there were superficial abrasions on other parts of his body. 

They reported to the police that they suspected child abuse. 

DHS placed A in protective custody and filed a dependency 

petition alleging physical abuse and failure to attend to A’s 

basic needs.4 The juvenile court issued a shelter order based 

on DHS’s petition, and it committed A to DHS’s temporary 

custody for placement in substitute care.

Police and a Child Protective Services case worker 

investigated the circumstances of A’s injuries and interviewed mother and the babysitter, among others. Mother 

denied that she had knowingly injured A, asserting, instead, 

that she walked him out of the kitchen with both hands over 

his head. Based on information provided by hospital staff 

and the babysitter, the Marion County District Attorney’s 

Office charged mother by information with first-degree 

criminal mistreatment.

In September 2019, the juvenile court issued an 

order establishing dependency jurisdiction over A based on 

mother’s admissions that she needed the assistance of the 

court and state to acquire the skills and training necessary 

to safely parent A and that the no-contact order resulting 

from the criminal charge prevented her from being a placement resource.5

In January 2020, mother was indicted on one count 

of first-degree criminal mistreatment and one count of 

fourth-degree assault. In August 2020, following a bench 

trial, mother was acquitted on the criminal mistreatment 

charge but convicted of fourth-degree assault. The trial court 

placed mother on probation and ordered her to complete an 

4 A’s father was not available to parent A because he was serving a lengthy 

prison sentence. The juvenile court also asserted dependency jurisdiction due to 

father’s unavailability to parent A because of father’s incarceration. Father is not 

a party on appeal. 

5 The criminal court later amended the release agreement to allow mother to 

have supervised contact with A.
138 Dept. of Human Services v. Y. B.

anger management assessment and to participate in parenting classes.

In October 2020, the juvenile court entered a supplemental dependency order, based on the stipulations of 

the parties, which amended the original order to reflect 

that “mother was convicted of recklessly causing physical 

injury to the child.” The amended dependency order also dismissed the allegation concerning mother’s failure to attend 

to A’s basic needs. The order otherwise continued A’s wardship, A’s placement in substitute care, and the permanency 

plan of reunification. In addition, the court ordered mother 

to undergo a psychological evaluation and to participate in 

parenting classes and other recommended services.

Mother subsequently submitted to a psychological 

evaluation performed by Dr. Cook, who diagnosed mother 

with various mental health conditions. Cook recommended, 

among other things, that mother complete parenting classes 

and engage in mental health treatment focusing on emotional regulation and distress tolerance. Mother was also 

interviewed by Dr. Carter, a domestic violence evaluator, who 

concluded that, to parent A safely, mother needed to address 

her unresolved “significant trauma issues” stemming from

events in her childhood and from her adult relationships 

with her domestic partners. Beginning in June 2021, 

mother began participating in trauma-based therapy with 

Dean, a licensed clinical social worker. In July 2021, she 

also began receiving one-on-one parenting coaching from 

Keiser, a parent educator.

In August 2021, mother seemed to be making 

progress in acquiring safe parenting skills, and DHS 

returned A—then three years old—to mother’s care with 

in-home parenting coaching by Hummer, an in-home safety 

and reunification services specialist. Shortly thereafter, 

Hummer reported to DHS that mother was having difficulty parenting. During that time, DHS also received two 

calls on its emergency hotline concerning the family. Davis, 

the DHS child abuse investigator, responded. Mother told 

Davis that A would hit and kick her, and she acknowledged 

that she struggled to manage that behavior, because it triggered a trauma response in her. Mother reported that she 
Cite as 372 Or 133 (2024) 139

was having “near panic attacks” because of A’s aggressive 

behavior toward her and that, on multiple occasions, she 

had locked herself in a room away from A or locked A in a 

room away from her. DHS also learned that, on one occasion, mother had tied A’s arm from the shoulder with a jump 

rope to prevent him from hitting her and as a form of discipline. In September 2021, because DHS had determined 

that mother was having difficulty parenting A and that her 

actions presented a safety concern, DHS again removed A 

from mother’s care. A had been in mother’s care for about 

three weeks at that point.

After A was re-removed, DHS continued to provide mother with services aimed at reunification, including 

continued therapy with Dean and parent-child-interaction 

therapy with a new therapist, Irwin, which was designed 

to help mother and A with bonding, attachment, behavior, 

obedience, and parenting skills. DHS also facilitated supervised visitation with mother, including visits at mother’s 

church and home to give her an opportunity to practice the 

skills that she was learning. Although mother actively and 

willingly engaged in the services that DHS provided to her, 

her progress was slow.

By February 2022, A had been in substitute care for 

over two and a half years, and DHS continued to have concerns about mother’s parenting. Accordingly, DHS recommended that A’s permanency plan be changed from reunification to guardianship. In arguing for that change, DHS 

focused on the length of time that A had been in substitute 

care, his multiple placements, the failed attempt to return A 

to mother’s care, certain incidents in which mother became 

disproportionately upset with A over trivial matters, and 

mother’s tendency to confuse A by not using direct, ageappropriate commands when asking him to do something.

C. The Permanency Hearing and Juvenile Court’s Ruling

The juvenile court conducted a permanency hearing over the course of three days in February and April 

2022. The court heard testimony from Cook, Carter, Keiser, 

Hummer, Irwin, and Dean, as well as from DHS professionals who had interacted with mother and A, including 
140 Dept. of Human Services v. Y. B.

Rutherford, the family’s primary caseworker, and Davis, 

the child abuse investigator. According to those witnesses, 

although mother had begun to show observable improvement in her ability to parent A effectively, she still had a 

long way to go before A could be safely returned to her care. 

The court also heard testimony from mother about her successful completion or active participation in training and 

services, implementation of training, and her plan for the 

return of A, which included, among other things, using 

her own mother (grandmother) as a babysitter or potential 

live-in safety service provider.

The juvenile court announced its ruling at the conclusion of the hearing. The court explained that, before it 

could change the permanency plan from reunification to 

guardianship, it would have to determine that DHS had 

made reasonable efforts to reunify the family but that 

mother had not made sufficient progress to allow A to be 

safely returned home. In addition, under ORS 419B.476(5)(e), 

if it were to determine that the permanency plan should be 

the establishment of a legal guardianship, then it also would 

be required to determine that neither placement of A with a 

parent nor changing the plan to adoption was appropriate.

The court first addressed whether DHS had made 

“reasonable efforts” to reunify the family, as required by ORS 

419B.476(2)(a). The court described the services that DHS 

had provided to mother, including parent-child interactive 

training with Irwin, trauma therapy with Dean, parenting 

coaching with Keiser, parenting classes with Hummer, and 

referrals for eye movement desensitization and reprocessing 

therapy to address her trauma. The court determined that 

those services represented “reasonable efforts *** to make 

it possible for the ward to safely return home.”

Turning to whether mother had made “sufficient 

progress” in safely parenting A, the juvenile court acknowledged that mother had made some progress, and it agreed 

that mother was “able to recite what she’s learned in parenting classes [and] that she’s able to show that she’s absorbed 

it.” However, the court concluded, mother “has not been 

able to put that [knowledge] into practice.” The court noted 

that mother remained unwilling to accept that her actions 
Cite as 372 Or 133 (2024) 141

had led to A’s removal and re-removal and that she did not 

acknowledge her role in his broken arm or “the gravity of 

tying [A] up with a jump rope.” The court observed that, 

although mother had participated in trauma therapy, she 

had not focused on the traumas that led her to respond inappropriately to A’s behavior and led Carter initially to refer 

her to trauma therapy; instead, she had focused on other 

traumatic experiences in her past that did not affect her parenting and had not been the primary basis for the referral. 

Moreover, the court noted, when mother was asked whether 

she intended to address the trauma that was affecting her 

parenting, “her response was vague and noncommittal.”

The juvenile court also noted that, on multiple occasions during the attempted reunification, mother had locked 

herself away from A or turned her back on him and ignored 

him when she felt unable to cope with his behavior or his 

demands, noting that that response was deleterious to A’s 

need and ability to form strong attachments to mother and, 

generally, to his emotional development. Additionally, the 

court expressed concern that mother’s plan for the future 

included permitting the grandmother to care for A. Mother 

had obtained a restraining order against the grandmother 

in June 2019, after the grandmother, in the presence of A, 

attempted to strangle mother and slapped mother’s then 

four-year-old daughter.6 The court found that, despite the 

training and services that DHS had provided to mother 

and despite how eagerly and willingly mother had engaged 

in those services, “there is still a disconnect where mom 

doesn’t quite get it, doesn’t understand why it is a problem 

and a safety concern to permit somebody access to her child 

who has previously attempted to strangle her and has previously assaulted another.” The court also pointed to mother’s 

testimony that she had ignored the grandmother for a year 

after the attempted strangulation as a means to make the 

grandmother more sensitive to her and her children’s needs. 

The court connected mother’s response to the grandmother 

to evidence that mother ignored A when his demands or 

behavior overtaxed her, and it concluded that that “ignoring behavior appears to be something that[,] despite the 

6 The daughter lived with her father but had regular visitation with mother. 
142 Dept. of Human Services v. Y. B.

training and services that [mother] has received[, mother] 

still relies on believing that these ignoring behaviors are 

helpful, and that’s not something [A] needs.”

Ultimately, the court determined that a change in 

the permanency plan from reunification to guardianship was 

appropriate. In so concluding, the court stated, “I cannot conclude that [mother] has ameliorated the basis of jurisdiction 

such that [A] could return home within a reasonable time, 

as his health and [safety] are the top concern of the Court.” 

The court observed that A had already been in substitute 

care “for over one thousand days.” The court noted that Cook, 

who had performed three parental-assessment psychological 

evaluations on mother, the most recent of which had been 

in October 2021, had testified that mother would need continuing mental health therapy in order to be able to respond 

appropriately to parenting instruction, to reduce her “posttraumatic reactivity” to A’s behavior, to meet A’s needs, and 

to become a minimally adequate parent. Cook had opined 

that it would take between one and two years to accomplish 

those goals—“a substantial period of [A’s] life.”

For those reasons, the court concluded that, even 

though mother had made substantial progress, and despite 

DHS’s reunification efforts, “[A] cannot be safely returned to 

[mother’s] care at this time and the evidence does not support 

a determination that further efforts will make it possible for 

[A] to safely return home within a reasonable time.” In that 

regard, the court observed, quoting from ORS 419A.004(26), 

that a “reasonable period of time” is measured by A’s “emotional and developmental needs” and his “ability to form and 

maintain lasting attachments,” and A had already spent most 

of his life in substitute care. The court then made the additional determination that ORS 419B.476(5)(e) requires when 

a court determines that the permanency plan for a ward 

should be changed from reunification to legal guardianship—

namely, that placement with the ward’s parents or adoption 

is not appropriate. It found that placement of A with a parent was not appropriate because, despite DHS’s reasonable 

reunification efforts, A could not safely be returned to a parent within a reasonable time. It further found that, based on 

A’s attachment to a parent, adoption would not be in A’s best 
Cite as 372 Or 133 (2024) 143

interest. Finally, the court found that remaining in substitute care was necessary and in A’s best interest. The court 

subsequently entered a written judgment changing the permanency plan from reunification to guardianship. 7

Mother appealed, challenging the juvenile court’s 

ruling, and, as noted, the Court of Appeals affirmed without 

opinion.

II. THE PARTIES’ ARGUMENTS ON REVIEW

On review, mother asserts that the juvenile court 

applied an incorrect legal standard in making its “sufficient 

progress” determination. As mentioned, the juvenile court, in 

its oral ruling, stated, “I cannot conclude that [mother] has 

ameliorated the basis of jurisdiction such that [A] could return 

home within a reasonable time, as his health and [safety] are 

the top concern of the Court.” Pointing to that statement, 

mother argues that the juvenile court held her to a standard 

that ORS 419B.476(2)(a) does not require. Mother asserts 

that that statute does not require a parent to have completely 

ameliorated the bases for the wardship to avoid a change in 

A’s permanency plan. Rather, it requires sufficient progress 

toward ameliorating the bases for the wardship to the extent 

necessary to make the safe return of A to her care possible at 

the time of the hearing or within a reasonable time after the 

hearing. And, she argues, that is a question of law, not fact.

In addition, mother contends that DHS failed to 

meet its burden to produce evidence sufficient to support 

a determination that she had made insufficient progress 

to permit A’s safe return home. She asserts that many—if 

not all—of the witnesses at the permanency hearing testified that mother had made significant progress. Mother 

acknowledges that she will need continued services, but she 

argues that that is not a reason to conclude that she had not 

made sufficient progress.

DHS, for its part, contends that whether a parent has made sufficient progress to make possible the safe 

return of a child is a factual finding, not a legal conclusion, 

and that this court must defer to the juvenile court’s finding in this case that mother had made insufficient progress 

7 At the time of the hearing, no potential guardian had been identified. 
144 Dept. of Human Services v. Y. B.

if there is any evidence in the record to support it. DHS 

agrees that the correct inquiry at the permanency hearing 

was not whether the bases for dependency jurisdiction had 

been completely ameliorated, but, rather, whether A could 

safely be returned to mother’s care at the time of the hearing or within a reasonable time thereafter. Here, however, 

DHS argues that there was ample evidence in the record to 

support the juvenile court’s finding that, despite mother’s 

efforts, A would not be safe in her care, even with continued 

support.

III. ANALYSIS

A. Permanency Proceedings

As we explained in S. J. M., before interpreting 

the statutes at issue, it is helpful to place the permanency 

decisions at issue in the case in context. 364 Or at 50-51. 

When the juvenile court makes a child a ward of the court, 

a series of complex statutes and proceedings come into play. 

The statutes seek to protect the safety and well-being of children and the rights of the parents. See ORS 419B.090(2) - (4) 

(describing constitutional and statutory rights of children 

and parents). There is a “strong preference that children 

live in their own homes with their own families,” and DHS 

is obligated, except in cases involving “extreme conduct,” to 

work with families toward family reunification at the outset, 

ORS 419B.090(5); see ORS 419B.502 (concerning “extreme 

conduct”). But the statutes also recognize that “it is not 

always possible or in the best interests of the child or the 

public for children who have been abused or neglected to be 

reunited with their parents.” ORS 419B.090(5). Children 

have a right to “permanency with a safe family,” ORS 

419B.090(2)(a)(A), and the state has an “obligation to create 

or provide an alternative, safe and permanent home for the 

child,” ORS 419B.090(5). And, as this court stated in S. J. M., 

“[t]hat right to permanency sometimes can conflict with a 

parent’s interest in having additional time to make sufficient 

progress for the child to be safely returned home.” 364 Or at 

51.

The statutes governing permanency proceedings 

(ORS 419B.470 to 419B.476) were enacted in response to 
Cite as 372 Or 133 (2024) 145

federal legislation establishing requirements for state substitute care and juvenile court systems, with the goal of 

reducing the length of time that children spend in substitute care. T. L., 358 Or at 689. ORS 419B.470 requires the 

court to hold permanency hearings when a child is in substitute care and provides the deadlines for such hearings. 

The purpose of a permanency hearing is to determine, or 

update, the permanency plan for the child and to establish 

the timetable and conditions for accomplishing that plan. 

ORS 419B.476(2), (4), (5); T. L., 358 Or at 689 (so stating). 

Permanency hearings provide court oversight of the permanency plan, DHS’s efforts, and the parent’s progress in making the child’s safe return home possible.

B. The “Sufficient Progress” Determination

ORS 419B.476 governs the conduct of permanency 

hearings and changes to permanency plans. That statute 

provides, in relevant part, that, at a permanency hearing, 

if the case plan at the time of the hearing is to reunify the 

family, the court “shall * ** determine whether [DHS] has 

made reasonable efforts * ** to make it possible for the ward 

to safely return home and whether the parent has made sufficient progress to make it possible for the ward to safely 

return home.” ORS 419B.476(2)(a). It also provides that, in 

making that determination, “the court shall consider the 

ward’s health and safety the paramount concerns.” Id. Thus, 

at a permanency hearing, the juvenile court reviews both 

DHS’s efforts to provide services to the parent and the parent’s progress in ameliorating the conditions that led to the 

child becoming a ward of the court to determine whether the 

child’s safe return home is possible at the time of the hearing. If not, the court may determine that the permanency 

plan for the child should be something other than reunification, such as adoption, guardianship, or placement with a 

relative. ORS 419B.476(5)(b)(B) - (D).8

In addition, ORS 419B.476(4)(c) gives the juvenile 

court discretion to continue the current plan of reunification 

if it determines that further efforts may make possible the 

8 For a child 16 years of age or older, the juvenile court also can order that 

the child be placed in “another planned permanent living arrangement.” ORS 

419B.476(5)(b)(E). 
146 Dept. of Human Services v. Y. B.

child’s safe return “within a reasonable time” and, if it so 

determines, to order the parents to “participate in specific 

services for a specific period of time and make specific progress within that period of time[.]” Finally, ORS 419B.476(5)(e) 

provides that, if the determination is to change the plan to 

legal guardianship, then the court’s order “shall include *** 

the court’s determination of why neither placement with 

parents nor adoption is appropriate.”

The “progress” that a parent must make is in ameliorating, to the extent necessary to make possible the child’s 

safe return to the parent’s care, the circumstances that led 

the juvenile court to make the child a ward of the court. 

ORS 419B.476(2)(a) (court must determine whether the parent has made “sufficient progress” to make it possible for the 

ward to safely return home). “Progress” does not mean completely ameliorating the bases for dependency jurisdiction—

inherent in the notion of “progress” is that the parent need 

not establish at the time of the hearing that wardship is no 

longer necessary and should be dismissed.9

Context supports that interpretation. For example, 

the definition of “substitute care” in ORS 419A.004 contemplates continuing DHS involvement with the family: ORS 

419A.004(34)(b)(C) excludes from the definition of “substitute care,” “[i]n-home placement subject to conditions or limitations[.]” DHS regulations also reflect that understanding. 

For instance, OAR 413-040-0017(1) provides, in part, that a 

caseworker may recommend “returning the child * * * to a 

parent” when the caseworker has verified that the “identified impending danger safety threats can be managed with 

an ongoing safety plan.”

Thus, we agree with mother and the state that a 

parent can be found to have made sufficient progress to warrant the denial of a DHS request to change the permanency 

plan away from reunification even if further services would 

be required were the child to be returned home, and even if 

9 Jurisdiction is based on proof by a preponderance of the evidence of the 

facts alleged in the petition to make the child a ward of the court. ORS 419B.100; 

ORS 419B.310(3)(a)(A). Thus, dependency jurisdiction will be dismissed only if 

the conditions or circumstances giving rise to the court’s jurisdiction have been 

completely ameliorated and DHS involvement is no longer necessary. 
Cite as 372 Or 133 (2024) 147

the child will remain in the legal custody of DHS and subject to the juvenile court’s ongoing supervision.

C. Nature of the Determination

The juvenile court determined that DHS had made 

reasonable efforts but that mother had not made sufficient 

progress “to make it possible for the ward to safely return 

home.” The parties disagree about whether that “sufficient 

progress” determination is a finding of fact or a legal conclusion, and they contend that whether the juvenile court’s 

permanency ruling should be affirmed depends upon that 

distinction. We agree that the distinction is important: As 

previously discussed, we accept the juvenile court’s findings 

of fact if there is any evidence in the record to support them, 

but we review legal conclusions for errors of law.

DHS points out that this court suggested, in S. J. M., 

that both the reasonable-efforts and sufficient-progress 

determinations are findings of fact:

“In these cases, the juvenile court found that DHS had 

made reasonable efforts to reunite L and A with their 

parents. Those findings were not challenged. The juvenile 

court also made findings, unchallenged here, that mother 

and AJB had not made sufficient progress to allow them to 

be reunited with their children.”

364 Or at 57. DHS relies on this court’s reference to “findings” 

in S. J. M. to infer that we have already held that “sufficient 

progress” is a factual finding. However, that issue was not 

presented in S. J. M. The fact that our opinion in that case 

happened to use the word “findings” in passing to describe 

the nature of the determination does not reflect any consideration of the issue before us here, and we give it little weight.

Mother, meanwhile, points to numerous Court of 

Appeals decisions holding that “sufficient progress” is a 

question of law. See, e.g., Dept. of Human Services v. C. H., 

327 Or App 61, 63, 533 P3d 1112 (2023) (so stating); Dept. 

of Human Services v. C. W., 312 Or App 572, 574, 493 P3d 74 

(2021) (same); Dept. of Human Services v. G. N., 263 Or App 

287, 294, 328 P3d 728 (2014) (same). Although those cases 

are not controlling in this court, mother contends that they 

correctly construe the statute.
148 Dept. of Human Services v. Y. B.

Whether “sufficient progress” is a question of fact or 

law depends on its function within the statute. To determine 

that function, we consider the wording of the statute as a 

whole and the context in which that phrase is used, as well 

as the nature of the determination assigned to the juvenile 

court. See State v. A. R. H., 371 Or 82, 89, 530 P3d 897 (2023)

(applying similar methodology to resolve whether juvenile 

court determination, under ORS 163A.030, that youth was 

not rehabilitated and must report as a sex offender, is finding of fact or conclusion of law).

Turning first to the wording of the statute, we 

observe that ORS 419B.476 does not direct the juvenile court 

to “find” or make “findings” of reasonable efforts or sufficient 

progress. Rather, it directs the juvenile court to “determine” 

whether DHS’s efforts were reasonable and whether the parent’s progress was sufficient to make it possible for the child 

to safely return home. The word “determine” is ambiguous 

and the use of that word rather than the word “find” does 

not resolve the issue. However, this court has stated that the 

terms “reasonable” and “sufficient” are important indicators 

that determinations are legal and not factual:

“We acknowledge the temptation to treat indefinite 

terms like ‘good cause,’ ‘sufficient reason,’ and ‘reasonable 

period of time’ as calling for a subjective determination 

and, thus, as invoking personal judgment. However, it is 

clear that, when such terms appear in a statutory context, 

they are focused on real, albeit sometimes difficult to discern, legal standards: the legislature’s view of what is ‘good,’ 

‘sufficient,’ or ‘reasonable.’”

State v. Johnson, 339 Or 69, 86, 116 P3d 879 (2005) (emphasis in original).

Thus, the text of the statute suggests that the 

juvenile court’s determinations of “reasonable efforts” and 

“sufficient progress” are legal conclusions. Statutory context lends some support to that interpretation. Under ORS 

419B.100, the juvenile court has dependency jurisdiction in 

cases involving, among others, a person “[w]hose condition 

or circumstances are such as to endanger the welfare of” 

that person. ORS 419B.100(1)(c). Whether the person’s conditions or circumstances endanger the person’s welfare is a 
Cite as 372 Or 133 (2024) 149

legal determination, not a factual finding. That is, the role of 

the juvenile court in a proceeding under ORS 419B.100(1)(c) 

is to determine whether the facts as alleged and proved by 

DHS establish the court’s authority to create or continue 

the legal relationship between the child and the state as 

required for wardship. See, e.g., Dept. of Human Services v. 

N. P., 257 Or App 633, 639-40, 307 P3d 444 (2013) (a juvenile court’s determination of dependency jurisdiction, predicated on its determination under ORS 419B.100(1)(c) that 

a parent’s condition at the time of the hearing does or does 

not present a risk of harm to a child, is a legal conclusion). 

Similarly, under ORS 419B.476, “reasonable efforts” and 

“sufficient progress” describe the legal standard that must 

be met to justify the juvenile court’s decision to maintain or 

change the permanency plan of a ward of the court.

Consideration of the nature of the sufficient progress determination points us in the same direction. As this 

court stated in T. L., “a change in permanent plan from 

return to parent to either guardianship or [another planned 

permanent living arrangement] marks a profound change 

of course in the path to finality for children in care.” 358 Or 

at 692. That is so because it “divests the parent of family 

reunification services as a matter of right from that time 

forward,” id. at 691, insofar as, after a permanency plan 

changes from reunification to guardianship, “the parent’s 

status as the preferred placement for the child is effectively 

terminated, unless and until the plan is changed at a subsequent permanency hearing,” id. at 693. The court in T. L.

further noted that, “[a]lthough that consequence is not so 

drastic as the termination of parental rights, the magnitude 

of deprivation—including the potentially permanent denial 

to a parent of custody and care of children—nevertheless is 

grave.” Id. The nature of the competing interests at stake, as 

well as text and context calling for the application of a legal 

standard, persuade us that the juvenile court’s “determination” of sufficient progress is a legal conclusion that this 

court reviews for errors of law.

At the same time, we recognize that the sufficientprogress determination, although ultimately a legal conclusion, is heavily fact-driven. In N. P., the Court of Appeals 
150 Dept. of Human Services v. Y. B.

ably explained how an appellate court should apply the 

error-of-law standard of review in evaluating whether the 

juvenile court has erred in making a similarly fact-driven, 

statutorily prescribed determination. As noted, the issue in 

N. P. was whether the juvenile court’s dependency jurisdiction over the child should continue. Under ORS 419B.100

(1)(c), resolution of that issue depended on the juvenile court’s 

determination whether the child’s “condition or circumstances [were] such as to endanger the welfare of the person 

or others.” In explaining how it would apply the error-of-law 

standard of review to the juvenile court’s determination, the 

Court of Appeals stated:

“Our non-de novo review of such a determination is 

analogous to the deferential review of other factually predicated determinations that are, ultimately, circumscribed 

by limits of ‘matter of law’ sufficiency, for example, denials 

of motions for directed verdict or motions for judgment of 

acquittal. That is, we view the evidence, as supplemented 

and buttressed by permissible derivative inferences, in 

the light most favorable to the trial court’s disposition and 

assess whether, when so viewed, the record was legally sufficient to permit that outcome. Specifically, with respect to 

a juvenile court’s determination under ORS 419B.100(1)(c), 

we: (1) assume the correctness of the juvenile court’s explicit 

findings of historical fact if these findings are supported 

by any evidence in the record; (2) further assume that, if 

the juvenile court did not explicitly resolve a disputed issue 

of material fact and it could have reached the disposition 

that it reached only if it resolved that issue in one way, 

the court implicitly resolved the issue consistently with 

that disposition; and (3) assess whether the combination of

(1) and (2), along with nonspeculative inferences, was legally

sufficient to permit the trial court to determine that ORS 

419B.100(1)(c) was satisfied.

“We emphasize that our non-de novo appellate review 

function does not allow us to substitute our assessment of 

the persuasiveness of the evidence for the juvenile court’s, 

nor does it allow us to revisit the juvenile court’s resolution of 

factual disputes or its choice among reasonable inferences. 

Rather, as (again) with our review of rulings on motions for 

directed verdicts or motions for judgment of acquittal, our 

function is limited to determining whether the evidence 

was sufficient to permit the challenged determination.”
Cite as 372 Or 133 (2024) 151

257 Or App at 639-40. Because a juvenile court’s determination that a child’s conditions or circumstances are such 

as to “endanger” the child’s welfare is comparable to the 

“sufficient progress” determination that is at issue here, 

we believe that the Court of Appeals’ approach in N. P. was 

correct and equally applicable to our review of the juvenile 

court’s determination of whether a parent has made “sufficient progress” under ORS 419B.476(2)(a). Accordingly, we 

adopt it here.

To summarize, then, in reviewing a juvenile court’s 

determination to change a permanency plan because a parent has not made “sufficient progress” to allow a child to 

safely return home, appellate courts are bound by the juvenile court’s factual findings as to what efforts DHS has made 

and what actions the parent has taken, so long as there is 

any evidence in the record to support them, and we assume 

that the juvenile court found all facts necessary to its ruling, even if it did not do so explicitly. But the juvenile court’s 

determination that a parent has or has not made “sufficient 

progress” to allow the child to return home safely is a legal 

conclusion that appellate courts review for errors of law, 

and they do that by examining whether the facts explicitly 

and implicitly found by the juvenile court, together with all 

inferences reasonably drawn from those facts, were legally 

sufficient to support the juvenile court’s determination. We 

now turn to apply that standard of review here.

IV. APPLICATION TO THIS CASE

Mother does not dispute that the evidence in the 

record was legally sufficient to permit the juvenile court to 

determine that DHS had made reasonable efforts to make 

the safe return of A possible. Thus, the primary issue before 

this court is whether the juvenile court erred in determining that, at the time of the hearing, mother had not made 

“sufficient progress to make it possible for the ward to safely 

return home.”

As we have discussed, the juvenile court’s “sufficient progress” inquiry is to determine whether the parent 

has ameliorated the conditions or circumstances that led the 

juvenile court to make the child a ward of the court to the 
152 Dept. of Human Services v. Y. B.

extent necessary to make possible—with continued services 

from DHS if necessary—the child’s safe return to the parent’s care. In this case, the statutory basis for the juvenile 

court’s dependency jurisdiction is that A’s “condition or circumstances *** are such as to endanger the welfare of the 

[child],” based on the allegations that “mother was convicted 

of recklessly causing physical injury to A” and that “mother 

needs the assistance of the court and state to acquire the 

skills and training necessary to safely parent this child.”

Here, the juvenile court principally based its determination that mother had not made sufficient progress in 

alleviating the basis for the court’s dependency jurisdiction, 

and, specifically, the allegations set out in the dependency 

petition, on the following findings: (1) mother was unwilling to accept that her actions had led to A’s removal and 

re-removal, and she failed to acknowledge her role in his 

broken arm or the gravity of tying up A with a jump rope; 

(2) mother was unable to put the parenting lessons that she 

had learned into practice; (3) mother failed or was unwilling 

to address in therapy the past traumas that provoked inappropriate responses in her to A’s behavior; (4) mother chose 

to lock herself away from A or turn her back on him and 

ignore him when she felt unable to cope with his behavior or 

his demands; (5) mother failed to understand why it would 

be unsafe and unwise for her to permit the grandmother 

to have contact with and responsibility for her child; and 

(6), according to Cook, it would take mother another one to 

two years of therapy and training to become a minimally 

adequate parent.

Mother does not dispute that those findings are 

supported by evidence in the record. Rather, she points to 

testimony at the hearing by Rutherford, her caseworker, 

suggesting that A’s safety could not be ensured without a 

full-time, live-in safety service provider, and by Hummer, 

a parenting coach, expressing concerns for A’s safety when 

mother is unsupervised. Mother contends that Rutherford’s 

and Hummer’s testimony seemed to reflect an unachievable 

standard: that, if A’s safety cannot be guaranteed, then 

the parent necessarily has not made sufficient progress. 

Moreover, she argues, the juvenile court seemed to rely, at 
Cite as 372 Or 133 (2024) 153

least in part, on its finding that mother was “triggered” by 

A’s normal, age-appropriate behaviors to bolster its conclusion that A’s safety could not be ensured. She contends 

that there was no evidence in the record that episodes in 

which she had felt “triggered” showed a pattern of violence 

or otherwise demonstrated a safety threat to A to support 

a determination of insufficient progress. In sum, mother 

argues, the facts that the juvenile court set out in its ruling 

and on which it relied are insufficient as a matter of law to 

support the juvenile court’s determination that her progress 

was insufficient, particularly given that many—if not all—

of the witnesses at the hearing testified that mother had 

made significant progress, especially after A’s re-removal in 

September 2021.

We see nothing in the juvenile court’s ruling that 

suggests that the juvenile court’s insufficient progress determination was based on a finding that A’s safety could not 

be guaranteed or ensured. Moreover, evidence in the record 

supported the juvenile court’s findings that mother continued to be triggered by A’s behavior, that mother had not adequately addressed her trauma triggers in therapy, that she 

had reacted in the past with physical discipline when she 

was overwhelmed and stressed and frustrated, and that she 

did not recognize that her approach to physical discipline in 

the past was something that was harmful to A. The juvenile court reasonably could infer from that evidence that 

mother might react in an extreme way that endangers A. 

Thus, even though mother had not reacted violently toward 

A in the months before the permanency hearing, the juvenile court reasonably could infer from evidence in the record 

that, if mother were confronted with situations that triggered her when she was alone with A, without the support of 

a safety service provider, she might react in a more extreme 

way than she would when there was supervision, including 

resorting to physical violence, and A would not be safe in her 

care.

In reaching that conclusion, we are not unmindful 

of the growing body of data and social science research that 

mother has cited regarding the potential for bias in DHS’s 

treatment of families of color, as hers is, which can lead to 
154 Dept. of Human Services v. Y. B.

skewed assessment measures and disparate interventions in 

state child-welfare systems. Cook recognized as much and 

sought to avoid such effects in mother’s case, advising DHS “to 

pay attention to possible racial issues.” However, even Cook 

estimated that mother would need one to two years, from the 

date of his October 2021 evaluation, of additional DHS services, including regular therapy and classes to address her 

post-traumatic stress, her reactivity to A’s behavior, and her 

lack of parenting skills. That testimony supported the juvenile court’s determination that A could not safely be returned 

to mother’s care within a reasonable time.

To be sure, there is evidence in the record that, in 

the months before the permanency hearing, mother had 

engaged willingly and eagerly in the services DHS had provided her and that she had made some meaningful progress.10 Ultimately, however, the juvenile court’s “sufficient 

progress” inquiry is explicitly centered on whether the 

articulated bases for dependency jurisdiction have been sufficiently ameliorated so that “the ward [may] safely return 

home,” a determination that the juvenile court was required 

to make with “the ward’s health and safety [as its] paramount concerns.” ORS 419B.476(2)(a). What matters under 

ORS 419B.476(2)(a) is whether the parent has made sufficient progress, as a result of those services or otherwise, 

to overcome the concerns that gave rise to juvenile court’s 

dependency jurisdiction to the extent that it would be possible for the ward to safely return home, with or without 

continued DHS services and support.11 Here, we conclude 

10 Irwin, for example, submitted a report stating that mother had been making real progress in acquiring parenting skills, and, at the time of the hearing,

A was compliant with mother’s requests 95 percent of the time. Rutherford testified that, in the previous six to eight months, he had observed improvements in 

the attachment and bond between mother and A; he had observed more warmth 

and genuine feeling. Dean testified that mother’s ability to take criticism was 

improving, and Keiser noted improvement in mother’s ability to interact and play 

with A, and in her responsiveness to parenting instruction. 

11 Under ORS 419B.476, DHS’s goal in providing services is to make reunification possible. In cases in which the parent actively participates in and successfully completes the services offered yet still is determined not to have made 

sufficient progress to make possible the child’s safe return home, the question 

may arise whether the services offered were reasonably aligned with the family’s 

needs to effectuate the goal of reunification. That issue is not presented here, 

however, as mother does not challenge the reasonableness of DHS’s efforts to help 

the family achieve reunification. 
Cite as 372 Or 133 (2024) 155

that the facts found by the juvenile court were legally sufficient to support the juvenile court’s determination that 

mother had not made sufficient progress to make possible 

the safe return of A, either at the time of the hearing or 

within a reasonable time thereafter, and to support its decision to change the permanency plan from reunification to 

guardianship.12

The decision of the Court of Appeals and the judgment of the juvenile court are affirmed.

12 We also reject mother’s contention that the juvenile court’s statement, in 

its oral ruling, that it “cannot conclude [mother] has ameliorated the basis for 

jurisdiction such that [A] could return home within a reasonable time” shows 

that the juvenile court applied an incorrect standard in making its determination of insufficient progress. In context, that statement does not reflect a misapplication of the correct legal standard for a change in permanency plan; rather, 

it is better understood to reflect the court’s determination that mother had not 

made sufficient progress to make it safe for A to return home. Viewed as a whole, 

the court’s statement of its findings of fact and conclusions of law reflects that 

the court understood the nature of the determination it was to make under ORS 

419B.476.