No. 147 February 28, 2024 295

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

In the Matter of J. W. M., 

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

v.

B. L. M.,

Appellant.

Yamhill County Circuit Court

22JU05299; A180870 (Control)

In the Matter of L. A. M.,

 a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

v.

B. L. M.,

Appellant.

Yamhill County Circuit Court

22JU05300; A180871

Cynthia Kaufman Noble, Judge.

Submitted October 13, 2023.

Shannon Storey, Chief Defender, Juvenile Appellate 

Section, and Sarah Peterson, Deputy Public Defender, Office 

of Public Defense Services, filed the briefs for the appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Jon Zunkel-deCoursey, Assistant 

Attorney General, argued the cause for respondent.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and 

Jacquot, Judge.

AOYAGI, P. J.

Reversed.
296 Dept. of Human Services v. B. L. M.
Cite as 331 Or App 295 (2024) 297

AOYAGI, P. J.

Father appeals two judgments asserting dependency jurisdiction over his two children. The juvenile court 

entered those judgments after father admitted that he “uses 

inappropriate physical discipline and lacks the parenting 

skills to safely and appropriately parent the child[ren]” and 

mother admitted that she “does not have sole legal custody of the child[ren] and is unable to protect the child[ren] 

from father’s abusive behavior.” Father contends that, notwithstanding those admissions, the juvenile court erred 

in asserting dependency jurisdiction over the children, 

because the children do not face a current threat of serious loss or injury that is likely to be realized. Father relies 

on the fact that, before the Department of Human Services 

(DHS) filed the dependency petitions, mother obtained an 

immediate-danger order in parents’ domestic relations case 

that grants her temporary custody and allows father only 

supervised parenting time. We agree with father that, on 

this record, DHS failed to prove that the requirements for 

dependency jurisdiction were met and, accordingly, reverse.

In September 2022, one of the children disclosed 

during an interview at Juliette’s House Child Abuse 

Intervention Center that he had been physically abused by 

father. Based on that disclosure, mother, acting pro se, filed 

a motion in parents’ domestic relations case, seeking temporary custody under an immediate-danger order. See ORS 

107.139 (providing a post-judgment procedure to obtain a 

temporary order regarding custody or parenting time when 

a child is “in immediate danger”). Such an order is intended 

to ensure a child’s safety while custody modification proceedings are underway. See ORS 107.139(4) (“A party seeking relief under this section shall concurrently file, or have 

pending, a motion under ORS 107.135 to set aside, alter or 

modify any portion of the judgment that provides for custody, parenting time or visitation.”). The domestic relations 

court granted the motion ex parte and, after a hearing held 

at father’s request, continued the immediate-danger order 

on November 2, 2022. Under the order, mother has custody 

of the children, and father has supervised parenting time. 

Two individuals—the children’s paternal grandmother, and 
298 Dept. of Human Services v. B. L. M.

father’s significant other—are designated “to act as supervisors with sight and sound supervision.”

On November 4, 2022, DHS filed dependency petitions for the children, alleging that their conditions and circumstances endanger their welfare for a variety of reasons, 

all related to father physically injuring them and mother 

being unable to protect them. By that time, both children 

had disclosed physical abuse. The juvenile court held a shelter hearing and subsequently issued a shelter order.1

In January 2023, mother admitted to an allegation 

in the petitions—that she “does not have sole legal custody 

of the child[ren] and is unable to protect the child[ren] from 

father’s abusive behavior.” In February 2023, father admitted to a separate (amended) allegation in the petitions—

that he “uses inappropriate physical discipline and lacks 

the parenting skills to safely and appropriately parent the 

child[ren].” At both hearings, father asserted that the legal 

standard for dependency jurisdiction was not met, despite 

the admissions, because the immediate-danger order adequately protected the children from any current risk of 

harm.

The juvenile court asserted dependency jurisdiction 

over the children. Regarding the immediate-danger order, 

the court expressed the view that ORS chapter 107, governing domestic relations and immediate-danger orders, and 

ORS chapter 419B, governing juvenile dependency proceedings, do not work together well and that their relationship 

merits legislative attention. Ultimately, we understand the 

court to have concluded that the children remained at risk 

despite the immediate-danger order, for reasons not articulated on the record.

Father appeals. In six assignments of error (three 

as to each child), he argues that it was error to assert 

1 The juvenile court took judicial notice of the immediate-danger order at 

the shelter hearing and, on the same day, consolidated the domestic relations 

case with the dependency cases. Both below and on appeal, everyone has treated 

the immediate-danger order as part of the record in the dependency cases, and 

we do the same, taking judicial notice to the extent necessary. See OEC 201(b)(2) 

(regarding types of facts that can be judicially noticed); State v. C. H., 195 Or App 

538, 542, 98 P3d 767 (2004), rev den, 338 Or 16 (2005) (taking judicial notice of 

prior court orders).
Cite as 331 Or App 295 (2024) 299

dependency jurisdiction based on parents’ admissions, 

because, given the immediate-danger order, the children 

do not face a current threat of serious loss or injury that 

is likely to be realized. It is a requirement for dependency 

jurisdiction that “the child’s condition or circumstances 

expose the child to a current threat of serious loss or injury 

that is likely to be realized.” Dept. of Human Services v.

A. W., 276 Or App 276, 278, 367 P3d 556 (2016). “DHS has 

the burden to prove that the threat is current and nonspeculative; it is not sufficient for the state to prove that the 

child’s welfare was endangered sometime in the past.” Dept. 

of Human Services v. A. L., 268 Or App 391, 397, 342 P3d 174 

(2015) (internal quotation marks omitted).

In response, DHS first challenges preservation. 

We agree with father that his claim of error is preserved. 

At both the January and February 2023 hearings, father 

asserted that, notwithstanding parents’ admissions, the 

legal requirements for dependency jurisdiction were not 

met, because the immediate-danger order adequately protected the children. That is the same issue raised on appeal. 

The purposes of preservation were served.

DHS next contends that we should not review any 

challenge by father to the assertion of dependency jurisdiction based on mother’s admission. DHS asserts that “father 

cannot raise claims on behalf of mother” because, “[g]enerally, a party can litigate issues only on behalf of themselves 

and cannot litigate issues for other parties.” We do not 

understand father to be litigating any issues for mother. As 

previously described, the issue raised by father is whether, 

in light of the immediate-danger order, his and mother’s 

admissions are legally insufficient to support the court’s 

assertion of dependency jurisdiction. We do not understand 

father to be challenging mother’s admission itself, but, 

rather, the legal effect of the admission.

It is well established that “the juvenile court’s focus 

at the hearing on jurisdiction is on the child’s conditions 

or circumstances at the time of the hearing and whether 

the totality of those circumstances demonstrates a reasonable likelihood of harm to the welfare of the child.” Dept. 

of Human Services v. W. A. C., 263 Or App 382, 393, 328 
300 Dept. of Human Services v. B. L. M.

P3d 769 (2014) (internal quotation marks omitted; emphasis in original). The juvenile court must consider all of the 

evidence, including any admissions made by the child’s parents, to determine whether the requirements for dependency 

jurisdiction are met. Dept. of Human Services v. Z. M., 316 

Or App 327, 348, 504 P3d 1208 (2021) (“A parent may admit 

facts to support dependency jurisdiction, but an admission 

is not necessarily conclusive evidence to establish an allegation. Rather, the juvenile court must determine whether, 

under the totality of the circumstances, there is a reasonable likelihood of harm to the welfare of the child.” (Internal 

quotation marks and citation omitted.)). We see no reason 

why, in a case involving two parents, one parent would be 

precluded from making legal arguments about the other 

parent’s admission as part of challenging the sufficiency 

of the evidence as a whole to meet the legal standard for 

dependency jurisdiction.2 See id. (agreeing with the father’s 

argument that the mother’s admission was insufficient to 

support jurisdiction over the children).

Having resolved those procedural issues, we turn 

to the merits. “[W]e 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” the assertion of dependency jurisdiction. Dept. of 

Human Services v. N. P., 257 Or App 633, 639, 307 P3d 444 

(2013).

Here, the juvenile court did not hold an evidentiary 

hearing on dependency jurisdiction, instead considering 

only parents’ admissions and the immediate-danger order in 

deciding whether to assert jurisdiction over the children. To 

reiterate, father admitted that he “uses inappropriate physical discipline and lacks the parenting skills to safely and 

2 We note that this situation is distinguishable from one in which a parent 

is challenging the sufficiency of the evidence to support two intertwined factual 

findings in support of jurisdiction, one relating to the parent (such as that the 

parent engages in domestic violence) and one relating to the other parent (such 

as that the other parent is unable to protect). See Dept. of Human Services v.

S. P., 249 Or App 76, 86, 275 P3d 979 (2012) (holding that the mother could challenge all of the jurisdictional findings on appeal, including those pertaining to 

the father, because the findings were interdependent). Father is not challenging 

the facts to which he or mother admitted. He is challenging only their legal effect.
Cite as 331 Or App 295 (2024) 301

appropriately parent the child[ren],” and mother admitted 

that she “does not have sole legal custody of the child[ren] 

and is unable to protect the child[ren] from father’s abusive 

behavior.” The question before us on appeal is whether, taking into account the immediate-danger order, those admissions were legally sufficient to establish that the children 

face “a current threat of serious loss or injury that is likely 

to be realized.” A. W., 276 Or App at 278. Father argues that 

they were not. Essentially, father argues that the immediate-danger order protects the children from physical 

abuse—by giving mother custody and allowing father only 

supervised parenting time—even if mother herself is unable 

to protect them from father’s abuse (per her admission). We 

note that DHS has never alleged, nor was there any evidence, that father is not complying with the immediatedanger order or that he has previously disobeyed court 

orders.

In concluding that the children were still at current 

risk, notwithstanding the immediate-danger order, it is possible (based on remarks in the record) that the juvenile court 

was concerned about the fact that mother was representing 

herself in the domestic relations proceeding and might fail to 

obtain a permanent change of custody. However, neither the 

juvenile court nor DHS, below or on appeal, has explained 

how the possibility that mother might in the future fail to 

obtain a permanent change of custody means that there is 

a current, nonspeculative threat of serious harm to the children that is likely to be realized. The juvenile court did not 

explain its reasoning, nor is it apparent why a present court 

order (obtained before the dependency petitions were filed) 

that gives custody to mother and requires father’s parenting 

time to be supervised does not protect the children enough 

to avoid “a current threat of serious loss or injury that is 

likely to be realized.” A. W., 276 Or App at 278.

Finally, we reject DHS’s argument that, if we consider a DHS caseworker’s testimony at the shelter hearing 

regarding a concern that DHS had about one of the supervisors designated in the immediate-danger order, that 

evidence coupled with parents’ admissions would be sufficient to meet the legal standard for jurisdiction. We cannot 
302 Dept. of Human Services v. B. L. M.

consider that testimony—nor does the juvenile court appear 

to have considered it—because the shelter-hearing testimony is not part of the evidentiary record for the jurisdictional judgments.3 See State ex rel Juv. Dept. v. T. S., 214 

Or App 184, 196, 164 P3d 308, rev den, 343 Or 363 (2007) 

(declining to consider testimony from a shelter hearing in 

deciding whether the evidence was sufficient for dependency 

jurisdiction, because the “relevant record” was the record 

made for the jurisdictional hearing, and the shelter-hearing 

testimony was not part of that record).

In sum, for the reasons stated, the juvenile court 

erred in asserting dependency jurisdiction over the children.

Reversed.

3 We also note that shelter hearings and dependency hearings differ with 

respect to what evidence may be considered. Compare ORS 419B.185(f) (at shelter 

hearings, relevant evidence may be considered “without regard to whether the 

evidence is admissible under” most rules of evidence), with ORS 419B.310(3)(a)(A) 

(at jurisdictional hearings, generally, absent an admission by a party, the alleged 

facts “must be established * ** [b]y a preponderance of competent evidence”).