In this juvenile dependency case, father appeals from a judgment changing the permanency plan for his daughter, O, from reunification to adoption. Father argues that the juvenile court erred in concluding that father had not made sufficient progress towards reunification and that, in making that determination, the court relied on extrinsic facts that were “not fairly implied by the adjudicated basis for dependency jurisdiction.” We conclude that the court erred in relying on facts outside the scope of the jurisdictional judgment, and we reverse and remand on that basis.
Father does not request that we exercise our discretion to conduct de novo review, and we see no reason to do so. See ORAP 5.40(8)(c). Thus, “we review the juvenile courts legal conclusions for legal error, and we are bound by the courts findings of historical fact as long as there is any evidence to support them.” Dept. of Human Services v. N. T., 247 Or. App. 706, 709, 271 P.3d 143 (2012). We state the facts consistently with that standard.
In 2015, father began dating mother, who is not a party to this appeal. In 2017, O was born when father was 22 and mother was 16. Subsequently, father pleaded guilty to third-degree rape and was sentenced to five years of probation. Despite the existence of a no-contact order, father and mother continued to live together until 2018 when they had a domestic dispute that led to the involvement of the Department of Human Services (DHS). Fathers sister called police after father grabbed mother by the throat and pushed her down onto a bed while she was holding O. After his sister called the police, father left the apartment with a firearm intending to kill himself. Father later changed his mind and eventually returned to the apartment. He was subsequently arrested for violating the no-contact order, disorderly conduct, harassment, and menacing constituting domestic violence.
DHS took protective custody of O and eventually placed her in the care of fathers sister. Around that time, father began participating in weekly mental health counseling to address his “daily irritability, anger outbursts, poor self-esteem, and hopelessness.” Additionally, father underwent a psychological evaluation and was diagnosed with an unspecified intellectual disability, persistent depressive disorder, and a specific learning disorder with impairments in mathematics.
In June 2018, DHS filed a petition for jurisdiction over O. As to father, the original petition alleged that (1) father had subjected mother to domestic violence and presented a threat of harm to the child; that (2) fathers chaotic lifestyle and residential instability interfered with his ability to safely parent the child; and, that (3) fathers erratic, volatile, and threatening behaviors represented a threat of harm to the child. DHS later amended the third allegation such that it provided that fathers “mental health issues interfere with his ability to safely parent the child.” Father admitted to the amended third allegation, and the juvenile court entered a judgment establishing jurisdiction over O solely based on fathers mental health issues and dismissed the other two allegations. Attached to the jurisdictional judgment was fathers case plan, which referenced fathers psychological evaluation, as well as fathers suicidal ideations. The case plan also referenced fathers pending criminal charges.
Over the following year, father and mother separated, and she moved out of state. Father continued to participate in bi-weekly counseling sessions, completed parenting classes, and consistently attended weekly supervised visits with O. Father came to his supervised visits prepared with snacks and toys for O and was “fairly attentive and engaged during visitation.” A DHS caseworker noted in her report to the court that father “appeare[d] able to meet most [of Os] basic needs,” but occasionally required “some prompts and support about when and how to consistently attend to basic needs and what is and isnt age appropriate for [O].”
As part of fathers criminal case in which he pleaded guilty to third-degree rape, father was required to complete sex offender treatment. He was also prohibited from having any contact with minors, with the exception of supervised visits with O. Father, however, violated the terms of his probation when he was discharged from his sex offender program for not being honest and when he entered into a new romantic relationship without discussing it with his probation officer. After he failed two polygraph exams, fathers probation was revoked.
In January 2020, DHS sought to change the permanency plan from reunification to adoption. A DHS caseworker reported that father “ha[d] not been able to move towards conditions for return,” and that father continued to “struggle in his services, especially around being ‘transparent’ with providers.” At the permanency hearing, the caseworker testified that fathers counselor reported that he had difficulty “being upfront and honest about whats going on in his life.” When the caseworker was asked whether she had observed any progress in fathers mental health issues, she testified that she had seen some “maturity,” but that her “concern continue[d] to be his inability to [be] honest.” The caseworker also testified that fathers sex offender treatment was “part of his mental health issues” and that completing treatment would help address fathers mental health issues.
During closing arguments, DHS asserted that father had “made some progress but not nearly enough.” Specifically, DHS argued that fathers “cognitive issues continue[d] to be a barrier” and that his behaviors demonstrated “ongoing mental health deficits.” DHS further contended that father continued to have issues with honesty, which it argued constituted “a mental health issue.” Both childs attorney and the court-appointed special advocate also argued that changing the permanency plan to adoption was in Os best interests and testified to Os attachment to her foster parents.
In response, father argued that the only jurisdictional basis—mental health—had “been ameliorated” and that the sex offender treatment requirement was not a basis for jurisdiction.
1
Asserting that DHS and childs attorney were “trying to inflate” the sole basis for jurisdiction to something more, father argued:
“[T]he mental health situation * * * at the outset of this case, was that [father] was depressed. He had a couple of suicidal episodes. He had a volatile relationship with the mother. He was a pretty immature young man then.
“And he was dealing with anxiety. He was dealing with the stress. They had a physical encounter that the child was in the middle of. And the basis for jurisdiction was his mental health based on those things.
“It wasnt based on him being in sex offender treatment. That criminal case hadnt been resolved then, when that jurisdictional basis was established in the juvenile case. Trying to add it to the jurisdictional basis later, I would argue, isnt proper, isnt legal. Its not a fact.
“[He] has not been suffering from depression. He has not been suffering from anxiety. He has made great progress with his therapist throughout this.”
Given his progress working on his mental health issues, father asserted that there was no reason why he could not parent his child safely within a reasonable time.
The juvenile court disagreed, concluding that DHS had made reasonable efforts towards reunification, and that, despite those efforts, father had made insufficient progress to make it possible for O to be returned to his care. In ruling from the bench, the court concluded that fathers sex offender treatment was related to his mental health. The court also explained how fathers dishonesty related to his mental health treatment:
“Understanding what a therapist is asking you and treatment providers are asking of you is essential to cure a persons mental health issues. Honesty is essential because honesty is part of a mental health therapists ability to get to the bottom of somebodys issues because a therapist cant crack open a persons head and look inside and see whats making that person tick. They have to rely on honesty.”
Ultimately, the juvenile court changed Os permanency plan from reunification to adoption.
On appeal, father argues that the evidence presented by DHS failed to establish that “fathers progress in ameliorating his ‘mental health issues’ was insufficient for purposes of ORS 419B.476(2)(a) because it d[id] not establish that, at the time of the permanency [hearing], fathers mental health would prevent him from providing minimally adequate parenting for [O].”
2
(Emphasis omitted.) Father further argues that the juvenile court erred by relying on evidence that father had not completed his sex offender treatment to conclude that father had made insufficient progress toward ameliorating his mental health issues. Specifically, father asserts that the caseworkers belief that sex offender treatment was related to his mental health was “immaterial,” because “a reasonable parent in fathers position would not have known from the jurisdictional judgment that he or she needed to complete sex offender treatment.” (Emphasis omitted.) Furthermore, if the juvenile court believed that fathers status posed a risk to O, father contends that it should have “provid[ed] father with constitutionally adequate notice by ordering the department to file a new petition with such allegations,” allowing father a reasonable opportunity to ameliorate that jurisdictional basis.
In response, DHS argues that the juvenile court correctly considered fathers failure to complete sex offender treatment given the caseworkers testimony that it related to fathers mental health and because fathers probation precluded him from having unsupervised contact with O, and thus, O could not safely be returned to fathers care as prescribed by ORS 419B.476(2)(a).
3
In acknowledging that “the jurisdictional judgment predated fathers conviction and did not refer to fathers sex offense,” DHS argues that father was nonetheless on notice that he needed to complete sex offender treatment. Highlighting several documents in support of its argument that father had notice, DHS argues that father “would not have been surprised” that he needed to complete sex offender treatment for O to be returned to his care: (1) fathers case plan attached to the jurisdictional judgment, which stated that father had “pending criminal charges for Rape III with [mother] being the victim,” (2) fathers psychological evaluation, (3) fathers individual treatment notes, and (4) fathers action agreements, which required father to comply with all of the terms of his probation.
To change a permanency plan from reunification to adoption, “the proponent of the change must prove that, despite DHSs reasonable efforts to reunify the parent with his or her child, the parent has not made sufficient progress for the ward to safely return home.” Dept. of Human Services v. C. E., 288 Or. App. 649, 656, 406 P.3d 211 (2017) (internal quotation marks omitted); ORS 419B.476(2)(a). In making those determinations, however, a juvenile court may not “change the permanency plan for the child from reunification to adoption based on conditions or circumstances that are not explicitly stated or fairly implied by the jurisdictional judgment.” Dept. of Human Services v. A. R. S., 256 Or. App. 653, 660, 303 P.3d 963, rev. den., 354 Or. 386, 314 P.3d 964 (2013). As we explained in N. T., the specific “issues of parental unfitness established in the jurisdictional judgment provide the framework for the courts analysis of each question—that is, both DHSs efforts and a parents progress are evaluated by reference to the facts that formed the bases for juvenile court jurisdiction.” 247 Or. App. at 715, 271 P.3d 143. The jurisdictional judgment serves to provide a parent with constitutionally adequate notice. See Dept. of Human Services v. N. M. S., 246 Or. App. 284, 300, 266 P.3d 107 (2011) (“[A] petition or jurisdictional judgment must provide a parent with reasonable notice of the deficiencies that he or she must address in order to prevent continued jurisdiction; if it does not, it affects a ‘substantial right’ of the parent—viz., the right to constitutionally adequate notice[.]”). Therefore, a juvenile courts reliance on extrinsic facts “affect a parents right to both notice of what conditions or circumstances the parent must remediate and a reasonable opportunity—through access to services—to remediate them.” N. T., 247 Or. App. at 715, 271 P.3d 143.
Facts are not fairly implied by the jurisdictional judgment, and thus are “extrinsic” to the judgment, “if a reasonable parent would not have known from the jurisdictional judgment that he or she needed to address the condition or circumstance exemplified by those facts.” Dept. of Human Services v. T. L., 287 Or. App. 753, 763, 403 P.3d 488 (2017). When evaluating whether a parent was on notice that his, her, or their progress would be assessed based upon particular facts, “we look to the petition, the jurisdictional judgment, and documentation attached to the jurisdictional judgment providing the parent notice as to the conditions for reunification.” C. E., 288 Or. App. at 657, 406 P.3d 211.
We conclude that neither the petition nor the jurisdictional judgment and its attachments provided father with adequate notice that he had to complete sex offender treatment for purposes of the dependency case. Here, the jurisdictional judgment identified a single barrier to reunification, viz., fathers mental health issues. DHS does not argue that sex offender treatment was a condition explicitly stated in the courts jurisdictional judgment; rather, DHS contends that father had notice that he had to complete sex offender treatment before O could be returned to his care. The question therefore reduces to whether the jurisdictional judgment and its attachments fairly implied that completing sex offender treatment was a condition or circumstance that father had to address.
DHS relies on several documents to establish that father had notice: fathers case plan, fathers psychological evaluation, fathers individual treatment records, and fathers action agreements. Although the case plan attached to the jurisdictional judgment did note that father had “pending criminal charges for Rape III with [mother] being the victim,” that fact standing alone does not inform father of any conditions that he was required to meet for purposes of the dependency proceeding. Read in context, the reference to fathers criminal charges provided the background for the case plans discussion of “fathers erratic, volatile, and threatening behavior represent[ing] a threat of harm to the child.” That allegation was based on the domestic violence incident between father and mother, as well as fathers suicide attempts and subsequent hospitalization. More to the point, completing sex offender treatment was not specifically prescribed in the case plan, nor can it be fairly implied given the circumstances of this case.
4
Fathers action agreements requiring him to comply with the terms of his probation also did not provide father with adequate notice in this dependency case. Unlike the situation in Dept. of Human Services v. M. M. B., 253 Or. App. 431, 440, 290 P.3d 891 (2012), rev. den., 353 Or. 280, 298 P.3d 30 (2013), where the action agreement was attached to the jurisdictional judgment, the action agreements in this case were not a part of the jurisdictional judgment and therefore any requirement to comply with probation has to be fairly implied by the single basis for jurisdiction. Because we look to the petition, the jurisdictional judgment, and documentation attached to the jurisdictional judgment to evaluate whether a parent had sufficient notice of their conditions for reunification, we cannot conclude that father received constitutionally adequate notice from his action agreements to address his sex offender status. See N. M. S., 246 Or. App. at 300, 266 P.3d 107 (“[I]f the parental condition or characteristic is not one that fairly can be implied from the facts found in the jurisdictional judgment, then it is outside the scope of the courts jurisdiction, and that deficit cannot be remedied by claims of ‘actual notice’ through case plans or * * * letters of expectation.” (Emphasis omitted.)); see also Dept. of Human Services v. J. R. L., 256 Or. App. 437, 449-50, 300 P.3d 291 (2013) (rejecting DHSs argument that “subsequent reports to the court” indicating that the mother needed to address her depression and anxiety issues constituted sufficient notice, because “only the petition or the jurisdictional judgment [and attached documentation] can provide a parent with adequate notice” (internal quotation marks omitted)).
To be sure, father was aware that he had to complete sex offender treatment as a condition of his probation for his criminal case. We cannot, however, impute that knowledge to fathers dependency case when nothing in the jurisdictional judgment and supporting documents alerted father that he needed to complete sex offender treatment to cure the condition or circumstance that formed the basis for the courts jurisdiction over child. From our review of the record, the catalyst for fathers mental health issues that formed the jurisdictional basis stemmed primarily from fathers suicidal episodes, not fathers probation requirements.
In this case, there is no dispute that the juvenile court relied on fathers sex offender treatment, at least in part, in determining that father had not made sufficient progress towards reunification. Thus, because we conclude that father did not receive adequate notice of the condition to complete sex offender treatment, we necessarily hold that the juvenile court erred in relying on a fact extrinsic to the jurisdictional judgment when it concluded that DHS carried its burden to change Os permanency plan.
5
Finally, we reject DHSs argument that the juvenile court did not err in considering fathers sex offender treatment, because, given fathers probation restrictions, O “could not safely be returned to his home.” We have previously “rejected the notion that a juvenile court can change a permanency plan based on parental deficiencies that are not expressly stated in or fairly implied by the jurisdictional judgment, even if those deficiencies endanger a child.” T. L., 287 Or. App. at 766-67, 403 P.3d 488. Instead, where “a juvenile court has concerns about an unadjudicated condition or circumstance, the court, on the motion of an interested party or on its own motion, can direct that the petition be amended, and, thereby, set in motion the proper procedures for addressing any possible endangerment.” Id. at 767, 403 P.3d 488.
Reversed and remanded.
FOOTNOTES
1
. Although father argued that the mental health issues had “actually been ameliorated,” father acknowledged when pressed by the juvenile court that he had not filed a motion to dismiss that allegation. We understand his argument to the juvenile court to be a reason why the permanency plan should not be changed rather than for dismissal of the dependency petition.
2
. ORS 419B.476 provides, in part:“(2) At a permanency hearing the court shall:“(a) If the case plan at the time of the hearing is to reunify the family, determine whether the Department of Human Services has made reasonable efforts or, if there is reason to know as described in section 15 of this 2020 special session Act that the ward is an Indian child, active efforts as described in section 18 of this 2020 special session Act 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. In making its determination, the court shall consider the wards health and safety the paramount concerns.”Although amendments to ORS 419B.476 went into effect during the pendency of this appeal, Or. Laws 2020, ch. 14, § 38 (Spec. Sess.), none of those changes affect our analysis. Accordingly, we refer to the current version of the statute in this opinion.
3
. DHS also asserts that, to the extent father argues that he made sufficient progress to make it possible for O to safely return home at the time of the hearing, fathers argument is unpreserved. In his reply brief, father disclaims any such argument and reiterates that his argument is focused on asserting that the juvenile court incorrectly relied on facts outside of the only adjudicated basis for jurisdiction to determine that his progress was insufficient and supported the change of Os permanency plan. Accordingly, we reject DHSs preservation argument without further discussion.
4
. The case plan also referred to fathers psychological evaluation, which DHS similarly argues, put father on notice that his sex offender treatment was related to his mental health. We reject that argument on the same ground as fathers case plan: the psychological evaluation noted fathers criminal charges but did not specifically tie those charges in any meaningful way to fathers mental health issues. Similarly, we reject DHSs reliance on fathers individual treatment records.
5
. Given our conclusion, we need not address fathers argument that he had ameliorated his mental health condition. Further, the parties on remand will have the opportunity to address whether fathers purported dishonesty with his counselor relates to any adjudicated basis for jurisdiction, and what nexus, if any, that dishonesty has to fathers progress.
POWERS, J.