No. 590 July 1, 2026 13
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of L. J. K.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
C. K.,
aka C. J.,
Appellant.
Hood River County Circuit Court
23JU05791; A189207
John A. Olson, Judge.
Argued and submitted April 22, 2026.
Sarah Peterson, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Shannon Storey,
Chief Defender, Juvenile Appellate Section, Oregon Public
Defense Commission.
Emily N. Snook, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Dan Rayfield,
Attorney General, and Paul L. Smith, Solicitor General.
Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
14 Dept. of Human Services v. C. K.
ORTEGA, J.
Mother appeals from a permanency judgment that
changed her child’s plan from reunification to guardianship.1 On appeal, mother specifically challenges the juvenile
court’s determination under ORS 419B.476(4)(c) that further efforts would not make it possible for her child to safely return to her home within a reasonable time. In arguing
this case, the parties disagree as to our standard of review
of that issue and who bore the burden of proof below.
With respect to our standard of review, we conclude
that the juvenile court’s further-efforts determination itself is a fact-driven legal conclusion, and, as such, we review it
for legal error “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.”
Dept. of Human Services v. Y. B., 372 Or 133, 151, 546 P3d 255 (2024). We decline to address the burden of proof, because it
is not necessary to our decision. Applying our standard of
review in this case, we conclude that the juvenile court did
not err and affirm.
I. ORS 419B.476
A. Statutory Overview
We start with an overview of the statute at issue
here. As explained in Y. B., “[t]he 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 the plan.” 372 Or at 145. A juvenile court
conducts a permanency hearing pursuant to ORS 419B.476.
When the case plan at the time of the hearing is reunification, the court is required to “determine whether [ODHS]
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). In making those determinations, “the court shall consider the ward’s health and
safety the paramount concerns.” ORS 419B.476(2)(a). “Thus,
1
Father is not a party to this appeal.
Cite as 351 Or App 13 (2026) 15
at a permanency hearing, the juvenile court reviews both
[O]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.” Y. B., 372 Or at 145. If the court determines that
ODHS has made reasonable efforts and the parent has not
made sufficient progress, “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.” Id. (citing ORS 419B.476(5)(b)(B) - (D)).
In addition, ORS 419B.476(4) sets out that the court
“may” take certain actions at a permanency hearing. As relevant here, ORS 419B.476(4)(c) provides that, “[a]t a permanency hearing the court may * * * [i]f the court determines
that further efforts will make it possible for the ward to
safely return home within a reasonable time, order that the
parents participate in specific services for a specific period of time and make sufficient progress within that period of
time[.]” Relatedly, ORS 419B.476(5)(c), provides that, “[i]f the court determines that the permanency plan for the ward
should be to return home because further efforts will make it
possible for the ward to safely return home within a reasonable time,” the court’s order shall include “the court’s determination of the services in which the parents are required to
participate, the progress the parents are required to make
and the period of time within which the specified progress
must be made.” Thus, “[a]fter the court has determined that
ODHS has made reasonable efforts and a parent has not
made sufficient progress to safely return home at the time of
the hearing, ORS 419B.476(4)(c) gives the parent the opportunity to argue, and for the court to consider, continuing the reunification plan in some circumstances.” Dept. of Human
Services v. M. N. B., 346 Or App 440, 450, 585 P3d 622, modified on recons, 348 Or App 146, 588 P3d 302 (2026).
Finally, ORS 419B.476(5)(e) provides that, if the
court changes the ward’s 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.”
16 Dept. of Human Services v. C. K.
B. Standard of Review on Appeal
It is well-settled that both the reasonable-efforts
and sufficient-progress determinations under ORS 419B.476
(2)(a) are legal conclusions that we review for errors of law. Dept. of Human Services v. C. H., 373 Or 26, 48-49, 559 P3d
395 (2024) (reasonable efforts); Y. B., 372 Or at 149 (sufficient progress). Those determinations are heavily fact-driven,
and, as a result, although we review those determinations
for errors of law, we 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.” Id. at 151; see also C. H., 373 Or at 48-49. It is also well-settled that “[O]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.” Y. B., 372 Or at 135-36; see also C. H., 373 Or at 46.
What is not well-settled is the standard of review or
burden of proof that applies to the additional further-efforts determination that a juvenile court may make under ORS
419B.476(4)(c). We turn to that question.
We begin with the text of ORS 419B.476(4)(c),
which informs our review standard. As noted above, ORS
419B.476(4) sets out several actions that a court “may” take
at a permanency hearing. One of those actions is under ORS
419B.476(4)(c), which provides:
“(4) At a permanency hearing the court may:
“* * * * *
“(c) If the court determines that further efforts will
make it possible for the ward to safely return home within
a reasonable time, order that the parents participate in
specific services for a specific period of time and make specific progress within that period of time[.]”
Given the structure of the statute, the word “may” in that
provision relates to what the juvenile court may order at the
permanency hearing: “At a permanency hearing the court
may * * * order that the parents participate in specific services for a specific period of time and make specific progress Cite as 351 Or App 13 (2026) 17
within that period of time.” The phrase, “If the court determines that further efforts will make it possible for the ward
to safely return home within a reasonable time,” sets out
what the court must determine before making a discretionary order under ORS 419B.476(4)(c). See Dept. of Human
Services v. D. L. H., 251 Or App 787, 805-06, 284 P3d 1233,
disposition modified on recons, 253 Or App 600, 292 P3d 565
(2012) (stating that “it is within the juvenile court’s discretion whether to order a parent to participate in services, if
the court concludes that the parent can be reunified with the
child within a reasonable time and with the aid of the additional services”). In pointing that out, we wish to make clear that we are not revisiting D. L. H. or addressing whether a
juvenile court is ever required to make a further-efforts determination, or if the decision to make a further-efforts determination is always discretionary as suggested by D. L. H.,
because, in this case, the juvenile court did decide to make
a further-efforts determination. Accord Dept. of Human
Services v. B. L. G., 301 Or App 314, 315-16, 456 P3d 377
(2019) (declining to address that issue where the court did
make a determination that reasonable efforts would not
make it possible for the child to safely return home to father in a reasonable time). What we must decide here is our standard of review of that further-efforts determination itself.
We first reject ODHS’s assertion that the word
“may” in the introductory clause of ORS 419B.476(4) means
that we review a court’s further-efforts determination itself
for an abuse of discretion. In support of that contention,
ODHS cites Y. B. and M. N. B. First, we do not read Y. B. as
establishing an abuse of discretion standard of review for
a court’s determination that further efforts will not make
it possible for the ward to safely return home within a reasonable time. That issue was not before the court in Y. B.
Instead, the court stated as part of a statutory overview
that “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 child’s safe return ‘within a reasonable time’ * * *.” 372 Or at 145-46 (emphasis
added). That statement says nothing about our standard of
review of such a further-efforts determination itself.
18 Dept. of Human Services v. C. K.
However, in M. N. B., we stated: “[T]he juvenile court
determined that further efforts would not make it possible
for [the child] to return home within a reasonable time. That
determination is evaluated for abuse of discretion.” 346 Or
App at 451. We supported that statement with a cite to the
use of “may” in ORS 419B.476(4)(c) and to Y. B. However, as
explained above, neither of those sources of law support the
contention that the further-efforts determination itself—as
opposed to a discretionary decision of the juvenile court to
reach the issue under ORS 419.476(4)(c) at a permanency
hearing—should be reviewed for an abuse of discretion.
M. N. B. does not further address why we should review a
juvenile court’s further-efforts determination for an abuse
of discretion, and we are not aware of any prior cases of ours that treated the determination as one that is reviewed for an
abuse of discretion. See, e.g., Dept. of Human Services v. D. I. R., 285 Or App 60, 70-71, 395 P3d 970 (2017) (reviewing a determination that further efforts would not make it possible to
reunify the child and parent in a reasonable time under both
ORS 419B.498(2)(b)(A) and ORS 419B.476(4)(c), and stating
that “[o]ur task is to determine whether the evidence in the
record is sufficient to support the court’s findings that [the child] could not be safely returned to mother’s or father’s
care in a reasonable time”); D. L. H., 251 Or App at 806
(reviewing a determination under ORS 419B.467(4)(c) that
further efforts would not make it possible to reunify the
child and parent in a reasonable time in a manner consistent
with sufficiency of the evidence to support the court’s conclusion). In addition, reading M. N. B. as a whole, it appears
that the analysis was focused on whether the juvenile court
abused its discretion in failing to order services under ORS
419B.476(4)(c)—a slightly different question than the one we
seek to address here, although the posture of the cases are
similar.
Given those observations, we clarify now that,
when a juvenile court has made a determination that further efforts will not make it possible for a ward to safely
return home within a reasonable time, we review that determination for legal error. As explained below, we reach that
conclusion based on the text and context of ORS 419B.476
(4)(c) and the Supreme Court’s reasoning in Y. B. Finally, to
Cite as 351 Or App 13 (2026) 19
avert future confusion, we disavow our articulation of the
standard of review in M. N. B. to the extent that it suggests a blanket “abuse of discretion” standard of review that
applies to a juvenile court’s ruling under ORS 419B.476
(4)(c).2 Rather, the statute plainly requires the application of different standards of review for different components of the
court’s ruling: The discretionary decision to order further
services upon a determination that “further efforts” will
make reunification possible—which we understand to be
the primary focus of M. L. B.—is reviewed for abuse of discretion; the predicate “further efforts” decision, on the other hand, is one that we review for legal error.
We turn to the nature of the further-efforts determination. As explained below, based on Y. B., we conclude
that the determination in ORS 419B.476(4)(c) is a legal conclusion. In Y. B., the court concluded that “sufficient progress” in ORS 419B.476(2)(c) “does not mean completely ameliorating the bases for dependency jurisdiction.” Y. B., 372
Or at 146. The court explained that
“a parent can be found to have made sufficient progress
to warrant denial of a[n O]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 the child will remain in the legal custody of [O]DHS and subject to the juvenile court’s ongoing
supervision.”
Id. at 146-47 (emphases added).
Based on the Supreme Court’s conclusion as to what
the sufficient-progress determination encompasses, we do
not understand what additional or different determinations
a court would make to determine if “further efforts will
make it possible for the ward to safely return home within a
reasonable time,” except with respect to what “a reasonable
time” is. And, “reasonable time” is a statutorily defined term that the Supreme Court has treated as a legal conclusion
when made part of a determination that is otherwise a legal
2
Because this opinion overrules our existing precedent, the panel specifically advised all members of the court of the effect of its decision, but neither the Chief Judge nor a majority of the regularly elected or appointed judges referred the cause, under ORS 2.570(5), to be considered en banc.
20 Dept. of Human Services v. C. K.
conclusion.3 See, e.g., Dept. of Human Services v. S. J. M., 364 Or 37, 56, 430 P3d 1021 (2018) (“Whether a ‘compelling reason’ [under ORS 419B.498(2)(b)] exists is a legal question,
but one dependent upon factual findings.”); ORS 419B.498
(2)(b)(A) (providing that compelling reasons include, “The
parent is successfully participating in services that will
make it possible for the child or ward to safely return home
within a reasonable time as provided in ORS 419B.476
(5)(c).”).
Moreover, ORS 419B.476(4)(c) refers to further
efforts as something the court “determines.” Likewise, in
ORS 419B.476(2)(a), the legislature used the word “determine” with respect to reasonable efforts and sufficient progress, which the Supreme Court relied on, in part, in concluding that those questions were legal ones. “Although, in
the abstract, there is nothing that precludes the legislature
from defining the same terms to mean different things in
the same or related statutes, in the absence of evidence to
the contrary, we ordinarily assume that the legislature uses
terms in related statutes consistently.” State v. Cloutier, 351 Or 68, 99, 261 P3d 1234 (2011). That holds particularly true
here where the determinations to be made are so closely
related.
Based on the above discussion, we do not think the
legislature intended a further-efforts determination in ORS
419B.476(4)(c) to be an inquiry different in nature from the
determinations in ORS 419B.476(2)(a). We thus conclude
that a court’s determination whether “further efforts will
make it possible for the ward to safely return home within
a reasonable time” is a heavily fact-driven legal conclusion
that we review in the same manner as a sufficient-progress
determination. As summed up in Y. B. and as applied here,
that entire standard is as follows:
“[A]ppellate courts are bound by the juvenile court’s factual findings * * * 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
3
“Reasonable time,” is defined as “a period of time that is reasonable given a child or ward’s emotional and developmental needs and ability to form and maintain lasting attachments.” ORS 419A.004(27).
Cite as 351 Or App 13 (2026) 21
[whether further efforts will make it possible for the ward
to safely return home within a reasonable time] 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.”
Y. B., 371 Or at 151.
Finally, we decline to decide which party bears the
burden of proof at a permanency hearing on a further-efforts determination, because it is not necessary to decide
this case.
II. APPLICATION TO THIS CASE
A. Factual Background
Mother does not ask us to take de novo review, and
we decline to do so. ORAP 5.40(8). Accordingly, “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.” Y. B., 372 Or at 136. “In addition, we defer to the juvenile court’s findings of fact if there is any evidence in the record to support them.” Id. We summarize
the facts most important to our analysis in accordance with
that standard.
Mother’s child, L, was 9 years old at the time of the
permanency hearing. She was removed from mother’s home
in November 2023, when she was 7 years old. When ODHS
went to mother’s home at that time, it was extremely unsanitary, including a kitchen floor covered in animal feces and
urine, trash throughout the home and yard, and stacks of
dirty dishes. The caseworker who contacted L at her school
reported that L smelled strongly of dog feces. At first, L
stayed with her maternal grandfather while mother cleaned
the home. Because mother made significant progress, L
returned to mother’s home. However, around the time of L’s
return, mother tested positive for methamphetamine, and
about a week later, ODHS discovered that the condition of
mother’s home was deteriorating. L also tested positive for
methamphetamine. Mother denied methamphetamine use
and blamed L’s positive test on father or friends who were
22 Dept. of Human Services v. C. K.
helping her clean. ODHS removed L from mother’s care and,
after a failed kith and kin placement, she was placed with
nonrelative resource parents.
The juvenile court asserted jurisdiction over L in
February 2024. Mother admitted to allegations that she
“has not maintained a safe and sanitary home environment
which places the child at risk of harm,” her “mental health
problems interfere with her ability to safely parent the
child,” and her “substance abuse interferes with her ability
to safely parent the child.”
After the court took jurisdiction, mother completed
an online parenting class. She also initially engaged in outpatient group and individual drug and mental health counseling, but was discharged in June 2024 because she was
not receptive to treatment. She restarted services with a different provider, but was discharged in December 2024 after
failing to show up to scheduled appointments and failing
to make progress. Mother tested positive for methamphetamine several times in 2024, although she would not admit
to using. She again tested positive in January 2025, and, in
a face-to-face meeting in February 2025, mother admitted
to her January relapse but said she was committed to her
sobriety.
In early 2025, mother began engaging with online
service providers for sobriety support and mental health services, and she was managing her mental health with medication and therapy. Mother did not agree that she needed
the in-person services recommended for her. She maintains
that her clean and sober date is February 5, 2025; however,
she refused to answer the door in April for a random drug
test, and she tested positive for methamphetamine by mouth
swab in May and June 2025. Mother offered that it was
her medications that were causing a positive result in the
mouth swabs, but her doctor stated that it was not possible
for mother’s medications to trigger a positive swab for methamphetamine. To rule out that possibility, ODHS offered
mother drug screening by urinalysis in July, August, and
twice in September 2025, before the permanency hearing,
but she did not appear for those screenings, claiming she
had work conflicts. Her caseworker, however, testified that
Cite as 351 Or App 13 (2026) 23
mother’s work schedule has not interfered with any other
services or visitation. Mother testified that going forward
she would work with her employer to get the drug testing
done.
Mother has consistently participated in supervised
visits with L, first at ODHS offices and then in the community, and through scheduled phone calls. Reportedly, those
visits go very well and are positive for L. Mother also made
progress on maintaining a clean home, including replacing
the urine-damaged flooring.
L has been doing well in her resource home. When
she was first removed from mother’s care, she required
extensive dental work and medical intervention to correct
her walk. She still struggles with significant overeating
and hygiene issues, particularly around toileting, on a daily
basis, which are likely related to the neglect and food insecurity she experienced in mother’s home, and she continues
to need counseling and physical therapy. L’s psychological
examiner opined that L needed a stable, safe, and reliable
home and “permanent placement decisions as soon as possible” as timelines and return plans “can be very stressful for
her.”
In September 2025, ODHS sought to change L’s
plan from reunification to guardianship. ODHS determined
that adoption was not an appropriate plan because of L’s
attachment to mother. Mother contested the change in plan
and sought a finding that further efforts would allow L to
return safely home to mother within a reasonable time. L’s
caseworker testified that changing L’s plan to guardianship
was in L’s best interest because after 22 months in substitute care father had not made progress and mother’s progress was slow. L was expressing anxiety around where she
was going to be living and expressed that, if she could not go back to her mom, she wanted to stay where she was.
After a hearing, the court changed L’s plan from
reunification to guardianship, with a preference for permanent guardianship. The court determined that reunification was no longer the most appropriate plan for L because
she had been in substitute care for 22 months and needs
24 Dept. of Human Services v. C. K.
permanency that a reunification plan cannot provide her,
and that adoption was not an appropriate plan due to L’s
strong attachment to mother. The court also determined
that ODHS made reasonable efforts toward reunification
and that mother had not made sufficient progress. The court
found that mother had made significant progress on maintaining a safe and sanitary home and continues to make
improvements, and that mother has made progress with her
mental health and gaining insight. However, given mother’s
history of falsely denying drug use and missing five drug
tests after testing positive, the court found, by a preponderance of the evidence, that mother has continued to use methamphetamine. The court also found that L has higher needs
than other children her age because of the severe neglect she
experienced while in mother’s care, due to mother’s mental
health struggles and drug abuse. In the judgment, the court
stated that “the evidence does not support a determination
under ORS 419B.476(4)(c) and (5)(c) that further efforts will
make it possible for the child to safely return home within a
reasonable time.”
B. The Juvenile Court Did Not Err.
Mother does not dispute that the evidence in the
record was legally sufficient to permit the juvenile court
to determine that ODHS had made reasonable efforts and
that mother had not made sufficient progress. She argues
only that the court erred in determining that further efforts
would not make it possible for L to safely return home within
a reasonable time. As we have explained, we review that
determination “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.”
Y. B., 371 Or at 151.
Mother argues that, at the time of the permanency
hearing, she was maintaining a clean home and actively
managing her mental health with counseling and medication. She also maintained that she had a clean date of
February 5, 2025, and that the only thing that suggested
otherwise was the two positive mouth swabs. Mother testified that she would work with her employer so that she
Cite as 351 Or App 13 (2026) 25
could show up for urinalysis testing, which she had missed
because of work. Mother argues that the evidence demonstrated that further efforts would allow L’s return home
in a reasonable time, because all that was needed was for
mother to show up for the urinalysis testing. Mother also
argues that ODHS admitted at the hearing that it had not
yet found L a prospective guardian and thus L would be in
limbo whether or not the plan was changed immediately.
We reject mother’s argument primarily because it
ignores the juvenile court’s finding of fact that mother was,
at the time of the hearing, continuing to use methamphetamine. That finding is supported by the evidence, which
included mother’s history of falsely denying methamphetamine use, testing positive for methamphetamine use in
May and June 2025, and missing at least four opportunities
for urinalysis testing before the hearing. That factual finding, in addition to the court’s findings about L’s higher needs from mother’s neglect, that mother’s drug abuse affects her
ability to safely parent L, and L’s immediate need for permanency are supported by the evidence and are legally sufficient to support the juvenile court’s determination that
further efforts will not make it possible for L to safely return home within a reasonable time.
Affirmed.