No. 974 October 14, 2026 645
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
S. E.,
a minor child,
by and through Paul Galm,
Guardian Ad Litem of S. E.,
Plaintiff-Appellant,
v.
STATE OF OREGON,
by and through its Department of Human Services,
and Travis Manson, in his individual capacity,
Defendants-Respondents.
Umatilla County Circuit Court
22CV13849; A186113
Daniel J. Hill, Judge.
Argued and submitted June 2, 2026.
Erin K. Olson argued the cause for appellant. Also on
the briefs were Law Office of Erin Olson, P.C.; and Josh
Lamborn and The Law Office of Josh Lamborn.
Jona J. Maukonen, Assistant Attorney General, argued
the cause for respondents. Also on the brief were Dan
Rayfield, Attorney General, and Benjamin Gutman, Interim
Deputy Attorney General.
Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Reversed and remanded.
646 S. E. v. Dept. of Human Services
Cite as 353 Or App 645 (2026) 647
ORTEGA, P. J.
Plaintiff, a minor child acting through a courtappointed guardian ad litem, appeals a judgment dismissing
her claims against the Oregon Department of Human Services
(ODHS) and an employee of ODHS, Travis Manson. In short,
plaintiff alleged that, when she was three years old, ODHS
and Manson improperly placed her with her father, who then
sexually abused her. Plaintiff brought claims against ODHS
for negligence and abuse of a vulnerable person under ORS
124.105 and against Manson for deprivation of civil rights
under 42 USC section 1983. Defendants moved for summary
judgment, arguing that plaintiff’s claims were precluded
because a juvenile court previously had found that ODHS
failed to present credible evidence that father had sexually
abused plaintiff and found that plaintiff had not disclosed
abuse in her Guardian Care Center interview. The trial court
granted summary judgment and dismissed plaintiff’s claims.
On appeal from the resulting judgment, plaintiff asserts that the trial court erred in applying issue preclusion.
Under the particular circumstances of this case,
particularly given that plaintiff did not effectively waive any jury trial right when she was involuntarily made a party in
the dependency proceeding, we conclude that issue preclusion should not apply in this case as a matter of fairness,
both as to the fact of whether father abused plaintiff and as to whether plaintiff can rely on the Guardian Care Center
interview to show abuse. Therefore, we reverse the trial
court’s grant of summary judgment to defendants based on
issue preclusion and remand for further proceedings.
Because this case is on review following the trial
court’s grant of summary judgment to defendants, we review
for errors of law and “will affirm if there are no genuine disputes about any material fact and the moving party is entitled to judgment as a matter of law.” Thompson v. Portland
Adventist Medical Center, 309 Or App 118, 121, 482 P3d 805
(2021).
We summarize only those facts from the summary
judgment record that bear directly on the issue on appeal.
In November 2020, when plaintiff was about three years
648 S. E. v. Dept. of Human Services
old and primarily living with her mother, her mother was
admitted to a psychiatric care facility and left plaintiff with neighbors. When ODHS learned of mother’s hospitalization,
ODHS, through defendant Manson, contacted plaintiff’s
father, who picked plaintiff up. Plaintiff then lived with
father and his girlfriend for about a month. Several months
later, plaintiff told either her mother or the neighbor that
father had hurt her when she lived with him, and, about
two months later, in May 2021, plaintiff participated in a
video-recorded interview at Guardian Care Center. In the
interview, plaintiff said that father “is mean” and that he
touched her privates with his finger over her clothing, identifying her privates as the vaginal area. Plaintiff also said that it felt “not great.”
In September 2021, mother died of COVID-19, and
ODHS took custody of plaintiff. Plaintiff had been staying
with the neighbors, and they told ODHS that plaintiff had
made disclosures of sexual abuse by father. ODHS obtained
the Guardian Care Center interview and filed a dependency
petition seeking jurisdiction over plaintiff based on allegations that father sexually abused plaintiff and that father
has an anger control problem that interferes with his ability to safely parent.
The dependency trial took place over two days in
January 2022, before Judge Collins, and on one day in May
2022, before Judge Temple, after Judge Collins recused
himself. On the morning of trial before Judge Temple, the
parties agreed to rely on the testimony taken before Judge
Collins, and Judge Temple agreed to listen to that testimony. Ultimately, the juvenile court determined that ODHS
did not prove any of its allegations against father.
In its final judgment, the juvenile court included
its factual findings. Of particular note, the court stated,
“As Detective Perkins testified, a parent touching a toddler on the outside of their clothing is not sex abuse,” and
it noted the detective’s “grave concern” interviewing a child that young because of the risk of coaching. The court also
credited testimony from Detective Perkins and two other
witnesses about what a proper forensic interview of a child
looks like and found that “[m]ost of the protocols for a proper Cite as 353 Or App 645 (2026) 649
forensic interview were not followed by [the Guardian Care
Center interviewer].” However, the court also found that,
even assuming plaintiff stated the uncoached truth in the
interview, plaintiff “did not disclose any abuse by her father or any other person. She described only the kind of touching
that all toddlers experience by a parent when potty training.” The court concluded that ODHS “did not present credible evidence [f]ather has abused [plaintiff], sexually or otherwise” and “did not present evidence that father has an anger control problem.” The court ordered plaintiff to be returned to
father’s care and dismissed ODHS’s dependency petition.
Plaintiff, through a guardian ad litem, filed this
action shortly before dismissal of the dependency petition.
Plaintiff alleged claims for negligence and abuse of a vulnerable person under ORS 124.105 against ODHS and a 42
USC section 1983 claim against Manson. Each of plaintiff’s
claims is premised on allegations about the actions ODHS
and Manson took that resulted in plaintiff being placed with
her father, who then sexually abused her. Defendants moved
for summary judgment, arguing that plaintiff’s claims were
barred by issue preclusion because the claims depended on a
finding that father abused plaintiff but the juvenile court had previously found no credible evidence of abuse. Defendants
also argued that plaintiff was precluded from attempting
to show the abuse occurred by using the Guardian Care
Center interview because the juvenile court found that the
interviewer did not adhere to proper protocols and that the
interview did not contain evidence of abuse. The trial court
granted summary judgment to defendants, concluding that
issue preclusion applied to defeat plaintiff’s claims and to
prevent plaintiff from relying on the Guardian Care Center
interview.
On appeal, plaintiff challenges the trial court’s
application of issue preclusion in this case to both the fact issue of abuse and her ability to rely on the interview.1
1
Defendants argue that plaintiff did not preserve arguments in response to defendants’ motion for summary judgment with respect to the Guardian Care Center interview. We reject that argument. Plaintiff responded to defendants’ motion for summary judgment in its entirety, and the points she raised logically applied to the application of issue preclusion to both fact issues of the abuse and the interview.
650 S. E. v. Dept. of Human Services
Because plaintiff’s arguments are essentially the same,
and the issues are intertwined, we address them together.
Before we address the merits of plaintiff’s appeal, we make
some initial observations. Plaintiff raises several arguments, some of which are preserved and some of which are
not. As to her preserved arguments, plaintiff raises some
of those arguments based on the exceptions to issue preclusion set out in Restatement (Second) of Judgments section
28(3) and (5) (1982). We observe here that Oregon has not
adopted the Restatement section 28 exceptions to issue preclusion. Instead, those exceptions appear to address matters
covered by the requirements set out in Nelson v. Emerald
People’s Utility Dist., 318 Or 99, 862 P2d 1293 (1993), and
the overall fairness of applying issue preclusion as provided under Oregon case law. Because we ultimately conclude that
fairness requires that we not apply issue preclusion in this
case, we do not further address plaintiff’s reliance on the
Restatement exceptions for some of her arguments.2
“Issue preclusion, a doctrine of judicial finality, is a
branch of ‘preclusion by former adjudication’ that is based,
first, on the ‘protection of private litigants against the
harassing necessity of litigating more than once the same
issue or cause of action’ and, second, on ‘the protection of the public’s interest in preventing relitigation of matters once
decided.’ ” Dept. of Human Services v. T. G. H., 305 Or App
783, 794-95, 473 P3d 591 (2020) (quoting Bahler v. Fletcher,
2
Plaintiff did not preserve her argument that issue preclusion does not apply because plaintiff and ODHS were not adversaries in the juvenile court, and that is not an argument we would reach as plain error. Thus, we do not address that argument. See, e.g., ORAP 5.45(1) (“No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court[.]”). Plaintiff also conceded below that all five Nelson requirements were met and, thus, we decline to address her arguments on appeal expressly based on the third Nelson requirement. See State v. Kammeyer, 226 Or App 210, 214, 203 P3d 274, rev den, 346 Or 590 (2009) (“Under the invited error doctrine, a party who was actively instrumental in bringing about an alleged error cannot be heard to complain, and the case ought not to be reversed because of it.” (Internal quotation marks omitted.)). Finally, we also decline to address plaintiff’s argument that the court plainly erred in not applying ORS 419B.100(3) to prevent application of issue preclusion. It is not plain that that statute has any bearing on whether issue preclusion applies in a subsequent civil action for a fact determined by a juvenile court in a dependency proceeding. See State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013) (stating that an error is plain when it is “an error of law, obvious and not reasonably in dispute, and apparent on the record without requiring the court to choose among competing inferences”).
Cite as 353 Or App 645 (2026) 651
257 Or 1, 6, 474 P2d 329 (1970)). “Issue preclusion arises
in a subsequent proceeding when an issue of ultimate fact
has been determined by a valid and final determination
in a prior proceeding.” Nelson, 318 Or at 103. The doctrine
applies when (1) “[t]he issue in the two proceedings is identical”; (2) “[t]he issue was actually litigated and was essential to a final decision on the merits in the prior proceeding”;
(3) “[t]he party sought to be precluded has had a full and
fair opportunity to be heard on that issue”; (4) “[t]he party sought to be precluded was a party or was in privity with a
party to the prior proceeding”; and (5) “[t]he prior proceeding was the type of proceeding to which this court will give
preclusive effect.” Id. at 104. Here, in the trial court, plaintiff conceded that all five Nelson requirements were met, so
we do not address them further.
“Even where those elements are met, ‘[t]he court
must also consider the fairness under all the circumstances
of precluding a party.’ ” Minihan v. Stiglich, 258 Or App
839, 855, 311 P3d 922 (2013) (quoting State Farm v. Century
Home, 275 Or 97, 110, 550 P2d 1185 (1976) (brackets in
Minihan)). Fairness is a different inquiry than whether a
party had a full and fair opportunity to present its case in
the prior action. A full and fair opportunity “relates to the circumstances affecting the preparation and conduct of the
[prior action] and those that might bear on upon the strategy and conduct of a second trial,” where fairness “relates to variables (not necessarily connected to the actual trials) concerning the equity and justice of applying [issue preclusion] in a given case.” State Farm, 275 Or at 113-14. “[T]he unsubstantiated and conjectural possibility that a party might
receive a favorable judgment somewhere down the road is an
insufficient reason for refusing to apply” issue preclusion.
Id. at 107. However, “[i]f the circumstances are such that our confidence in the integrity of the determination is severely
undermined, or that the result would likely be different in a second trial, it would work an injustice to deny the litigant another chance.” Id. at 108. We also consider as part of the
fairness question whether applying issue preclusion would
result in a denial of a party’s jury trial right. See Shannon v. Moffett, 43 Or App 723, 731, 604 P2d 407 (1979), rev den,
288 Or 701 (1980) (listing as one of the indications to not
652 S. E. v. Dept. of Human Services
apply preclusion in the case was “the impact on the right to
a jury trial”); see also State v. Davis, 265 Or App 179, 193, 335 P3d 1266 (2014) (“Using the doctrine of issue preclusion
to conclusively establish facts necessary for a conviction in a criminal prosecution impermissibly interferes with a defendant’s constitutional right under Article I, section 11, [of the Oregon Constitution] to have a jury find every element of the charged offense beyond a reasonable doubt.”).
As to fairness, plaintiff bore the burden of proof
to show that it was unfair to apply issue preclusion in this
case. See, e.g., State Farm, 275 Or at 105 (“The burden
then shifts to the party against whom estoppel is sought to
bring to the court’s attention circumstances indicating the
absence of a full and fair opportunity to contest the issue in the first action or other considerations which would make
the application of preclusion unfair.”). We review the trial
court’s decision on fairness for errors of law, because applying issue preclusion “involves a policy judgment balancing
the interests of an individual litigant against the interests of the administration of justice” and it is “our duty to determine independently whether the circumstances revealed by
the evidence justify the conclusion that it would be inequitable” to apply issue preclusion to plaintiff in this case. Id. Ultimately, we conclude that plaintiff met her burden, based
on three circumstances. See Shannon, 43 Or App at 731-32 (relying on several considerations to not apply collateral estoppel, stating that “[p]erhaps no one of these considerations would be controlling standing alone”).
The first circumstance is that applying issue preclusion here would likely violate plaintiff’s right to a jury trial on the fact issues of whether defendant abused plaintiff and whether plaintiff’s disclosures to Guardian Care Center
were disclosures of abuse that a jury would credit. Article I, section 17, of the Oregon Constitution provides, “In all civil cases the right of Trial by Jury shall remain inviolate[.]”
That section “guarantees litigants a procedural right to
have a jury rather than a judge decide those common-law
claims and defenses that customarily were tried to a jury
when Oregon adopted its constitution in 1857, as well as
those claims and defenses that are ‘of like nature.’ ” Horton Cite as 353 Or App 645 (2026) 653
v. OHSU, 359 Or 168, 250, 376 P3d 998 (2016). “The right of
trial by jury is to be broadly construed, and the right extends to a civil claim or request for relief absent a showing that, at common law, such claim or request would have been tried
to the court without a jury.” Hunters Ridge Condo. Assn. v.
Sherwood Crossing, 285 Or App 416, 444, 395 P3d 892 (2017);
see also Deep Photonics Corp. v. LaChapelle, 368 Or 274, 286, 491 P3d 60 (2021) (explaining that the court “look[s] at the
‘claims’ and ‘requests for relief,’ and if the relief sought is in the nature of a ‘legal’ claim * * * the parties have a right to a jury trial”).
Here, plaintiff sought monetary damages based on
claims for negligence and abuse of a vulnerable person under
ORS 124.105 against ODHS and a federal 42 USC section
1983 claim against Manson. The parties’ arguments do not
provide any basis on which we could conclude that any of
those claims are ones to which Oregon’s jury trial right would not attach, as they each sound in tort and seek legal relief. See, e.g., Hernandez v. Farmers Ins. Co. of Oregon, 345 Or App 407, 414, 583 P3d 568 (2025), rev den, 375 Or 332 (2026) (recognizing constitutional right to a jury on a negligence claim); see also E. J. T. v. Jefferson County, 370 Or 215, 220, 518 P3d 568 (2022) (holding that “[a] claim that officers, employees, or agents of a public body violated Oregon’s Vulnerable Person
Act while ‘acting within the scope of their employment or
duties’ is a tort claim, for which the OTCA authorizes an
action against the public body”); see also City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 US 687, 709, 119 S Ct
1624, 143 L Ed 2d 882 (1999) (explaining that the Seventh
Amendment to the United States Constitution extends the
jury trial right to statutory claims when the claims sound
in tort and seek legal relief, and holding that a suit for legal relief brought under section 1983 is such a claim).
Defendants do not argue that plaintiff’s claims are
claims for which there is no Article I, section 17, right to
a jury trial. Rather, defendants assert that preclusion can
apply in cases where the prior proceeding did not have a
jury trial right, such as agency decisions and arbitrations.
That is true, as far as it goes. However, in those cases, when the issue of the jury trial right was presented, no jury trial 654 S. E. v. Dept. of Human Services
right was violated because the plaintiff had voluntarily participated in the prior proceeding. Carrier v. Hicks, 316 Or
341, 352, 851 P2d 581 (1993) (holding that giving preclusive
effect to a personal injury protection (PIP) arbitration does not deprive a plaintiff of a jury trial when the plaintiff voluntarily agreed to arbitration); Hernandez, 345 Or App at
413-14 (same). Cf. Foltz v. State Farm Mutual Auto. Ins., 326 Or 294, 302, 952 P2d 1012 (1998) (holding that PIP arbitration made mandatory by statute was nonbinding because
otherwise it deprived an insured of the right to a jury trial); Chavez v. Boise Cascade Corp., 307 Or 632, 635 n 1, 772 P2d
409 (1989) (noting, in a case that applied preclusion to an
administrative determination in a civil action, that “[t]his
case presents no claim of a right under Article VII, section
3, of the Oregon Constitution to a jury determination of disputed facts”). This case is distinguishable for the important reason that plaintiff had no choice whether to participate as a party in the dependency action. ODHS petitioned to bring
plaintiff under the jurisdiction of the juvenile court based
on allegations that father could not safely parent plaintiff. Plaintiff did not take any actions in the prior proceeding
that would operate as a waiver of her jury trial right in this case.
The second circumstance we consider is that, in the
dependency case, as the party petitioning for dependency
jurisdiction, ODHS alone had the burden of proof on the
allegations in its petition—that is, plaintiff, as the child, had no burden of proof or persuasion on the issue—and in
that case, the juvenile court determined that ODHS had not
met that burden to prove that father had abused plaintiff.
See, e.g., Dept. of Human Services v. X. T., 316 Or App 442,
444, 503 P3d 1264 (2021) (explaining that ODHS bears the
burden to show that conditions or circumstances endanger
the child’s welfare to establish jurisdiction). That is, the
juvenile court did not affirmatively find that father had not abused plaintiff; the juvenile court found that ODHS had
not carried its burden of proof. Now, in this subsequent case, ODHS seeks to preclude plaintiff from bringing her action
against it based on its own failure to submit sufficient evidence to prove the abuse allegation in the dependency case.
The relative position of the parties, and ODHS’s change
Cite as 353 Or App 645 (2026) 655
in position, although not a circumstance that would alone
suffice to deny preclusive effect, is a circumstance in this
case that bears on the fairness of applying issue preclusion
against plaintiff.3
The third circumstance is that the juvenile court
appeared to have applied a misunderstanding of the law of
what can constitute sexual abuse when it relied on the testimony of Detective Perkins that “a parent touching a toddler
on the outside of their clothing is not sex abuse.” Plaintiff had disclosed, as found by the juvenile court, that her father “touched her privates with his finger(s) * * * over her clothing.” Plaintiff identified her privates as her vagina. As a legal matter, that type of touching can constitute sex abuse if the person had a sexual purpose in the touching of the young
child. See, e.g., ORS 163.427 (“A person commits the crime
of sexual abuse in the first degree when that person * * *
[s]ubjects another person to sexual contact and * * * [t]he victim is less than 14 years of age[.]”); ORS 163.305 (“ ‘Sexual contact’ means any touching of the sexual or other intimate
parts of a person or causing such person to touch the sexual
or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party.”); State v. Hurtado, 335 Or App 560, 570, 558 P3d 1267 (2024), rev den,
373 Or 305 (2025) (in reviewing a jury instruction, holding
that “the jury instructions accurately define the various
requirements for ‘sexual contact’ and correctly explain that
touching an intimate part over clothing can constitute sexual contact if it is done with the requisite sexual purpose”). The juvenile court did not make findings about father’s purpose when it relied on Detective Perkin’s opinion about the
law or when it found that plaintiff “described only the kind
of touching that all toddlers experience by a parent when
potty training.”
3
We note that plaintiff has also pointed to issues regarding the quality of ODHS’s advocacy in the juvenile case. For example, ODHS’s direct examination of Detective Perkins resulted in his testimonial opinion about the forensic unreliability of the Guardian Care Center interview, that plaintiff was coached though he had never spoken to plaintiff himself, and that plaintiff’s disclosures did not provide probable cause that father committed a crime. The reliability of the interview was central to ODHS’s abuse allegation, and the juvenile court expressly referred to Detective Perkins’s testimony in finding that coaching was a risk, that the interview was not conducted properly, and that plaintiff had not disclosed abuse.
656 S. E. v. Dept. of Human Services
We recognize that a court’s misapprehension of
the law would not form a basis for refusing to apply issue
preclusion on its own, because that is precisely the type of
error that can be corrected on appeal. See Skeen v. Dept. of
Human Resources, 171 Or App 557, 562, 17 P3d 526 (2000),
rev den, 332 Or 316 (2001) (rejecting argument that procedural error in prior administrative proceeding allowed
party to avoid application of issue preclusion in subsequent
civil proceeding, where the alleged procedural error could
have been corrected on judicial review in the prior proceeding because it amounted to a collateral attack on the prior
decision). However, here, based on the juvenile court’s judgment—which is what we must base issue preclusion on—
that misapprehension of the law appears to have infected
the juvenile court’s view of the evidence when it found that
plaintiff did not disclose abuse in her Guardian Care Center
interview. Thus, it is a circumstance that we consider here,
particularly with respect to whether issue preclusion should
apply such that plaintiff could be precluded from using the
interview to show abuse occurred.
Given those circumstances, with particular emphasis on plaintiff’s jury trial right, we conclude that issue
preclusion should not apply in this case. The policy considerations that support applying the doctrine of issue preclusion—“protection of private litigants against the harassing necessity of litigating more than once the same issue”
and the public interest “in preventing relitigation of matters once decided,” T. G. H., 305 Or App at 794-95 (internal
quotation marks omitted)—are outweighed by the individual interest of plaintiff in this case. State Farm, 275 Or at 105 (holding that application of issue preclusion “involves
a policy judgment balancing the interests of an individual
litigant against the interests of the administration of justice”). Therefore, we reverse the trial court’s grant of summary judgment to defendants based on issue preclusion and
remand for further proceedings.
Reversed and remanded.