Sample Motion to Dismiss Dependency

Petition for Facial Insufficiency

I. Introduction and relief requested

For the reasons set forth below, [mother/father/child] moves this court to dismiss the

petition alleging that this court has jurisdiction under ORS 419B.100(1) or, in the alternative, to

order petitioner Department of Human Services (DHS) to file an amended petition.

II. Procedural history

On [date], DHS filed a petition as to [child or mother’s/father’s child] alleging

jurisdiction under ORS 419B.100(1). That petition includes the following allegations:

[quote the allegations in the petition in their entirety]

III. To comply with ORS 419B.809(4)’s requirement that a petition include “the facts
that bring the child within the jurisdiction of the court, including sufficient
information to put the parties on notice of the issues in the proceeding,” a petition
must necessarily allege a nexus between the child’s conditions and circumstances
and a threat of serious loss or injury.

It is well settled that parents have a fundamental liberty interest in the “care, custody, and

management of their children” that is protected by the Fourteenth Amendment to the United

States Constitution that “does not evaporate simply because they have not been model parents or

have lost temporary custody of their child to the State.” Santosky v. Kramer, 455 US 745, 753-

54 (1982). Similarly, children, too, have a “constitutional interest in familial companionship and

society [that] logically extends to protect children from unwarranted state interference with their

relationships with their parents.” Smith v. City of Fontana, 818 F2d 1411, 1418 (9th Cir 1987),

overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F3d 1037 (9th Cir 1999).

Under ORS 419B.090(4), it is Oregon’s policy “to guard the liberty interest of parents protected

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by the Fourteenth Amendment to the United States constitution.” Moreover, ORS 419B.090(4)

“makes clear that the due process rights of parents are always implicated in the construction and

application of the provisions of ORS chapter 419B.” Dept. of Human Services v. J.R.F., 351 Or

570, 579 (2012).

Oregon’s juvenile dependency code, set forth in ORS chapter 419B, authorizes state

interference with constitutionally-protected familial interests for the purpose of protecting

children from legally cognizable threats to their health and safety. See ORS 419B.100(1)

(conferring jurisdiction on the juvenile court in any case involving a minor who is exposed to

conditions that endanger their welfare); Dept. of Human Services v. T.L.H.S., 292 Or App 708,

715 (2018) (“Juvenile dependency proceedings are not punitive in nature. Their sole purpose is

to protect children.”). As a threshold matter, a “petition alleging jurisdiction must set forth in

ordinary and concise language,” among other things, “the facts that bring the child within the

jurisdiction of the court, including sufficient information to put the parties on notice of the issues

in the proceeding.” ORS 419B.809(4)(b).

There are no specific facts that per se do or do not give rise to dependency jurisdiction.

State ex rel. Juv. Dept. v. Smith, 316 Or 646, 652-53 (1993). That is, ORS 419B.100(1) does not

confer jurisdiction on the juvenile court merely because a parent, for example, uses controlled

substances or has a mental illness. See, e.g., Dept. of Human Services v. C.L.R., 295 Or App

749, 755 (2019) (reversing jurisdiction judgment because, among other things, “nothing in this

record supports a finding that mother’s mental-health challenges put [the child] at risk of serious

loss or harm”); Dept. of Human Services v. J.H., 292 Or App 733, 739 (2018) (“[T]he state may

not insert itself into a family and remove a child anytime that a parent uses drugs.”); Dept. of

Human Services v. D.S.F., 246 Or App 302, 314 (2011) (“Evidence that a child has been exposed

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to a parent exhibiting the adverse effects of intoxication is not, in and of itself, a basis for

juvenile court jurisdiction over a child.”); Dept. of Human Services v. D.T.C., 231 Or App 544,

554–55 (2009) (evidence of father’s serious alcohol abuse, of which the children were aware, did

not create jurisdiction because of the absence of evidence of resulting danger to the children).

Moreover, not all risks to children give rise to dependency jurisdiction under ORS

419B.100(1). Dept. of Human Services v. T.N., 303 Or App 183, 197 (2020) (“[T]here is

certainly some evidence of a risk of emotional harm to [the child] here, but there is not a record

that would allow us to conclude without speculation that the current threat of emotional harm is

so serious in its type, degree, and duration as to require continued juvenile court jurisdiction.”);

Dept. of Human Services v. S.D.I., 259 Or App 116, 123 (2013) (reversing jurisdiction judgment

where “[t]he state provided no evidence that the harm to [the child] would be any greater than

the customary distress that a child experiences when she is uprooted from her community and

must form social bonds in a new place”).

Instead, the juvenile court only has jurisdiction if a nexus exists between the child’s

conditions or circumstances and a current threat of serious loss or injury to the child that will

likely be realized unless the court intervenes and makes the child a ward of the court. Dept. of

Human Services v. W.A.C., 263 Or App 382, 403 (2014); Dept. of Human Services v. M.Q., 253

Or App 776, 785-86 (2012). The petitioner cannot meet its burden to prove such a nexus based

on generalizations about the threats presented by certain types of conditions and circumstances,

e.g., parental substance abuse, and, instead, must demonstrate a “material relationship” between

the child’s conditions and circumstances and a risk of the type, degree, and duration as to require

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the court’s protection.1 Dept. of Human Services v. J.J.B., 291 Or App 226, 230, 234-35, 239

(2018).

Thus, to comply with ORS 419B.809(4)(b)’s requirement that a petition include “the

facts that bring the child within the jurisdiction of the court, including sufficient information to

put the parties on notice of the issues in the proceeding,” a petition must include some factual

allegations demonstrating how the child is exposed to a nonspeculative threat of serious loss or

injury.2 See State ex rel. Juv. Dept. v. Randall, 96 Or App 673, 675-76 (1989) (rejecting the

state’s argument that the danger to the child from the mother’s drug use was “apparent” and

holding that the “petition must * * * include some factual allegation showing how the parent’s

drug usage endangers the welfare of the child”).

IV. Because DHS’s petition fails to comply with ORS 419B.809(4), this court should
dismiss the petition or, to the extent that DHS has a cognizable theory of risk to the
child who is the subject of this proceeding, order DHS to amend its petition to allege
the risks to the child that it contends give rise to jurisdiction under ORS
419B.100(1).

In this case, DHS filed a petition alleging that the juvenile court has jurisdiction as to

[child or mother’s/father’s child] under ORS 419B.100(1) due to [briefly describe the

1
Once the court adjudicates the petition and determines that it has jurisdiction, “the
alleged and proven jurisdictional basis becomes critical language—arguably the critical language
—around which the entire juvenile case orbits.” Dept. of Human Services v. L.A.K., 306 Or App
706, 716 (2020). That language “delineates the authority of the court,” id. at 716-17, and
provides the framework for the court to assess the sufficiency of DHS’s reunification efforts and
the parent’s progress. Dept. of Human Services v. S.M.H., 283 Or App 295, 305-06 (2017).
2
In Dept. of Human Services v. D.D., 238 Or App 134 (2010), overruled on other
grounds by Dept. of Human Services v. K.W., 307 Or App 17, 35 (2020), the Court of Appeals
reviewed an unpreserved challenge that the allegations that the parent admitted were legally
insufficient to give rise to jurisdiction under ORS 419B.100(1). In that case, the Court of
Appeals stated, “In considering the sufficiency of a petition, we have framed the issue as whether
the allegations would permit the introduction of evidence of danger to the child’s welfare.” Id. at
139. But, as the issue in that case was whether the allegations, once admitted, were sufficient to
give rise to jurisdiction and not whether, under ORS 419B.809(4), the petition included
“sufficient information to put the parties on notice of the issues in the proceeding,” the standard
articulated in D.D. has no application as to the issues raised in this motion.
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allegations, e.g., “mother’s substance abuse and mental health issues, domestic violence, etc.].

However, DHS has not alleged any specific facts describing the nature or extent of

[mother’s/father’s substance abuse, mental health issues, domestic violence, etc.] or that

otherwise indicate how [mother’s/father’s substance abuse, mental health issues, domestic

violence, etc.] endanger[s] child. In other words, DHS’s petition fails to allege that child is

exposed to any particular risk at all, much less that a nexus exists between any of

[mother’s/father’s/parents’] purported deficits and any nonspeculative risk of serious loss or

injury to child that could give rise to juvenile court jurisdiction under ORS 419B.100(1). The

petition, thus, fails to comply with ORS 419B.809(4)’s requirement that that a petition include

“the facts that bring the child within the jurisdiction of the court, including sufficient information

to put the parties on notice of the issues in the proceeding.”

DHS’s failure to comply with the requirements of ORS 419B.809(4) deprives

[mother/father/child] of the notice to which they are entitled by the statute and infringes their due

process right to notice that will allow them to prepare a defense to DHS’s case at trial. State ex

rel. Juv. Dept. v. Burris, 163 Or App 489, 495 (1999) (concluding that “proceedings affecting

[parental] rights must comport with due process” and that “[n]otice is essential to due process”);

see also T.L.H.S., 292 Or App at 716 (“When DHS fails to identify a specific type of harm, and

instead relies on an amorphous risk of unspecified harm loosely tied to multiple allegations, it

hinders parents’ ability to fully respond to the state’s case.”). This court should, therefore,

dismiss the petition or order DHS to file an amended petition that complies with the

requirements of ORS 419B.809(4). Cf. State ex rel. Juv. Dept. v. Geist, 310 Or 176, 185 (1990)

(concluding that, when the legislature has provided a statutory right but no express procedure for

vindicating that right, the court may “fashion an appropriate procedure”).

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