Department of Human Services v. A. D.

300 P.3d 185, 255 Or. App. 567, 2013 WL 830996, 2013 Ore. App. LEXIS 254
CourtCourt of Appeals of Oregon
DecidedMarch 6, 2013
Docket1000410; Petition Number 10JU294; A151194
StatusPublished
Cited by5 cases

This text of 300 P.3d 185 (Department of Human Services v. A. D.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Human Services v. A. D., 300 P.3d 185, 255 Or. App. 567, 2013 WL 830996, 2013 Ore. App. LEXIS 254 (Or. Ct. App. 2013).

Opinion

ORTEGA, P. J.

In this juvenile dependency case, mother and father separately appeal from a judgment of the juvenile court changing the permanency plan for their child, C, from reunification to adoption. ORS 419B.476. The juvenile court determined that the Department of Human Services (DHS) had made reasonable efforts to reunify C with parents and that parents had not made sufficient progress to make it possible for C to safely return home and would not do so within a reasonable time. We conclude that there is adequate support in the record for the findings made by the juvenile court and that those findings provide a basis for its legal determinations. Accordingly, we affirm.

We decline to conduct de novo review; indeed, the parties have not requested that we do so and this is not an exceptional case that warrants such review. See ORS 19.415(3)(b) (providing for discretionary de novo review of certain equitable actions); ORAP 5.40(8)(c) (the court will exercise discretion to try the cause anew on the record only in “exceptional cases”). Accordingly, our task is to review the facts found by the juvenile court to determine whether they are supported by any evidence and whether, as a matter of law, those facts provided a basis for the court’s determinations. Dept. of Human Services v. T. R., 251 Or App 6, 10, 282 P3d 969, rev den, 352 Or 564 (2012). We begin by addressing how DHS became involved in the case and then address the services that were provided to parents and their response to those services.

DHS took C into protective custody in September 2010 when she was three months old, after parents brought her to an emergency room for colic, and a doctor discovered that she had sustained two posterior rib factures. Parents denied any knowledge of how the fractures occurred, although mother suggested that perhaps she had put C into a swing “too hard.” Following a contested jurisdictional hearing in January 2011, the court asserted jurisdiction on the following bases:

“a) [C], age three months, has two posterior rib fractures in various stages of healing that are the result of non-accidental trauma. Parents are not able or willing to provide an explanation for these injuries.
[570]*570“b) Parents exhibit cognitive deficiencies that inhibit their ability to understand the seriousness of the trauma their child has experienced.”

The following month, at the request of DHS, Dr. Ewell, a clinical psychologist, evaluated both parents. He diagnosed mother with an adjustment disorder and mixed anxiety and depressed mood, along with cognitive limitations and dependent personality features secondary to cognitive deficits. Ewell noted that mother “demonstrates specific deficits in areas pertaining to social judgment, interpersonal problem-solving and abstract reasoning.” Mother reported experiencing significant depression and anxiety that had become “nearly disabling.” Ewell noted that mother was “highly dependent upon relationships with other people” and particularly dependent upon both father and her own father, who manages her finances and serves as her payee for Social Security benefits that she receives for a learning disorder. Overall, given mother’s limited cognitive abilities, Ewell opined that

“[mother] could benefit from parenting course work, but will require individualized instruction. It will be necessary for her to be coached and supported as she attempts to acquire skills and apply them to her own life. In-home parenting coaches would be very beneficial to her. She will also require help in organizing her daily schedule, completing basic chores and managing daily life.”

Ewell diagnosed father with cognitive limitations and post-traumatic stress disorder (PTSD) in partial remission. Ewell observed that father

“most likely has difficulty understanding complicated scenarios, or abstract reasoning processes. There is also evidence that he experiences difficulty understanding concepts presented in parenting classes. It is likely he will also have difficulty applying what he has learned to his real life.”

Ewell opined that, as in mother’s case, father would benefit from individualized forms of instruction. He further concluded that father

“will best learn from course work that is skill-based and behaviorally oriented. He will need to observe role models [571]*571of appropriate parenting and then practice those skills while receiving feedback. Even then, he may have difficulty applying what he learns to his own life. [Father] could probably also benefit from some individual counseling to address his PTSD. * * * [Father’s] ability to problem-solve and to follow through with a plan to keep his child safe is limited. At present, I would have concerns regarding his capacity to be a safe resource for his daughter. His future treatment/education providers will be in the best position to signal if he ever acquires the basic skills to demonstrate such an ability.”

Ewell noted that mother and father “might also benefit from couples counseling to address their communication patterns, joint problem-solving and co-parenting strategies.” However, he concluded that,

“[e]ven with course work, I believe the prognosis for [mother and father] becoming minimally adequate parents is guarded. I would not consider this to be a case where [DHS] can intervene, provide services and then successfully close the case. Instead, I believe [mother and father] will most likely require intervention throughout the foreseeable future.”

About a week after the psychological evaluations, DHS began facilitating extended visits between C and mother and father. Home care nurse Fulmerton, who had been following C since shortly after C’s birth, participated in those visits in order to “help[ ] the parents to engage more actively” with C. Fulmerton made a home visit to assess the home environment in April and worked with both parents on their parenting skills until mid-June. Both parents were also provided with intensive parenting classes and a parenting coach for DHS office visits, and mother was provided with mental health services to address stress management techniques and strategies.1 The record does not indicate that mother and father received the other services that Ewell had recommended—that is, couples counseling and individualized treatment for father’s PTSD.

[572]*572In addition to the instructional assistance provided by Fulmerton, in-home parenting mentor Wafer facilitated home visits from August to October and planned for “a five to six hour time frame at various times during the day to assess parenting skills.”2 Beginning in November and continuing until the March 2012 permanency hearing, DHS caseworker Price facilitated visits at the DHS office once per week for two hours at a time.

At the permanency hearing in March 2012, DHS argued that it had made reasonable efforts to attempt to resolve the bases for the court’s exercise of jurisdiction and that, despite the services provided, mother and father had failed to make sufficient progress.

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429 P.3d 420 (Court of Appeals of Oregon, 2018)
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388 P.3d 417 (Court of Appeals of Oregon, 2017)
Department of Human Services v. G. N.
328 P.3d 728 (Court of Appeals of Oregon, 2014)
Department of Human Services v. M. K.
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Department of Human Services v. K. H.
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Bluebook (online)
300 P.3d 185, 255 Or. App. 567, 2013 WL 830996, 2013 Ore. App. LEXIS 254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-a-d-orctapp-2013.