Department of Human Services v. A. R. S.

310 P.3d 1186, 258 Or. App. 624, 2013 WL 5352286, 2013 Ore. App. LEXIS 1167
Court of Appeals of Oregon·Decided September 25, 2013·No. J070280; Petition Number 02J070280; A153447·Published·Cited by 19 cases

Opinion

ORTEGA, P. J.

This is the third time that we have considered an appeal in this juvenile dependency case. In the first appeal, we reversed and remanded a permanency judgment because the juvenile court had analyzed mother’s progress to allow child to return to her care under an incorrect legal standard — that is, the court incorrectly determined that a parent’s ability to parent independently is a legal requirement for parental fitness. Dept. of Human Services v. A. R. S., 249 Or App 603, 605-06, 278 P3d 91 (2012) (ARS I). In the second appeal, we reversed and remanded another permanency judgment because the court had relied on a circumstance that was not alleged or established as a basis for jurisdiction in assessing mother’s progress toward reunification — i.e., mother’s purported personality disorder. Dept. of Human Services v. A. R. S., 256 Or App 653, 664, 303 P3d 963 (2013) (ARS II). While that appeal was pending, the court held a review hearing at which it addressed motions by mother and child to dismiss the wardship. The court declined to dismiss the wardship and entered a review hearing judgment that continued the permanency plan of reunification. Mother and child (collectively, appellants) separately appeal that ruling.

Appellants challenge the court’s refusal to dismiss the wardship and certain determinations in the court’s review hearing judgment. In their first assignment of error, appellants assert that the juvenile court should have dismissed the wardship because the facts that gave rise to jurisdiction have been ameliorated. In their second assignment of error, appellants claim that the court, in its review judgment, erroneously determined that mother had not made sufficient progress to allow child to return to her care within a reasonable time. In their third assignment of error, appellants contend that the court erred in overruling the child’s objection, based on the Fourteenth Amendment to the United States Constitution, to being “removed” from the United States to live with his father in Mexico. Child also raises additional assignments of error. Those are that the juvenile court erred when it determined that the Department of Human Services (DHS) had made reasonable efforts to reunify the family and that the court erred when [627]*627it determined that it was in child’s best interests to continue the wardship. DHS and father respond that the juvenile court properly denied appellants’ motions to dismiss jurisdiction and that several of appellants’ other assignments of error should not be considered in this appeal. Because we conclude that the court erred by denying appellants’ motions to dismiss the wardship, we address only appellants’ first assignment of error. Therefore, we reverse and remand with instructions to dismiss the wardship.

As an initial matter, we decline child’s request for de novo review. Child does not provide any reason why this case merits de novo review, and we do not perceive any reason for it. See ORAP 5.45(8)(c) (stating that we exercise de novo review only in “exceptional” cases). Accordingly, we view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court’s disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome. Dept. of Human Services v. N. P., 257 Or App 633, 639, 307 P3d 444 (2013). We describe the facts in accordance with that standard.

Although the history of this case is extensive, we provide only the background necessary to address the issues before us. At the time of the review hearing, child, age five, continued to live in the foster home of his maternal grandmother with his two half-siblings, both of whom were adopted by grandmother when mother’s parental rights to them were terminated several years ago. Father, after a visit to his home by immigration officials, left the United States to return to Mexico in late 2010 and remains there.

DHS first became involved in the family’s life in 2007. As we explained in ARS IP.

“DHS first filed a dependency petition with respect to child on July 24,2007, four days after his birth. In a shelter/ preliminary hearing order, the juvenile court granted DHS temporary custody of child and approved placement of child with mother in child’s maternal grandmother’s (foster mother) home. Jurisdiction was established in September 2007; as to mother, it was based on mother’s substance abuse problem, exposure of child to controlled substances while [628]*628pregnant, and relinquishment of parental rights to her two older children. Jurisdiction as to father was based on his substance abuse, his status as legal father, and because his parenting capacity was ‘unknown.’ Child remained placed with mother in foster mother’s home. In October 2008, the juvenile court ruled that mother had made sufficient progress to ensure child’s safe return to her and terminated its wardship of child. A year later, however, after mother left child with foster mother for five days without telling her when she would return, foster mother called DHS, and DHS again took protective custody of child. In October 2009, DHS filed a new dependency petition. The juvenile court entered new jurisdictional judgments over child in November 2009 (relating to father) and February 2010 (relating to mother). Child has lived with foster mother ever since.
“As it relates to mother, the court established dependency jurisdiction over child based on the following facts:
“‘A. The mother has had residential instability since July of 2009, which impairs her ability to provide for said child.
“‘B. The mother has a history of substance abuse, which if left untreated impairs her ability to care for said child. She provided a UA on October 8, 2009 that failed to register on the temperature test strip and tested positive for amphetamines/methamphetamines on a subsequent UA on the same date.
“‘C. The mother has a history of leaving said child in the care of her mother without making appropriate plans for said child’s ongoing care and supervision. This occurred frequently during September of 2009 and from October 2nd to October 7th, 2009. The mother knew that said child was safe with her mother.
“‘D. Said child had a head injury in approximately September of 2009 which required stapling. The mother did not return said child to the doctor to have the staples removed. The late removal did not permanently adversely effect said child.
“‘E. The mother had chosen violent and/or unsafe partners, which places said child at risk of harm. The mother’s current husband is incarcerated until February of 2011 for Methamphetamine related crimes.
[629]*629“‘F. The mother voluntarily relinquished her parental right to two (2) other children.’”

256 Or App at 656-59 (footnotes omitted).1

After a permanency hearing in June 2011, the court determined that mother had not made sufficient progress toward reunification to enable child to be returned to her, see ORS 419B.476

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Department of Human Services v. A. R. S., 310 P.3d 1186, 258 Or. App. 624, 2013 WL 5352286, 2013 Ore. App. LEXIS 1167 (Or. Ct. App. 2013).

310 P.3d 1186 (Department of Human Services v. A. R. S.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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