Department of Human Services v. D. L. H.

284 P.3d 1233, 251 Or. App. 787, 2012 Ore. App. LEXIS 1034
CourtCourt of Appeals of Oregon
DecidedAugust 22, 2012
DocketJ060417; Petition Number 10136J; J010086; Petition Number 10137J; A149947
StatusPublished
Cited by27 cases

This text of 284 P.3d 1233 (Department of Human Services v. D. L. H.) 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. D. L. H., 284 P.3d 1233, 251 Or. App. 787, 2012 Ore. App. LEXIS 1034 (Or. Ct. App. 2012).

Opinion

NAKAMOTO, J.

This is a dependency case in which mother and father separately appeal the combined dispositional and permanency judgment of the juvenile court changing the permanency plan of the children, J and A, from reunification to adoption. In those dispositional/permanency judgments, the juvenile court determined that the Department of Human Services (DHS) had made reasonable efforts to reunify J with mother and active efforts to reunify A with mother and father. Because we conclude that DHS had failed to make active efforts to reunify A with father, we reverse in part and remand in part.

I. FACTS

The parties do not request that we exercise our discretion to review the case de novo, and we do not do so. See ORS 19.415(3)(b) (providing for discretionary de novo review of certain equitable actions); ORAP 5.40(8)(c) (we exercise de novo review “only in exceptional cases”). Instead, we review the juvenile court’s legal conclusions for errors of law and are bound by the juvenile court’s findings of historical fact as long as there is “any evidence” to support them, Dept. of Human Services v. C. Z., 236 Or App 436, 442, 236 P3d 791 (2010), that is, so long as there was competent evidence from which the court reasonably could make the findings. See Woodbury v. CH2M Hill, Inc., 335 Or 154, 162, 61 P3d 918 (2003) (affirming the denial of a motion for directed verdict under the “any evidence” standard because “there was evidence from which the jury reasonably could conclude” that the defendant exercised actual control over a risk-producing activity). We state the facts consistently with that standard.

A. Background

Mother and father do not have an ongoing relationship but have one child together, A, who was born in 2006 and who was four years old at the time of the permanency hearing. Mother has another child, J, who was 10 years old at the time of the hearing.1 The record does not indicate who J’s father is.

[790]*790Father has been incarcerated in Snake River Correctional Institution since 2009 and is expected to be released in 2014. Father did not know that he was A’s biological father until DHS established paternity in January 2010. Father is a member of the Comanche Nation in Oklahoma.

Because A’s father is a tribal member, the legal standards applicable to the permanency plans for the children differ between A and J. The parties agree that the Indian Child Welfare Act (ICWA) applies to A because Ais an “Indian child.” 25 USC § 1901(4) (defining an “Indian child” to mean “any unmarried person who is under age eighteen and is * * * eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”). The parties also agree that ICWA does not apply to J. Therefore, DHS is required to prove “active efforts” toward family reunification with regard to A and “reasonable efforts” with regard to J. See ORS 49B.476(2).

Mother has had a long history of alcohol abuse and admitted that her alcoholism has created problems with her ability to care for her children. Over the last 20 years, she has undergone alcohol and drug treatment at various programs throughout Oregon. The incident that led to the children’s removal from mother’s care and, ultimately, mother’s incarceration was alcohol-related.

On August 15,2010, J was staying with his maternal grandparents. A was with his mother and his stepsister, L, and they were staying with mother’s friend. L’s father, A. L., stopped by the friend’s house to see L. An unidentified young girl approximately 10 years old answered the door. A was crying and his shirt was soaking wet. A. L. could not locate mother in the home, and so, out of concern for Aand his child, A. L. took the two children to the maternal grandparents’ home. Mother called soon thereafter, learned that A was with the grandparents, and drove to the grandparents’home. Mother entered without permission and made her way to the upstairs bedroom where A was sleeping. She picked up A and attempted to leave the home. Grandmother and A. L., fearing that mother was intoxicated, blocked her path. While carrying A in one hand, mother hit grandmother and [791]*791pushed A. L. down the stairs. A, who was in mother’s arms, observed the altercation. J did not witness the incident but heard the commotion from his bedroom. Mother left with A and damaged grandparents’ door when she slammed the door shut. She also threw an empty beer can out of her car window as she drove away. Police arrested mother later that day, and DHS took the children under protective custody.

The court held a shelter hearing a few days later and took temporary custody of the children, placing them with the grandparents. Mother was convicted of fourth-degree assault of grandmother, reckless endangerment of A, and harassment of A. L. She was sentenced to 22 months in prison and is currently incarcerated at Coffee Creek Correctional Facility.

DHS filed a petition alleging that mother had endangered the children through her actions on August 15, 2010, and, further, that mother’s untreated drug and alcohol abuse impaired her ability to meet the health and safety needs of her children. As to father, the petition alleged that father was incarcerated for third-degree robbery and second-degree assault and was “currently unable to provide a home for [A]” and that father did “not have an established parental relationship with [A] and has never acted as a parent to [him].”

Father admitted the allegations in the petition concerning him. Mother contested the allegations against her, arguing that there was insufficient evidence to establish jurisdiction. On February 22, 2011, after a hearing, the juvenile court entered a jurisdictional judgment making J and A wards of the court.2 Shortly after the jurisdiction hearing, DHS developed a “Child Welfare Case Plan,” stating that the primary permanency plan was to reunify the family and the concurrent alternative plan was adoption.

B. Dispositional /Permanency Hearing

The court scheduled a dispositional hearing for both parents on February 25, 2011, but DHS sought to consolidate the dispositional hearing with a permanency hearing. ORS 419B.470(5) (“[T]he court shall also conduct [792]*792a permanency hearing at any time upon the request of [DHS.]”). The consolidated hearing was held on May 16, 2011, and continued to June 16, 2011. At the hearing, Dr. Ewell, a licensed psychologist who evaluated J and A, testified that the children were in need of permanency. DHS entered Ewell’s evaluation reports of J and A into evidence. In those reports, he noted that J demonstrated an adjustment disorder with mixed disturbance of emotions and conduct.

DHS submitted a disposition report to the court outlining its efforts to reunify the family.

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Bluebook (online)
284 P.3d 1233, 251 Or. App. 787, 2012 Ore. App. LEXIS 1034, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-d-l-h-orctapp-2012.