Department of Human Services v. H. P.

287 P.3d 1175, 252 Or. App. 346, 2012 Ore. App. LEXIS 1149
CourtCourt of Appeals of Oregon
DecidedSeptember 19, 2012
DocketJ090554, J090556, J090558; Petition Number 01J090554M; A150718
StatusPublished
Cited by5 cases

This text of 287 P.3d 1175 (Department of Human Services v. H. P.) 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. H. P., 287 P.3d 1175, 252 Or. App. 346, 2012 Ore. App. LEXIS 1149 (Or. Ct. App. 2012).

Opinion

SCHUMAN, P. J.

In this juvenile dependency case, father appeals a judgment changing the permanency plan for three of his children from reunification to adoption. He also appeals a subsequent judgment continuing the permanency plan. Father argues that, as to both judgments, the juvenile court erred in failing to include required statutory determinations under ORS 419B.476(5). He also contends that the court erred in determining that no compelling reason existed to defer filing a termination petition, ORS 419B.498(2), and that the court erred in changing the plan from reunification to adoption. Father concedes that, with respect to the court’s failure to include the statutory determinations, he did not raise these issues below, and the Department of Human Services (DHS) contends that we should affirm the judgments for that reason. Because we agree with father that the judgment changing the permanency plan from reunification to adoption fails to include at least one of the required statutory determinations under ORS 419B.476(5), we reverse and remand.

Three of father’s five children, A, G, and R, are the subjects of this appeal.1 A, G, R, and another child, M, were removed from mother’s and father’s custody by DHS in September 2009. In October 2009, mother gave birth to D, and the juvenile court asserted jurisdiction over all five children. A, G, R, and M were placed in foster care, and D remained in parents’ custody. In December 2010, M returned to parents’ home, and both M and D remained in parents’ care at the time of the permanency hearings; their placement is not at issue in this appeal.

At a hearing held on October 27, 2011, the court, based on testimony from a DHS caseworker and the children’s Court Appointed Special Advocates, changed the permanency plan for A, G, and R from reunification to adoption, and ordered DHS to prepare the permanency judgment. For reasons not apparent in the record, the permanency judgment was entered nunc pro tunc on January 11, 2012, despite the mandate in ORS 419B.476(5) that the judgment be entered within 20 days of the hearing.

[349]*349As part of its findings required under ORS 419B.476(5)(a) regarding DHS’s efforts toward reunification, the juvenile court checked a box stating that “DHS has made reasonable efforts to reunify the family during the period under review at the permanency hearing.” The court then checked another box stating, “Fact Findings attached and incorporated herein.” No such document was attached to the judgment; however, the court admitted a DHS exhibit at the hearing containing two copies of a one-page document titled “Fact Findings” that lists the services and assistance that DHS provided to the family.

The court held a subsequent hearing on January 23, 2012, and entered another judgment on January 25, 2012, continuing the permanency plan of adoption as to A, G, and R. The judgment contained another “check the box” finding that “DHS has made reasonable efforts to place the child(ren) in a timely manner (including, if applicable in an interstate placement) in accordance with the plan and to finalize the child(ren)’s permanent placement.” The court again checked another box stating, “Fact Findings attached and incorporated herein.” Again, no such document was attached to the judgment.

On appeal, father contends that, as to both the January 11 and January 25 judgments, the juvenile court erred in failing to include “a brief description of the efforts the department has made with regard to the case plan in effect at the time of the permanency hearing” as required by ORS 419B.476(5)(a).2 Additionally, father argues that, as to A, G, and R, although the court complied with ORS 419B.476(5)(d) and ORS 419B.498(2) in making a determination that there was no compelling reason to defer filing a termination petition, that determination was substantively erroneous; for that and other reasons, father argues, the court erred in changing the permanency plan from reunification to adoption.

[350]*350Because it is dispositive, we begin with father’s argument that the January 11 judgment fails to include the findings required by ORS 419B.476(5). That statute provides, in part:

“The court shall enter an order within 20 days after the permanency hearing. In addition to any determinations or orders the court may make under subsection (4) of this section, the order shall include:
“(a) The court’s determination required under subsections (2) and (3) of this section, including a brief description of the efforts the department has made with regard to the case plan in effect at the time of the permanency hearing!.]”

Father contends that the judgment did not satisfy ORS 419B.476(5)(a) because the court neglected to attach findings of DHS’s efforts with regard to reunification, the case plan in effect at the time of the October 27 permanency hearing.

DHS responds, first, that father’s assignment of error is unpreserved because he had an opportunity to object to the January 11 judgment at the January 23 hearing and he did not do so. Father, in turn, argues that under State ex rel DHS v. M. A., 227 Or App 172, 182, 205 P3d 36 (2009), he was not required to object to the judgment because the very nature of the error does not require preservation. In M. A., we stated:

“Here, the statute dictates that the required findings be made — not at the time of hearing — but in an order issued within 20 days after the hearing. ORS 419B.476(5). Until that order issued, mother had no way of knowing that the court would enter a judgment that did not comply with the statute. Indeed, it was not unreasonable for mother to assume that the court, in entering the written judgment, would make the findings necessary to support its oral ruling. In other words, mother had ‘no practical ability to raise [the] issue,’ * * * because the issue did not arise until the court entered the judgment. Because the error in the judgment that mother raises on appeal is not one that she failed to preserve, it is not one that is subject to the constraints of plain error review.”

Id. (brackets in M. A.; internal citation omitted).

[351]*351Since M. A.,

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Cite This Page — Counsel Stack

Bluebook (online)
287 P.3d 1175, 252 Or. App. 346, 2012 Ore. App. LEXIS 1149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-h-p-orctapp-2012.