Department of Human Services v. K. H.

301 P.3d 427, 256 Or. App. 242, 2013 WL 1682599, 2013 Ore. App. LEXIS 459
Court of Appeals of Oregon·Decided April 17, 2013·No. J110073; Petition Number 020311HAR1; A152286·Published·Cited by 3 cases

Opinion

ORTEGA, P. J.

Mother appeals from a judgment that established a durable guardianship over her child, E, ORS 419B.366.1 She assigns error to the juvenile court’s denial of her request for an evidentiary hearing on the motion by the Department of Human Services (DHS) to establish the guardianship, and the court’s entry of judgment establishing the guardianship. In particular, mother contends that the trial court’s denial of her request for a “full evidentiary hearing” excused DHS from carrying its burden to establish the statutory standards for guardianship under ORS 419B.366(5), prevented her from presenting a defense, and violated her due process rights. In her second assignment of error, mother generally challenges the court’s judgment establishing a guardianship, asserting that the only evidence in the record regarding the court’s determination that E could not be returned to mother within a reasonable time was an affidavit by DHS’s counsel. We reject mother’s first assignment of error, concluding that the court held a legally sufficient hearing under ORS 419B.366. We also reject mother’s second assignment of error because the court did not rely solely on the affidavit of DHS’s counsel.

The relevant facts are few and undisputed. E was born in 1999 and was 13 years old at the time that the guardianship was established. In March 2011, the juvenile court took jurisdiction over E because mother’s mental health endangered E’s welfare. E was placed with her maternal grandmother. The court held a permanency hearing in February and March 2012, after which it entered a permanency judgment changing the permanency plan from reunification to guardianship.2 The permanency judgment included the court’s determination that the plan should be changed from reunification because, notwithstanding reasonable reunification efforts by DHS, E could not be safely returned to mother’s care at the time of the hearing and evidence did not support a determination that further efforts [245]*245by DHS would make it possible for E to return home safely within a reasonable time.

In July 2012, DHS filed a motion to establish a guardianship under ORS 419B.366, and attached an affidavit of DHS’s counsel that averred that the statutory standards for establishing a guardianship were satisfied in this case.3 Mother filed an objection to the motion and requested that “a hearing be set on my objection and as a permanency hearing. Estimated time is six hours.”

The juvenile court held a hearing on July 19, 2012, at which DHS argued that the court should grant the motion to establish a guardianship. Mother orally requested an “evidentiary hearing to be set both on the objection to the State’s motion to establish guardianship and also to be set as a permanency hearing to request that the plan be changed back to return to parent.”4 At the July 19 hearing, counsel for DHS and E both explained that the court had held a permanency hearing in February and March at which the court had heard evidence regarding mother’s progress and DHS’s reasonable efforts to reunify the family.5 DHS argued that mother had not provided any basis for objecting to DHS’s motion to establish a guardianship, and without any evidence that mother’s situation had changed since the entry of the permanency judgment, the court should grant the guardianship motion. Mother responded that the court [246]*246was required, under ORS 419B.366(5), to hold an evidentiary hearing at which mother could put on evidence to counter DHS’s assertion that that guardianship was appropriate, particularly on the issue of whether E could be returned to mother within a reasonable time.

The court determined that, given the amount of time allotted to the July 19 hearing (15 minutes), the court could not hold a full evidentiary hearing that day, even if one was warranted, to allow mother to present evidence in response to DHS’s motion. The court noted that it appeared that mother, in also requesting another permanency hearing, was asking for reconsideration of the permanency judgment entered after the February/March permanency hearing, which was on appeal. The court allowed DHS to conduct a colloquy with the proposed guardian (the maternal grandmother) about her suitability and willingness to serve as guardian. Mother declined an opportunity to cross-examine grandmother on that issue. The court then instructed mother to submit a written offer of proof containing the substance of mother’s evidence regarding whether E could be returned to her within a reasonable time. The court indicated that it could make the offer of proof “part of the record without taking up the [c]ourt’s hearing time right now while I have other matters pressing.” The court further indicated that it would review the offer of proof and then determine whether an additional evidentiary hearing would be appropriate.

Mother submitted an offer of proof in the form of an affidavit that outlined mother’s continued employment stability, participation in services, and housing stability since the permanency hearing. Mother stated that she had maintained the same job since January 2012 and had completed coping skill classes with a holistic nurse. In addition, mother explained that she had continued to work with a counselor on self-care and coping skills and had begun taking Zoloft to help stabilize her “emotions and anxiety” and improve her “sleep and coping skills.” Finally, mother noted that she was expecting to receive a housing voucher from the Salem Housing Authority, which would allow her to upgrade her housing. In response, DHS offered an affidavit from its counsel that countered the validity of some of the assertions in mother’s offer of proof.

[247]*247Subsequently, the court issued an order that, in part, denied the “request for a full evidentiary hearing” on mother’s objection to guardianship. In that order, the court explained that it had considered “the case history, the court record of the contested permanency proceedings in February and March 2012,” mother’s objection to guardianship and offer of proof, DHS’s affidavits, and the representations of E’s attorney regarding E’s desire for immediate implementation of the guardianship. Based on that information, the court concluded:

“The proferred Offer of Proof reiterates the position of the mother at the contested hearing in February and March, 2012 and elaborates on improvements the mother continues to make. The fact that the mother continues to make improvements was considered by the court at the contested permanency hearing. In March the Court found that the child could not safely be returned to the parent within a reasonable period of time, adoption is not an appropriate plan, there is a suitable and willing guardian and that it was not in [E’s] best interest to return to her mother.

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Department of Human Services v. K. H., 301 P.3d 427, 256 Or. App. 242, 2013 WL 1682599, 2013 Ore. App. LEXIS 459 (Or. Ct. App. 2013).

301 P.3d 427 (Department of Human Services v. K. H.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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