Department of Human Services v. M. H.

337 P.3d 976, 266 Or. App. 361
CourtCourt of Appeals of Oregon
DecidedOctober 15, 2014
Docket100089J; Petition Numbers 100089J02, 100089J03; A156135
StatusPublished
Cited by10 cases

This text of 337 P.3d 976 (Department of Human Services v. M. 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. M. H., 337 P.3d 976, 266 Or. App. 361 (Or. Ct. App. 2014).

Opinion

EGAN, J.

In this dependency case, the Department of Human Services (DHS) and child, A, appeal a judgment that set aside earlier judgments terminating mother’s and father’s parental rights (TPR judgments). We conclude that the juvenile court did not abuse its discretion by setting aside the TPR judgments, and, therefore, we affirm.

We begin by recapping the lengthy procedural history of the case. A, now four years old, has been in DHS custody and substitute care since she was two days old. The juvenile court took jurisdiction over A several months after her birth, in September 2010. In July 2011, the juvenile court entered a permanency judgment changing A’s permanency plan from reunification to adoption. Both parents appealed from that permanency judgment, and we affirmed without opinion. Dept. of Human Services v. B. R., 247 Or App 766, 274 P3d 315, rev den, 351 Or 678 (mother’s petition), and rev den, 351 Or 761 (father’s petition) (2012). DHS filed petitions to terminate mother’s and father’s parental rights in August 2011. Approximately one year later, in August 2012, the court held the annual permanency hearing required by ORS 419B.470(6) and entered a permanency judgment continuing the permanency plan of adoption for A. Both parents appealed from that judgment, see Dept. of Human Services v. M. H., 258 Or App 83, 308 P3d 311 (2013).

The juvenile court subsequently held a 12-day termination trial, after which the juvenile court terminated both parents’ parental rights and entered judgments to that effect in March 2013. Both parents appealed from the TPR judgments.

Approximately five months later, we issued M. H. In that appeal, DHS conceded that the court had erred in failing to include the “compelling reasons” findings required by ORS 419B.476(5)(d) and ORS 419B.498(2)(b).1 M. H, 258 Or App at 88. However, DHS argued that that error was harmless because those findings “are relevant only to when [364]*364the adoption and termination proceedings should occur” and the termination proceedings had already occurred. We concluded that the error was not harmless because “[ajdoption and termination proceedings cannot occur until there is a necessary predicate permanency judgment.” M. H., 258 Or App at 89 (emphasis in original). We further noted that,

“[h]ad the juvenile court rendered *** a [predicate permanency] judgment, complete with findings relevant to the timing of adoption and termination proceedings, those [termination and adoption] proceedings might have been deferred, giving parents more of an opportunity to demonstrate their progress. That demonstration, in turn, could have had an effect on the outcome of the adoption and termination proceedings.”

Id. Thus, we reversed and remanded the second permanency judgment as to A.2 Both parents then moved, under ORS 419B.923,3 to set aside the TPR judgments, and we held the parents’ appeal of the TPR judgments in abeyance pending resolution of that motion.

After a hearing in December 2013, the juvenile court granted the parents’ motions to set aside the TPR judgments. In doing so, the juvenile court noted, based on our decision in M. H, that “you can’t proceed with a termination case when you have an invalid permanency judgment!.]” The juvenile court rejected DHS’s argument that it could rely on the first permanency judgment entered by the court. DHS and A appealed. That appeal of the court’s order vacating the TPR judgments is now before us.

On appeal, we review the legal questions presented by the parties, underlying the trial court’s ruling setting aside a judgment pursuant to ORS 419B.923 for legal error. Dept. of Human Services v. A. D. G., 260 Or App 525, 534, 540, 317 P3d 950 (2014).

[365]*365DHS’s first argument on appeal is that, even if an earlier permanency judgment continuing a case plan of adoption is reversed on appeal, nothing in the juvenile code or, more specifically, the statutes governing termination of parental rights proceedings (ORS 419B.500 to 419B.524), “makes a permanency judgment changing a child’s case plan to adoption a necessary predicate for terminating parental rights.”4 That is, DHS argues that a termination of parental rights proceeding is separate from the underlying juvenile dependency case, and nothing in ORS 419B.500 to 419B.524 requires a “valid” permanency judgment before parental rights may be terminated.

It is helpful to begin with an overview of the relevant law governing permanency hearings and termination of parental rights proceedings. Once the juvenile court has taken jurisdiction over the child, it must conduct permanency hearings at regular intervals based on the child’s circumstances, i.e., not less than annually, or upon request of the parent, agency, child’s attorney, CASA, citizen review board, tribal court, or on its own motion. ORS 419B.470. That statute “evinces the specific policy objective that children not be left indefinitely in a placement limbo, and it also more generally reflects a child-centered policy orientation to the dependency process.” State ex rel Juv. Dept. v. F. W., 218 Or App 436, 468-69, 180 P3d 69, rev den, 344 Or 670 (2008). The juvenile code contemplates that multiple permanency hearings may be held in any dependency case. See, e.g., ORS 419B.470(6) (“After the initial permanency hearing * * *, the court shall conduct subsequent permanency hearings not less frequently than once every 12 months for as long as the child or ward remains in substitute care.”).

[366]*366ORS 419B.476(2)(b), governing permanency hearings, provides, as relevant here:

“(2) At a permanency hearing the court shall:
“(b) If the case plan at the time of the hearing is something other than to reunify the family, determine whether the department has made reasonable efforts to place the ward in a timely manner in accordance with the plan * * * and to complete the steps necessary to finalize the permanent placement.”

(Emphases added.)

Thus, the juvenile court must consider the circumstances at the time of the permanency hearing to determine whether DHS made reasonable efforts to place the ward in accordance with the plan, in an effort to move toward the goal of permanent placement for the child.

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Cite This Page — Counsel Stack

Bluebook (online)
337 P.3d 976, 266 Or. App. 361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-m-h-orctapp-2014.