Department of Human Services v. R. W.

370 P.3d 543, 277 Or. App. 37, 2016 Ore. App. LEXIS 327
CourtCourt of Appeals of Oregon
DecidedMarch 16, 2016
Docket15JU00011; Petition Number J150004; A159694
StatusPublished
Cited by18 cases

This text of 370 P.3d 543 (Department of Human Services v. R. W.) 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. R. W., 370 P.3d 543, 277 Or. App. 37, 2016 Ore. App. LEXIS 327 (Or. Ct. App. 2016).

Opinion

ORTEGA, P. J.

In this dependency case, father appeals from a dis-positional judgment, challenging the juvenile court’s determination that the Department of Human Services (DHS) made reasonable efforts to reunite father with child.1 He argues that DHS failed to offer him services during the five and one-half months between child’s removal and the dis-positional hearing and that it did not adequately explain why that failure was reasonable under the circumstances. Generally, we “review findings of fact (for example, what DHS did or did not do) for any evidence, and conclusions of law (in particular, whether the historical facts constitute reasonable efforts) for legal error.” Dept. of Human Services v. J. F. D., 255 Or App 742, 744, 298 P3d 653 (2013). Because we conclude that the juvenile court erred in its factual findings regarding services DHS provided to father and in its determination that DHS made reasonable efforts, we reverse and remand.

On December 31, 2014, DHS removed child, N, from father’s home and placed her in substitute care. N was 15 years old at the time. On January 2, 2015, DHS filed a dependency petition, and McKinstry, a DHS caseworker, met with father to explain the type of reunification services the agency could provide for him, including anger management courses, parenting support, and mental health evaluation and treatment services. Father refused services and did not sign any releases of information, though it is not clear from the record how the need for releases was communicated to father.

Three months later, on April 1, 2015, the juvenile court asserted jurisdiction over N after concluding that father subjected child to verbal, emotional, and physical abuse and that problems with father’s mental health interfered with his ability to safely parent. The court postponed the dispositional hearing until mid-May 2015.

Two days before the dispositional hearing, father contacted DHS to request a referral for an anger management course and signed a release of information. DHS made [40]*40the referral on the same day as the dispositional hearing. At the hearing, father objected to DHS’s claim that it had made reasonable reunification efforts. Father contended that DHS had not issued him any referrals until the day of the hearing. DHS did not rebut father’s claim. The court expressed concern about that issue, stating:

“Nobody has to wait for a court order to make a referral. * * * [T]he reasonable efforts have to begin the moment the child is removed so what’s happening in these cases, and this is not the only one, is there’s this dead air that goes on from the time of the shelter hearing until disposition. Even after jurisdiction when there’s a basis for the service there’s no referral made. Now, if you make a referral and the parent declines to participate or refuses to do it that’s on them. * * * [B]ut you can’t just wait for disposition to make these referrals. When I make a reasonable efforts finding I have to make a finding [of whether] the agency made reasonable efforts from the date the child was removed until today to ameliorate those problems. Clearly with regard to those two items that has not been done”

(Emphasis added.) Miranda, another DHS caseworker, responded,

“[W]e need to have releases of information and we *** asked for those prior and we never got releases and I cannot submit referrals for anything without a release of information[.] *** I was told that everything had to run through the attorneys and I had no release of information.”

The court then asked Miranda if she requested a release of information from father’s attorney regarding his mental health; she responded that she had not.2

Ultimately, in its dispositional judgment, the court checked the box indicating that DHS had made reasonable efforts “to prevent or eliminate the need for removal of the ward from the home since the date of the last court review.” In particular, the court checked boxes indicating that DHS had issued father referrals for the same services identified in the DHS court report (which DHS did not dispute had not been offered before the hearing): anger management [41]*41counseling, mental health evaluation/treatment, specialized parent training, counseling, development of safety plan, individual counseling, and intensive family services.

On appeal, father contends that the court erred by determining that DHS’s reunification efforts were reasonable. Father admits that he declined services initially, but he maintains that DHS’s failure to offer services thereafter, especially after the court asserted jurisdiction in April 2015, was unreasonable. He points out that DHS did not explain why a lack of a release of information precluded it from making any referrals. According to father, “the department is obligated to make reunification efforts regardless of the parent’s release of information from a service provider to the department or from the department to a service provider.” (Emphasis in original.)

DHS, in contrast, maintains that its reunification efforts were reasonable. It argues that, to determine whether DHS made reasonable efforts, we consider the particular circumstances of a case, including whether the parent attempted to make the necessary changes or refused to participate in the required service plans. DHS notes that father initially declined services, failed to provide any releases of information, and did not contact DHS to indicate that he had changed his mind about participating in services. In addition, it points out that child was in counseling and did not want visits with father. DHS asserts that, under those circumstances, its efforts were reasonable.

Furthermore, DHS argues that even if its efforts were not reasonable, that conclusion does not require a reversal of the dispositional judgment because the error asserted by father is harmless. According to DHS, correcting the judgment would serve no purpose, because N “will still be a ward of the court, and father will still be required to engage in services.” That is, DHS disagrees with our conclusion in J. F. D., 255 Or App at 750 n 4, where we held that it was necessary to reverse and remand a dispositional judgment to correct an erroneous determination of reasonable efforts. DHS claims that, contrary to our suggestion in J. F. D.,

[42]*42“[a] juvenile court’s reasonable-efforts finding at the disposition stage does not affect the timing of a petition to terminate parental rights. Rather, the juvenile court must make a new reasonable-efforts finding based on everything that has transpired in the case, and not simply on what happened prior to its disposition judgment.”

Child agrees that DHS’s reunification efforts were reasonable. She argues that, because father initially declined services, it was reasonable for DHS not to offer services again until after the court asserted jurisdiction. Child also notes that N was receiving counseling, which is a reunification service. Ultimately, child contends that, although “DHS arguably should have offered services again in the six weeks between the date jurisdiction was established and the dis-positional hearing, DHS’s delay was not unreasonable under the circumstances.”

In J. F. D., we explained the policy behind the reasonable efforts requirement:

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Cite This Page — Counsel Stack

Bluebook (online)
370 P.3d 543, 277 Or. App. 37, 2016 Ore. App. LEXIS 327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-r-w-orctapp-2016.