Department of Human Services v. S. J. M.

388 P.3d 1199, 283 Or. App. 592, 2017 Ore. App. LEXIS 125
Court of Appeals of Oregon·Decided February 1, 2017·No. 14525J; Petition Number 14525J01; A161858·Published·Cited by 2 cases

Opinion

DEHOOG, J.

Mother appeals a juvenile court judgment changing the permanency plan for her son, L, from reunification with parent to adoption. The juvenile court determined that, despite reasonable efforts by the Department of Human Services '(DHS) to reunify L with mother, mother had not made sufficient progress to make it possible for L to safely return home. See ORS 419B.476(2)(a) (requiring that inquiry when a child’s case plan is reunification at the time of the permanency hearing). The court also determined that there were no compelling reasons under ORS 419B.498(2)(b) for DHS to delay filing a petition to terminate mother’s parental rights. On appeal, mother challenges both determinations. First, mother argues that the court erred in determining that she had made insufficient progress, because she had completed all required services and had improved her parenting skills. Second, mother asserts that the juvenile court erred in determining that no compelling reasons to defer termination proceedings were present. Mother made those same arguments with regard to L’s half-sister, A, in a companion case, Dept. of Human Services v. S. J. M., 283 Or App 367, 369, 388 P3d 417 (2017) (S. J. M. I).1 In that case, we concluded that the juvenile court had not erred in determining that mother had made insufficient progress for A to return home, but that the court had erred in its compelling-reasons determination. In light of our conclusions in S. J. M. I, and for the reasons that follow, we likewise conclude in this case that the juvenile court did not err in determining that mother had not made sufficient progress for L to safely return home, but that the court erred in concluding that compelling reasons under ORS 419B.498(2)(b) were not present. Accordingly, we reverse and remand.

We begin with our standard of review. Mother has not asked us to exercise our discretion to review this case de novo, nor is this an exceptional case warranting de novo review. See ORS 19.415(3)(b) (providing court with discretion to conduct de novo review in equitable cases); ORAP 5.40(8)(c) (de novo review is appropriate only in exceptional [595]*595cases). Accordingly, we view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the juvenile court’s disposition and assess whether, when so viewed, the record is legally sufficient to permit the outcome. See Dept. of Human Services v. N. P., 257 Or App 633, 639-40, 307 P3d 444 (2013).

In S. J. M. I, we described the statutory framework governing permanency hearings and set forth in some detail the relevant facts and procedural history of this case. See 283 Or App at 371-78. We restate those matters here only to the extent necessary to provide context for our analysis, and provide supplemental details specific to L as necessary.

Mother gave birth to L in June 2011.2 In September 2013, mother began dating Bosch, and the two later began living together. In September 2014, while caring for L, Bosch punished L by striking him on the buttocks hard enough to cause significant bruising. As a result of that incident, DHS petitioned the juvenile court to take jurisdiction over L, alleging (1) that mother lacked the parenting skills to safely parent L, (2) that she had failed to adequately supervise L, and (3) that she had failed to protect L despite being aware that he had been physically abused by mother’s live-in partner. Following a contested hearing in December 2014, the juvenile court took jurisdiction as to the first and third allegations, placed L in relative foster care with his maternal aunt, and ordered reunification with parent as the primary case plan for L.

In January and February 2016, approximately 15 months after placing L in foster care, the juvenile court held a permanency hearing in accordance with ORS 419B.470(2). At the hearing, DHS asked the court to change L’s case plan from reunification to adoption. Mother objected to the change.

As we explained in greater detail in S.J.M. I, by the time of the permanency hearing, mother had engaged in various services that the juvenile court had ordered and had succeeded in improving her parenting skills. See 283 Or App at 371-72. The evidence at the permanency hearing [596]*596also showed that mother had consistently engaged in weekly therapy with L and had attended supervised visits with him.

As we also noted, however, mother still exhibited signs that she was not yet ready to safely parent her children. See id. at 372. Among other things, mother had married Bosch since her children had been removed from her care and was living with him at the time of the permanency hearing. See id. at 374. According to DHS, mother continued to prioritize her relationship with Bosch over the best interests of her children, by, for example, advocating for therapeutic contact between Bosch and L despite the recommendation against such contact by L’s therapist, Schnabel, and by expressing her desire to coparent with Bosch. See id. at 372. In DHS’s view, those inclinations suggested that mother still did not fully understand her protective role. See id. Significantly, at the time of the permanency hearing, Bosch continued to struggle with anger issues and had not fully accepted responsibility for his treatment of L. See id. at 373-74.

While in substitute care, L had engaged in both individual therapy and family therapy with mother and his foster parents. Schnabel testified at the hearing that L had been traumatized by Bosch and that, although L had shown improvements and was beginning to recover, L remained a sensitive and vulnerable child who suffered from anxiety. According to Schnabel, L would bring up his abuse without prompting and mention “being scared that he got spanked.”

Schnabel also testified that L had a positive connection with his foster mother, which had “really helped him feel safe,” but acknowledged that mother was also making progress in her relationship with L, by showing “more patience with him, more ability to self-reflect, more ability to kind of wonder with him about his feelings and work on, on supporting him and managing his feelings.” Schnabel believed that L felt safe with mother and that he could go to her for comfort. Schnabel also believed that mother was L’s primary attachment figure.

As for L’s relationship with Bosch, Schnabel testified that he did not believe that it would be in L’s best interests [597]*597to have contact with Bosch until Bosch gained control over his own emotions. Schnabel explained that he had met with Bosch to explore the possibility of having Bosch work with L in therapy, but that he had decided that such contact between the two was not advisable.

Free access — add to your briefcase to read the full text and ask questions with AI

Department of Human Services v. S. J. M., 388 P.3d 1199, 283 Or. App. 592, 2017 Ore. App. LEXIS 125 (Or. Ct. App. 2017).

388 P.3d 1199 (Department of Human Services v. S. J. M.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Dep't of Human Servs. v. S.J.M. (In re L.B.M.)
430 P.3d 1021 (Oregon Supreme Court, 2018)
Department of Human Services v. M. K.
396 P.3d 294 (Court of Appeals of Oregon, 2017)