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

388 P.3d 1204, 283 Or. App. 295, 2017 Ore. App. LEXIS 7
CourtCourt of Appeals of Oregon
DecidedJanuary 5, 2017
DocketBENDES09; Petition Number 14JV0194; A162054 (Control); GEEBLA13; Petition Number 14JV0194; A162055; 15JV0084; Petition Number HENSAY15; A162056
StatusPublished
Cited by52 cases

This text of 388 P.3d 1204 (Department of Human Services v. S. 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. S. M. H., 388 P.3d 1204, 283 Or. App. 295, 2017 Ore. App. LEXIS 7 (Or. Ct. App. 2017).

Opinion

GARRETT, J.

In this consolidated juvenile dependency case, three parents separately appeal judgments of the juvenile court changing the permanency plans for three children from reunification to guardianship. All three parents were incarcerated at the time of the permanency hearing, and parents assign error to the juvenile court’s finding that the Department of Human Services (DHS) made reasonable efforts to make reunification possible as required by ORS 419B.476(2)(a). For the reasons explained below, we conclude that, as to mother, the record lacks sufficient evidence to support the trial court’s conclusion that DHS made reasonable efforts within the meaning of the statute. As a result, the permanency judgments with respect to all three children must be reversed. In light of that disposition, it is not necessary to address the two fathers’ arguments that DHS also failed to make reasonable efforts on their behalf, and we decline to do so.

The parties do not request that we engage in de novo review under ORS 19.415(3)(b), and we do not identify a basis for so doing. See ORAP 5.40(8)(c) (providing that we will exercise our discretion to engage in de novo review “only in exceptional cases”). Consequently, we defer to the juvenile court’s explicit findings of historical fact if those findings are supported by any evidence in the record, and we assume that the juvenile court implicitly found predicate facts necessary to support its disposition. Dept. of Human Services v. S. S., 278 Or App 725, 727, 375 P3d 556 (2016). We then “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 was legally sufficient to permit” the juvenile court’s change to the permanency plan. Dept. of Human Services v. T. M. S., 273 Or App 286, 288, 359 P3d 425 (2015) (internal quotation marks and brackets omitted). We state the facts in accordance with that standard.

This consolidated appeal involves mother’s three children, D, B, and S. At the time of the permanency hearing, the children were nine years old, two years old, and one [298]*298year old, respectively. D and B have different legal fathers; S has no legal father.

DHS became involved with the family in July 2014. At that time, D and B were living with mother and B’s father (S was not yet born). D’s father lived in another city and had not been in touch with D for several years. That month, DHS received a report that a child was seriously injured while in mother’s care. Based on that incident, mother was arrested and charged with criminal mistreatment of a minor. DHS implemented a safety plan in which mother agreed to have no contact with D and B except as supervised by DHS, and B’s father agreed to care for both children. DHS also contacted D’s father, who agreed to the safety plan.

In August 2014, DHS received a report that mother had been cited and released for shoplifting. During mother’s interaction with police, she admitted to having drug paraphernalia in her possession and that she had recently relapsed on heroin. DHS referred mother to drug-treatment services that month. Mother independently contacted a treatment center, and in September, she submitted to a drug and alcohol assessment with Loveless, a contracted provider for DHS. Loveless determined that mother qualified for residential treatment. Mother did not engage in such treatment, and, in the fall of 2014, mother was incarcerated.1 After mother was incarcerated, Loveless met with mother twice in order to “work through [mother’s] resistance to engagement in treatment.” According to Loveless, mother did not believe that she needed drug treatment but nonetheless wanted to engage in it in order to satisfy DHS.

In August 2014, DHS referred B’s father to drug-treatment services. In September 2014, B’s father tested positive for marijuana and methamphetamine, and he reported that he was experiencing withdrawal symptoms due to heroin use. DHS then placed D and B in protective custody.

In October 2014, the juvenile court asserted jurisdiction over D and B. With respect to mother, the court found that “mother’s substance abuse interferes with her ability to [299]*299safely parent” and mother admitted, that she “is currently incarcerated and unable to be a parenting resource.”2 The court ordered the parents to comply with letters of expectations issued in October 2014.3 Those letters required all three parents to complete drug and alcohol evaluations and all recommended treatment, maintain contact with the family’s caseworker, engage in services with the Addiction Recovery Team (ART), follow DHS visitation guidelines, attend all court hearings, and provide DHS with certain releases.4

Mother gave birth to S while she was subject to house arrest in March 2015.5 Shortly thereafter, the juvenile court asserted jurisdiction over S based on mother’s admission to allegations that she “has substance abuse issues that interfere with her ability to safely parent the child” and that “[t]here is no legal father.” In the spring of 2015, D, B, and S were placed in foster care with their maternal aunt in Colorado.

In April 2015, the family’s caseworker documented that mother “continues to express empathy for her children” and had acknowledged that “her drug use has impacted her children and their safety.” At that time, mother reported having video visits with D and B on a weekly basis. The caseworker noted that the parents had not “made progress” in the case and that D’s father and B’s father were not in contact with DHS. The caseworker also documented nearly [300]*300weekly face-to-face contact between DHS and mother for the preceding six months.

In the late spring or early summer of 2015, DHS assigned a new caseworker, Moles, to work with the family. When Moles took over the case, the last documented face-to-face contact between DHS and mother had occurred in April 2015. Moles was a graduate student who was only available to work two days per week for DHS, but she nonetheless carried a full-time caseload. Moles continued to serve as the family’s caseworker until the March 2016 permanency hearing.

While mother was subject to house arrest, she informed Moles that she was attending drug treatment and was subject to random drug tests. Mother reported having phone contact with her children “daily” and video visits with the children when she was able. DHS arranged for the ART to work with mother while she remained subject to house arrest, but those services were not provided before mother’s June 2015 arrests for assault, criminal mistreatment, and unlawful possession of methamphetamine and heroin. Mother was incarcerated from that point forward, and, in October 2015, she started serving a prison sentence at Coffee Creek Correctional Facility. In December 2015, Moles contacted mother’s prison counselor for the first time and sent mother an “action agreement” that, among other things, listed the court-ordered services in which mother was required to participate.6

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Bluebook (online)
388 P.3d 1204, 283 Or. App. 295, 2017 Ore. App. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-s-m-h-orctapp-2017.