Department of Human Services v. S. S.

388 P.3d 1178, 283 Or. App. 136
CourtCourt of Appeals of Oregon
DecidedDecember 29, 2016
Docket120145J; Petition Number 120145J01; A160985 (Control); 120145J; Petition Number 120145J01; A160992; 120145J; Petition Number 120145J01; A160993
StatusPublished
Cited by7 cases

This text of 388 P.3d 1178 (Department of Human Services v. S. S.) 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. S., 388 P.3d 1178, 283 Or. App. 136 (Or. Ct. App. 2016).

Opinion

ORTEGA, P. J.

Mother, father, and their child, M, appeal a permanency judgment that changed the permanency plan for M from guardianship to adoption and ordered the Department of Human Services (DHS) to file a petition to terminate the parental rights of mother and father (TPR petition). Mother argues in several assignments of error that the juvenile court erroneously concluded that it was required to change the plan to adoption because of the passage of time and that it failed to conduct the legal analysis required by ORS 419B.476(5) and ORS 419B.498(2) to determine the most appropriate permanency plan for M. Further, mother contends that the court was not authorized to change the permanency plan to adoption because the “undisputed facts *** failed to demonstrate that the department could prevail on its [TPR petition] such that adoption would be achievable.” Father joins mother’s assignments of error on appeal, and makes the additional assignment that the juvenile court erred in rejecting his argument that issue preclusion prevented the court from changing the plan to adoption because the court had refused to make that change in a previous permanency judgment. M also joins mother’s assignments of error and arguments, urging us to reverse the juvenile court’s permanency judgment. We reverse and remand based on our conclusion that the juvenile court failed to conduct the statutorily required “child-centered” determination when it decided that there was no compelling reason to change the plan to something other than adoption.

We state the facts consistently with the juvenile court’s express and implied findings, supplemented by uncon-troverted information in the record. Dept. of Human Services v. T. C. A., 251 Or App 407, 410, 283 P3d 956, rev den, 352 Or 665 (2012). When M was born in October 2012, mother was addicted to heroin. Consequently, M was born drug-affected and, when she was eight days old, DHS placed her in foster care with White, who is not a relative. The juvenile court took jurisdiction over M in December 2012, based on the use of controlled substances by both parents, and on father’s criminal activity. Over the next several months, both parents continued to struggle with drug addiction, [139]*139failed to successfully complete treatment, and inconsistently attended scheduled visits with M. They were both arrested in April 2013 and eventually were convicted of felonies and were incarcerated. DHS filed an amended petition, adding allegations regarding parents’ inability to serve as parenting resources for M due to their incarceration. Mother was scheduled to be released from prison in August 2016, and father’s scheduled release date is in September 2020.

M’s maternal grandmother began weekly DHS-supervised in-person visits with M in March 2013. Grandmother consistently attended those visits and, according to the DHS caseworker who supervised those visits, they went very well and resulted in a bond growing between M and grandmother.

During her incarceration at Coffee Creek Correctional Facility (CCCF), mother consistently participated in video-conferences and telephone communication with M, and sent M letters, drawings, and dictated audio books. The record also demonstrates that mother engaged in the programs that were available to her as an inmate, including AA and NA, a parenting program, a behavioral health course on healthy coping skills, and an expressive writing course. Mother also obtained her GED and secured jobs outside the prison as a carpenter’s assistant and wildland firefighter. At the time of the permanency hearing, she had plans to engage in drug and alcohol treatment during her final six months of incarceration and intended to train as a carpenter’s apprentice upon her release. White felt that it is very important for M to have a relationship with grandmother and mother and she fostered those relationships while M was in her care. Further, she indicated that she was willing to be a permanent resource for M whether that was accomplished through a guardianship or through adoption.

In late 2013, DHS asked the court to change the permanency plan from reunification to adoption. At that time, mother acknowledged that a change in plan away from reunification was necessary, but asked the court to change the plan to guardianship—preferably with grandmother as M’s guardian. After a permanency hearing in February 2014, the court changed the plan from reunification to [140]*140guardianship, explaining in a letter opinion that it was not appropriate at that time to change the plan to adoption because there was evidence that M had bonded with grandmother and White and that mother had been “self-motivated to avail herself [of] limited services during her incarceration, including biweekly computer visits with [M] In the court’s view, a “permanent guardianship would provide the necessary permanency for [M] as well as the greatest possibility to continue the important relationships outlined in this letter [opinion]

In September 2014, DHS removed M from nonrela-tive foster care with White and placed her with relatives in Kansas.1 M’s Kansas relatives limited M’s communication with grandmother, mother, and White. In February 2015, at a review hearing, the court “extended” that “plan” for six months. In April 2015, M’s Kansas relatives informed DHS that they no longer wanted to be considered a permanent resource for M and asked DHS to return her to Oregon. Accordingly, after a seven-month absence, DHS placed M back in White’s home. Upon returning to White’s care, M was “more clingy” and had difficulty with “short transitions.”

Once M returned to White’s home, grandmother resumed weekly in-person visits at White’s home, with DHS approval but without DHS supervision. Those visits sometimes lasted all day, and White described the bond between M and grandmother as “very strong.” In July 2015, White took M to CCCF for a face-to-face visit with mother. M considers mother her “friend” and a bond exists between them.

In August 2015, DHS again sought to change the permanency plan to adoption. DHS argued that M had been in temporary substitute care for nearly three years and that a permanent guardianship was not in M’s best interests and was “not the most permanent plan for [M].” DHS pointed to the requirement in ORS 419B.498 that, where a child has been in substitute care for “15 months of the most recent 22 months,” DHS is required to proceed to termination of parental rights unless “[t]here is a compelling reason, which is documented in the case plan, for determining that filing [141]*141such a petition would not be in the best interests of the child.” DHS asserted that, given M’s age and lack of special needs, she was adoptable. DHS also argued that adoption was the only permanency plan that allows a child the opportunity to grow up with, and have a primary attachment to, a caregiver.

Mother opposed a change in plan, arguing that, as the court had determined a year before in its prior permanency judgment, a guardianship would provide M with necessary permanency while allowing her to maintain her relationships with grandmother, White, and mother.

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Cite This Page — Counsel Stack

Bluebook (online)
388 P.3d 1178, 283 Or. App. 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-s-s-orctapp-2016.