State ex rel. Juvenile Department v. K. L.

194 P.3d 845, 223 Or. App. 35, 2008 Ore. App. LEXIS 1465
CourtCourt of Appeals of Oregon
DecidedOctober 15, 2008
Docket060653J; 060653JA; A137728; 060654J; 060654JA; A137730
StatusPublished
Cited by4 cases

This text of 194 P.3d 845 (State ex rel. Juvenile Department v. K. L.) 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
State ex rel. Juvenile Department v. K. L., 194 P.3d 845, 223 Or. App. 35, 2008 Ore. App. LEXIS 1465 (Or. Ct. App. 2008).

Opinion

BREWER, C. J.

Mother appeals from an order that the trial court issued after a permanency hearing under ORS 419B.476.1 In its order, the court determined that the Department of Human Services/Community Human Services — Child Welfare Division (DHS) should implement its concurrent plan of adoption for mother’s children rather than continuing to plan for their reintegration into her home. Mother raises a number of issues on appeal; we conclude that in these specific circumstances, the trial court should have granted DHS’s request for a 90-day continuance of the hearing and, therefore, reverse.

We state the facts as we find them from the record on de novo review.2 ORS 419A.200(6)(b). DHS removed mother’s children, R.J.T. and R.M.T., on October 16, 2006, and placed them with mother’s father and stepmother. The court established jurisdiction over the children on December 7, 2006, based on mother’s admission that she had a substance abuse problem.3 At the time of the hearing a year later, the children were eight and six years old. Although they have been diagnosed with some emotional problems, they are doing well in their current placement.

At the time that DHS removed the children, mother was in an abusive relationship with a man who apparently dealt methamphetamine. She was also a heavy user of that drug and of marijuana. Between October 2006 and September [39]*392007, mother participated in some of the services that DHS provided, regularly visited her children, and attended all of her court hearings. She made a number of attempts to break away from the abusive relationship, including going to a shelter. However, the man was always able to track her down, and her fear of what he would do to her or to her children, combined with her drug-related inability to recognize the full seriousness of the situation, led her to return to him a number of times.

In September 2007, in order finally to break with her abusive relationship, mother moved from Jackson County to Clackamas County. She was able to do so because of the assistance of a male friend whom she had known since high school. That friend had been living in Southern California and had not been involved with mother when she was abusing drugs. As part of the move, mother and the friend established a relationship and began living together. In Clackamas County, mother sought services from DHS and entered a drug treatment program. She states that her clean and sober date is October 1, 2007. Although she continued to show marijuana metabolites in the urinalyses that she took in November as part of drug treatment, the amounts were consistent with the residual effects of her long-term marijuana use and were much smaller than would occur if she were again using marijuana. She regularly talks with the children by telephone.

According to mother’s care provider, she was doing a wonderful job at the time of the permanency hearing on December 6, 2007. As a result, mother’s Jackson County social worker withdrew his recommendation that the court implement the alternative plan of adoption and, instead, requested a 90-day continuance of the hearing in order to allow mother to prove that she was serious about engaging in services. The court rejected that request, in part because it did not believe that it could lawfully grant it due to the length of time that the children had been in substitute care. Instead, the court ordered DHS to implement the alternative plan of adoption rather than to continue working to reunite mother and the children.

[40]*40The court based its decision on several factors. It knew that, in the absence of a compelling reason to do otherwise, ORS 419B.498 requires DHS to file a petition for termination of mother’s parental rights after the children have been in substitute care for 15 of the most recent 22 months. The court observed that the children had been in alternative care for almost 14 months and stated that it did not believe that they could be reunified with mother within a reasonable period of time. The court was also concerned that mother had simply moved from one relationship to another rather than learning to live independently and that she might need a period of residential treatment to resolve her drug problems. It did tell mother that, despite its decision, she still had time to turn things around before her parental rights could be terminated.

On de novo review, we view mother’s actions differently from the way that the trial court did. We also conclude that, under our view of the evidence, the trial court was authorized to grant the requested 90-day continuance and that it should have done so.

What comes through most clearly from this limited record is that, after struggling over an extended period to escape from a relationship that was damaging for her and bad for the children, mother finally succeeded. Between October 2006, when DHS removed the children from her home, and September 2007, when she moved to Clackamas County, mother made substantial efforts to utilize the services that DHS offered. Her failures to follow through on those efforts to the extent that she needed to were in large part the result of pressure and threats from the man with whom she was in an abusive relationship. Mother ultimately recognized that she could not break free from that relationship while remaining in Jackson County, even though that was where her children were. The only alternative that she could find was to take the drastic step of moving to the other end of the state, relying on the assistance of a long-time friend who was not involved in her current abusive condition or in her use of drugs.

The move to Clackamas County appears to have made it possible for mother to make substantial improvements in her personal situation and in her ultimate ability to [41]*41care for the children. The evidence showed that she was not using drugs at the time of the hearing and was actively engaged in rehabilitation. Although, as the trial court noted, she moved directly from one relationship to another, her current relationship is with a person who knew her before she was abusing drugs and who was not involved in her drug use. At the time of the hearing, she was not in a position to regain custody of the children, but if she maintained her current course, she might well be able to do so within a reasonable period. However, because the changes were recent at the time of the hearing, it was not possible to say that they would be successful and permanent. In addition, DHS had not had an opportunity to evaluate mother’s friend or otherwise investigate her living situation.4 Any attempt to reach a definitive conclusion would necessarily be premature.

We agree with the trial court that there continue to be areas of concern in this case. Mother has been clean and sober for only a short time. Her moving directly from a bad relationship to a new one without a period of independence is not ideal. However, we do not see a period of independence as an absolute requirement, as the trial court apparently did. In addition, the children have been in substitute care for an extended period, although they have had significant contact with mother throughout that period.

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Related

Dept. of Human Services v. K. J. V.
512 P.3d 469 (Court of Appeals of Oregon, 2022)
State Ex Rel. Juv. Dept. v. KD
209 P.3d 810 (Court of Appeals of Oregon, 2009)
State ex rel. Juvenile Department v. K. D.
209 P.3d 810 (Court of Appeals of Oregon, 2009)
State Ex Rel. Juv. Dept. v. KL
194 P.3d 845 (Court of Appeals of Oregon, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
194 P.3d 845, 223 Or. App. 35, 2008 Ore. App. LEXIS 1465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-juvenile-department-v-k-l-orctapp-2008.