Dep't of Human Servs. v. C. L. H. (In re M. H.)

283 Or.App. 313

388 P.3d 1214

In the Matter of M. H., a Child.

DEPARTMENT OF HUMAN SERVICES, Respondent,

v.C. L. H., Appellant.

A162133

Court of Appeals of Oregon.

Submitted October 25, 2016.

January 5, 2017

Shannon Storey, Chief Defender, Juvenile Appellate Section, and Amelia Andersen, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General, filed the brief for respondent.

Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

GARRETT, J.

In this juvenile dependency case, father appeals the judgment of the juvenile court changing the permanency plan for his child, M, from reunification to adoption.¹ On appeal, father argues that the court erred in concluding that the Department of Human Services (DHS) made reasonable efforts to make reunification possible, a predicate for changing the permanency plan away from reunification. For the first six months after M was taken into protective custody, father did not participate in services, contact DHS, or attempt to visit M. Father then became incarcerated. Although DHS promptly learned of his whereabouts, DHS did not contact father or his prison counselor for more than six months. After that point, DHS's contact with father was minimal, and the agency did not assess the adequacy of programs in which father was participating in prison or provide education or training to father regarding M's special medical needs. We conclude that the juvenile court erred insofar as it failed to properly consider the benefit of providing father with additional services, and we agree with father that there was insufficient evidence to support the court's reasonable-efforts determination. Accordingly, we reverse the permanency judgment and remand the case to the juvenile court.

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 exercising our discretion to do so. See ORAP 5.40(8)(c) (establishing that we will exercise our discretion to engage in de novo review "only in exceptional cases"). For that reason, we defer to the juvenile court's explicit findings of historical fact if those findings are supported by any evidence, 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 P.3d 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 that outcome."

Dept. of Human Services v. T. M. S. , 273 Or.App. 286, 288, 359 P.3d 425 (2015) (internal quotation marks and brackets omitted). We state the facts in accordance with that standard.

M was born in June 2014, and she was immediately placed in neonatal intensive care unit due to being born with a severe medical condition involving multiple intestinal atresias. She had two major surgeries following birth, was deemed a "medically fragile infant," and had to be fed through a feeding tube.²

DHS became involved with the family after hospital staff members reported that they had serious concerns that M's parents were unable to care for M in light of her serious medical condition and special needs. While in the hospital, mother and father "engaged in loud and aggressive conflict[s]" in M's hospital room, and, several times, "hospital staff heard banging in the room," but they were not able to identify the source of the noise. As to father, hospital staff documented that father visited M infrequently and for short periods of time, failed to feed M sufficiently or properly, failed to follow the directions of hospital staff with respect to M's needs,³ did not console M when she was crying, was "verbally abusive" to M, and yelled at M and mother. At one point, hospital staff reported that father screamed at M to "[s]top [her] fucking crying." On another occasion, father and mother were removed from M's room by security officers out of concern for M's safety.

M remained in the hospital until she was placed in substitute care in October 2014. In November 2014, DHS scheduled visitation for father and M, and the agency notified father about the scheduled days and times. Father did not visit M. In December 2014, DHS reported that it had unsuccessfully attempted to contact father "numerous" times and had initiated an "absent parent search" to locate father.

The juvenile court took jurisdiction over M in January 2015. Neither parent appeared at the jurisdictional hearing, and the court concluded that the state had made a prima facie showing sufficient to establish jurisdiction based on the allegations contained in the dependency petition. With respect to father, the dependency petition alleged that M "was born with a medical condition which requires specialized care and feeding needs that the father is unable or unwilling to meet," that "father has an anger control problem that interferes with his ability to safely parent [M]," and that "father failed to provide an adequate supply of food for [M]." In January 2015, in a disposition judgment, the juvenile court ordered father to participate in anger-management counseling and education "designed to address control of parental anger directed at children," age-appropriate parent training, specialized parent training, a safety plan, and services related to his lack of suitable housing.

M is a carrier of Methicillin-resistant Staphylococcus aureus (MRSA), a highly contagious bacterium. Consequently, M's foster parents went to great lengths to prevent the spread of the infection, such as bleaching the tub after M's baths, keeping separate towels for M, washing M's laundry separately, and wearing gloves for all diaper changes. In addition, M has a restricted diet; consumption of more than small amounts of sugar or fat cause her to experience diarrhea, increasing the risk of dehydration and MRSA transmission. M's foster parents also took steps to prevent M from pulling her feeding tube out, an occurrence that would cause the contents of her stomach to empty, which also created a risk of MRSA transmission.⁴

From October 2014, when M was placed in foster care, through March 2015, father did not visit M and did not participate in any court-ordered services. In March 2015, father was incarcerated and DHS discovered that he was in jail that month. Father was convicted of first-degree burglary and unlawful possession of methamphetamine, and in May 2015, he was sentenced to a prison term with a projected release date in April 2017.

DHS assigned Caseworker Yde to M's case in May or June of 2015. In May 2015, father sent a letter to DHS, but Yde did not receive it until after father had been transferred to a different prison facility.⁵ Yde first spoke with father over the phone in November 2015, and she had four more phone conversations with father before the permanency hearing in March 2016. Yde never met with father in person. Father asked Yde to send him photos of M, and Yde sent black-and-white "printed out photographs" of M to father.

Yde provided father with some information about M's medical needs over the phone. Yde also contacted M's doctor to determine whether there was documentation describing M's condition that could be sent to father. The doctor informed Yde that "there was no curriculum or even * * * a pamphlet" and referred Yde to "Wikipedia and Web M.D. websites for more information." Yde, however, did not provide information from those websites to father or develop a curriculum for father to help him prepare to meet M's needs. M's foster family sent Yde documentation about M's day-to-day care, but Yde did not forward that documentation to father.

Yde spoke to father's prison counselor for the first time in "late 2015." Yde asked father's prison counselor whether it would be possible for M to visit father in prison, but the counselor advised her that it was unlikely that a child with MRSA would be permitted to enter the facility. Regardless of the prison's restrictions, DHS determined that it would not be "appropriate" or in M's best interests for M to visit father in prison because the prison was five hours from her foster placement and potentially required an overnight stay. In Yde's view, in-person visitation would require a high level of care from M's foster parents because M's bodily fluids presented a risk of MRSA transmission.

On March 16, 2016, the juvenile court held a permanency hearing. DHS requested that the permanency plan for M be changed from reunification to adoption. Father opposed the change, arguing that DHS had failed to engage in reasonable efforts to make reunification possible.

At the permanency hearing, Yde testified that father's incarceration had "been an impediment for DHS to provide him services." Yde stated that, unless DHS had provided a special curriculum to father, "the only things" that were available to father were the programs in which he had participated—a "Parenting with Dignity" course, an anger-management course, and a basic first-aid course. The anger-management and parenting courses were shorter than similar programs that are available outside of prison, and DHS had not determined "the quality and appropriateness" of the programs in which father had participated. Yde testified that she was "unaware of all of the details of the different programs" relating to anger management, and she did not know whether father's anger-management course satisfied the court's order that father engage in programming focused specifically on parental anger.

Father testified at the hearing. He acknowledged that there were certain things that he did not know about caring for M, but explained that he was "willing to learn those things to take care of [his] daughter." He...