Dep't of Human Servs. v. M. K. (In re J. E. K.)

285 Or.App. 448

396 P.3d 294

In the Matter of J. E. K., a Child.

DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

v.M. K., Appellant.

In the Matter of E. E. M. K., a Child.

Department of Human Services, Petitioner-Respondent,

v.M. K., Appellant.

A163188 (Control)

A163189

Court of Appeals of Oregon.

Argued and submitted February 6, 2017.

May 10, 2017

Amelia Anderson, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.

Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

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

GARRETT, J.

In this consolidated juvenile dependency case,¹ mother appeals the juvenile court's permanency judgments that changed the permanency plan for her children from reunification to guardianship with the paternal grandparents. Mother argues that the juvenile court erred in concluding that, despite the Department of Human Services' (DHS) reasonable efforts to effect reunification, mother had not made sufficient progress for the children to safely return home. We conclude that the record contains sufficient evidence to support the juvenile court's conclusions and, accordingly, affirm.

The parties do not request that we engage in de novo review under ORS 19.415(3)(b), and this is not an exceptional case in which we exercise our discretion to do so. See ORAP 5.40(8)(c) ("The Court of Appeals will exercise its discretion to try the cause anew on the record or to make one or more factual findings anew on the record only in exceptional cases."). We, therefore, defer to the juvenile court's findings of historical fact and assume that the juvenile court implicitly found predicate facts necessary to support its disposition. Dept. of Human Services v. C. L. H. , 283 Or.App. 313, 315, 388 P.3d 1214 (2017). Our review is limited to determining whether the evidence, as supplemented and buttressed by permissible derivative inferences and considered in the light most favorable to the juvenile court's disposition, was sufficient to support those conclusions that mother now challenges. Dept. of Human Services v. T. M. S. , 273 Or.App. 286, 288, 359 P.3d 425 (2015). We state the facts consistently with our standard of review.

Mother and father are the married parents of E and J, who were 16 and 10, respectively, at the time of the permanency hearing. The parents had at least a four-year history of domestic violence; the altercations occurred almost daily, often in the children's presence, and included physical assaults and verbal fights, name calling, and profanity. Mother had filed multiple restraining orders against father over those years, reporting instances when father had put his arms around mother's neck and pinned her to the couch, had threatened to take the children, and had stabbed the bed with a pocket knife. Mother also reported that father isolated mother from family and friends, and committed other acts of emotional and verbal abuse. Nevertheless, after mother had obtained the restraining orders against father, mother invariably allowed father to return to the home.

DHS first became significantly involved with the family in 2011, when DHS received a report that the children had been present for a scene of domestic violence between father and mother, for which father eventually pleaded guilty to assault. DHS determined that the children were at risk of harm and placed the children in mother's custody. DHS dismissed its wardship of the children after mother filed a restraining order against father.

In May 2015, DHS received reports that J was being suspended from school because of behavioral problems and was out on his own all day, without any supervision or means of contact, and that father was back living in the house with mother, despite a restraining order against him. DHS was again contacted in early July 2015 regarding another incident of domestic violence, in which mother and father had gotten into a physical fight and mother had hit father with a frying pan. DHS also received a report that J was still being allowed "to roam through town" without supervision, and that mother had locked E out of the house at 10 p.m. one night, that E had called the police for help, and that although the officers and E knocked on the door, mother did not respond. The grandmother eventually drove to the house and took E to her home.

After interviewing both parents and concluding that the children should be placed with the grandparents, DHS filed a petition for dependency, alleging as bases for the juvenile court's jurisdiction: (1) "[d]omestic violence in the [mother's] home creates a harmful environment for the child"; and (2) "[d]omestic violence in the [father's] home creates a harmful environment for the child." DHS reported at that time that the home environment was not calm "both when [father] is in the home and when the boys are not being supervised," and that "given [mother's] extensive history of continuing to allow [father] back into the home [in violation of the] restraining orders, [and of] exposing her children to violence," the children were best placed with the grandparents. The juvenile court assumed jurisdiction on July 20, 2015.

In a report filed with the juvenile court in October 2015, DHS reported that the home remained dangerous for the children because the parents continued to engage in the same dangerous behavior of domestic violence in the home. The children were fearful of returning back to the same situation they were in before, and wished to remain with their grandparents because the children felt they had a stable family life there. The caseworker further reported that DHS had provided mother with supervised visitation of the children, but the case worker had stopped the visits because the children had immense anger toward mother and refused to visit her, and because the visits "had been very unhealthy." Consequently, there had been no visits with mother since August 2015.

DHS created, and mother agreed to, an action agreement for the purpose of reuniting the family. Mother agreed to maintain regular contact with her caseworker, attend therapeutic counseling visits, complete a mental health assessment, complete a substance abuse assessment, and attend domestic violence treatment classes.² At the time of the permanency hearing, mother had completed the substance abuse assessment and the domestic violence classes. Additionally, she had twice attempted to file divorce papers against father, which had been dismissed because the attempted service on father failed both times. Mother was also requesting therapeutic visitation with the children, but the children still refused to see mother.

Both E and J testified at the permanency hearing, describing in detail their parents' behaviors and the effect that those behaviors had had on E and J. E described how mother once hit him with a belt with metal studs, as hard as she could "until I bled," and that once, in an apparent drug-induced state, mother threatened him with a butcher knife, running after him until he was able to find his own knife to defend himself. E testified that his parents' fights, most of which involved mother and father calling each other "bad names" and swearing at each other, were "kind of like an everyday basis. Like it was natural." The effect of those daily fights caused E to "stop[ ] caring," and J explained, "I was always at the skate park. I wasn't even near the house." Both E and J had poor attendance at their schools before their removal from their parents, and J had been suspended from school multiple times for behavioral problems that had included "throwing chairs at people." E described being homeless for four years, and staying in places where he could hear the sound of bongs being used in the next room. Mother acknowledged in her testimony that the boys' home circumstances during this time were not good, and blamed their homelessness on "another domestic violence issue that we had."

Both children reported to DHS that their grandparents' home was their only stable environment and that they felt safe, secure, loved, and nurtured there. The children's behavior, their school attendance, and their academic performance had improved in the care of their grandparents. E had started to feel motivated to learn again, had a part time job, and was playing football, and J intended to play football and baseball.

Both children testified that they were afraid to return to mother because they believed that she would do the same things that she had done before, and they would again be exposed to drugs and the parents' domestic violence. They believed that, contrary to mother's testimony, father was again living with mother and they did not believe that their mother was sincere in her progress. They also feared that, if they were to meet with mother in a therapeutic visit, mother would manipulate J, as she had done in the past, by promising J things if he would come back to her.

The record reflects that E, in particular, had expressed great anxiety about returning to mother—that he would be physically harmed, threatened, or emotionally abused. The psychologist who evaluated E and J in December 2015 concluded that,

"should [E] return to the care of his parents, I would anticipate a change in trajectory—that is, [E] has been doing better since coming into his grandmother's home and, sadly, I would expect deterioration in his overall level of function should he return to his parents' care without very substantial changes being made in their ability to manage their roles as parents."

DHS's initial recommendation for the permanency plan was reunification. By the time of the permanency hearing on August 3, 2016, DHS had changed its recommendation to guardianship; the children's...