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

301 Or.App. 148

454 P.3d 838

In the MATTER OF L. L. D., a Child.

Department of Human Services, Petitioner-Respondent,

v.D. M. D., Appellant.

In the Matter of D. D., Jr., a Child.

Department of Human Services, Petitioner-Respondent,

v.D. M. D., Appellant.

A170969 (Control)

A170975

Court of Appeals of Oregon.

Submitted October 1, 2019.

December 4, 2019

Franz Bruggemeier filed the brief for appellant. Also on the brief was Youth, Rights & Justice.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, filed the brief for respondent.

Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Mooney, Judge.

MOONEY, J.

Father appeals from judgments changing the permanency plan for his two children, L and C, from reunification to adoption. He specifically challenges the juvenile court’s¹ determination that the Department of Human Services (DHS) made reasonable efforts to reunify father with his children. We address the sole question of whether DHS’s efforts were reasonable despite a delayed referral for certain services. We conclude that the delay was reasonable under the circumstances and therefore affirm the judgments.

L and C were in DHS custody between 2014 and 2016 after they witnessed father assault their mother.² During that time, DHS referred father to substance abuse and domestic abuse treatment services, and the juvenile court dismissed that case in April 2016 when it found that father had ameliorated the bases for jurisdiction. In June 2017, police arrested father on various charges, including child neglect. When officers arrived at father’s home to check on his children, the house was unlocked and they found L (10 years old) and C (five years old) alone. The children had easy access to several dangerous and unsanitary items, including knives, lighters, methamphetamine pipes, and heroin needles. Shortly thereafter, DHS was granted temporary custody of the children and it referred father to a drug and alcohol assessment. Father spent several days in inpatient substance abuse treatment.

On August 24, 2017, father admitted that his (1) substance abuse, (2) intimate partner violence and anger, and (3) inability to maintain a safe home interfered with his ability to safely parent his children. The juvenile court accepted his admissions and thereafter found L and C to be within the dependency jurisdiction of the court. Father was ordered to undergo drug and alcohol evaluation and complete any recommended treatment; participate in random drug testing; enroll in parenting classes; obtain stable and suitable housing; maintain regular contact with his children and engage in children’s services and therapy if arranged by DHS; undergo a psychological evaluation and begin any recommended treatment; enroll in "anger management/ domestic violence counseling/Batterer’s Intervention program as directed by DHS"; and maintain contact with DHS. (Underlining in original.)

DHS first scheduled a psychological evaluation for father in October, but he failed to report for that. It was rescheduled and, in November 2017, Dr. Basham conducted father’s psychological evaluation. According to Basham’s report, father had a history of relapsing into drug use and violent behavior after periods of sobriety, one of which lasted nearly two years. Basham noted that father had most recently relapsed following his previous dependency case. He also noted that father minimized his history of domestic abuse, which was "a problem at least as serious as his drug use and as much a threat to future parental functioning as his drug use." Basham then concluded that "[t]here would be little point in pursuing treatment for [domestic abuse] until he has a significant period clean and sober, but he now has two clearly identified issues and would need to show progress in both of those before he would be ready to resume care of his children." Basham concluded that father needed at least one year of sobriety before DHS could accurately assess his progress in batterer’s intervention or domestic violence counseling.

Father did not respond to DHS’s attempts to contact him for nearly half a year after that evaluation. A review hearing was scheduled for January 12, 2018, but father was not present because he had been arrested the night before.

To that point, DHS had attempted to provide many of the court-ordered or recommended services, but father avoided contact with DHS throughout fall 2017 and spring 2018.

DHS was not able to successfully contact father until the DHS caseworker saw him at the next review hearing on April 10, 2018. After that hearing, the juvenile referee ordered DHS to refer father to a "FIT" screening (a drug and alcohol assessment) and batterer’s intervention program "within one week." That was the first time the court affirmatively ordered DHS to provide a referral for any type of domestic violence program. Even the original order for services directed to father required such services only "as directed by DHS." In other words, until the April 10, 2018 hearing, the decision whether to refer father for domestic violence services arguably remained up to DHS. DHS did refer father to a FIT screening following the April 10, 2018 hearing, but, before it referred him to batterer’s intervention, father was again arrested. He voluntarily entered Washington County’s Family Sentencing Alternative Pilot Program (FSAP), which he completed in August 2018. Immediately after he completed FSAP, he began outpatient substance abuse treatment. He began his sobriety on May 8, 2018.

Father’s participation in FSAP prevented him from attending a review hearing in July 2018. At that hearing, the juvenile referee found that DHS continued to make reasonable efforts. Father has not challenged that ruling. By father’s next review hearing on October 12, 2018, DHS had not yet referred father to a batterer’s intervention program, despite the April court order. Notwithstanding the lack of referral, the referee again found that DHS continued to make reasonable efforts toward reunification and, once again, father has not challenged that ruling. In both the July and October review hearings, the referee found that DHS’s efforts were reasonable because DHS had provided father with FIT and other residential treatment referrals, a psychological evaluation, and case management services, and because it had facilitated communication between father and children. The referee made no mention of DHS’s lack of a referral to batterer’s intervention.

On November 14, 2018, one year after Basham’s psychological evaluation and after only seven months of sobriety, DHS referred father to batterer’s intervention. The batterer’s intervention treatment provider and the DHS caseworker spent nearly one month setting up father’s treatment plan. On December 12, DHS paid for father to attend an intake screening at the program. DHS and the provider then spent several weeks deciding who would pay for treatment. DHS and father wanted DHS to pay for it, but the provider insisted that its participants pay for at least some treatment costs. DHS ultimately arranged for funding for father’s treatment, which he began in January 2019.

In addition to assisting father with treatment, DHS made numerous efforts throughout the case to facilitate communication between father and L and C. Any communication between father and the children filtered through numerous therapists and caseworkers. However, L, the older child, refused multiple times to have father’s letters read to her. In October 2018, before father’s review hearing, L wrote to the court requesting that she not have any contact with father because, among other concerns, she witnessed multiple instances of father’s domestic violence toward his girlfriend and she did not feel safe in his home. She also wrote a letter directly to father telling him that he made her feel unsafe and that he failed his "second chance" at being her parent. C did listen to a therapist read him a letter from father in the fall of 2018. However, when he heard what father wrote, he immediately recalled a traumatic experience in which he witnessed father’s violence toward his girlfriend, which then caused C to have a nervous reaction. Both children consistently expressed a desire to remain with their foster parents and to never again have contact with father. By the time of the permanency hearing, which the court held in January 2019, the children had been in DHS custody for over 18 months. They had also spent approximately 32 months in substitute care before this case, meaning that, by the 2019 permanency hearing, they had been in substitute care for 50 of the previous 66 months.

The referee considered the above facts when she presided over father’s three-day permanency hearing in January 2019. Focusing on father’s recent sobriety and progress in batterer’s intervention services, the referee found that the children could not safely return home within a reasonable amount of time, explaining:

"Father has maintained sobriety since his release from custody in November, and appears to be stable and engaging well with the intensive FSAP probation program. Father has a long pattern of sobriety prior to catastrophic relapses, however, so a period of sobriety much longer than he currently has would be necessary to have assurance that this is not yet another round in his ongoing cycle of substance abuse. Father is only just now beginning [batterer’s] intervention services, which will be a critical service for him. The evidence demonstrates a long and extreme pattern of domestic violence on Father’s part, most recently towards his girlfriend [S] in front of the children. Father continues in a relationship with [S.] *** The ongoing traumatic responses from the children clearly demonstrate that Father needs significant [batterer’s] intervention and that a great deal more work would be needed before the children could even contemplate

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