Dep't of Human Servs. v. M. A. H. (In re A. K. H.)

284 Or.App. 215

391 P.3d 985

In the Matter of A. K. H., a Child.

DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

v.M. A. H., Appellant.

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

Department of Human Services, Petitioner-Respondent,

v.M. A. H., Appellant.

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

Department of Human Services, Petitioner-Respondent,

v.M. A. H., Appellant.

In the Matter of A. K. H., a Child.

Department Of Human Services, Petitioner-Respondent,

v.M. A. H., Appellant.

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

Department of Human Services, Petitioner-Respondent,

v.M. A. H., Appellant.

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

Department of Human Services, Petitioner-Respondent,

v.M. A. H., Appellant.

A162942 (Control)

A162943

A162944

A162945

A162946

A162947

Court of Appeals of Oregon.

Argued and submitted January 5, 2017.

March 8, 2017

Valerie Colas, 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.

Erin K. Galli, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.

ORTEGA, P. J.

In this consolidated juvenile dependency appeal, mother appeals multiple permanency judgments that changed the permanency plans for her three children from reunification to adoption.¹ She asserts that the juvenile court erred by changing the permanency plans away from reunification because the court erroneously concluded that the Department of Human Services (DHS) made reasonable efforts to reunify her with her children. Specifically, she argues that the record contained insufficient evidence that DHS provided any efforts that were tailored to help mother ameliorate one of several of the bases for jurisdiction—i.e. , mother's mental health issues. She asserts that that failure rendered DHS's reunification efforts unreasonable as a matter of law. DHS responds with several arguments, most of which we need not address because ultimately we agree with DHS that, in the particular circumstances of this case, where DHS did make some efforts aimed at ameliorating mother's mental health issues, the court did not err in concluding that DHS's efforts were reasonable. Accordingly, we affirm.

On appeal, we 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 the juvenile court's disposition. Dept. of Human Services v. N. P. , 257 Or.App. 633, 639, 307 P.3d 444 (2013). We state the historical and procedural background in accordance with that standard.

DHS removed mother's children, M (age 12), T (age 11), and A (age 3), from her care in November 2014 after M contacted his aunt about mother's drug use.² The juvenile court took jurisdiction over the children in January 2015 based on the risk of harm created by mother's criminal activities, lack of parenting skills, substance abuse, and her practice of leaving the children with unsafe care providers (the 2014 dependency case).³

In June 2015, DHS filed new dependency petitions, alleging that "mother has mental health issues that interfere with her ability to safely parent her children." Because DHS filed new petitions instead of amending the petitions filed in the 2014 dependency case, the new petitions created a new case number for each child (the 2015 dependency case). The 2014 and 2015 dependency cases were not consolidated and they proceeded on separate tracks. In August 2015, the juvenile court took jurisdiction based on the allegation in the new dependency petitions and set permanency plans of reunification in that case. Shortly thereafter, DHS asked the court to change the plans in the 2014 dependency case to adoption. At the ensuing permanency hearing, DHS asserted that it was not seeking a change in the plans in the 2015 dependency case, and that it could simultaneously proceed in that case based on a plan of reunification. The parties argued about whether the plan could be changed in the 2014 dependency case to adoption while the plan in the 2015 dependency case remained reunification. Ultimately, the court entered permanency judgments changing the plans in the 2014 dependency case to adoption. No judgment or order with respect to the 2015 dependency case was entered at that time.

Mother and father appealed those permanency judgments. On appeal, we held that "to the extent there are separate, concurrent dependency cases involving the same child, it is error for the juvenile court to set a permanency plan for a child that results in the existence of different plans for the same child at the same time in those concurrent cases."⁴ Dept. of Human Services v. M. J. H. , 278 Or.App. 607, 614, 375 P.3d 579 (2016). Accordingly, we vacated and remanded the permanency judgments in the 2014 dependency case for further proceedings. Id .

During the pendency of that appeal, DHS filed petitions to terminate parents' parental rights. The juvenile court held a several-day trial in March 2016 and, at the end, terminated parents' parental rights.⁵ At that point, DHS stopped providing services to mother. We issued our decision vacating and remanding the underlying permanency judgments on June 2, 2016, and a few weeks later, DHS resumed contact with mother. On July 25, 2016, the court consolidated the 2014 and 2015 dependency cases and held the permanency hearing that is the subject of this appeal.

At that hearing, mother, father, and DHS asked the court to retain permanency plans of reunification, although the children and the court appointed special advocate (CASA) asked the court to change the plans to adoption. DHS acknowledged at the outset that, "since the termination trial in March of this year, no efforts have been made for reunification." Nevertheless, the children's attorney and the CASA asserted that, given the children's immediate need for permanency, the parents' lack of progress, and the parents' repeated failure to avail themselves of a multitude of services from DHS, the court should change the plans to adoption. The children's attorney also argued that DHS's efforts to make it possible for the children to return home were reasonable overall.

At the hearing, a DHS caseworker testified that the children were in need of permanency "as soon as possible," particularly because the children had been in substitute care for 20 months, the older two children had been within the jurisdiction of the juvenile court (and in substitute care) twice before, and the youngest child had been in substitute care for most of her life.

Some of the caseworker's testimony focused on DHS's efforts over the previous several months. She acknowledged that the juvenile court had relieved DHS of the obligation to offer services in September 2015 when the court changed the plans in the 2014 dependency case to adoption. Nevertheless, she testified that DHS continued to offer services.⁶ In particular, she testified that, on September 21, 2015, DHS "re-referred [mother] for a mental health assessment and medication management" at Clatsop Behavioral Health (CBH). DHS sent her a "re-engagement letter" on October 5, 2015, instructing mother that "you've been re-referred for these services, please go do what you have to do." The caseworker also met with mother and mother's attorney on October 26, 2015, to go over the case plan. The caseworker received and reviewed records from a mental health assessment that mother attended at CBH on November 2, 2015, and provided mother's mental health provider at CBH "on more than one occasion" with the psychological evaluation that mother had undergone in March 2015 after DHS's referral for that service. In January 2016, the caseworker arranged to meet weekly with mother at DHS to "be sure she was on track." Later, the caseworker received information that mother had received another mental health assessment on February 3, 2016. In the weeks that followed, the caseworker had "ongoing contact and consultation" with someone at CBH about "the mental health stuff" until the termination trial started in mid-March.

The caseworker explained that she had no contact with mother and provided no services from mid-March until "three weeks" before the permanency hearing that is at issue on appeal. At that point, the caseworker "made referrals for services," and "did a letter of expectation and action agreement" for mother. She also asked mother to sign the appropriate releases that were needed to move forward with services.

Mother's mental health counselor at CBH also testified at the permanency hearing. He explained that he had been providing mental health counseling to mother since February 2016 for an unspecified anxiety disorder. Although the record is not explicit, the parties appear to agree that the mental health counseling that mother received at CBH was not a service provided by DHS. Her counselor explained that mother had been engaged in Dialectical Behavior Therapy (DBT) since March 2016, which was a recommendation made in mother's March 2015 psychological evaluation, and that mother was making progress in her treatment.

The court changed the permanency plans to adoption and issued a letter opinion explaining the basis for the changes. As relevant to this appeal, the court concluded that, under the totality of the circumstances over the 20 months that the children had been in foster care, DHS had made reasonable efforts to reunify the family. The court noted that it took mother more than a year after the children were removed from her care to engage in services, and even then there was evidence that she refused to allow DHS to monitor her participation. The court concluded that, although mother was making progress on her substance abuse problems and was engaged in...