Dep't of Human Servs. v. L. M. K. (In re C. E. R.)

319 Or.App. 245

510 P.3d 278

In the MATTER OF C. E. R., a Child.

Department of Human Services, Petitioner-Respondent,

v.L. M. K. and H. D. S., Appellants.

A176306

Court of Appeals of Oregon.

Submitted February 25, 2022.

April 20, 2022

Shannon Storey, Chief Defender, Juvenile Appellate Section, and Sarah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant L. M. K.

Kristen G. Williams filed the brief for appellant H. D. S.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.

Before James, Presiding Judge, and Lagesen, Chief Judge, and Joyce, Judge.

JOYCE, J.

In this juvenile dependency case, mother and father separately appeal a judgment of the juvenile court changing the permanency plan for their three-year-old child, C, from reunification to guardianship. The juvenile court determined that, although the Department of Human Services (DHS) had made reasonable efforts to reunify the family, parents’ progress was insufficient to permit reunification. ORS 419B.476(2)(a). We conclude that the record supports the juvenile court's determinations as to mother. However, the juvenile court erred by determining that DHS's efforts afforded father a reasonable opportunity to become a minimally adequate parent. Accordingly, we reverse.

Neither party has requested de novo review, and this is not the type of "exceptional" case that warrants de novo review. See ORAP 5.40(8)(c) (the court will exercise discretion to try the cause anew on the record only in exceptional cases). We therefore are bound by the juvenile court's findings so long as there is any evidence in the record to support them. Dept. of Human Services v. J. F. D. , 255 Or. App. 742, 744, 298 P.3d 653 (2013). Whether DHS made reasonable efforts and whether a parent's progress was sufficient for purposes of ORS 419B.476(2)(a) are legal questions that we review for legal error. Dept. of Human Services v. V. A. R. , 301 Or. App. 565, 567, 456 P.3d 681 (2019) (stating standard of review of "reasonable efforts" determination); Dept. of Human Services v. C. W. , 312 Or. App. 572, 574, 493 P.3d 74 (2021) (stating standard of review of "sufficient progress" determination). We state the facts consistently with that standard.

I. BACKGROUND

A. Jurisdiction Over C

Mother and father's child, C, was born in November 2018. Although father was present at C's birth, he denied that he was the child's biological father. About a week after the child's birth, DHS removed C from mother's care based upon a variety of concerns, including mother's admitted marijuana use and her ability to safely parent. In February 2019, the juvenile court asserted jurisdiction over C as to mother based on mother's amended admissions. Specifically, mother admitted that her "substance abuse impairs her judgment and interferes with her ability to safely parent." She also admitted that she "failed to protect the child from her unsafe partner," and that, "[w]hile in the care and custody of the mother, the child's sibling [M] did not receive adequate dental care resulting in extensive dental decay."¹

In May 2019, despite his earlier denial, father suggested to a DHS caseworker that he was C's father. Father and mother married in August 2019. DHS filed an amended petition incorporating additional jurisdictional bases over C as to father. In October 2019, father admitted that (1) he was the biological father; (2) his mental health problems interfere with his ability to safely parent; (3) he does not understand the safety risks posed by mother and cannot protect C; (4) despite extensive prior services, he lacks an understanding of C's basic needs and needs assistance to learn parenting skills, particularly anger control and safe and appropriate disciplinary techniques, and (5) he has a prior involuntary termination and the concerns regarding mental health and parenting giving rise to that action have not been ameliorated.

The juvenile court subsequently entered a jurisdictional judgment over C as to father based on father's admissions. As part of the judgment, the court ordered DHS to assist mother and father "as detailed in the Action Agreement dated October 30, 2019." The Action Agreement required parents to (1) maintain adequate and appropriate housing with a clean space that is safe and appropriate for children; (2) regularly attend visitation; (3) participate in a DHS-approved parenting class (or other instruction modality such as one-on-one parenting instruction) and be able to demonstrate concepts learned in class; (4) participate in and graduate from an anger management/intervention program and demonstrate corresponding behavioral change; (5) participate in and graduate from a full fidelity Dialectical Behavioral Therapy (DBT) program via a DHS-approved provider and demonstrate corresponding behavioral change; (6) complete an updated psychological evaluation and follow through on all recommended services; (7) continue to participate in mental health services to support long-term mental health stability, including treatment for ADHD, assessment of safe individuals, mood stabilization, and anxiety management; and (8) work with the DHS caseworker.

B. Mother's Participation in Services

DHS offered mother visitation with C after the child's removal. In January 2019, she missed three visits in a row. When a parent misses three consecutive visits, DHS puts the visits on hold so the parent can work with the caseworker to address any difficulties in making visits. Mother claimed that she had transportation barriers. However, after DHS offered her bus passes or to pick her up, mother continued missing visits with various excuses. She did not restart visits with C until July 2019, when she began attending joint visits with father. After that, she continued to miss her individual visits with C, and DHS again placed visits on hold in March 2020. Around that time, DHS suspended in-person visits due to the COVID-19 pandemic. After DHS restarted visits, mother requested to reinstate her individual visits in October 2020. DHS did so, but mother missed the first three visits, resulting in visits being suspended again. Her last individual visit with C was February 3, 2020.

In addition to visitation, DHS referred mother to a parent mentor in March 2019. Mother failed to respond to the mentor's attempts to contact her, and the referral was closed in May 2019. DHS referred her to another parent mentor in 2020, but mother closed services with her in April or March 2021 because she did not feel that the mentor could help her with anything at that time. DHS also attempted to refer mother for a drug and alcohol assessment and treatment. Mother missed four different appointments and eventually attended an assessment in April 2019. That assessment recommended that mother participate in level I treatment (about one group per week). However, except for attending a single appointment, mother did not participate in the recommended drug treatment services. Mother attended another substance abuse assessment in May 2021 but then failed to respond to the provider's attempts to follow up and start treatment services. Mother also failed to engage in other services provided by DHS, including family, nonoffending sex-abuse treatment; nonoffending parenting treatment; and a mental health assessment.

C. Father's DHS History and Participation in Services

Father has five children, including C, four of whom have been in DHS's care and within the jurisdiction of the juvenile court. Since removal of one of his children in 2009, father has participated in a variety of services to help him safely parent his children, including many rounds of anger management with different providers, 10 to 15 parenting classes, hands-on parenting training, parent-child interactive therapy, and therapeutic visits. He also participated in multiple psychological evaluations, psychosexual evaluations, mental health assessments, counseling, and DBT.

In April 2019, father began engaging in mental health counseling with LifeWorks Northwest as part of another child's case. After father's paternity was established, DHS started to offer him visitation with C. Father consistently attended his individual visits but tended to miss joint visits with mother. The DHS social worker who supervised father's visits noted that father had a hard time understanding C's cues and what the child wanted to do.

In December 2019, Dr. Sacks conducted a psychological evaluation of father. Sacks noted that, although father was able to describe concepts that he learned in his prior anger management and DBT classes, he was "quick to extend blame to others, minimizes his role in social difficulties[.]" Sacks added that father's "mental health conditions continue to make it difficult for him to place the needs of a child before his own." He did not recommend additional services.

DHS suspended father's in-person visitation in March 2020 due to COVID-19. By June 2020, father had completed an online parenting course and started engaging in an enhanced skills training group with Portland DBT. However, due to a long waiting list, father was not able to participate in individual DBT therapy until January 2021.

In the meantime, father continued to participate in mental health treatment at LifeWorks through December 2020.

After DHS resumed in-person visitation, it referred father to a one-on-one parenting skills training at Options in late October 2020. DHS requested a "very skilled" trainer from the service provider. The provider, however, assigned father to a newly hired trainer. Father's caseworker contacted Options and expressed concerns that the trainer may "not be in the best interest of this case," and she "really had a lot of reservations about that[,]" but father's services continued with the same trainer. Father had a few gaps in his attendance but completed all 20...