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In re R. W.

Court of Appeals of Oregon

July 3, 2013

In the Matter of R. W., a Child.
v.
M. K., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

Argued and submitted on May 01, 2013.

Klamath County Circuit Court 0800127JV3 Petition Number 1100113M Rodger J. Isaacson, Judge

Holly Telerant, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jake J. Hogue, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

HADLOCK, J.

This juvenile dependency case involves a plan for reunifying a young child, R, with his father, who was, at the pertinent times, incarcerated on convictions related to his sexual abuse of a minor. Father appeals from a permanency judgment in which the juvenile court (1) continued the permanency plan for reunifying father and R and (2) determined that father had not made sufficient progress for R to safely return home, despite reasonable efforts by the Department of Human Services (DHS). The court determined that DHS's reunification efforts had been reasonable even though the agency had declined to provide father with a psychosexual evaluation, which was needed "to determine whether he present[ed] a danger" to R. On appeal, father challenges both the juvenile court's "reasonable efforts" and "sufficient progress" determinations. We conclude that the juvenile court did not consider all pertinent circumstances when it evaluated whether DHS had made reasonable efforts to reunite father and R and, moreover, that the record does not include evidence that would support a "reasonable efforts" determination based on the totality of the circumstances. Accordingly, we reverse.

Father does not ask us to exercise our discretion to conduct de novo review, and we perceive no reason to do so. See ORAP 5.40(8)(c) (this court will exercise discretion to try the cause anew on the record only in exceptional cases). Accordingly, we apply the same standards of review that we did in Dept. of Human Services v. J. F. D., 255 Or.App. 742, 744, 298 P.3d 653 (2013), another case in which we reviewed a juvenile court's "reasonable efforts" determination:

"We review findings of fact (for example, what DHS did or did not do) for any evidence, and conclusions of law (in particular, whether the historical facts constitute reasonable efforts) for legal error."

See also Dept. of Human Services v. T. C. A., 251 Or.App. 407, 414-15, 283 P.3d 956, rev den, 352 Or 665 (2012) ("We review the court's [reasonable efforts] determination under ORS 419B.476(2) for legal error * * *."); Dept. of Human Services v. N. S., 246 Or.App. 341, 344, 265 P.3d 792 (2011), rev den, 351 Or 586 (2012) (we are bound by the court's findings of historical fact if there is "any evidence" in the record to support them).

We state the facts consistently with the juvenile court's findings, supplemented by uncontroverted information in the record, T. C. A., 251 Or.App. at 410, and we focus on those events that are relevant to father. R was born in 2007 and is father's only child with mother. As of April 2011, DHS had jurisdiction over R based on mother's circumstances.[1] In February 2012, DHS filed a new petition alleging additional bases for jurisdiction relating to father, who was incarcerated and had not had regular contact with R:

"1. The father * * * is currently incarcerated and unavailable to parent in the foreseeable future. This condition places the child under a threat of harm.
"2. The father * * * is a convicted, untreated sex offender. This condition places the child under a threat of harm.
"3. The father * * * [was] unable to maintain a parent-child relationship and has failed to maintain regular contact with the child. This condition places the ...

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