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In re V.H.

Court of Appeals of Oregon

August 14, 2013

In the Matter of V.H., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
M. H. and B. R., Appellants. In the Matter of A. H., aka A. R., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
M. H. and B. R., Appellants.

Submitted on March 13, 2013.

Josephine County Circuit Court Nos.110119J, 100089J, Petition Number Nos. 110119J01, 100089J01, Thomas M. Hull, Judge.

Peter Gartlan, Chief Defender, and Holly Telerant, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant M. H.

Christa Obold-Eshleman filed the brief for appellant B. R.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Laura S. Anderson, Senior Assistant Attorney General, filed the brief for respondent.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.

SCHUMAN, P. J.

Mother and father appeal juvenile court judgments in which the court continued the permanency plan of adoption as to one child, A, and continued the permanency plan of reunification as to another child, V. On appeal, mother and father assert that, in continuing the permanency plan of adoption for A, the juvenile court erred by failing to include on the face of the judgment its determination whether there was any reason under ORS 419B.498(2) to defer the filing of a petition to terminate mother and father's parental rights, as required by ORS 419B.476(5)(d).[1] We agree, and we also conclude that the error was not harmless. Consequently, we reverse the permanency judgment regarding A. As to the permanency judgment for V, mother and father argue that the juvenile court erred in determining that the Department of Human Services (DHS) had made reasonable efforts to make it possible for V to safely return home. We conclude that the evidence supports the juvenile court's determination that DHS made reasonable efforts to reunify V with parents, and we therefore affirm the permanency judgment regarding V.

The parties do not ask for de novo review, and this is not an exceptional case that warrants exercise of our discretion to apply that standard. See ORS 19.415(3)(b) (providing for discretionary de novo review of certain equitable actions); ORAP 5.40(8)(c) (the court will exercise discretion to try the cause anew on the record only in exceptional cases). Accordingly, we review the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's determination and assess whether, when so viewed, the record was legally sufficient to permit that outcome. Dept. of Human Services v. N. P., 257 Or.App. 633, __, __ P.3d __ (2013).

As noted, two children are affected by this appeal: A, who was two years old at the time of the permanency hearing; and V, who was one. Both children have been in DHS custody since shortly after birth.[2] DHS became involved with the family in 2010 because, among other things, mother's parental rights as to two older children that she had with a different father had been terminated, and father is a convicted sex offender. A was removed from parents' custody a few days after her birth in May 2010, and the juvenile court entered a jurisdictional judgment granting DHS custody of A in September 2010. Parents stopped attending supervised visits with A in April 2011 when a DHS worker noticed that mother was pregnant. In May 2011, A was placed in substitute care with her maternal great aunt, who is also the placement for A's older half-brother.

V was born on June 6, 2011, at a motel in Grants Pass while parents were driving to California, at least in part to prevent DHS from taking custody of V. A few days after V's birth, she was removed from parents' custody in California and placed in DHS custody in Oregon. Parents returned to Oregon a few days later and resumed visits with A and began visits with V at the DHS office. In July 2011, the juvenile court changed A's permanency plan from reunification to adoption.

The juvenile court held a jurisdictional hearing regarding DHS's jurisdiction over V in November 2011, and April and May 2012, and it entered a judgment declaring V to be a ward of the court in July 2012. This court affirmed that judgment in Dept. of Human Services v. M. H., 256 Or.App. 306, __ P.3d __ (2013).

In July 2012, the juvenile court held a dispositional hearing for V, at which time DHS asked to be relieved of its duty to make efforts to reunify V with parents, based on parents' past failure to engage in services and their attempt to leave Oregon without regard for the risk that it would create for V or the effect that it would have on A. The court denied that request and ordered DHS to provide services to parents. The court also entered a dispositional judgment placing V in the legal and physical custody of DHS. Also in July 2012, DHS moved V into relative foster care in the Keizer home of her maternal great aunt, the same home as A and her older half-brother.

The juvenile court held the combined permanency hearing at issue in this appeal one month later, on August 9 and 10, 2012. Shortly thereafter, the juvenile court issued a letter opinion containing its determinations and factual findings as to both children. The juvenile court then entered the permanency judgment for A, continuing the plan of adoption, and a separate ...


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