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In re E. L. N.

Court of Appeals of Oregon

August 14, 2013

In the Matter of E. L. N., a Child.
v.
D. A. N., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

Argued and submitted on May 17, 2013.

Marion County Circuit Court J110701 Petition Numbers 112111NYE1, 082812NYE1 Tracy A. Prall, Judge.

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

Karla A. Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

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

WOLLHEIM, J.

In this juvenile dependency case, father appeals from a judgment of the juvenile court changing the permanency plan for his daughter E from reunification to adoption. We conclude that the juvenile court did not err and affirm.

The parties do not ask for de novo review, and we conclude that this is not an exceptional case that warrants exercise of our discretion to review de novo. 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 view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition 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).

E was born on August 12, 2011. The Department of Human Services (DHS) removed E from mother's care in November 2011 and asserted jurisdiction over E on January 4, 2012, based on mother's substance abuse. On May 16, 2012, based partly on mother's decision to allow E to remain with her current caretakers and be adopted, the juvenile court changed the permanency plan for E from reunification to adoption.

Shortly before E's birth, father began serving a 23-month prison term for drug crimes and for providing false information to police. As of May 2012, father had not been identified as E's father, but he notified DHS that he believed that he was E's father.

In August 2012, father's paternity was established. On September 26, 2012, father stipulated to allegations of a jurisdictional petition that he was incarcerated and unable to be a custodial resource for E. On November 1, 2012, the juvenile court determined as a stipulated additional ground for jurisdiction that father's substance abuse impairs his judgment and interferes with his ability to safely parent E.

In the months between father beginning his incarceration and when paternity was established, father had been disciplined six times in prison. Soon after his paternity was established, father entered into an action agreement with DHS in which he agreed to engage in any remedial services available while he was in prison, to comply with prison conduct requirements, and to maintain contact with DHS. Father participated in Narcotics Anonymous meetings and took a certification course to become a flagger, but due to the brevity of his remaining prison term, he was not able to enroll in parenting or drug treatment programs.

On November 27, 2012, the juvenile court held a hearing on DHS's motion to change E's permanency plan from reunification to adoption.[1] Father opposed the motion, arguing that his progress had been sufficient, that his projected release date from prison was March 6, 2013, and that a compelling reason, therefore, existed to defer changing the plan to adoption. Father estimated that, realistically, it would take him four to six months after his March 2013 release to prepare to care for E and that he would not be available to care for her until July 2013, when E would be almost two years old.

Because this case involves a question of statutory interpretation and whether the juvenile court's judgment complied with the pertinent statutes, we digress for a moment to describe the relevant statutory provisions that governed the juvenile court's decision. ORS 419B.476 describes the findings and determinations that the juvenile court must and may make at the permanency hearing and in a permanency judgment, depending on the facts in play and permanency plan in place at the time of the hearing. ORS 419B.476(2) through (4) describe the findings and determinations that the court must and may make at the permanency hearing. Under ORS 419B.476(2)(a), [2] when, as here, the permanency plan in place at the time of the hearing is to reunify the family, the court is required to make findings at the permanency hearing as to whether DHS has made reasonable efforts to reunify the ...


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