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In re M. J.

Court of Appeals of Oregon

November 27, 2013

In the Matter of M. J., a Child.
D. J., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

Submitted on October 02, 2013.

Linn County Circuit Court J110546, Petition Number 11213J, Daniel R. Murphy, Judge.

Peter Gartlan, Chief Defender, and Valerie Colas, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Hadlock, Judge, and Edmonds, Senior Judge.


In this juvenile dependency proceeding, father appeals a judgment that changed the permanency plan for his daughter, M, from reunification to adoption.[1]Father, who was incarcerated at the time of the permanency hearing, was represented by counsel at the hearing but wished to participate personally and testify by telephone. Father contends that the juvenile court erred in proceeding with the permanency hearing after attempts to call him at the prison failed. We agree and, therefore, reverse.

The facts are not in dispute. In December 2011, father and mother had a violent altercation in M's presence. M was six years old at the time. The police responded to the altercation and found methamphetamine-related paraphernalia at the scene. Both parents were arrested and later charged with possession of methamphetamine, endangering the welfare of a minor, and fourth-degree assault; in addition, father was charged with strangulation. On the day of parents' arrest, the police contacted the Department of Human Services (DHS), which took protective custody of M, placed her with her maternal grandmother, and later arranged for her to receive regular counseling. M subsequently tested positive for methamphetamine. In February 2012, the juvenile court asserted jurisdiction over M.

DHS offered father services aimed at enabling him to resume custody of M, including batterers' intervention, drug and alcohol evaluation, supervised visitation with M, and parenting classes. Father began participating in batterers' intervention services. He also completed a drug and alcohol evaluation, and the evaluator recommended that father engage in treatment because he was using prescription opiates. Father did not comply with that recommendation; at the time, he evidently indicated that he did not want to participate in treatment because he was suffering pain.

In June 2012, father was arrested for several probation violations, and his probation was revoked. He was incarcerated as a result, with an expected release date in early August 2013. Drug and alcohol treatment and batterers' intervention services were not available to father in prison, but he did participate in other programs, the nature of which the record does not reveal. Father told M's DHS caseworker, Dusseau, that he wanted to receive drug and alcohol treatment and resume batterers' intervention services when he was released. He also said that he planned to move into an addiction-recovery community home like an "Oxford House."

The permanency hearing was held in March 2013. At issue were whether the juvenile court should change the permanency plan from reunification and, if so, whether to change it to adoption or guardianship. As the hearing was set to begin, the court attempted to call the prison where father was housed so that father could participate in the hearing telephonically, but the prison telephone was busy. After a second unsuccessful attempt, the court announced that the hearing would proceed. Father's counsel objected to proceeding in father's absence, explaining that father wanted to be present, but the court overruled that objection.

In her opening statement, father's counsel told the court in general terms about father's participation in services in prison and his plans following his release:

"Your Honor, [father] is in prison and his anticipated release date is approximately August 2nd or 3rd of 2013. There may be some--we might not have any evidence, actually, upon--not having [father] on the phone. There are some reports indicating that [father] maybe hasn't made the best use of his time in prison, however, in speaking to him and talking to him about his programming he reports to me that he's been participating in programming, has made progress in services while in prison, and has been put on the waiting list for a parenting class. I believe that the dispositional order requires him to participate in a domestic violence intervention program. If he were here today to testify by phone he would tell the Court that upon his release he--and he has already, and I don't think this is contested, made numerous contacts with the agency, DHS, to ensure that he transitions into [a batterers' intervention program] immediately upon his release. He is prepared to do that. He will be on post-prison supervision when he gets out so in terms of any kind of issue pertaining to alleged drug and alcohol problems will be addressed through his post-prison supervision. He has a clean and sober place to live."

In addition, father's attorney asserted that father opposed changing the permanency plan but--if the court did change it--would prefer a plan ...

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