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In re M. S.

Court of Appeals of Oregon

March 29, 2017

In the Matter of M. S., a Child.
v.
M. S., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, and C. S., Respondent,

          Submitted February 16, 2017

         Umatilla County Circuit Court J V140 070; Petition Number JV140070A; Ronald J. Pahl, Judge.

          Ginger Fitch fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jonathan N. Schildt, Assistant Attorney General, fled the brief for respondent DHS.

          Shannon Storey, Chief Defender, Juvenile Appellate Section, Offce of Public Defense Services, fled the brief for respondent C. S.

          Before Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.

         Case Summary: M, a two-year-old child, is a ward of the juvenile court in the custody of the Department of Human Services. On appeal from a permanency judgment that continued her permanency plan as reunification with mother, M assigns error to the juvenile court's finding that, with further efforts, she can be returned to mother's care within a reasonable period of time, and to its related decision not to change M's permanency plan to adoption. Held: Under Dept. of Human Services v. S. J. M., 283 Or.App. 367, 388 P.3d 417 (2017), to change M's permanency plan from reunification to adoption, the juvenile court would have to be able to make the contrary finding that M could not be returned to mother within a reasonable period of time, as well as the finding that there were no other compelling reasons to forego the fling of a petition to terminate mother's parental rights. Because the record is not sufficient to permit those required predicate findings, the juvenile court did not err in continuing M's permanency plan even if the evidence did not support the challenged finding, a question the court does not decide.

          LAGESEN, J.

         M, a two-year-old child, is a ward of the juvenile court in the custody of the Department of Human Services (DHS). On appeal from a permanency judgment that continued her permanency plan as reunification with mother, M assigns error to the juvenile court's finding that, with "further efforts, " she can be returned to mother's care "within a reasonable period of time, " and to its related decision not to change M's permanency plan to adoption. See ORS 419B.476 (regarding permanency plans for wards of the court in substitute care). On review for legal error, Dept. of Human Services v. A. W. (A158694). 274 Or.App. 493, 497, 361 P.3d 58 (2015), and evidentiary sufficiency, Dept. of Human Services v. S. J. M.. 283 Or.App. 367, 369, 388 P.3d 417 (2017), we affirm.[1]

         We state the facts in a manner consistent with the juvenile court's decision to continue the permanency plan of reunification. Id. at 369-70. M was removed from mother's care and placed in protective custody within days of her birth in October 2014. A short time later, the juvenile court took jurisdiction over M under ORS 419B.100(1)(c), [2]made her a ward of the court under ORS 419B.328, [3] and placed her in the custody of DHS, as authorized by ORS 419B.337.[4] The court did so based on its determination that mother's mental health and substance abuse issues interfered with her ability to safely parent M, and its determination that M's father was not known and, consequently, was unavailable to parent M. M has been in foster care ever since.

          As required by ORS 419B.470(2), [5] the juvenile court held a permanency hearing in October 2015. At that hearing, the court determined that M's permanency plan should be reunification with mother.

         The following summer, the juvenile court held a second permanency hearing to determine whether M's permanency plan should be changed from reunification to adoption. It did so at the request of M, who was advocating the change in plan. Mother and DHS both opposed the proposed change in plan.

         As of the date of that second permanency hearing, mother had made significant progress toward being able to safely parent M. She had stopped entering into abusive relationships with men, stopped abusing drugs and alcohol, and maintained steady employment. Mother also had continued her education, obtained her associate's degree, and was working toward a bachelor's degree in politics. To address her mental health issues that impair her ability to regulate her emotions, mother had completed six months of intensive Dialectical Behavior Therapy (DBT), as the court had directed her to do. The therapy helped mother improve her ability to manage her emotions and solve problems, but she needed to engage in further DBT to implement the skills that she was learning through that process. Mother had good parenting skills and the ability to meet M's needs. She loved M and regularly visited her-when allowed to do so by DHS-and acted appropriately in her interactions with M.

         Mother's interactions with DHS staff were a different story. Mother resented DHS's involvement in her relationship with M and found it frustrating to parent M under the conditions set by DHS, which did not always permit mother to do simple things that she wanted to do with M, such as have a quiet breakfast with her alone. At times that frustration would cause mother's emotions to get the better of her in a manner that demonstrated that she was not yet able to control her emotions sufficiently to safely parent M. During two of mother's supervised visits with M in the months immediately preceding ...


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