In the Matter of M. S., a Child.
M. S., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, and C. S., Respondent,
Submitted February 16, 2017
County Circuit Court J V140 070; Petition Number JV140070A;
Ronald J. Pahl, Judge.
Fitch fled the brief for appellant.
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.
Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.
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.
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
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), made her a ward of the court under ORS
419B.328,  and placed her in the custody of DHS, as
authorized by ORS 419B.337. 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.
required by ORS 419B.470(2),  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.
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.
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.
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 ...