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In re K. E. R.

Court of Appeals of Oregon

April 26, 2017

In the Matter of K. E. R., a Child.
v.
D. I. R. and L. A. S., Appellants. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

          Argued and submitted February 6, 2017

         Lane County Circuit Court 15JU03845; Valeri L. Love, Judge.

          G. Aron Perez-Selsky fled the brief for appellant D. I. R.

          Valerie Colas, Deputy Public Defender, argued the cause for appellant L. A. S. With her on the brief was Shannon Storey, Chief Defender, Juvenile Appellate Section, Offce of Public Defense Services.

          Cecil A. Reniche-Smith, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

         Case Summary:

         Mother and father appeal from a juvenile court judgment changing the permanency plan for their daughter, K, from reunification to adoption. The juvenile court determined that, although the Department of Human Services (DHS) had made reasonable efforts to reunify K with parents, mother and father had not made sufficient progress for K to be safely returned home at the time of the permanency hearing and that further efforts would not make it possible for K to safely return home in a reasonable time. ORS 419B.476(2)(a), (4) (c), (5)(c). The juvenile court also determined that there were no compelling reasons- such as that parents were successfully participating in services to enable K to safely return home in a reasonable time-to defer filing a petition to terminate parents' parental rights and proceeding with adoption. ORS 419B.498(2)(b). On appeal, mother and father challenge the juvenile court's determinations on the grounds that, given the progress they have made and will make through participation in services, K can safely return home in a reasonable time.

         Held: The juvenile court did not err in changing the permanency plan to adoption because there was sufficient evidence in the record to support the court's “reasonable time” determinations.

         Affirmed

          DeVORE, J.

         Mother and father appeal a juvenile court judgment changing the permanency plan for their daughter, K, from reunification with parents to adoption. First, the court determined that, although the Department of Human Services (DHS) had made reasonable efforts to reunify K with parents, mother and father had not made sufficient progress for K to be safely returned to parents' care at the time of the permanency hearing and that further efforts would not make it possible for K to safely return home in a reasonable time. ORS 419B.476(2)(a), (4)(c), (5)(c). Second, the court determined that there were no compelling reasons for DHS to delay filing a petition to terminate parents' parental rights and proceeding with adoption. ORS 419B.498(2)(b). Mother and father challenge the court's determinations on the grounds that, given the progress they have made and will make through participation in services, K can safely return home in a reasonable time. We conclude that because there is sufficient evidence in the record to support the determinations of the juvenile court, the court did not err in changing the permanency plan to adoption.

         I. BACKGROUND

         In reviewing those determinations, we view the evidence, as supplemented by permissible derivative inferences, in the light most favorable to the juvenile court's disposition, and we 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, 639, 307 P.3d 444 (2013).[1]

         A. DHS History

         Mother and father each have extensive involvement with child welfare services. Mother, with different partners, has four other minor children in Texas who were removed from her care due to substance abuse, neglect, and domestic violence. Father, with a different partner, has three other children who were removed from his care because of substance abuse, neglect, and domestic violence.

         By the age of five, K had already been removed twice by DHS from parents' care, and a third removal would follow. She was removed first due to parents' substance abuse, neglect, domestic violence, and mental health issues. Although parents initially participated in services, and were separated from each other, mother continued to abuse substances after the family reunited. K was removed next after a recliner in mother's home caught fire due to a cigarette. Mother had been so unresponsive from her medications or other substances during the fire that neighbors had to drag her and K out. Following her removal to substitute care, K was again returned to parents' care.

         B. Jurisdiction Over K

         In June 2015, DHS received a call about domestic violence between K's parents. Mother reported to a neighbor that father had used methamphetamine and assaulted her and that she was afraid to return home. Father was arrested for fourth-degree assault, menacing, harassment, driving under the influence of intoxicants, and possession of methamphetamine. Arriving unannounced, DHS workers met with mother at home and smelled marijuana and alcohol. Mother had rapid and slurred speech and an inability to formulate complex ideas, leading the workers to suspect that she was under the influence of intoxicants. Mother told the DHS workers that she was drinking a beer or two every few days, smoking marijuana, and not taking her prescribed mental health medications. Mother was no longer participating in services for her mental health and substance abuse, as recommended in her previous DHS case. Mother described father as "very controlling in their relationship." DHS removed K, placing her in protective custody.

         In its Protective Custody Report, DHS noted recent psychological evaluations in which Dr. Basham diagnosed both parents with various disorders. Mother's diagnosis included "PTSD; alcohol use disorder, moderate in partial remission; cannabis use disorder, moderate in early remission; bipolar I disorder; [and] attention deficit hyperactivity disorder. Dependent personality traits, rule out personality disorder." Dr. Basham diagnosed father with "rule out explosive disorder, rule out substance abuse/alcohol disorder, narcissistic and antisocial personality traits."

         DHS petitioned the juvenile court to take jurisdiction over K. After a hearing in August 2015, the juvenile court took jurisdiction on the ...


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