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In re K. S.

Court of Appeals of Oregon

July 6, 2017

In the Matter of K. S., a Child.
v.
A. B., Respondent. DEPARTMENT OF HUMAN SERVICES, Petitioner-Appellant, and K. S., Appellant,

          Argued and submitted April 26, 2017.

         Washington County Circuit Court J100444; Petition Number 01J100444; A163190, Ricardo J. Menchaca, Judge.

          Inge D. Wells, Assistant Attorney General, argued the cause for appellant Department of Human Services. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Kim E. Hoyt argued the cause for respondent. With her on the brief was Garrett Hemann Robertson P.C.

          Ginger Fitch fled the brief for appellant child.

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

         Case Summary: The Department of Human Services (DHS) and child, K, appeal judgments of the juvenile court (1) setting aside a previous judgment terminating mother's parental rights, (2) changing K's permanency plan from adoption to guardianship, and (3) appointing grandfather, a California resident, as [286 Or.App. 579] K's durable guardian under ORS 419B.366. At the time of the juvenile court's actions, California had declined to approve K's placement with grandfather under the Interstate Compact on the Placement of Children (ICPC), ORS 417.200 to 417.260. The ICPC prohibits a state court from "caus[ing]" a child to be brought into another state for "placement in foster care" without the receiving state's approval. ORS 417.200, Art III. On appeal, DHS and K argue that K's placement with grandfather in a durable guardianship is "foster care" as that term is used in the ICPC, and, therefore, the juvenile court erred insofar as it caused K to be placed in California without that state's approval.

         Held: The juvenile court erred by changing K's permanency plan to guardianship and by appointing grandfather as K's durable guardian because the durable guardianship is "foster care" within the meaning of the ICPC. The ICPC must be liberally construed to effectuate the intent of the party states, and K, as a ward of the court, is within the class of children that the ICPC was intended to protect. Because the ICPC covers the placement, the juvenile court was not authorized to cause K to be placed with grandfather without California's approval.

          [286 Or.App. 580] GARRETT, J.

         In this dependency case involving child K, the juvenile court sua sponte set aside its earlier judgment terminating mother's parental rights, then entered judgments changing K's permanency plan away from adoption and appointing K's maternal grandfather, who resides in California, as K's guardian under ORS 419B.366. At the time of the juvenile court's actions, California had declined to approve the placement under the Interstate Compact on the Placement of Children (ICPC), ORS 417.200 to 417.260. The Department of Human Services (DHS) and K appeal, arguing principally that (1) the juvenile court had no authority to sua sponte set aside the termination judgment, and (2) the court violated the ICPC by changing K's permanency plan to a durable guardianship and appointing grandfather as guardian. We decline to address the first issue because the claim of error was not preserved below. With respect to the second issue, we agree that the juvenile court's permanency and guardianship judgments violate the ICPC to the extent that they "cause[]" K to be placed in California without that state's approval.[1] Accordingly, the permanency and guardianship judgments are reversed and remanded; the judgment setting aside the termination judgment is affirmed.[2]

         We review whether the juvenile court acted within its statutory authority, including the construction of relevant statutes, for legal error. Dept. of Human Services v. S. E. K. H.IJ. K. H., 283 Or.App. 703, 706, 389 P.3d 1181 (2017).

         K was born in 2007 and became a ward of the juvenile court in 2010; in 2012, her permanency plan was changed to adoption. Both parents' parental rights were terminated in 2013. The department has attempted since then to find an adoptive home for K.

          [286 Or.App. 581] Beginning in 2012, grandfather expressed an interest in being a placement resource for K. DHS made a referral under the ICPC to California officials to determine whether K could be placed with grandfather. See OAR 413-040-0265 (outlining steps for arranging an interstate placement under the ICPC). In March 2015, California officials denied the request to conduct an adoption home study based on concerns about grandfather's criminal history. Grandfather appealed that ruling in California, unsuccessfully.

         Notwithstanding California's denial, on May 24, 2016, the juvenile court informed the parties at a hearing that it was considering placing K in a guardianship with grandfather. DHS responded in a memorandum that such an action would violate the ICPC because grandfather had not been approved as a placement by California officials.

         The court then ordered briefing on the issue of "whether the Court can dismiss DHS and establish an out of state guardianship with Grandfather." DHS and K's court-appointed special advocate (CASA) filed briefs arguing that the court lacked authority to place K in California without that state's approval under the ICPC. The CASA added that "the court's only power in this situation is to dismiss jurisdiction ...


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