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In re M.L.

Court of Appeals of Oregon

September 13, 2017

In the Matter of M. L., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
T.L., Appellant.

          Argued and submitted March 2, 2017

         Clackamas County Circuit Court 110440J; Petition Number 110440J02; A163309 Susie L. Norby, Judge.

          Holly Telerant, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Offce of Public Defense Services.

          Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

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

         Case Summary: Father appeals a juvenile court's judgment that changed the permanency plan for his daughter, M, from reunification to adoption. At the time of the permanency hearing, the sole basis for the juvenile court's jurisdiction over M, as to father, was father's substance abuse, and it was undisputed that father had remediated his substance abuse problem. The juvenile court changed the plan based on concerns about M's estrangement from father. Father contends that, in changing the plan, the juvenile court erred in relying on facts extrinsic to the proven basis for jurisdiction. Held: A permanency determination must be made in light of the bases for the juvenile court's jurisdiction. In this case, the [287 Or. 754] juvenile court based its permanency determination on circumstances not fairly implied by, and thus extrinsic to, the jurisdictional judgment. Therefore, the juvenile court erred in changing the plan.

         [287 Or. 755] DUNCAN, J. pro tempore

         In this juvenile dependency case, father appeals the juvenile court's judgment that changed the permanency plan for his daughter, M, from reunification to adoption. As required for such a change, the juvenile court concluded that the Department of Human Services (DHS) had made reasonable efforts to make it possible for M to safely return home, but that father had not made sufficient progress to make it possible for her to do so. Assessments of DHS's efforts and a parent's progress must be made in light of the bases for the juvenile court's jurisdiction. Here, the sole basis for the juvenile court's jurisdiction over M, as to father, was father's substance abuse. At the time of the permanency hearing at issue, it was undisputed that father had successfully remediated his substance abuse problem. The juvenile court's concern at the hearing was M's estrangement from father. The attorneys for DHS, M, and father informed the juvenile court that it could not change M's permanency plan based on the estrangement because it was not an adjudicated jurisdictional basis. The juvenile court disagreed and changed the plan. Because, as explained below, the juvenile court erred by changing the plan based on facts extrinsic to the jurisdictional judgment, we reverse and remand.

         Whether a juvenile court erred by relying on facts extrinsic to a jurisdictional judgment "is a legal question that we review for errors of law." Dept. of Human Services v. G. E., 243 Or.App. 471, 480, 260 P.3d 516, adh'd to as modified on recons, 246 Or.App. 136, 265 P.3d 53 (2011). When doing so, we review the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the juvenile court's determination and 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, 639-40, 307 P.3d 444 (2013).

         Father has three children, R, M, and T, but only M's permanency plan is at issue in this appeal.[1] In February 2013, when M was 11 years old, DHS took protective custody of the children. In April 2013, the juvenile court asserted [287 Or. 756] jurisdiction over the children based on a single allegation as to father-that "father's current and historical use of alcohol and controlled substances interferes with his ability to provide safe, appropriate and consistent care for the child." In the jurisdictional judgment, the juvenile court ordered father to participate in services, including a drug and alcohol evaluation, drug and alcohol treatment, random urinalyses, a psychological evaluation, and parent education classes.

         In August 2013, father's counsel failed to appear on father's behalf at a permanency hearing, and in September 2013, based on evidence that had been presented at the August hearing, the juvenile court entered a permanency judgment changing M's plan from reunification to guardianship. Father appealed from the judgment, asserting, among other things, that he had received inadequate assistance of counsel. We affirmed, Dept. of Human Services v. T. L.. 269 Or.App. 454, 344 P.3d 1123 (2015), but the Supreme Court reversed and remanded for the juvenile court to determine whether father was prejudiced by counsel's absence, Dept. of Human Services v. T. L.. 358 Or. 679, 705, 369 P.3d 1159 (2016).

         In June 2016, at the hearing on remand, the parties stipulated to an order vacating the 2013 permanency judgment and reinstating the plan of reunification. By that time, M was 15 years old and had not had in-person contact with father in over two and a half years.[2] Because of the lack of contact, the parties also stipulated, and the juvenile court ordered, that "DHS shall engage a reintegration therapist or an equivalent service to assist Father and Child to overcome any current feelings of estrangement or alienation." The court then set a "short hearing" in September 2016 to review the progress of the reintegration therapy. It also set a hearing in December 2016 "to conduct a Permanency Hearing pursuant to ORS 419B.470(6)" and to hear any motion to dismiss filed by father.

         In early August 2016, DHS arranged an initial meeting between father and M, but, by all accounts, the [287 Or. 757] meeting did not go well. Both M and father had different expectations going into the meeting. M believed that the meeting was an opportunity for her to tell father that she did not want to engage in therapy, that she wanted to be adopted by her foster care provider (the mother of one of M's friends), and that she wanted father to relinquish his parental rights. She also believed that her attorney and her court-appointed special advocate would be present to support her and help her facilitate the relinquishment. Father believed that the meeting would be a first step toward ongoing family therapy to build trust and develop a relationship after years of separation. At the meeting, he was surprised when M expressed her desire to be adopted and asked M to spend time with him before making that decision. M agreed, but later expressed to her therapist and foster care provider that she had felt pressured into doing so and did not want to visit with father. After the meeting, M refused to engage in further therapy with father or to have any contact with him.

         At the September 2016 hearing, which is the hearing at issue in this appeal, the parties agreed that father was sober and had been for some time. He also had stable housing and full-time employment, and one of his children, R, had been returned to his care. Also at the hearing, DHS presented evidence about the meeting between M and father. M's caseworker testified that, after the meeting, M had felt "tricked" by DHS into attending the meeting, and that father was "manipulative" and "was trying to get her to change her mind and wasn't listening to her when she said she wanted to be adopted." In addition, M's therapist testified that, in asking M to agree to visit with him, it "kind of seemed like [father] was bargaining." She explained that she "would characterize the trust relationship or the trust that [M] has for her father" as " [n] one" and that she could not "imagine that [father's bargaining] helped build trust between them."

         M also testified:

"I don't know I agree with respecting (indiscernible) or family counseling (indiscernible) because I haven't seen him in two-plus years so I don't know where anybody is going with that.
[287 Or. 758]"And for me, regardless of any of it, I want to be adopted. There's no changing my mind. There's no so many visits before I change my mind.
"I want to be adopted. I will not change my mind.
"If I do get placed with him, you'll never see me again. I'm not making a bluff. I'm not afraid to run. I've done it in the past. I do not want to be adopt-or I do not want to go back to my dad.
"I want to be adopted by not my foster provider, but my mom. She's been there for me through all of this, even before I was with her. I want to be adopted.
"That's it."

         M's court-appointed special advocate moved to change M's permanency plan from reunification to adoption on the ground that adoption was "what's best for [M]." The advocate explained that she had worked with M for over three years, and although M had not previously expressed an interest in being adopted, she did once she was placed with her current foster care provider:

"[M] is a very strong-willed child. ***. She knows what she wants. She's wanted this for-for-since she's been living with the new parents basically, where I've never heard her mention being adopted before.
"She wants to be adopted by this-this mom. This mom totally loves and cares for her and she feels so comfortable in that house."

         Neither DHS nor M's attorney supported a change in plan at that time. Because the jurisdictional basis was substance abuse, which the parties agreed father had addressed, and because the case was in a "reunification posture, " they did not believe that there was "sufficient reason to change the plan." Instead, they asserted that addressing the estrangement between M and father ...


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