In the Matter of M. L., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
and submitted March 2, 2017
County Circuit Court 110440J; Petition Number 110440J02;
A163309 Susie L. Norby, Judge.
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
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.
DeVore, Presiding Judge, and Garrett, Judge, and Duncan,
Judge pro tempore.
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.
Or. 755] DUNCAN, J. pro tempore
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.
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).
has three children, R, M, and T, but only M's permanency
plan is at issue in this appeal. 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
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).
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. 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.
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.
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."
"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.
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."
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 ...