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In re Z. S.

Court of Appeals of Oregon

February 7, 2018

In the Matter of Z. S., a Child.
L. L. S., aka L. S., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

          Submitted September 6, 2017

         Marion County Circuit Court 16JU02171; Heidi O. Strauch, Judge pro tempore.

          Shannon Storey, Chief Defender, Juvenile Appellate Section, and Amelia Andersen, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Keith L. Kutler, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Father, who is incarcerated, appeals a juvenile court judgment changing the permanency plan for his son, Z, from reunification to adoption, assigning error to that decision, and to its determination that the efforts of the Department of Human Services (DHS) to reunify Z with father were reasonable. Held: The juvenile court erred, as a matter of law, in concluding that DHS's minimal efforts to reunify Z with father were reasonable for purposes of ORS 419B.476, and in changing the permanency plan based on that erroneous determination. Due to DHS's lack of communication with father, father was not given the “reasonable opportunity” contemplated by ORS 419B.476 to demonstrate that he was capable of parenting Z.

         [290 Or. 133] LAGESEN, P. J.

         In this appeal by father of a juvenile court judgment changing the permanency plan for father's son, Z, from reunification to adoption, we are called upon once again to assess the efforts that the Department of Human Services (DHS) must make to reunify a child, committed to its care by the juvenile court, with an incarcerated parent before the juvenile court may change the child's permanency plan from reunification to another plan. The legal question presented is whether a parent's lengthy term of incarceration, standing alone, means that DHS is excused from making efforts to reunify the child with the incarcerated parent, such that the child's permanency plan may be changed from reunification. In other words, when a parent's term of incarceration is lengthy, do minimal to no efforts constitute "reasonable efforts" within the meaning of ORS chapter 419B. Our case law supplies the answer to that question: no. Because the juvenile court concluded otherwise, and relied on that erroneous conclusion to change Z's permanency plan, we reverse and remand.


         Neither party has requested de novo review, and we do not perceive this to be the type of "exceptional" case that would warrant de novo review. As we have explained, on appeal of a permanency judgment, "[t] he juvenile court's determination [] whether DHS's efforts were reasonable * * * [is a] legal conclusion [] that we review for errors of law." Dept. of Human Services v. G. N.. 263 Or.App. 287, 294, 328 P.3d 728, rev den, 356 Or. 638 (2014). In conducting that review, we are bound by the juvenile court's explicit factual findings if there is evidence to support those findings. Id. To the extent that a court does not make its findings express, we presume that the court made any necessary implicit factual findings in a manner consistent with its ultimate legal conclusion. Id. However, "[i]f an implicit factual finding is not necessary to a trial court's ultimate conclusion or is not supported by the record, then the presumption does not apply." Pereida-Alba v. Coursev. 356 Or. 654, 671, 342 P.3d 70 (2015).


         The juvenile court issued a thorough and thoughtful letter opinion explaining its ruling. Consistent with our standard of review, we draw the facts primarily from the court's express findings in its opinion, supplementing them with consistent facts drawn from the record, and also from the procedural history of the case.

         DHS became involved with Z's family in March 2016. At that time, Z was living with mother and father was in jail awaiting trial on charges of sexual offenses against one of mother's minor relatives. DHS became involved because of concerns about mother's parenting and father's unavailability to parent Z because of his incarceration. Two months later, on May 21, 2016, the juvenile court took jurisdiction over Z after concluding that Z's conditions and circumstances endangered his welfare within the meaning of ORS 419B.100(1)(c).[1] By that time, father had been convicted of some of the charges against him, and had been sentenced to more than 30 years in prison. The court's jurisdictional determination was based on two admissions by parents: mother's admission that her "substance abuse interferes with her ability to safely parent the child" and father's admission that he "has been convicted of sexually abusing another child and is incarcerated and currently unavailable to be a custodial resource." Z was placed in substitute care with his maternal grandmother.

         A few days after the juvenile court took jurisdiction, father was transferred to the Eastern Oregon Correctional Institution (EOCI) to serve his sentence. With respect to mother, DHS focused its efforts on helping mother ameliorate the risk posed to Z by her admitted substance abuse problem. Apart from its efforts to assist mother in addressing her substance abuse problem-efforts which, [290 Or. 135] if successful, perhaps could have ameliorated the risk to Z posed by father's incarceration by ensuring that he had a safe home notwithstanding father's incarceration-DHS made no independent efforts to assist father in addressing the risk posed to Z by father's incarceration.

         Rather, DHS had no contact with father for nearly 10 months. After father was transferred to EOCI, Skelton, the caseworker responsible for working with father, did not make any attempt to identify the facility where father had been transferred, apparently because Skelton believed that the juvenile court had directed father to notify Skelton where he was transferred.[2] Eventually, in July, Skelton asked father's attorney where father had been taken, and the attorney suggested that Skelton look father up on the VINE system. Skelton did so and found out that father had been taken to EOCI. After a phone call with father's prison counselor, Miles, Miles and Skelton exchanged several emails about Miles arranging a phone call between father and Z. A few months later, on October 3, 2016, Skelton emailed Miles again to ask if the phone call had taken place. Nearly a month later, Miles responded, stating that he had been "out of the office for most of August and September and was just now 'catching up, '" and he would arrange for the phone call "in the next week or two." Miles did not follow through.

         Mother died unexpectedly of a drug overdose on October 6, 2016. Still, DHS did not contact father. Rather, on November 22, 2016, Rhonda Riley emailed Skelton that she would be father's new prison counselor. Thereafter, Riley and Skelton exchanged emails about setting up phone visits between Z and father. As a result, father had a phone visit with Z toward the end of December 2016 and another phone visit with Z at the end of January 2017. However, Skelton himself never contacted father, or arranged for another DHS worker to contact father to discuss the dependency case. Skelton did, however, send an action agreement to father at the end of December 2016 or in early January 2017.

         After mother's death, DHS requested that the juvenile court change Z's permanency plan from reunification to [290 Or. 136] adoption. The juvenile court held a contested permanency hearing in early February 2017. As of the time of the hearing, Skelton still had not had any contact with father, apart from sending father the action agreement. Relying on Dept. of Human Services v. C. L. H.. 283 Or.App. 313, 388 P.3d 1214 (2017), father argued that DHS's efforts-or lack of efforts- toward father did not qualify as reasonable efforts for purposes of ORS 419B.476(2)(a), which governs the change of a permanency plan from reunification to adoption, and that the juvenile court should deny DHS's request to change the permanency plan because of DHS's failure to make reasonable efforts to reunify Z with father. Z's lawyer agreed with father that DHS's efforts were not reasonable, "because they didn't have contact with [father]. And they didn't make sure that he was aware of the services, " but argued that the court should change the plan nonetheless. DHS disagreed, urging the court to conclude that Skelton's efforts to set up phone visits between father and Z met the statutory standard for reasonable efforts.

         The juvenile court took the matter under advisement and, as noted, issued a thoughtful letter opinion explaining its decision to change the plan. The juvenile court found that it was "indeed alarming that Mr. Skelton has never spoken with [father], either by telephone or face-to-face, " even though DHS administrative rules required him to have monthly face-to-face contact with father to discuss with father the conditions for achieving the return of Z, and father's progress toward meeting those conditions. The court nonetheless determined that DHS's efforts to reunify father with Z were reasonable for purposes of ORS 419B.476(2)(a) because, in the court's view, "there [were] no services or supports the DHS could have provided that could have ameliorated the jurisdictional bases as they relate to [father] in this case." In particular, the court reasoned that "[t]here is nothing that either DHS or [father] can do that could shorten the length of [father's] incarceration to make him available to parent [Z]." Further, the court concluded that father's convictions for sexual offenses against a child relieved DHS of its obligations to make reasonable efforts to reunify a parent and child under ORS 419B.340(5)(a)(D), which provides that DHS may request to be excused from the obligation to make [290 Or. 137] reasonable efforts to reunify a child with a parent who has been convicted of certain sexual offenses against a child. See ORS 419B.340(5)(a)(D).[3] The court also concluded that father had not made sufficient progress to permit reunification. Based on those conclusions, among others, the court entered a permanency judgment changing Z's permanency plan from reunification to adoption.

         Father appeals. He assigns error to the juvenile court's determination that Skelton's efforts constituted "reasonable efforts" for purposes of ORS 419B.476(2)(a) and its corresponding decision to change Z's permanency plan from reunification to adoption based, in part, on that "reasonable efforts" determination. He argues that, as matter of law, DHS's virtually nonexistent efforts to help father address the jurisdictional basis as to him do not qualify as "reasonable efforts" under the legal standard set forth in our case law. In particular, father asserts that "[t]he department's failure to speak with father for the first nine months of the dependency case or to establish contact between father and [Z] for the first seven months renders its efforts unreasonable as a matter of law." In response, the department does not dispute that DHS had no contact with father during the first nine months of the dependency case, and also does not dispute that DHS's relatively passive efforts toward father resulted in father having no contact with Z for seven months. Rather, DHS urges us to adopt the reasoning of the juvenile court and conclude that the efforts by Skelton constitute "reasonable efforts" for purposes of ORS 419B.476(2)(a) because "[n]o amount of visitation or other services could ameliorate the basis for jurisdiction." DHS argues that the only way that father can ameliorate the basis for jurisdiction is to obtain a "much shorter prison sentence." Because DHS lacks the power to do anything to shorten father's prison sentence, it asserts that its efforts were reasonable.


         Absent exceptions not applicable here, to change Z's permanency plan from reunification to adoption under [290 Or. 138] ORS 419B.476, the juvenile court was required to make two predicate determinations: (1) that DHS made "reasonable efforts" to reunify Z with father; and (2) that, notwithstanding those efforts, father's progress was not sufficient to permit reunification. C. L. H., 283 Or.App. at 322. For purposes of ORS 419B.476, reasonable efforts to reunify a child with his parent or parents mean efforts that focus on ameliorating the adjudicated bases for jurisdiction, and that give "parents a 'reasonable opportunity to demonstrate their ability to adjust their conduct and become minimally adequate parents.'" Dept. of Human Services v. S. M. H.. 283 Or.App. 295, 306, 388 P.3d 1204 (2017) (quoting Dept. of Human Services v. M. K.. 257 Or.App. 409, 417, 306 P.3d 763 (2013)). That is, reasonable efforts are ones aimed at reducing or eliminating the risk of harm that led to juvenile court intervention in the first place.

         Furthermore, consistent with the foregoing, the concept of reunifying a child with a parent within the meaning of the dependency statutes is not limited to physical reunification. The legislature has announced that it is "the policy of the State of Oregon to guard the liberty interest of parents protected by the Fourteenth Amendment to the United States Constitution, " and, further, that the dependency statutes are to be "construed and applied" consistently with the requirements of the federal constitution. ORS 419B.090(4). Under the Fourteenth Amendment, a parent's liberty interest in parenting his child is broad, and encompasses "the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville,530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Accordingly, when the dependency code is construed in view of the scope of the fundamental Fourteenth Amendment right to parent, reunification of a child with a parent means the restoration of the ...

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