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In re J. M. W.

Court of Appeals of Oregon

August 1, 2018

In the Matter of J. M. W., a Child.
v.
M. S. W., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

          Argued and Submitted July 3, 2018

          Lane County Circuit Court 16JU06306; Karrie K. McIntyre, Judge.

          Tiffany Keast, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Offce of Public Defense Services.

          E. Nani Apo, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         In this juvenile dependency case, mother appeals a permanency judgment changing the permanency plan for her child, J, from reunification to adoption. She asserts that the juvenile court erred in finding that there was no compelling reason not to proceed with terminating her parental rights. Held: For a juvenile court to change a permanency plan to adoption, the record must contain sufficient evidence to permit a rational inference that none of the other permanency plans contemplated by the permanency statutes would better meet the child's needs under the circumstances. In this case, the Department of Human Services presented no evidence suggesting that, under the circumstances, guardianship was not a better plan for J than adoption. Therefore, the evidence was insufficient to support the juvenile court's finding that there were no compelling reasons not to file a petition to terminate mother's parental rights.

         Reversed and remanded.

         [293 Or.App. 178] HADLOCK, P.J.

         In this juvenile dependency case, mother appeals a permanency judgment changing the permanency plan for her child, J, from reunification to adoption. See ORS 419B.476. Mother contends that the juvenile court erred in finding that there was no compelling reason not to proceed with terminating mother's parental rights. See ORS 419B.476(5)(d); ORS 419B.498(2)(b);[1] Dept. of Human Services v. S. J. M., 283 Or.App. 367, 392, 388 P.3d 417, rev allowed, 361 Or. 350 (2017); see also Dept. of Human Services v. M. S., 284 Or.App. 604, 609, 393 P.3d 270, rev dismissed, 361 Or. 804 (2017) (explaining that, under S. J. M., the proponent of a change in plan from reunification to adoption bears the burden of proving "that there were no compelling reasons to forgo the filing of a petition to terminate mother's parental rights"). Mother asserts, among other things, that the Department of Human Services (DHS) failed to present sufficient evidence at the permanency hearing to support a finding that there was not "another permanent plan"-in this case, guardianship-"better suited to meet the health and safety needs of the child or ward, including the need to preserve [293 Or.App. 179] the child's or ward's sibling attachments and relationships." ORS 419B.498(2)(b)(B).

         As we explained in Dept. of Human Services v. J. M. T. M., 290 Or.App. 635, 638, 415 P.3d 1154 (2018), "before it can change a permanency plan to adoption, a juvenile court must be able to find affirmatively from the evidence that there is not" another permanent plan better suited to meet the child's health and safety needs. (Emphasis in original.) "That necessarily means that the record must contain sufficient evidence to permit a rational inference that none of the other permanency plans contemplated by the permanency statutes would better meet the child's needs under the circumstances." Id. (emphasis added). In this case, DHS presented no evidence suggesting that, under the circumstances, guardianship was not a better plan for J than adoption. Thus, the evidence was insufficient to support the juvenile court's finding that there were no compelling reasons not to file a petition to terminate mother's parental rights, and the trial court erred in changing the permanency plan from reunification to adoption. See J. M. T. M., 290 Or.App. at 639.

         Reversed and remanded.

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