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In re L. B. M.

Supreme Court of Oregon

December 6, 2018

In the Matter of L. B. M., a Child.
v.
S. J. M., Respondent on Review. DEPARTMENT OF HUMAN SERVICES, Petitioner on Review, In the Matter of A. J.-L. B., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner on Review,
v.
S. J. M. and A. J. B., Respondents on Review.

          Argued and submitted September 18, 2017

          On review from the Court of Appeals Nos. (CC 14525J) (CA A161858) (CC 14611J) (CA A161859). [*]

          Cecil A. Reniche-Smith, Assistant Attorney General, Salem, argued the cause and filed the briefs for the petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General, Salem.

          Valerie Colas, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for the respondent on review S. J. M. Also on the brief was Shannon Storey, Chief Defender. G. Aron Perez-Selsky, McMinnville, joined the brief on behalf of respondent on review A. J. B.

          [364 Or. 38] Before Walters, Chief Justice, and Balmer, Kistler, Nakamoto, Duncan, and Nelson, Justices. [**]

         Case Summary:

         In juvenile court proceedings, the juvenile court changed the permanency plans of two children from reunification to adoption, determining that there was no “compelling reason, which is documented in the case plan, for determining that filing such a petition would not be in the best interests of the child or ward, ” as required by ORS 419B.476(5)(d) and ORS 419B.498(2)(b). The parents appealed both judgments. The Court of Appeals reversed the judgments, holding that the evidence in the record did not support the juvenile court's determinations. Held: (1) DHS did not bear the burden of proving that a “compelling reason” did not exist under ORS 419B.476(5)(d); and (2) the juvenile court's “compelling reasons” determinations were supported by evidence in the record.

          [364 Or. 39] BALMER, J.

         These juvenile dependency cases, which we consolidated for review, concern the permanency plans for two children and half-siblings, L and A, under the jurisdiction of the juvenile court. The Department of Human Services (DHS) arranged for the children to be placed in relative foster care with their maternal aunt. The juvenile court held a permanency hearing in accordance with statutory timelines after L had been in relative foster care for about 15 months and A for about 12 months. At the hearing, DHS asked the juvenile court to change the permanency plans for the children from reunification to adoption. The juvenile court did so, but the Court of Appeals reversed, in two separate opinions. Dept. of Human Services v. S.J.M., 283 Or.App. 367, 388 P.3d 417 (2017) (S.J.M. I) (regarding A); Dept. of Human Services v. S.J.M., 283 Or.App. 592, 388 P.3d 1199 (2017) (S.J.M. II) (regarding L). DHS sought review, asserting that the Court of Appeals had erroneously interpreted the statutes pertaining to changing permanency plans for children within the jurisdiction of the juvenile court.

         The legal question that this case presents requires some context. The statute prescribing how permanency hearings are to be conducted, ORS 419B.476, contains a cross-reference to a statute regarding termination of parental rights, ORS 419B.498. The latter statute requires DHS to file a petition to terminate parental rights in certain circumstances including, as relevant here, when a child "has been in substitute care under the responsibility of [DHS] for 15 of the most recent 22 months." ORS 419B.498(1)(a). But subsection (2) provides an exception to that statutory deadline for filing a termination petition if there is a "compelling reason, which is documented in the case plan, for determining that such a petition would not be in the best interests of the child." ORS 419B.498(2)(b). That "escape clause" is referred to in the permanency statute, which provides that, if the juvenile court determines that a child's permanency plan should be changed to adoption, the court must make a "determination of whether one of the circumstances in ORS 419B.498(2) is applicable." ORS 419B.476(5)(d).

         In these cases, the Court of Appeals held that, if a "compelling reason" exists, the permanency plan cannot [364 Or. 40] be changed to adoption. S.J.M. I, 283 Or.App. at 389-92. Neither party sought review of that holding. But the Court of Appeals also concluded that DHS, the party seeking to change the plans to adoption in this case, had failed to prove that a "compelling reason" did not exist. Id. at 392-94. Thus, the issue before us is whether DHS had the burden of proving the absence of a "compelling reason" or whether those opposing the change of plan had the burden of proving the existence of a "compelling reason" to defer filing a petition to terminate parental rights. Put differently, the issue could be described as what the juvenile court should do when the evidence in the record does not show that a "compelling reason" exists, but when the party seeking to change the plan to adoption did not disprove the existence of a "compelling reason." The Court of Appeals held that the absence of evidence in the record concerning a "compelling reason" was a deficiency in DHS's proof that precluded a change of plan. S.J.M. I, 283 Or.App. at 394. DHS sought review of that determination in this court.

         As explained below, we agree with DHS that the Court of Appeals incorrectly construed the statutory requirements at issue. Because DHS met its burden to show that the requirements in ORS 419B.476 for changing the permanency plans away from reunification had been met, it was parents' burden, as the parties seeking to invoke the escape clause, to show that there was a "compelling reason" under ORS 419B.498(2) for DHS not to proceed with petitions to terminate parental rights. We also reject parents' arguments that evidence in the record did not support the trial court's findings in these cases. Accordingly, we reverse the decisions of the Court of Appeals and affirm the judgments of the juvenile court.

         We review the juvenile court's legal conclusions for errors of law, and we view the evidence in the light most favorable to the court's disposition to determine if it supports the court's legal conclusions. ORS 419B.476(8); ORS 419A.200; ORS 19.415.[1]

         [364 Or. 41] FACTUAL BACKGROUND

         These cases concern mother and her children, L and A, and the father of A, AJB.[2] L was born in 2011 and has several developmental disabilities. In 2013, mother and L began living with AJB. In September 2014, DHS became involved because of a neighbor's report that AJB had struck L as discipline for playing with a knife, which resulted in significant bruising. DHS learned that AJB had "beat [en] [L] on his behind four times." Mother and AJB initially maintained to investigators that L had been injured falling on the stairs. After several weeks, however, they acknowledged that AJB had hit and injured L.

         In October 2014, DHS petitioned the juvenile court to take jurisdiction over L. The juvenile court held a shelter hearing and issued an order taking L into protective custody and placing him with his maternal aunt and her partner. In November 2014, mother gave birth to A, and DHS immediately filed a petition for the court to take jurisdiction over A as well.

         The juvenile court took jurisdiction over both L and A in December 2014 based on findings, substantially the same in both cases, that mother lacked the parenting skills to parent either child safely and that mother was aware that AJB was physically abusive toward L, but had failed to protect the child from additional physical abuse. With respect to As father, AJB, the court found that he lacked the skills to parent A, that he had physically abused As half-sibling L, and that his mental health condition interfered with his ability to parent. The court made factual findings that supported several of the state's allegations set out above. The court ordered the primary case plans to be reunification of L with mother and of A with mother and AJB, and the concurrent case plans to be adoption. The court instructed mother to complete a psychological evaluation and to obtain services recommended by the evaluator; to participate in and to cooperate in counseling; to participate in and successfully [364 Or. 42] to complete a parent training program; and to maintain safe and stable housing as approved by DHS. The court instructed AJB to meet the same conditions.

         In December 2014, the juvenile court placed both children in the legal custody of DHS. L was already in relative foster care with his maternal aunt, and A was ultimately placed there as well. Following the December 2014 order, mother engaged in supervised visits with L and A. AJB participated in supervised visits with A. Mother and AJB also attended and completed parenting programs.

         In June 2015, mother married AJB. Mother and AJB did not disclose the marriage to DHS or at a subsequent court hearing, and mother denied the marriage until confronted by DHS. Mother continued to live with AJB, although she knew that it would make it more difficult for her to have L and A returned to her care.

         In fall 2015, DHS concluded that mother and AJB were not making sufficient progress to justify continuing a plan of reunifying the children with them and sought a change of permanency plan for both children from reunification to adoption. The juvenile court held a permanency hearing in early 2016 in accordance with the time requirements in ORS 419B.47O(2). At that hearing, the court heard testimony from AJB, the DHS caseworker, and various service providers who had worked with mother, AJB, and the children. Mother did not testify.

         AJB testified that he believed that DHS had become involved with the family because he had spanked L and because he and mother had decided to "keep [the spanking] to ourselves." When asked specifically if he had caused the bruises on L, AJB equivocated, first claiming that the bruises did not come from a spanking, then stating, "I'm not denying it [came] from a spanking. But I'm not crediting it to a spanking." AJB testified that he and mother were currently living in a recreational vehicle that they had to park on the street. At several points during his testimony and the testimony of other witnesses, he became angry. On two occasions, the court recessed because of his behavior and asked AJB's attorney to talk with AJB about his behavior in the [364 Or. 43] courtroom. On those occasions, AJB's yelling in the hallway could be heard inside the courtroom.

         The family's DHS caseworker, Gould, testified that, although mother had developed parenting skills, mother had not developed the capacity to protect the children. Gould believed that mother's dishonesty showed that she was more protective of AJB than of her children, as evidenced by mother hiding the fact that she had married AJB. Gould testified that she had trouble communicating with AJB because he became very agitated and angry, and became "threatening verbally." Gould expressed safety concerns for the children due to AJB's inability to regulate his emotions. She stated that AJB had entered a Lane County Circuit Court veterans' court program following a felony charge, but that he was not in compliance with his conditions of probation because he regularly used cannabis to treat chronic pain, Post-Traumatic Stress Disorder (PTSD), and kidney problems. Gould also testified that AJB and mother had indicated that, if they regained custody of the children, they would cut off contact with the foster parents and would move to Washington, possibly to live with AJB's mother, who also had threatened Gould. Gould stated that, while both mother and AJB had made progress, she did not believe that the children could be reintegrated into their home in a reasonable time.

         The hearing also included testimony from three therapists. Mother, along with L, had begun seeing a family therapist in November 2014. The family therapist testified that mother had made progress in learning to regulate herself and to provide support for L. Mother also had told the therapist that she wanted to bring AJB into the sessions with L. The family therapist therefore met with AJB on several occasions during which AJB was emotional, tearful, and angry. The therapist ultimately recommended against conducting family therapy sessions for L that included AJB because it would be "unsafe emotionally" for L, who would be at risk of experiencing trauma-associated fear and distress if contact with AJB were allowed.

         Mother also had begun dialectical behavioral therapy in July 2015. That therapist testified that mother was [364 Or. 44] making progress. While mother had been angry and frustrated when she started therapy, she had now transformed that anger into sadness about her children. Mother's therapist indicated that mother acknowledged that the incident in which AJB hit L was not "good behavior." However, mother had remained defensive about her role in trying to cover up what had occurred and failed to disclose to the therapist for at least two months that she had married AJB. The therapist also reported that mother's relationship with AJB remained contentious and involved yelling, but that mother was working on that.

         AJB also had begun receiving individual therapy in July 2015. His therapist testified that AJB had shown improvement in emotional management and improved his parenting techniques. The therapist also opined that AJB's PTSD could not be resolved unless A and L were placed in his care.

         At the close of the hearing, the juvenile court stated that it did not find any of the testimony by the therapists to be helpful because the two individual therapists were biased and because the family therapist's testimony was unclear. The court further noted that this case had involved "dishonesty from the very first day" and that professional assessments were only as good as the information provided, which made them unreliable when dishonesty was present.

         We describe the juvenile court's permanency judgments in some detail because the court's findings and determinations help explain the structure of the statutes at issue. In its separate judgments in the cases involving L and A, the juvenile court made specific findings required under ORS 419B.476 and related statutes based on the case plans and the two days of testimony and other evidence submitted by the parties. The court noted, among other things, that the children were in relative foster care; that DHS had facilitated continuing contact between mother and AJB and A, and between mother and L; and that the case plan for each child at the time of the hearing was reunification and the concurrent plan was adoption.

         Because each case plan at the time of the hearing was reunification, the court considered the efforts that DHS [364 Or. 45] had made to facilitate reunification and the progress that mother and AJB had made towards that end, as required by ORS 419B.476(2)(a). In doing so, the juvenile court was required to "consider the [children's] health and safety the paramount concerns." Id. The court determined that DHS had made "reasonable efforts *** to make it possible for the [children] to safely return home." Id. However, the court determined that mother and AJB had not made "sufficient progress to make it possible for the [children] to safely return home." Id. Those determinations are not disputed in this court.

         Having determined that parents had not made sufficient progress, by the time of the hearing, for the children to return home, the juvenile court next considered whether the permanency plans should be changed away from reunification. In this case, the court concluded that the plans should be changed away from reunification based on its finding that "the evidence does not support a determination under ORS 419B.476(4)(c) and (5)(c) that further efforts will make it possible for the child to safely return home within a reasonable time." (Boldface text in original.)

         In reaching that conclusion, the juvenile court relied on factual findings that were substantially equivalent in both cases, including that mother "continues to struggle with accountability and honesty," and that she lacked "an awareness of the risks posed by [A]B] and continue[d] to put her relationship with [A]B] before the best interest of her children." The court found that AJB was "not credible." The court also noted that mother had "lacked emotional regulation during the hearing" and that AJB had "lacked the ability to regulate his emotions and temper," as demonstrated by his disruptions. The court found that mother "has yet to realize how her conduct and behavior caused [the children] to come into" the court's jurisdiction, that both she and AJB were "unwilling to admit that [A]B's] conduct [towards L] amounted to abuse," and that both had yet to recognize how their conduct and behavior had caused the children to be brought within the jurisdiction of the juvenile court. The court stated that, although mother and AJB do well "under close supervision," "once out of direct supervision they return to conduct of their own choosing, regardless [364 Or. 46] of whether or not it is in [the childrens'] best interest." The court found that both mother and AJB had demonstrated an inability to implement skills learned during services, noting in particular their desire to have contact between AJB and L, despite the family therapist's opinion that such conduct would be emotionally unsafe. The court concluded that the "circumstances and conditions" that were the basis for jurisdiction "have not been ameliorated." The court further noted that the children had been represented by an attorney throughout the proceedings and that the attorney supported the placement with the maternal aunt and the change of plan to adoption.

         Because of those determinations, and the court's further findings that DHS had made sufficient efforts to develop the concurrent plan of adoption, see ORS 419B.476 (4)(e) (allowing court to review DHS efforts to develop concurrent plan), that DHS had been in contact with grandparents, and that the "current foster parents are willing to serve as a permanent resource," the court changed both children's' permanency plans from reunification to adoption. Having determined that the plans should be changed to adoption, the court turned to ORS 419B.476(5)(d), which provides that, in those circumstances, the permanency order is to include "the court's determination of whether one of the circumstances in ORS 419B.498(2) is applicable." As noted previously, that cross-reference is to a specific provision in the termination of parental rights statute, and allows a party to argue to the juvenile court that a termination petition should not be filed, despite the otherwise applicable statutory deadline, if a "compelling reason" is shown. The juvenile court found that "there is not a 'compelling reason' within the meaning of that term in ORS 419B.498(2)(b) for determining that filing a petition to terminate the parent's/ parents' rights would not be in the child's best interests * * *." (Boldface text in original.)

         Both mother and AJB appealed the permanency judgments. Mother did not dispute that DHS had made reasonable efforts to make it possible for the children safely to return home. Nor did mother or AJB challenge, in the context of the juvenile court's initial determinations to change the plan away from reunification, the court's determination [364 Or. 47] under ORS 419B.476(4)(c) and (5)(c) that the children would not be able safely to return home in a reasonable time. Their principal argument concerned the court's subsequent determination under ORS 419B.476(5)(d) that there was no compelling reason under ORS 419B.498(2)(b) to defer filing petitions for the termination of parental rights.[3]

         COURT OF APPEALS DECISIONS

         In S. J. M. I, which concerned A, the Court of Appeals drew two significant legal conclusions. First, the court considered whether ORS 419B.476(5)(d) requires a juvenile court to make a finding pursuant to ORS 419B.498(2) that no "compelling reason" exists for DHS to defer the filing of a petition to terminate parental rights, before a permanency plan can be changed to adoption. Because its earlier decisions on that question were not entirely consistent, the Court of Appeals considered the issue and ultimately concluded that such a determination was required. S. J. M. I, 367 Or.App. at 392. DHS did not seek review of that holding, and we express no opinion regarding it.

         The second legal conclusion, which DHS challenges on review, is that the record did not support the juvenile court's determination that there was no "compelling reason" for determining that filing a petition for termination of parental rights would not be in the best interests of the child. S.J.M. I, 283 Or.App. at 393-94; ORS 419B.498(2)(b). More particularly, DHS challenges the Court of Appeals' implicit conclusion that DHS, as the party urging the court to change the permanency plan, bore the burden of proving that there was no "compelling reason" not to change the plan-and that the absence of evidence in the record concerning a "compelling reason" precluded the juvenile court from changing the permanency plan from reunification to adoption.

         Regarding As permanency plan, the Court of Appeals acknowledged that the juvenile court had made explicit findings that A could not be returned to mother [364 Or. 48] within a reasonable time and that none of the circumstances in ORS 419B.498(2) applied because there was not a "'compelling reason,' within the meaning of that term in ORS 419B.498(2)(b) for determining that filing a petition to terminate the parent's/parents' parental rights would not be in the child's best interests." S. J. M. I, 283 Or.App. at 393 ...


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