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In re A. G.

Court of Appeals of Oregon

March 27, 2019

In the Matter of A. G., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
D. L. G. and J. C. C., Appellants.

          Argued and submitted September 20, 2018

          Clackamas County Circuit Court 16JU07857, 17JU00874; Susie L. Norby, Judge.

          George W. Kelly argued the cause and fled the brief for appellant J. C. C.

          Valerie Colas, Deputy Public Defender, argued the cause for appellant D. L. G. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Offce of Public Defense Services.

          Cecil A. Reniche-Smith, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Powers, Presiding Judge, and Egan, Chief Judge, and Ortega, Judge. [*]

         [296 Or. App.790] Case Summary: Mother and father appeal from permanency judgments in which the juvenile court changed the permanency plan for their child from reunification to adoption. Mother and father assert that there was legally insufficient evidence to support a finding that no other permanent plan contemplated by the permanency statutes would have better met the child's needs under the circumstances. Held: Mother's and father's arguments are foreclosed by the Oregon Supreme Court's decision in Dept. of Human Services v. S. J. M., 364 Or. 37, 430 P.3d 1021 (2018). Further, the Court of Appeals declined to exercise its discretion to remand because ORS 419B.670(6) provides an opportunity for a new permanency hearing under specified circumstances.

         [296 Or. App.791] POWERS, P. J.

         Mother and father appeal from permanency judgments in which the juvenile court changed the permanency plan for their child, A, from reunification to adoption. Mother and father assert that there was insufficient evidence to support a finding that no other permanent plan contemplated by the permanency statutes would have better met child's needs under the circumstances. As explained below, because the underlying premise of mother's and father's arguments has been foreclosed by the Oregon Supreme Court's recent decision in Dept. of Human Services v. S. J. M., 364 Or. 37, 430 P.3d 1021 (2018), we affirm the judgments of the juvenile court.

         At the time of the permanency hearing, A was five years old. She first came into contact with DHS in September 2016 because of concerns that mother and father were using controlled substances and the unsanitary condition of their house. In November 2016, the juvenile court asserted jurisdiction over A on the grounds that parents had not "met the basic medical, dental and physical needs of [their] child, and need[] the assistance" of DHS to safely parent. In May 2017, the juvenile court asserted jurisdiction on additional grounds that mother's untreated mental health issues in combination with her traumatic brain injury impaired her ability to safely parent and that father's mental health issues without treatment impaired his ability to safely parent. At the time of removal, A, who was about four years old, was obese, had considerable tooth erosion that required surgery for cavities in 11 out of 20 existing teeth, had a significant diaper rash consistent with a yeast infection, and lacked gross motor skills such as climbing and jumping.

         As a result of the dependency cases, DHS referred mother and father to various resources, including parenting classes and training, mental health services, and neuropsychological evaluations, and provided for supervised visits with coaching, modeling, and support. Ultimately, however, DHS moved to change the plan from reunification to adoption based on its assertion that mother and father had not made sufficient progress.

         At the time of the permanency hearing in this case, our cases held that DHS, who initiated the change of [296 Or. App.792] plan, had the burden of proving that there were no compelling reasons to forgo the filing of a petition to terminate the parents' parental rights. See Dept. of Human Services v. J. M. T. M, 290 Or.App. 635, 638, 415 P.3d 1154 (2018); Dept. of Human Services v. S. J. M., 283 Or.App. 367, 393-94, 388 P.3d 417 (2017), rev'd, 364 Or. 37, 430 P.3d 1021 (2018); see also Dept. of Human Services v. M. S., 284 Or.App. 604, 609, 393 P.3d 270, rev dismissed, 361 Or. 804 (2017). On appeal, mother and father both assert that the evidence in the record was insufficient for the juvenile court to conclude that none of the other permanency plans contemplated by the permanency statutes would better meet As needs under the circumstances.

         After briefing and argument in this case, the Oregon Supreme Court issued its decision in S. J. M., which held that, under ORS 419B.476(5)(d), [1] the person or entity seeking to assert one of the exceptions in ORS 419B.498(2)[2]bears the burden of proving that an exception to the prompt [296 Or. App.793] filing of a termination petition applies. 364 Or at 53. In this case, mother and father were the ones asserting that an exception to the prompt filing of a termination petition applies, relying primarily on perceived deficiencies in the evidence presented by DHS. Because the parents did not make a case sufficient to meet the burden of showing that an exception applies to the filing of a prompt petition for termination of their parental rights, we reject their arguments on appeal.

         As noted earlier, the parties briefed and argued this case before the Supreme Court issued its decision in S. J. M. Subsequently, DHS asserted in a memorandum of additional authorities that "the Supreme Court's holding in S. J. M. is dispositive of parents' 'compelling interest' argument in this appeal or, at the very least, will substantially affect this court's review of the record." Sometime later, father filed his own memorandum of additional authorities, in which he also cited S. J. M., and asserted that the proper remedy would be for us to remand the case to the juvenile court "so that father would have the opportunity to meet his burden of proof on the question of whether compelling reasons exist to forgo changing [A's] permanency plan from reunification to adoption".[3] DHS responds that a remand is neither necessary nor appropriate because father "had every ...


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