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In re R. K.-A. D.

Court of Appeals of Oregon

October 16, 2019

In the Matter of R. K.-A. D., aka R. K.-A. D., a Child.
v.
C. M. D., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

          Submitted August 2, 2019.

          Clatsop County Circuit Court 15 J U0 2174, 18 J U09417; A170313 (Control), A170314 Paula Brownhill, Judge.

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

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary:

         In this juvenile dependency case, mother appeals a permanency judgment continuing her son's permanency plan of adoption. In continuing the plan of adoption, the juvenile court rejected an argument by the Department of Human Services (DHS) and mother that the plan should be changed back to reunification due to there being a compelling reason to forgo termination of parental rights. On appeal, both mother and DHS argue that the juvenile court erred in continuing the plan of adoption. Mother's assignments of error focus on child's desire to live with her and on progress she has made in her parenting skills, while DHS's arguments focus on the unlikelihood of child being adopted given his high needs. Held: The record is sufficient to support the juvenile court's findings in support of its conclusions. With respect to child's adoptability, that is a significant issue in this case, but the existing record is insufficient to compel a finding that child was unlikely to achieve adoption.

         [300 Or.App. 176] AOYAGI, J.

         In this juvenile dependency case, the juvenile court took jurisdiction over R in June 2015 when he was five years old. In December 2018, the court changed R's permanency plan to adoption. In February 2019, the court continued the plan of adoption, rejecting an argument by the Department of Human Services (DHS) and mother that the plan should be changed back to reunification. Mother appeals the February 2019 judgment. We affirm.[1]

         A detailed rendition of the history of this case would not benefit the parties, the bench, or the bar. For present purposes, the following facts are sufficient to frame our discussion. At the time of the relevant hearing, R was eight years old and had been in the state's care for almost four years. He had lived with the same foster family, with two very experienced foster parents, for the past three years. R experienced severe trauma prior to being taken into care, and, since being taken into care, had engaged in extreme behaviors, including killing small animals, breaking his teacher's jaw, and breaking his foster father's toe. Foster parents report that managing R's behaviors to keep R and others safe requires "continuous" efforts. After several years caring for R, foster mother believes that, in addition to suffering the effects of trauma, R may have "natural deficits or disabilities" and has been advocating for a higher-level mental health evaluation.

         In March 2018, when R had been in care for nearly three years, the juvenile court changed R's permanency plan from reunification to placement with a fit and willing relative, with the understanding that DHS would try to qualify R's foster parents as "relatives." The court found that reunification was no longer in R's best interests, because mother did not have the skills necessary to safely parent him and, despite DHS's efforts, had been unable to learn those skills. At the same time, the court eliminated a concurrent plan of adoption as being "no longer in the child's best interest." The [300 Or.App. 177] court determined that a compelling reason existed to forego the termination of parental rights: "Mother and child have a bond that should not be severed by termination of parental rights at this time. Mother will not be able to implement the skills necessary to parent this child, but she and the child should continue to have contact as long as it is safe and appropriate."

         In October 2018, the juvenile court began another permanency hearing, which had to be continued to the next month for completion. Until the hearing could be completed, the court made interim findings and continued the existing plan, i.e., placement with a fit and willing relative. The court found that reunification was not appropriate due to mother's inability to safely parent R; that guardianship was not appropriate because there was no guardianship resource; and that adoption was not appropriate because there was no adoptive resource, R "would not do well in a general recruitment because of his special needs," and R "is bonded with mother." The court noted that it "could be detrimental" to R to sever his bond with mother.

         The hearing that had begun in October was completed in November, and, on December 3, 2018, the juvenile court entered a permanency judgment changing R's plan to adoption. By that time, R's foster parents were no longer considered a viable permanent placement resource.[2] The court determined that mother was not participating in services that would make it possible for R-a child who is "exceptionally difficult to parent"-to return home within a reasonable time. It also noted that "[a] failed reunification would have a significant negative effect on the child's well-being and future success." The court concluded that DHS had "failed to demonstrate a compelling reason why filing a Petition for Termination of Parental Rights would not be in the best interests of the child." Ultimately, the court concluded, "Of [300 Or.App. 178] the available plans, adoption is the best one, although an open recruitment is not in the child's best interests."[3]

         R's next permanency hearing occurred in early 2019 and resulted in a permanency judgment entered February 22, 2019. Numerous witnesses testified at the hearing. During the hearing, DHS and mother argued that R's plan should be changed back to reunification; R's attorney opposed that request. The juvenile court made credibility findings about the hearing witnesses, including treatment providers who disagreed about the best course of treatment for R, and ultimately continued the plan of adoption. The court explained that guardianship with R's foster parents would be in R's best interests, "but, because that is not achievable, adoption is the best plan." On the "compelling ...


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