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In re L. D. G.

Court of Appeals of Oregon

November 6, 2019

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

          Submitted September 12, 2019

          [300 Or.App. 428] Marion County Circuit Court 18JU027; 17JU03960, 17J U03961, 18JU02756, Cheryl A. Pellegrini, Judge.

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

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

          Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.

         Case Summary:

         In this juvenile dependency case, mother appeals from judgments of the juvenile court changing the permanency plans for her children from reunification to adoption. Mother argues on appeal that there were two compelling reasons to forgo changing the permanency plans from reunification to adoption-first, that she was successfully participating in services, and, second, that a plan of "durable" or general guardianship was better suited to meet the children's needs. The Department of Human Services contends that the record supports the finding of the juvenile court that mother had not made adequate progress and was not successfully completing services in a way that would allow the children to be returned to her within a reasonable time and that, in light of their special needs, the children needed permanency that the foster family was able to provide through adoption. Held: The trial court's determination that the general guardianship-as distinct from a permanent guardianship-proposed by mother did not best serve the interest of both children is permissible given the evidence in the record.

         Affirmed.

         [300 Or.App. 429]JAMES, J.

         In this juvenile dependency case, mother appeals from judgments of the juvenile court changing the permanency plans for her children from reunification to adoption. Mother argues on appeal that there were two compelling reasons to forgo changing the permanency plans from reunification to adoption-first, that she was successfully participating in services, and, second, that a plan of "durable" or general guardianship was better suited to meet the children's needs. The Department of Human Services (DHS) contends that the record supports the findings of the juvenile court that mother had not made adequate progress and was not successfully completing services in a way that would allow the children to be returned to her within a reasonable time and that the children needed permanency that the foster family was able to provide through adoption. For the following reasons, we affirm.

         Mother does not request that we exercise de novo review of the record in toto, wherein we would "try the cause anew upon the record," nor does mother request that we exercise line item de novo review wherein we "make one or more factual findings anew upon the record," ORS 19.415 (3)(b), and we perceive no reason to do so. ORAP 5.4O(8Xc) ("The Court of Appeals will exercise discretion to try the cause anew on the record *** only in exceptional cases."). As such, "we review the juvenile court's legal conclusions for errors of law but are bound by its findings of historical fact if there is any evidence in the record to support them." Dept. of Human Services v. S. A., 250 Or.App. 720, 723, 281 P.3d 655 (2012) (internal citations omitted). In light of that standard, we state the following facts consistently with the juvenile court's express and implied findings, as supplemented with uncontroverted facts from the record. Id.

         In February 2017, DHS followed up on reports from the children's school that mother's two children were often left home alone, that they were dirty and smelled of cigarette smoke, that the older child took care of the younger child, that the older child had behavioral issues, that the younger child had autism and needed special parenting support, that both children had serious dental issues that [300 Or.App. 430] went untreated, and that the school was unable to reach the parents. Ultimately, both mother and father[1] acknowledged that they were using methamphetamine.

         A few months later, DHS removed the children, filed dependency jurisdiction petitions, and placed the children in foster care. The juvenile court found the children within its jurisdiction and made the children wards of the court on the findings that mother's substance abuse and mental health issues impaired her ability to safely parent and that mother required necessary parent training and information in order to provide for her children's basic and special needs. In July 2018, a year later, the juvenile court made the additional finding that mother was a victim of domestic violence and that she needed help to protect the children from that violence.

         In September 2018, DHS sought to change the permanency plan for the children from reunification to adoption. At that permanency hearing, the juvenile court heard testimony from mother's mental health and substance abuse therapist and determined that mother was successfully participating in services at that time. Accordingly, the parties agreed to a continuance, and the juvenile court continued the permanency hearing to a later date.

         In December 2018, mother argued that "she'd like to have the children returned to her care, but if not, then she'd like it to be a durable guardianship and [mother and her attorney] talked about that a little bit, but the State is asking for the concurrent plan to be adoption." Ultimately, the juvenile court granted mother a ...


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