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In re Z. S.

Court of Appeals of Oregon

November 20, 2019

In the Matter of Z. S., a Child.
v.
L. S., aka L. L. S., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

          Argued and submitted July 29, 2019.

          Marion County Circuit Court 16JU02171; Cheryl A. Pellegrini, Judge.

          Sarah Peterson, 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.

          Inge D. Wells, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Powers, Judge, and Mooney, Judge.

         Case Summary: Father appeals from a judgment entered after a permanency hearing, assigning error to the juvenile court's denial of his motion to dismiss dependency jurisdiction and change of the permanency plan from reunification to adoption for his child, Z. Father argues that, because the child's maternal grandmother can continue to care for Z in a "probate" guardianship while father is in prison, the jurisdictional basis does not pose a current, non speculative risk of harm to the child and, thus, the court was required to dismiss the dependency jurisdiction and terminate the court's wardship of Z. Held: The evidence supports the juvenile court's findings that father's plan did not ameliorate the threat of harm posed to Z by the jurisdictional basis and those findings were sufficient to continue the dependency jurisdiction.

         [300 Or.App. 595] ORTEGA, P. J.

         In this dependency proceeding, father appeals from a judgment entered after a permanency hearing, assigning error to the juvenile court's denial of his motion to dismiss dependency jurisdiction and change in the permanency plan from reunification to adoption for his child, Z. Father argues that, because the child's maternal grandmother can continue to take care of Z in a "probate" guardianship while father is in prison, the jurisdictional basis does not pose a current, non speculative risk of harm to the child and, thus, the court was required to dismiss the dependency jurisdiction and terminate the court's wardship of Z. The juvenile court found that father's plan did not ameliorate the threat of harm to Z posed by the jurisdictional basis, and we conclude that the evidence supports the court's findings. Accordingly, we affirm.

         Father does not ask us to take de novo review, and we decline to do so. ORAP 5.40(8). Thus, we "view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the [juvenile] court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome." Dept. of Human Services v. D. A. K, 258 Or.App. 64, 65, 308 P.3d 303, rev den, 354 Or. 490 (2013).

         In May 2016, the juvenile court took jurisdiction of Z, when he was two years old, based on the parents' admitted allegations that "mother's substance abuse interferes with her ability to safely parent the child" and that "father has been convicted of sexually abusing another child and is incarcerated and currently unavailable to be a custodial resource." Father's scheduled release date from prison is in 2046, at which time Z will be in his thirties. Z was placed with his maternal grandmother (grandmother). In October 2016, mother died of a drug overdose.

         After mother's death, the juvenile court changed Z's plan from reunification to adoption, and father appealed that judgment. While that appeal was pending, the juvenile court terminated father's parental rights to Z, and father also appealed that judgment. On appeal, we reversed the juvenile court's permanency judgment changing Z's plan [300 Or.App. 596] to adoption because the Department of Human Services (DHS) had not made reasonable efforts to reunify Z with father. Dept. of Human Services v. L. L. S., 290 Or.App. 132, 133, 413 P.3d 1005 (2018). As a result, we also vacated the judgment terminating father's parental rights to Z. Dept. of Human Services v. L. L. S., 292 Or.App. 212, 213, 418 P.3d 776 (2018).

         Following the disposition in those appeals, in July 2018, father moved to dismiss jurisdiction and terminate the court's wardship of Z. In support of his motion, father explained that, while he is incarcerated, his plan for Z is to be cared for by grandmother under a probate guardianship, which does not require juvenile court involvement. He also stated that, if grandmother was unwilling to serve as Z's guardian, father's friend, Glenn Fluhr, would serve as Z's guardian. DHS also sought a plan change for Z from reunification to adoption, which father opposed.

         The juvenile court conducted a combined hearing on the request to change Z's plan and father's motion to dismiss. At the time of the hearing, Z was four years old. At the hearing, DHS presented evidence that Z has confusion about who father is and has anxiety about his video visitations with father, which results in Z having difficulties, such as tantrums, on those days. Z is very attached to grandmother. However, it took nearly a year for Z to trust that he was safe with grandmother and that she would return if she dropped him off somewhere. Z has demonstrated symptoms suggestive of post-traumatic stress disorder, such as nightmares, separation anxiety, and difficulty trusting others, and was having episodes "that could be termed a dissociation" that have dissipated over time with his current placement but would return with disruption to that placement. Z still has difficulties with separation anxiety, and he requires stability to develop trust and a secure attachment. Any question about who is going to care for him or disruption to his daily routine causes Z to suffer anxiety. Z is very aware of what is going on around him and has a constant need to know "what we're doing, where we're going, and who we're going to be with." Z's caseworker testified that guardianship "doesn't offer the ongoing level of stability and security that [Z] would need, particularly that would ease the anxiety that [300 Or.App. 597] he experiences and will continue to experience if he doesn't have a permanent placement."

         Grandmother is willing to adopt Z but, if that is not possible, she is willing to become his permanent guardian. However, she does not believe that father's plan would be good for Z because efforts by father to dissolve the guardianship or resolve disputes over Z's care in court ...


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