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In re L. L. D.

Court of Appeals of Oregon

December 4, 2019

In the Matter of L. L. D., a Child. 301 Or.App. 148 DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, M. D., Appellant. In the Matter of D. D., Jr., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
D. M. D., Appellant.

          Submitted October 1, 2019

          Multnomah County Circuit Court Nos. 17JU06042, 17JU06043 Petition Number 112531, Katherine E. Tennyson, Judge

          Franz Bruggemeier fled the brief for appellant. Also on the brief was Youth, Rights & Justice.

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

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Mooney, Judge.

          [301 Or.App. 149] Case Summary: Father appeals from judgments changing the permanency plan for his two children from reunification to adoption. He assigns error to the juvenile court's conclusion that the Department of Human Services (DHS) made reasonable efforts to reunify him with his children. Father specifically argues that DHS's efforts were unreasonable because it delayed referring father to batterer's intervention treatment for nearly seven months after the juvenile court ordered DHS to do so. Held: The juvenile court did not err. DHS delayed father's referral because (1) father was arrested in the week following the order and (2) a psychologist recommended that father needed to demonstrate at least one year of sobriety before ensuring that batterer's intervention would be effective, which he had not yet done. Given those two facts, and in light of the particular circumstances of father and children, the juvenile court did not err.

          [301 Or.App. 150] MOONEY, J.

         Father appeals from judgments changing the permanency plan for his two children, L and C, from reunification to adoption. He specifically challenges the juvenile court's[1] determination that the Department of Human Services (DHS) made reasonable efforts to reunify father with his children. We address the sole question of whether DHS's efforts were reasonable despite a delayed referral for certain services. We conclude that the delay was reasonable under the circumstances and therefore affirm the judgments.

         L and C were in DHS custody between 2014 and 2016 after they witnessed father assault their mother.[2]During that time, DHS referred father to substance abuse and domestic abuse treatment services, and the juvenile court dismissed that case in April 2016 when it found that father had ameliorated the bases for jurisdiction. In June 2017, police arrested father on various charges, including child neglect. When officers arrived at father's home to check on his children, the house was unlocked and they found L (10 years old) and C (five years old) alone. The children had easy access to several dangerous and unsanitary items, including knives, lighters, methamphetamine pipes, and heroin needles. Shortly thereafter, DHS was granted temporary custody of the children and it referred father to a drug and alcohol assessment. Father spent several days in inpatient substance abuse treatment.

          [301 Or.App. 151] On August 24, 2017, father admitted that his (1) substance abuse, (2) intimate partner violence and anger, and (3) inability to maintain a safe home interfered with his ability to safely parent his children. The juvenile court accepted his admissions and thereafter found L and C to be within the dependency jurisdiction of the court. Father was ordered to undergo drug and alcohol evaluation and complete any recommended treatment; participate in random drug testing; enroll in parenting classes; obtain stable and suitable housing; maintain regular contact with his children and engage in children's services and therapy if arranged by DHS; undergo a psychological evaluation and begin any recommended treatment; enroll in "anger management/ domestic violence counseling/Batterer's Intervention program as directed by DHS"; and maintain contact with DHS. (Underlining in original.)

         DHS first scheduled a psychological evaluation for father in October, but he failed to report for that. It was rescheduled and, in November 2017, Dr. Basham conducted father's psychological evaluation. According to Basham's report, father had a history of relapsing into drug use and violent behavior after periods of sobriety, one of which lasted nearly two years. Basham noted that father had most recently relapsed following his previous dependency case. He also noted that father minimized his history of domestic abuse, which was "a problem at least as serious as his drug use and as much a threat to future parental functioning as his drug use." Basham then concluded that "[t]here would be little point in pursuing treatment for [domestic abuse] until he has a significant period clean and sober, but he now has two clearly identified issues and would need to show progress in both of those before he would be ready to resume care of his children." Basham concluded that father needed at least one year of sobriety before DHS could accurately assess his progress in batterer's intervention or domestic violence counseling.

         Father did not respond to DHS's attempts to contact him for nearly half a year after that evaluation. A review hearing was scheduled for January 12, 2018, but father was not present because he had been arrested the night before. [301 Or.App. 152] To that point, DHS had attempted to provide many of the court-ordered or recommended services, but father avoided contact with DHS throughout fall 2017 and spring 2018.

         DHS was not able to successfully contact father until the DHS caseworker saw him at the next review hearing on April 10, 2018. After that hearing, the juvenile referee ordered DHS to refer father to a "FIT" screening (a drug and alcohol assessment) and batterer's intervention program "within one week." That was the first time the court affirmatively ordered DHS to provide a referral for any type of domestic violence program. Even the original order for services directed to father required such services only "as directed by DHS." In other words, until the April 10, 2018 hearing, the decision whether to refer father for domestic violence services arguably remained up to DHS. DHS did refer father to a FIT screening following the April 10, 2018 hearing, but, before it referred him to batterer's intervention, father was again arrested. He voluntarily entered Washington County's Family Sentencing Alternative Pilot Program (FSAP), which he completed in August 2018. Immediately after he completed FSAP, he began outpatient substance abuse treatment. He began his sobriety on May 8, 2018.

         Father's participation in FSAP prevented him from attending a review hearing in July 2018. At that hearing, the juvenile referee found that DHS continued to make reasonable efforts. Father has not challenged that ruling. By father's next review hearing on October 12, 2018, DHS had not yet referred father to a batterer's intervention program, despite the April court order. Notwithstanding the lack of referral, the referee again found that DHS continued to make reasonable efforts toward reunification and, once again, father has not challenged that ruling. In both the July and October review hearings, the referee found that DHS's efforts were reasonable because DHS had provided father with FIT and other residential treatment referrals, a psychological ...


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