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In re M. M. R.

Court of Appeals of Oregon

December 18, 2019

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

          Argued and Submitted November 6, 2019

          Lane County Circuit Court 17JU10822, 18JU08099;, Clara L. Rigmaiden, Judge.

          Tiffany Keast, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.

          Nicholas Greenfeld, Certifed Law Student, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General.

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

         Case Summary: In this juvenile dependency case, father appeals from a judgment changing his child's permanency plan from reunification to adoption. At the permanency hearing, the juvenile court ruled that the Department of Human Services (DHS) satisfied its burden to prove that it made reasonable efforts to assist father in ameliorating the jurisdictional basis, father's "chaotic lifestyle and chaotic relationship with mother." On appeal, father asserts that, although DHS provided bus passes, a referral to parent training, and a referral to "Womenspace," DHS has not met its burden to prove that those services were sufficiently related to resolving the jurisdictional basis. DHS responds that, because it referred father to Womenspace only after it was clear that he was a victim of domestic violence, the court can reasonably infer that Womenspace [301 Or.App.437] provides assistance to victims of domestic violence, which could have assisted father in his chaotic relationship with mother, had he chosen to utilize those services. Held: DHS failed to present evidence from which the juvenile court could reasonably infer that the services provided could help father ameliorate the juris-dictional basis, and, thus, did not satisfy its burden.

          [301 Or.App.438] JAMES, J.

         In this juvenile dependency case, father appeals from a judgment changing his child's permanency plan from reunification to adoption. At the permanency hearing, the juvenile court ruled that the Department of Human Services (DHS) satisfied its burden to prove that it made reasonable efforts to assist father in ameliorating the jurisdictional basis, father's "chaotic lifestyle and chaotic relationship with mother."[1] On appeal, father asserts that, although DHS provided bus passes, a referral to parent training, and a referral to "Womenspace," DHS did not meet its burden to prove that these services were sufficiently related to resolving the jurisdictional basis. DHS responds that, because it referred father to Womenspace only after it was clear that he was a victim of domestic violence, the court can reasonably infer that Womenspace provides assistance to victims of domestic violence, which could have assisted father in his chaotic relationship with mother, had he chosen to utilize the services. We agree with father, and on this limited record, conclude that DHS failed to present evidence from which the juvenile court could reasonably infer that the services provided could help father ameliorate the jurisdictional basis, and, thus, did not meet its burden. Accordingly, we reverse and remand.

         Neither party has requested de novo review, and this is not the type of "exceptional" case that warrants de novo review. As we have explained, on appeal of a permanency judgment, "[t]he juvenile court's determination[] whether DHS's efforts were reasonable *** [is a] legal conclusion[] that we review for errors of law." Dept. of Human Services v. G. K, 263 Or.App. 287, 294, 328 P.3d 728, rev den, 356 Or. 638 (2014) (internal citations omitted). In conducting that review, we are bound by the juvenile court's explicit factual findings if there is any evidence to support those findings. Id. To the extent that a court does not make its findings express, we presume that the court made implicit factual findings in a manner consistent with its ultimate legal conclusion. Id. [301 Or.App.439] However, "[i]f an implicit factual finding is not necessary to a trial court's ultimate conclusion or is not supported by the record, then the presumption does not apply." Pereida-Alba v. Coursey, 356 Or. 654, 671, 342 P.3d 70 (2015). The issue here, whether the department made reasonable efforts to assist father in alleviating the jurisdictional basis, is a highly fact-specific inquiry warranting a detailed recitation of the facts below. Dept. of Human Services v. J. E. R., 293 Or.App. 387, 394, 429 P.3d 420 (2018).

         M was removed from mother's and father's care and placed in foster care in December 2017, due to domestic violence between mother and father. Shortly thereafter, the court asserted jurisdiction over M, as pertains to father, based on father's admission that his "chaotic lifestyle and chaotic relationship with mother interferes with his ability to safely parent." Additionally, the court asserted jurisdiction over M, as pertains to mother, based on her domestic violence toward father, substance abuse, chaotic lifestyle, mental health condition, and criminal behaviors. On a later date, in a separate case, the court also asserted jurisdiction based on allegations regarding M's biological father. As noted above, only the portion of the permanency judgment pertaining to father is presented for appeal; therefore, only the facts pertaining to his appeal are set forth below. Because father challenges only whether DHS made reasonable efforts, we focus on what efforts DHS made for father.

         Following the court taking jurisdiction over M, father and mother continued their relationship. During the period between the jurisdictional trial and the permanency hearing, mother physically abused father "quite often." After one particularly violent interaction, she was incarcerated for assaulting him, and he obtained a restraining order against her. When she was released, however, father dropped the restraining order to continue assisting mother in her addiction recovery.

         A DHS caseworker met with father and suggested that he utilize services at various facilities, including "Womenspace." In the following months, however, a different caseworker was assigned to the case. DHS did not present testimony from the prior caseworker. The subsequent [301 Or.App.440] caseworker's testimony revealed that, although he was unfamiliar with Womenspace, the services it provided, or the reason that the previous caseworker referred father there, he knew that father attended at least one meeting there based upon pamphlets he received from DHS.

         The caseworker also referred father to a "navigator" to assist father in finding safe and stable housing. Mother and father met with the navigator to coordinate housing together, but, the navigator refused to work with mother after her violent outburst during the meeting.

         Father sought to purchase a motorhome for him and M to live in. DHS was unable to provide financial assistance for the purchase, but DHS somewhat lessened father's financial burden by occasionally providing bus passes and cell phone minutes. Because DHS was unable to assist with the motorhome purchase, the caseworker referred father to "St. Vinnie's" and "The Mission" for housing. Father was concerned, however, that "St. Vinnie's" had provided him with unsafe housing in the past and that mother's friends in "The Mission" could jeopardize her addiction recovery progress, so he did ...


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