Dep't of Human Servs. v. J.V.-G. (In re G.P.F.)

• Decision Date: 30 March 2016
• Docket Number: A160221.,Petition Number 01J130088,J130088
• Citation: 370 P.3d 916,277 Or.App. 201
• Parties: In the Matter of G.P.F., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent, v. J.V.-G., Appellant.
• Court: Oregon Court of Appeals

277 Or.App. 201

370 P.3d 916

In the Matter of G.P.F., a Child.DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent,

v.J.V.-G., Appellant.

J130088

Petition Number 01J130088

A160221.

Court of Appeals of Oregon.

Submitted Jan. 19, 2016.

Decided March 30, 2016.

Shannon Storey, Chief Defender, Juvenile Appellate Section, and Valerie Colas, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Inge D. Wells, Assistant Attorney General, filed the brief for respondent.

Before ARMSTRONG, Presiding Judge, and EGAN, Judge, and SHORR, Judge.

EGAN, J.

In this juvenile dependency case, father appeals a permanency judgment that denied father's motion to change the plan for child from adoption to return to parent, and continued the current permanency plan of adoption. Before the hearing to change the plan, father moved to dismiss jurisdiction and terminate the wardship. At the hearing, the juvenile court denied father's motion to dismiss. Father contends that, in regard to his motion to dismiss, the juvenile court erred in admitting an exhibit that was inadmissible hearsay, and we agree.¹ The Department of Human Services (DHS) responds that that error was harmless. We conclude that that error was not harmless because the record does not allow us to conclude that the juvenile court would have reached the same conclusion—that is, the juvenile court did not indicate whether the evidence—independent of the inadmissible hearsay—was sufficient to warrant continued jurisdiction over G. Accordingly, we vacate and remand for reconsideration of father's motion to dismiss.

For background purposes, we describe the facts consistently with the juvenile court's decision to take jurisdiction.²

The child, G, was born prematurely in May 2013 and tested positive for heroin and methamphetamine, which caused G to have "significant withdrawal" symptoms that were treated in the neonatal intensive care unit for nine days. DHS took G into protective custody the day after he was born and petitioned the juvenile court to take jurisdiction over G.

The jurisdictional petition alleged that G's "condition or circumstances are such as to endanger the welfare of [G] by reason of the following facts" related to father:

"I. The father has engaged in a pattern of domestic violence with others with whom he has had a relationship, he has not successfully engaged in treatment for this conduct and he is currently in a relationship with the child's mother.

"J. The father is involved in criminal activities that interfere with his ability to safely parent the child.

"K. The father's residential instability; employment instability; financial instability and chaotic lifestyle interfere with his ability to safely parent the child.

"L. The father's substance abuse interferes with his ability to safely parent the child.

"M. [Father] is said child['s] biological father."

On June 17, 2013, father did not appear for the hearing on the jurisdictional petition. Consequently, the juvenile court entered judgment on the above allegations (I, J, K, L, and M) and established jurisdiction over G.³

In order to reunite with G, DHS requested that father engage in the following services, among other things: a domestic violence assessment, a mental health evaluation, substance abuse assessment and treatment, a paternity test, and visits with G. Father failed to engage in any of those services. Father cancelled visits with G on several occasions. His last recorded visit with G was on October 29, 2013.

On August 19, 2013, father entered a guilty plea to possession of a controlled substance and was placed on probation and ordered to complete a substance abuse treatment program. In December 2013, father was arrested and placed in custody on an immigration hold. On December 30, 2013, father entered a guilty plea to second-degree theft and was placed on probation. In March or April 2014, father was deported to Mexico. Following father's deportation, DHS was not able to locate father, and father's attorney was permitted to withdraw from representing him because she had not had contact with him in over a year. On September 8, 2014, the court changed the permanency plan for G from return to parent to adoption.

On December 8, 2014, DHS caseworker Desiree Coomes spoke with father, who was in Mexico, by phone, and father told her that he wanted to engage in services and be reunified with G. Father told Coomes that he no longer drank alcohol or used drugs. Following that conversation, on December 12, 2014, Coomes sent father a letter of expectation that included, among other things, an expectation to: maintain written contact with G, maintain monthly phone contact with DHS, and "participate in a comprehensive substance abuse assessment and follow through with any treatment recommendations." The letter also specified that the "agreement [would] remain in effect from December 12, 2014 through March 12, 2015, at which time progress will be re-evaluated and a new agreement may be negotiated." Around that time, father also completed a paternity test that proved that he is the biological legal father of G.

In February 2015, a warrant was issued for father for failing to pay court fines. In April 2015, DHS caseworker Coomes sent pictures of G to father, and as the letter of expectation requested, father wrote a letter to G.

In June 2015, at the request of DHS, the Puebla State System for Integral Family Development (DIF), a child welfare agency in Mexico, conducted a study of father.⁴ The DIF report contained a socioeconomic study, photos of father's family and home, a psychological evaluation, and criminal background clearance. The socioeconomic study and psychological evaluation included the following observations, among others:

• "The living conditions appear to be good and stable," and also have "all of the utility services, lighting, sewage, portable water, security, medical services, schools, businesses, etc."

• Father "does not show his emotions easily, but he states that he will comply with all that is required of him."

• "In terms of the child[ ]'s care, [father] would get support from his mother * * * when * * * [father] works."

• Father's parents "work in [a] commercial business, they have a butcher shop which allows them to have a financially stable life."

• Father is generally capable of resolving problems and managing stress, "but not appropriately, given his history."

• Father "may not be [a protective person able to meet G's general needs], but with the support of his family he would be able to do it."

• Father's family is not supportive of one another—"the family relationships are distant, cold and limited to respect and scant time spent together as a family."

• In the behavioral analysis, the DIF caseworker observed that, "[i]n his daily life [father] adopts a calm and reserved behavior with his neighbors and family; he does, however, tend to be explosive and impulsive. He also prefers to be isolated or [distant] from others in order to avoid being questioned about his past life."

• In the interactive analysis, the DIF caseworker observed that father "continues to have difficulty relating."

• In the emotional analysis, the DIF caseworker observed that father "does not show his feelings and emotions with his extended family, because his relationship with his parents has been discourteous, cold, authoritarian and violent. There is no opening to give or receive affection."

• Father did not "show signs of an altered mental state."

In July 2015, the juvenile court held a three-day contested permanency hearing on father's motion to change the plan from adoption to reunification. Before the hearing, father requested that the juvenile court bifurcate the hearing to separately consider his motion to dismiss jurisdiction and his motion to change the permanency plan back to reunification. Father argued that the separate motions required different evidentiary standards,

"so since we have both of those pending motions on my part, the motion to dismiss and the motion for the permanency hearing, I don't want to see those two hearings get too muddled up together, if that makes sense, because of the evidentiary standards. So I'd object to the court receiving the permanency packet today and request that we set a full day to deal with both motions to dismiss and the contested permanency hearing."

The juvenile court proceeded with the permanency hearing, allowed the parties to submit written responses in regard to father's motion to dismiss, and addressed father's motion to dismiss later.

"[THE COURT]: I would actually—you know, (inaudible). I mean given the—the recent case law, I'm very reluctant to dovetail both a motion to dismiss and a permanency hearing. I think what—I think the issues are different and I—I want to make sure the record is clean and so I'm—I'm very reluctant to do the two together.

" * * * * *

" * * * It may not be the most judicially efficient, but at the same time I want to make sure we—we do everything so that the record is clear, so—and then in regards to the motion to dismiss, I would prefer a written response and so I—I want to give you time to adequately respond and then set oral argument as to that motion to dismiss. But in regards to the permanency hearing, what I will do is I will take this under advisement."

At the permanency hearing, Coomes testified that, while in Mexico, father provided a single urinalysis that was negative and completed a psychological evaluation, but did not engage in drug and alcohol treatment. Coomes explained that a single negative urinalysis that could have been a scheduled appointment "doesn't really give me a clear picture whether or not he's using." She believed that father needed to engage in substance abuse treatment because, from her "experience working with people with substance abuse issues[,] * * * generally people need to engage in treatment." At the conclusion...