Dep't of Human Servs. v. J. D. R. (In re J. D. R.)

• Decision Date: 23 June 2021
• Docket Number: A175032
• Citation: 312 Or.App. 510,493 P.3d 567
• Court: Oregon Court of Appeals
• Parties: In the MATTER OF J. D. R. III, a Child. Department of Human Services, Petitioner-Respondent, v. J. D. R., Jr., Appellant.

312 Or.App. 510

493 P.3d 567

In the MATTER OF J. D. R. III, a Child.Department of Human Services, Petitioner-Respondent,

v.J. D. R., Jr., Appellant.

A175032

Court of Appeals of Oregon.

Argued and submitted April 30, 2021

June 23, 2021

George W. Kelly, Eugene, argued the cause and filed the brief for appellant.

Alex Jones, Certified Law Student, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General.

Before Shorr, Presiding Judge, and Powers, Judge, and Hadlock, Judge pro tempore.

SHORR, P. J.

In this juvenile dependency case, father appeals from a permanency judgment continuing his son J's permanency plan of reunification. Father assigns error to the juvenile court's determination that the Department of Human Services (DHS) had made reasonable efforts to effect reunification, because, father contends, DHS failed to investigate or provide services that were targeted toward his autism spectrum disorder. Jurisdiction as to father was based on father's admission that his autism spectrum disorder with accompanying intellectual impairment "impacted his ability to safely parent *** and maintain a safe and appropriate living environment." We agree with father that the juvenile court erred and, accordingly, reverse that aspect of the judgment.

Father has not requested de novo review, and we decline to conduct such review here. See ORS 19.415(3)(b) ; ORAP 5.40(8)(c). "We are therefore bound by the juvenile court's factual findings as to what efforts DHS has made, so long as there is any evidence in the record to support them." Dept. of Human Services v. K. G. T. , 306 Or. App. 368, 370, 473 P.3d 131 (2020). The juvenile court's determination that DHS's efforts were reasonable constitutes a legal conclusion that we review for errors of law. Id. As we discuss further below, there was limited evidence presented at the permanency hearing. Nevertheless, we provide, solely as context, a brief summary of the circumstances that brought the parties before the court, gleaned from the trial court file, with the acknowledgement that those materials are not part of the evidence offered at the permanency hearing.

J was born in August 2017. DHS Child Welfare first became involved in J's care in March 2018 due to concerns that mother and father were neglectful and failed to provide a safe and clean home environment.¹ DHS quickly became aware that both parents were developmentally "delayed" to some extent.

DHS petitioned for dependency in July 2019. The DHS caseworker's affidavit declared that, "[d]espite the number of services and amount of assistance DHS has provided[,] the parents cannot maintain the home environment and appropriate supervision of [J]." The home was often in "disarray" and littered with trash. An "in-home plan" was established, which allowed mother and J to stay together outside the home, first with a neighbor and later in a group housing environment. That plan did not include father, apparently because DHS believed that father could not provide parenting assistance and had "not made any changes to his behaviors that led to DHS intervention." Two months later, J was moved into foster care. By that point, J was two years old.

The juvenile court issued a judgment of jurisdiction in November 2019 based on the amended admissions of both parents. As to mother, mother admitted that she was "aware that the father cannot presently safely parent the child, but needs assistance to learn how to best develop the skills to protect the child from father's unsafe caregiving." She also admitted that she had "intellectual capacity limitations that impact[ed] her ability to safely parent." Father admitted that he "was recently diagnosed with Autism Spectrum Disorder with accompanying intellectual impairment, which has impacted his ability to safely parent the child and maintain a safe and appropriate living environment. The father needs the assistance of DHS and the court to receive ongoing services to address these issues."

The court held a permanency hearing on November 4, 2020. At that hearing, the court received two exhibits and considered the unsworn statements of the parties and their attorneys.² Exhibit 2, a report from the court-appointed special advocate (CASA), relayed that mother desired to "transition into her own place without [father]" and expressed support for that plan. The CASA opined that father presented a "hurdle" to mother's efforts at reunification due to his difficulty staying "engaged and willing to maintain cleanliness in the home and care for their child." Specifically, the CASA reported that

"[father] has attended Options visits and DHS visits with his son. When visitations occurred at the DHS office, he was often late and sometimes didn't show up at all. When visits transitioned into the home he was often not up when his son was dropped off or unavailable during DHS video check-ins. I do not feel that [father] has progressed since his son was removed from the home. He is disengaged and withdrawn most of the time. He does not appear to recognize the need for safety and cleanliness in the home. He struggles with communicating and interacting with his son. He currently has a room to himself in the house and cannot maintain safety by keeping it clean and safe or leaving a baby gate up at all times. When asked about it, he seems very frustrated with the idea of maintaining its cleanliness for his son and refuses to transition the room into a safe and quiet space for his son to play and nap."

Exhibit 1, the DHS Family Report, noted that father had "vocalized to the agency that he wants to co-parent with [mother]." Father had been attending Options visits but needed "prompts from his Options worker to engage." The report opined that father had "made minimal progress in his case plan," was "resistant to cleaning the apartment," and "often requires prompts and reminders to change his son's diaper, to provide a snack or to follow the set routine."

The DHS report also contained a lengthy narrative as to why DHS believed that substitute care of J remained necessary. That narrative noted that, while DHS had been allowing in-home visitation twice a week, those visits had been temporarily postponed three months earlier because an unannounced visit had discovered the apartment in a filthy and cluttered condition that was not "fit for visitation." The narrative explained that

"mother reported that the father doesn't clean after himself and doesn't help her clean the apartment. Mother reported that the father struggles to get rid of items in the apartment and if the mother tosses items out herself the father *** fished the items out of the garbage and tells her not to throw things away."

DHS declared that "the father does not actively help parent the child during visits" and noted that father "spends the majority of his time in the back bedroom playing video games or watching tv." The report explained that mother had oscillated between wanting to separate from father and wanting to stay together and go to couple's counseling. DHS expressed "hope that [mother] would separate from [father]." In short, while mother had been "cooperative with the agency" and had been making good progress toward J's return, father had not been making "adequate progress or been cooperative."

Finally, the report contained a section cataloging DHS's efforts to date as to both parents. As relevant here, DHS provided and facilitated visits for both parents, provided medical and dental care through the Oregon Health Plan, provided assistance in securing necessities and other services for J, and provided assistance relating to cleaning and organizing the parents’ apartment. DHS also provided referrals for SAFE (to mother), for Iron Tribe, for Options, for psychological evaluations, and for parent mentors.³

During the hearing, DHS asked to continue the reunification plan. Counsel for DHS reiterated the sentiments expressed in the exhibits, adding that "we would be in a different position if [mother] was living on her own" because "[mother] has made more progress than [father]."

Father argued that DHS's efforts toward him had not been reasonable, because the efforts provided were largely focused on mother and left him out of the case planning. Father acknowledged that mother was "easier to work with," but asserted that "the very diagnosis [of autism spectrum disorder] that is the basis for jurisdiction as to the father is what made him ‘harder to work with,’ which is what made him * * * be sort of left out of the case planning." He further argued that DHS needed to offer service providers experienced in working with individuals with autism spectrum disorder, because that condition was at the root of both father's and mother's relationship problems and father's parenting problems such as his difficulty communicating and engaging with J and DHS. Father argued that the service referrals that DHS had provided were not tailored to autism spectrum disorder and that father needed "tailored service[s]" and "special assistance." The DHS caseworker admitted, though unsworn, that the agency had "not directly contacted [Columbia Community Mental Health] to see if they have an autism specialist in the program."

The court asserted that "I don't think autism prevents cleaning and maintenance of a space," but also posited that

"it seems to me that somebody who was—who was skilled in working with autistic people, and was—could act as a counselor and kind of a coach for father would be the appropriate person to help with this. And I don't know if that exists in our community. But that seems to me to be the next—the next effort that should be made."

The court concluded that DHS had made reasonable efforts to reunify the family, while adding that "I do expect there to be additional efforts to find a parent coach, trainer, counselor who is trained in working with autistic...