Dep't of Human Servs. v. M. L. M. (In re L. M. G. M)

• Citation: 283 Or.App. 353,388 P.3d 1226
• Decision Date: 11 January 2017
• Docket Number: A162043
• Parties: In the Matter of L. M. G. M, a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. M. L. M., fka M. L. H. and J. L. M., aka J. L. M., II, Appellants.
• Court: Oregon Court of Appeals

283 Or.App. 353
388 P.3d 1226

In the Matter of L. M. G. M, a Child.

DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
M. L. M., fka M. L. H. and J. L. M., aka J. L. M., II, Appellants.

A162043

Court of Appeals of Oregon.

Argued and submitted October 25, 2016.
January 11, 2017

Angela Sherbo argued the cause and filed the briefs for appellant J. L. M.

Shannon Storey, Chief Defender, Juvenile Appellate Section, and Holly Telerant, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant M. L. M.

Judy C. Lucas, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Sercombe, Presiding Judge, and Flynn, Judge, and DeHoog, Judge.

FLYNN, J.

283 Or.App. 355

Mother and father appeal from a judgment terminating their parental rights to their child, L, in a case that is governed by the Indian Child Welfare Act (ICWA), 25 USC §§ 1901 –1963. On de novo review, ORS 19.415(3)(a), we affirm the judgment of termination.

I. BACKGROUND

The juvenile court entered a judgment of jurisdiction shortly after the birth of L, parents' second child, based on parents' admissions that (1) they lacked the parenting knowledge to ensure L's safety, (2) both had mental health problems that interfered with their ability to safely parent L, (3) father's inability to control his anger presented a safety threat to L, and (4) mother failed to recognize how father's mental health problems presented a safety risk to L. Dept. of Human Services v. J. M. , 266 Or.App. 453, 456-57, 338 P.3d 191 (2014), rev. den. , 356 Or. 689, 344 P.3d 1111 (2015). Many of the facts regarding the conditions that gave rise to jurisdiction and regarding DHS's efforts to address those conditions are set out in J. M ., in which we affirmed the trial court's change of the permanency plan for L from reunification with parents to adoption.¹

Father is a member of the Choctaw Nation, and the parties agree that L qualifies as an "Indian child" under ICWA. 25 USC § 1903(4). Thus, DHS is required to meet both the state law standard for termination as well as additional procedural and substantive safeguards that ICWA imposes, and which Oregon has adopted for terminations involving an "Indian child." ORS 419B.521(4). Under Oregon law, to terminate parental rights, the court must find "that the parent or parents are unfit by reason of conduct or condition seriously detrimental to the child," ORS 419B.504, that "integration of the child or ward into the home of the parent or parents is improbable within a reasonable time due to conduct or conditions not likely to change," and that termination of parental rights is in the best interests of the child. ORS 419B.500. Additional safeguards imposed by

283 Or.App. 356

ICWA include a requirement that DHS prove that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful," 25 USC § 1912(d), as well as a requirement that the court determine that parents' continued

388 P.3d 1229

custody of their child "is likely to result in serious emotional or physical damage to the child." 25 USC § 1912(f) ; ORS 419B.521(4). Moreover, those determinations must be "supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses" who "possess special knowledge of social and cultural aspects of Indian life." Dept. of Human Services v. K. C. J. , 228 Or.App. 70, 73, 207 P.3d 423 (2009) (internal quotation marks omitted).

II. DISCUSSION

On appeal, parents challenge DHS's proof as to nearly every requirement for termination, including the requirement of "active efforts." They also challenge DHS's reliance on evidence that parents are unable to maintain a clean and safe living situation, arguing that those concerns are beyond the scope of the bases for jurisdiction. As indicated above, we reject each of parents' challenges and affirm the judgment of termination. We write primarily to address parents' argument that DHS failed to demonstrate beyond a reasonable doubt that it engaged in "active efforts" to provide services to prevent the break-up of the family, as required by ICWA.

A. Active Efforts

The ICWA "active efforts" requirement applies to "[a]ny party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law." 25 USC § 1912(d). At those stages of a case, DHS must satisfy the court "that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." Id. "Active effort means that DHS must assist the client through the steps of a reunification." J. M ., 266 Or.App. at 464, 338 P.3d 191 (internal quotation marks and brackets omitted). That standard

283 Or.App. 357

"impose[s] on DHS ‘an obligation greater than simply creating a reunification plan and requiring the client to execute it independently.’ " Id . at 463–64, 338 P.3d 191 (quoting State ex rel. Juv. Dept. v. T. N., 226 Or.App. 121, 124, 203 P.3d 262, rev. den., 346 Or. 257, 210 P.3d 905 (2009) ).

Father argues that DHS failed to make active efforts, because "services aimed at ameliorating the conditions or conduct that are alleged by the state to be seriously detrimental" ended one to two years before the date of the termination trial. According to father, "[b]ecause the termination of parental rights may only be ordered upon a finding of present unfitness, the efforts to ameliorate the conduct or condition that allegedly renders a parent unfit must also be current." We disagree with father's legal premise as well as with his view of the factual record.

We have not previously considered whether "active efforts" must consist of services that are "current" through the date of termination. However, we observe that the language of 25 USC § 1912(d) does not refer to any fixed time period during which services must be provided in order to constitute active efforts. Rather, the statute simply requires a showing at various points "that active efforts have been made."

Moreover, in construing the active efforts requirement at earlier stages of an ICWA proceeding, we have explained that "[t]he type and sufficiency of effort that DHS is required to make" to satisfy the "active efforts" requirement "depends on the particular circumstances of the case." J. M. , 266 Or.App. at 464, 338 P.3d 191 (internal quotation marks omitted); see also Dept. of Human Services v. D. L. H. , 251 Or.App. 787, 799, 284 P.3d 1233, on recons . , 253 Or.App. 600, 292 P.3d 565 (2012), rev. den. , 353 Or. 445, 300 P.3d 168 (2013) (considering circumstance of parent's ongoing incarceration in determining whether DHS had made "active efforts"). Among those particular circumstances of the case is "the nature of the parent's problems," which can include whether the parent has rejected offered services or believes that services are unnecessary. See State ex rel. Juvenile Dept. v. Woodruff , 108 Or.App. 352, 357, 816 P.2d 623 (1991) (concluding that agency satisfied its ICWA obligation to provide services "in view

283 Or.App. 358

of the nature of father's problems," including that father declined to participate in offered services because he denied a need for those services). Thus, although an early cessation of services could indicate that DHS is not

388 P.3d 1230

making "active efforts * * * to prevent the breakup of the Indian family," as required by 25 USC § 1912(d), we conclude that timing is not the only relevant consideration.²

Here, the record establishes beyond a reasonable doubt that "in view of the nature of" these parents' problems, DHS made "active efforts * * * to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family." A detailed discussion of the "extensive and appropriate" services that DHS provided to address parents' mental health issues and parenting limitations prior to the January 2014 permanency hearing is set out in our prior opinion. See J. M. , 266 Or.App. at 469, 338 P.3d 191. We do not repeat that discussion here, except to emphasize that DHS first began providing services to parents several years before L was born and, from shortly after L's birth, provided an extensive array of services to address parents' mental health and parenting issues.

In addition, we highlight the significant efforts of parents' DHS caseworker throughout the case. Father described the parents' DHS caseworker, Cindi Corrie, as "the main one that I think everybody should have." Corrie took an unusually active role in this case. For example, Corrie personally helped during the supervised visits between parents and L, although that was not the usual caseworker role. Corrie facilitated culturally appropriate services for father by reaching out to the Choctaw...