Dep't of Human Servs. v. T.S. (In re T.S.)

• Decision Date: 26 November 2014
• Docket Number: A156255.,109037M,2011813482
• Citation: 267 Or.App. 301,340 P.3d 142
• Parties: In the Matter of T.S., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent, and T.S., Respondent, v. T.S., Appellant.
• Court: Oregon Court of Appeals

267 Or.App. 301

340 P.3d 142

In the Matter of T.S., a Child.DEPARTMENT OF HUMAN SERVICES, Petitioner–RespondentandT.S., Respondent

v.T.S., Appellant.

2011813482

109037M

A156255.

Court of Appeals of Oregon.

Submitted Aug. 13, 2014.

Decided Nov. 26, 2014.

Caitlin Mitchell filed the brief for appellant.

Ginger Fitch filed the brief for respondent child.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Judy C. Lucas, Senior Assistant Attorney General, filed the brief for respondent Department of Human Services.

Before GARRETT, Presiding Judge, and ORTEGA, Judge, and DeVore, Judge.

Opinion

GARRETT, P.J.

In this juvenile dependency case, father appeals the juvenile court's permanency judgment changing the plan for his daughter, T, from reunification to adoption. Father assigns error to the juvenile court's determination that the Department of Human Services (DHS or the department) made reasonable efforts to reunify father with T. We agree with father and conclude that DHS's efforts were not reasonable. Accordingly, we reverse and remand.

T was born on December 31, 2010. The department first became involved nine months later, in September 2011, when it received reports of father's violent behavior against T's mother in T's presence. At that time, T lived with mother. DHS spent the next two months attempting to locate and speak with mother about the reports. DHS had no address or telephone number to locate father, who was later determined to be living in Newport. In December 2011, DHS filed for protective custody over T. T was placed in relative foster care with mother's maternal aunt in Burns. DHS reached father for the first time later in December. Father said that he had recently been released from jail, that he had a methamphetamine addiction, and that he was “open” to entering drug treatment and working with DHS. He also admitted that he and mother were “neglectful” to T, that they were “constantly arguing,” and that they exposed T to “horrible living conditions.” DHS then filed a petition to establish dependency, based on mother's drug use and exposure of T to “unsafe people,” and on father's drug use and domestic violence against mother.

In February 2012, father contacted DHS again, told the department that he wanted to start services, and was instructed to call back with his address, as he could not recite it when asked. Father never called back; DHS discovered that his telephone had been disconnected. The next month, father called DHS again, provided his address, and again expressed interest in participating in services, but he did not call back to follow up. DHS also noted that father had “had several recent police contacts” and had an outstanding warrant for his arrest stemming from his domestic abuse of mother.

Father also made his first appearance before the juvenile court in this case at a review hearing, where he informed the court that he would like to have contact with T. In April 2012, the juvenile court made findings of jurisdiction as to father, and father admitted to the allegations in the dependency petition that his drug abuse impaired his judgment and ability to safely and appropriately care for T.¹ At that same hearing, the court ordered father to complete a drug and alcohol evaluation, participate in random urinalysis (UA) testing, enroll in parenting classes, obtain stable and suitable housing, maintain regular visitation with T as arranged by DHS, maintain contact with DHS and keep the department informed of “current contact information” at all times, clear all warrants and pending criminal matters, and sign releases of information for DHS for all services.

In June 2012, father was arrested for possession of methamphetamine. DHS reached father while he was in custody at the Lincoln County Jail, at which time father told the department that he was again “ready to engage in services.” While at the jail, father wrote a letter to mother, and mother sent photos of T to father. Later that month, father was released to the Salvation Army Treatment Center in Portland for drug and alcohol treatment, as well as anger management and parenting classes. Initially, father was “doing well” and DHS “hoped that he [would] continue in this service.” That appears to be the last contact that DHS had with father for approximately one year.

In July 2012, father failed to appear for a dependency review hearing concerning the allegations against him in the dependency petition. At that hearing, the court took testimony from DHS caseworker Sams, and based on Sams's testimony, found that father had subjected T's mother to domestic violence. The court entered a judgment establishing dependency and ordered father, among other things, to enroll in a batterer's intervention program and to comply with all terms of probation, parole, or post-prison supervision. Father was only in treatment for “a short time” before he left the Salvation Army without completing his treatment and went back to Newport.

In a DHS report from November 2012, DHS noted that father, upon leaving treatment early, had a warrant out for his arrest, and although he had started parenting and anger management classes while in the treatment center, he had not “engaged in any services since he left.” Meanwhile, mother had been progressing well enough in her own treatment that T was returned to her care. After T was returned to mother's care, DHS noted in a report that it had been in contact with both maternal and paternal relatives for case-planning purposes and sibling visits. The juvenile court held a permanency hearing in December 2012, where it learned that father had been recently arrested and was in custody at Lincoln County Jail.² The case plan remained to reunify the family.

T was again removed from her mother's care and again placed with her aunt in September 2013, because, at the time, mother was “essentially homeless” and was “unable to meet the needs” of the child.

A second permanency hearing was held on December 3, 2013, about one year after the first was held, before a juvenile court referee. By this time, father had been incarcerated for nearly one year, first at the Lincoln County Jail and then, beginning in May 2013, at the Snake River Correctional Institution. Through his attorney, father argued that the department had ignored father's repeated requests during that time to have contact with T:

“[T]hroughout the time that he's been incarcerated, [we have] been trying to get visitation—or, sorry, phone contact or other kinds of contact, and it's only after—it's only in the past month when, frankly, I've been emailing [Sams] and calling him a lot, that this stuff with the letters and the updates have actually happened for the first time in an entire year, and so I would argue that that amount of progress, although commendable, doesn't constitute reasonable efforts[.]”

Evidence was presented that, at father's attorney's request, DHS had finally contacted father in prison in July 2013, and that some discussion about the possibility of visits with T and father occurred during August and September 2013.

DHS explained to the referee that it had made extensive efforts toward mother during the dependency case, including housing assistance, visitation with T when T was not in mother's care, domestic violence treatment, and drug and alcohol counseling. DHS noted that mother had had mixed results with her services, and, at the time of the hearing, was at risk of being kicked out of a treatment program for failing to attend. DHS asked for an extension of time for 60 days in the hope that mother could make sufficient progress so that T could again be returned to her.³ T's attorney opposed any further continuance on the grounds that T had already “suffered ill effects of chaotic living environments” and needed “stability and permanency.”

The referee denied DHS's request for an extension and changed T's permanency plan from reunification to adoption at the close of the hearing, based on the court's conclusion that the department had made reasonable efforts to reunify the family⁴ and that there was no evidence that T would be able to reunify with either parent “in the very near future or in a period of time that comports with the developmental stages of [T] and her needs.” The court also ordered psychological evaluations of mother and father.

Sometime after the permanency hearing, both mother and father requested a rehearing before a judge. At the December 30, 2013, rehearing, the court heard additional testimony about father's progress and the department's efforts toward father during the previous year. Father testified that he sought out on hi sown volition, parenting classes that would start soon, and he was already participating in AA/NA groups and drug awareness classes. He also testified that he was employed at the prison, was working towards his GED, was attending chapel services, and was meeting regularly with his prison counselor. Father also described his efforts to correspond and keep updated on T:

“I sent [T] cards and then I sent [Sams] letters specifically from me asking [Sams] for a phone call to see if I can have phone contact with [T] or about visits or updates from [Sams]. There was no response from those letters, but I know that the cards made it to [T] so [Sams] obviously received the letters.”

Father also testified that he had recently received permission to send his letters directly to T, and that the child's aunt had provided him with at least two updates and photos of T. Father also described plans to enroll in domestic violence classes upon his release in Lincoln City and said that he would live with his current girlfriend in stable housing “five minutes” away from the classes. His release from prison was scheduled for June 4, 2014, approximately five months from the date of the rehearing.

Caseworker Sams testified that DHS had decided against developing the relationship between father and T, explaining that

“[mother] had—well, [

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