Dep't of Human Servs. v. J.M. (In re L. M.), 1200227

• Decision Date: 22 October 2014
• Docket Number: 1200227,Petition Numbers 12JU215,A156238.
• Citation: 338 P.3d 191,266 Or.App. 453
• Parties: In the Matter of L. M., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent, v. J.M. and M.M., aka M.H., Appellants.
• Court: Oregon Court of Appeals

266 Or.App. 453

338 P.3d 191

In the Matter of L. M., a Child.DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent

v.J.M. and M.M., aka M.H., Appellants.

1200227

Petition Numbers 12JU215

A156238.

Court of Appeals of Oregon.

Argued and Submitted July 24, 2014.

Decided Oct. 22, 2014.

Angela Sherbo argued the cause for appellant J.M. With her on the briefs was Elizabeth Brownhill.

Peter Gartlan, Chief Defender, and Holly Telerant, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant M.M.

Stephanie L. Striffler, Senior Assistant Attorney General, argued the cause for respondent. With her on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

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

Opinion

ORTEGA, P.J.

Mother and father appeal a permanency judgment that changed the permanency plan for their child, L, from reunification to adoption. On appeal, parents first contend that the juvenile court violated their due process rights by admitting into evidence out-of-court statements contained within three reports without providing parents the opportunity to cross-examine the authors of those reports. Parents also challenge the court's determination that DHS made active efforts to reunify the family¹ and that, despite those efforts, parents had not made sufficient progress to allow L to be safely returned home. Mother also separately assigns error to the continued placement of L in relative foster care, contending that the change in plan from reunification to adoption is a “foster care placement” under the Indian Child Welfare Act (ICWA) and that the change in plan was erroneous without qualified expert testimony that mother's custody was “likely to result in serious emotional or physical damage” to L. See ORS 419B.340(7) ; 25 USC § 1912(e). We conclude that the admission of the reports containing out-of-court statements did not violate parents' due process rights. We further conclude that the juvenile court did not err in changing the permanency plan from reunification to adoption, and that the change in plan was not a “foster care placement” within the meaning of ICWA. Accordingly, we affirm.

None of the parties requests de novo review, and we decline to exercise our discretion to conduct such review in this case. See ORAP 5.40(8)(c) (stating that we exercise de novo review only in “exceptional” cases). Accordingly, we “view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome.” Dept. of Human Services v. N. P., 257 Or.App. 633, 639, 307 P.3d 444 (2013). In doing so, we “(1) assume the correctness of the juvenile court's explicit findings of historical fact if th[ose] findings are supported by any evidence in the record; [and] (2) further assume that, if the juvenile court did not explicitly resolve a disputed issue of material fact * * * the court implicitly resolved the issue consistently with that disposition[.]” Id. at 639–40, 307 P.3d 444. We state the facts consistently with that standard. We begin with the procedural background of the case, and then discuss facts as they are relevant to parents' arguments on appeal.

I. BACKGROUND

DHS first became involved with parents in 2009 when the agency filed a dependency petition seeking jurisdiction over the couple's first child. Parents eventually stipulated to termination of their parental rights as to that child in October 2011, and that child was eventually adopted. L was born on August 1, 2012. DHS initiated an investigation the next day based on concerns that parents could not safely parent L. That investigation resulted in a “founded disposition” and L's immediate placement in relative foster care with the same family that had adopted his sibling. DHS filed a dependency petition two days after L's birth.

After DHS filed the petition, parents asked that Dr. Sweet conduct psychological evaluations of each parent in November 2012. Sweet diagnosed mother with low cognitive abilities and a personality disorder with passive-aggressive and dependent features and described mother as “not able to express any understanding of the concerns that the state has had about her.” Sweet also noted that mother evinced no concern regarding father's chronically angry and threatening behavior. Sweet diagnosed father with borderline intellectual functioning, intermittent explosive disorder, a learning disorder, and a personality disorder with paranoid, avoidant, and passive-aggressive features.

On December 6, 2012, the juvenile court entered a judgment of jurisdiction based on parents' admissions to allegations that L's condition and circumstances endangered his welfare. Specifically, parents admitted that they lacked the parenting knowledge to ensure his safety, that both had mental health problems that interfered with their ability to safely parent him, that mother failed to recognize how father's mental health problems presented a safety risk to L, and that father's inability to control his anger presented a safety threat to L.

The court held two review hearings, one in March 2013 and another in May 2013; each ended in a determination that continued substitute placement was necessary. In August 2013, the court held a permanency hearing and continued the permanency plan of reunification. At that time, the court ordered parents to participate in intensive parent-mentor training and one-on-one therapy and to continue in their current programs. At a November 2013 status check, DHS asked the court to order updated psychological evaluations of parents to assist in further case planning. The following January, DHS requested that the plan be changed to adoption. The court held a permanency hearing on January 10 and, on January 21, entered a permanency judgment that changed the plan to adoption. The court explained in its judgment that, one-and-a-half years after L's removal, parents could not safely parent L and, despite extensive services, there was no evidence that additional services for any period of time could result in parents making changes sufficient to equip them to safely parent L.

Parents appeal that permanency judgment. We begin our analysis with parents' due process challenge. Because we conclude that their due process rights were not violated in this case, we then proceed to examine whether the court correctly determined that the services provided to parents constituted active efforts, and whether the court correctly determined that parents had not made sufficient progress to allow L to return home. Finally, we address mother's contention that the change in plan was a “foster care placement” under ICWA that required expert testimony establishing that mother's custody was “likely to result in serious emotional or physical damage” to L.

II. ANALYSIS

A. Due process challenge to admission of out-of-court statements

At the permanency hearing, parents objected to the admission of several exhibits on the ground that DHS sought to admit those exhibits without providing parents with an opportunity to cross-examine the authors of out-of-court statements contained within the exhibits. The court admitted the exhibits over parents' objection, concluding that ORS 419B.325(2) and our decision in Dept. of Human Services v. B.J. W., 235 Or.App. 307, 230 P.3d 965, rev. den., 349 Or. 56, 240 P.3d 1097 (2010), allowed admission of such evidence without regard to the competency of the evidence.² Further, the court determined that due process did not preclude the admission of the exhibits.

On appeal, parents limit their challenge to the trial court's admission of four exhibits. Parents take issue with the court's admission of (1) Sweet's December 2013 psychological evaluations of mother and father, (2) parenting mentor Krista Grensky's report, and (3) those portions of DHS's January 2014 court report that contained out-of-court statements by Sweet or Grensky. Father, joined by mother, contends that, at a permanency hearing in an ICWA case where DHS seeks to change the plan from reunification to adoption, the court may not admit out-of-court statements purporting to be expert opinion on critical issues before the court without allowing for cross-examination of the authors of those statements. Parents explain that the out-of-court statements in those reports were central to the issues that the court had to decide before changing the plan (i.e., the adequacy of services and parents' progress). According to parents, the court's admission of those exhibits, without any opportunity to cross-examine the authors of the out-of-court statements contained within, violated their procedural due process rights.

Juvenile dependency proceedings implicate the due process rights of parents. State ex rel. Juv. Dept. v. Geist, 310 Or. 176, 188, 796 P.2d 1193 (1990). “For all its consequence, ‘due process' has never been, and perhaps can never be, precisely defined.” Lassiter v. Department of Social Services, 452 U.S. 18, 24, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). It “ ‘is not a technical conception with a fixed content unrelated to time, place and circumstances.’ ” Id. (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) ). Accordingly, “[d]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

In Mathews v. Eldridge, 424 U.S. 319, 334–35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the United States Supreme Court explained that, when a court is charged with deciding if due process was satisfied in a particular instance, the court must evaluate three factors: (1) “the private interest that will be affected by the official action;” (2) “the risk of an erroneous deprivation of such interest through the...