Dep't of Human Servs. v. K. G. T. (In re B. M. T.)

• Decision Date: 02 September 2020
• Docket Number: A172396
• Citation: 473 P.3d 131,306 Or.App. 368
• Parties: In the MATTER OF B. M. T., a Child. Department of Human Services, Petitioner-Respondent, v. K. G. T., Appellant.
• Court: Oregon Court of Appeals

306 Or.App. 368

473 P.3d 131

In the MATTER OF B. M. T., a Child.Department of Human Services, Petitioner-Respondent,

v.K. G. T., Appellant.

A172396

Court of Appeals of Oregon.

Argued and submitted June 15, 2020.

September 2, 2020

Elena Stross, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.

Inge D. Wells, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

AOYAGI, J.

In this juvenile dependency case, father appeals a judgment changing the permanency plan for his five-year-old son, B, from reunification to adoption. Father, who is incarcerated, challenges the juvenile court's determination that the Department of Human Services (DHS) made reasonable efforts to reunify B with father. We agree with father that the juvenile court erred and, accordingly, reverse.

FACTS

Father has not requested de novo review, and we decline to conduct de novo review. 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. J. F. D. , 255 Or. App. 742, 744, 298 P.3d 653 (2013). Whether those efforts constitute "reasonable efforts" for purposes of ORS 419B.476(2)(a) is a question of law that we review for legal error. Dept. of Human Services v. V. A. R. , 301 Or. App. 565, 567, 456 P.3d 681 (2019).

B was born in February 2015. It is unclear whether father ever lived with B and mother, but he "was around" when B was a baby. In 2016, a court awarded sole legal custody of B to mother, with no parenting time for father. Thereafter, father was not a consistent parental resource to B, although B did spend some time with father on weekends and, in June 2018, spent three weeks with father.

In July 2018, DHS removed B from his maternal aunt's home, where he was living, and subsequently filed a dependency petition. The juvenile court entered a judgment asserting jurisdiction over B in early November 2018, identifying six jurisdictional bases related to mother and five jurisdictional bases related to father. Only the jurisdictional bases related to father are relevant to this appeal:

• that father's substance abuse interferes with his ability to safely parent B,

• that father has a history of mental health diagnosis that is currently untreated and interferes with his ability to safely parent B, • that father has exposed B to unsafe circumstances,

• that father's residential instability interferes with his ability to safely parent B, and

• that father was unable to provide for and parent B at that time.

The specifics of those jurisdictional bases are not especially relevant to this appeal, but, for context, father has a history of methamphetamine and alcohol use, has a possible past diagnosis of schizoaffective disorder

or schizophrenia, may have untreated bipolar disorder, has difficulty managing his emotions and avoiding impulsive behavior, lacks adequate parenting knowledge, has been an inconsistent parental resource for B and lacks a strong bond with B, and has a history of homelessness.

In September 2018, shortly before the juvenile court entered its judgment asserting jurisdiction over B, father was convicted of theft and felon in possession of a firearm and sentenced to 30 months in prison. While in prison, he was further convicted, in June 2019, of unlawful possession of methamphetamine, felon in possession of a restricted weapon, reckless driving, unlawful entry into a motor vehicle, and theft. In part due to the pending charges, father was moved between facilities repeatedly, especially during his first seven months of incarceration. Since March 2019, father appears to have remained primarily at one facility, the Eastern Oregon Correctional Institution. Father's earliest possible release date is (or was) in the spring of 2020.

In April 2019, DHS sent father a "letter of expectations." The letter stated that the juvenile court had ordered father to complete a DHS/CWP approved parent training program; to complete a DHS/CWP approved drug and alcohol rehabilitation program; to participate fully in mental health services approved by DHS/CWP, including but not limited to individual therapy and medication management; and to maintain safe and stable housing as approved by DHS/CWP.

DHS maintained "not frequent but regular" contact with father while he was incarcerated. Over 12 months, the caseworker spoke with father on the phone six times, and a DHS "courtesy worker" met with father twice in person to discuss the case. The caseworker did not contact father after July 2019, however, because father relayed that his attorney had advised him not to speak to the caseworker without his attorney present. During the same 12-month period, DHS arranged 10 video visits with B (typically lasting five minutes) and one in-person visit (that lasted 10-15 minutes). Another 17 video visits were scheduled but not held due to technical or logistical issues. In addition to the visits, father sent letters to B, using stamped envelopes provided by DHS.

Beyond visitation, DHS relied on the Department of Corrections (DOC) to provide father with the services that he needed to comply with the case plan, even though DHS knew—from contacting the prison twice in 2018 to determine what services were available through DOC—that virtually no services were available to father through DOC.

Regarding substance abuse services, father attended Narcotics Anonymous (NA) meetings at the prison. No other services were available to him through DOC, and DHS did not offer him any services related to substance abuse.

As for parent training, father completed a parenting program that was not "recognized by DHS" and a cognitive thinking program, which were the only services available through DOC. The DHS caseworker did not know whether DHS can contract to have someone provide a parenting assessment in prison.

As for mental health services, as described by the DHS caseworker, DOC determined that father "did not need any mental health services" and did not qualify for mental health services through DOC. In July 2019, the DHS caseworker offered to arrange a mental health assessment for father, but father told her that he did not need mental health services and was not eligible for an evaluation or services through DOC, and he "declined" an assessment.¹ Because father did not feel that he needed an assessment, the caseworker never scheduled or attempted to schedule one. She did consider scheduling one but decided not to do so because of father's history of being moved among facilities.²

In September 2019, the juvenile court held a permanency hearing for B, who had been in foster care for 14 months at that point. The witnesses were father and the DHS caseworker, who testified consistently with the above-described facts (except that father denied having declined a mental health evaluation in July 2019—but the court found that he did). After the hearing, the court changed B's permanency plan from reunification to adoption and entered a permanency judgment to that effect.

As a necessary predicate to changing B's plan, the juvenile court concluded that DHS had made reasonable efforts towards reunification. The court noted that DHS's efforts were "complicated" by father's incarceration and "further complicated" by his multiple moves among facilities, making it "difficult to set up services." Regarding substance abuse services, the court found that DHS had offered those services "to the extent possible" but that attending NA meetings is not generally considered sufficient substance abuse treatment, no other classes were offered or available in the prison, and it would not "be reasonable to require DHS to send someone out to conduct drug and alcohol counseling just for [father]." The court did not address parent training services. As for mental health services, the court found that father had declined the assessment offered by DHS but that, even if he had agreed to it, DOC would not provide mental health services to father because he did not qualify, and it would not be "reasonable to expect DHS to send a counselor out to the facility." Finally, the court found that DHS had arranged visits between father and B in a reasonable manner and had communicated with prison counselors to the best of its ability to try to determine what services could be provided to father. In its written permanency judgment, the only "service" that the court marked as having been provided to father by DHS was visitation with B.

Father appeals the juvenile court's judgment. In his first assignment of error, father challenges the court's determination that DHS made reasonable efforts to reunify B with him. In his second and third assignments of error, father challenges the juvenile court's reasoning related to reasonable efforts, which are not proper assignments of error, so we treat those as part of the first assignment of error. See ORAP 5.45(3). In his fourth assignment of error, father asserts that the juvenile court erred in changing B's permanency plan, because DHS did not make reasonable efforts. Thus, the only substantive issue on appeal is whether the juvenile court was correct in concluding that DHS made reasonable efforts to reunify B with father.

ANALYSIS

It is the policy of the State of Oregon to offer appropriate reunification services to parents to allow them the opportunity to adjust their circumstances, conduct, or conditions to make it possible for a child to safely return home within a reasonable time. ORS 419B.090(5). In accordance with that policy, as long as a child's permanency plan is reunification, the juvenile court must determine at each permanency...