Dep't of Human Servs. v. J.F.D. (In re D.D.), J110511
| Decision Date | 27 March 2013 |
| Docket Number | J110511,Petition Number 11198J; A152075. |
| Citation | 298 P.3d 653,255 Or.App. 742 |
| Parties | In the Matter of D.D., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent, v. J.F.D., Appellant. |
| Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
Valerie Colas, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jake J. Hogue, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and DUNCAN, Judge.
In this juvenile dependency case, father appeals from a dispositional judgment in which the juvenile court determined that the Department of Human Services (DHS or the department) had made reasonable efforts to eliminate the need for removal of the child, D, from the home. Although he does not challenge the juvenile court's disposition per se (“return to parent” with a concurrent plan of adoption), father argues that the court's “reasonable efforts” conclusion was erroneous because the department did not contact him in the seven months between the filing of the jurisdictional petition and the dispositional hearing and provided him with no services during that period. DHS responds that, under the totality of the circumstances, its efforts were reasonable: Mother (who is not a party in this appeal) received extensive services, and DHS requested that officials in Kentucky, where father was living at the time, conduct a home study to determine whether D could be placed with him. Because we agree with father that DHS's efforts were not reasonable, we reverse and remand.
We review findings of fact (for example, what DHS did or did not do) for any evidence, and conclusions of law (in particular, whether the historical facts constitute reasonable efforts) for legal error. In April 2011, when D was four years old, DHS became involved with the family due to, among other things, father's anger management issues and the parents' inability to meet D's basic needs. Thereafter, but before the formal proceedings in this case began, father moved to Kentucky and left D in mother's care. In July 2011, mother requested assistance from DHS. One month later, she voluntarily placed D in a foster home. Three months thereafter, on November 17, DHS filed a petition to assert jurisdiction over D, citing numerous “conditions or circumstances” with respect to both father and mother. The juvenile court held a shelter hearing and took D into protective custody. DHS did not notify father of the hearing.
In March 2012, four months after the court placed D in protective custody, DHS, pursuant to the Interstate Compact for the Placement of Children (ICPC), requested that Kentucky officials complete a home study of father's home (he was living with his mother at the time). The record does not show whether the study was ever conducted. Nonetheless, on May 29, 2012, the juvenile court entered a judgment asserting jurisdiction over D, as to father, based on father's admission to the following facts:
“[Father] has an anger management issue that poses a threat to the safety of said child and requires evaluation and recommended treatment.
“Yes, I do go [ sic ] anger issues but I have been going to anger management to be a better father to my child [D].”
After the court asserted jurisdiction over D, DHS continued to provide services to mother and D, but it did not provide any services to father or have any contact with him until shortly before the dispositional hearing.
That hearing occurred on June 15, 2012. The only contested issue was whether DHS had made “reasonable efforts * * * to prevent or eliminate the need for removal of the ward from the home since the date of the last court review.” 1 Mother had communicated to DHS her desire to relinquish her parental rights and did not attend the hearing. Father, however, appeared by telephone and, through his attorney (who was present in the courtroom), objected to the court's conclusion that DHS had made “reasonable efforts” in light of its delay in serving him with the jurisdictional petition, its four-month delay in initiating the ICPC referral, and its failure to provide any services or contacts. Father also argued that, to the extent that the ICPC referral was a “service,” it did not address his anger management issues, the only basis for jurisdiction. In response, DHS introduced one witness, a caseworker, who testified:
“It's my understanding, in looking through the court documentation, that the legal case did not occur until November 2011, and at that time—I can't speak to how much contact the agency had with [father], I'm not sure how much information we knew about his whereabouts except the general state that he was in.
“But that's—that's my attempt to argue the reasonable efforts finding.”
The juvenile court also received, as an exhibit, a DHS report that contained a “check the box” list of DHS's efforts to return D to each parent. As to mother, DHS provided parental training, a psychological evaluation, assistance with transportation and housing, supervised visitation, and referrals for services for D. In addition, the caseworker testified that D “is a very challenging, very special needs child and he's been involved with [In–Home Safety and Reunification Services] with his mother that we had continuing communication with, 30 day face-to-face contacts which aren't articulated here, transportation for the mother, bus passes for visits, mental health referral and communication with that provider, going to * * * meetings every one to two weeks, continued communication with the foster parent regarding his special needs, and the list goes on.”
As to father, the DHS “check the box” report listed only one effort: “ICPC home study referral (2) for child's family.” The caseworker testified that DHS did not have any information about the ICPC aside from the fact that a referral was made, but father's attorney reported that father had not been contacted by Kentucky officials, “though apparently [father's] mother has.” Father also stated that he had voluntarily enrolled in an anger management program in Kentucky.
The trial court ultimately determined that, although DHS's delay in initiating the ICPC was unreasonable, DHS nonetheless made reasonable efforts when “viewed in the entirely, not just focused on one parent or services to one parent or a particular service to one parent,” and in consideration of the challenge posed by father residing out of state. The juvenile court subsequently entered the dispositional judgment, approving the case plan for reunification with a parent, with the concurrent plan of adoption. The judgment contained a check-the-box entry indicating that DHS “has made * * * reasonable efforts * * * to prevent or eliminate the need for removal of the ward from the home since the date of the last court review.”
On appeal, father argues that DHS's failure to contact him in the seven months between the filing of the petition and the dispositional hearing renders its efforts unreasonable as a matter of law and that the efforts that DHS did make—requesting a home study through the ICPC and providing services to mother and D—were not reasonable efforts to reunify D with father. DHS responds that its efforts were reasonable when viewed in the totality, which, DHS argues, is the correct analysis at the dispositional stage of a juvenile dependency case.
It is the policy of the State of Oregon to offer “appropriate reunification services” to parents when a child has entered protective custody and a dependency petition has been filed. ORS 419B.090(5). Pursuant to that policy, DHS generally is required to make “reasonable efforts” to make possible a child's safe return home while the dependency case is pending. ORS 419B.340(1); ORS 419B.476(2)(a). To ensure compliance, the juvenile court is required to determine whether DHS has satisfied that mandate at the dispositional hearing, which generally occurs 60 days after the petition is filed. ORS 419B.305(1); ORS 419B.340(1).2 Specifically, at the dispositional stage, the juvenile court is required to determine
ORS 419B.340(1).
Father contends that the evidence in the record does not support a determination that DHS made reasonable efforts to eliminate the need for the removal of D or to make it...
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