Dep't of Human Servs. v. J.R.F. (In re D.S.)

• Decision Date: 16 February 2012
• Docket Number: CA A147396,SC S059732).,(CC 100350J
• Citation: 273 P.3d 87,351 Or. 570
• Parties: In the Matter of D.S., a Child.DEPARTMENT OF HUMAN SERVICES, Respondent on Review, v. J.R.F., Petitioner on Review.
• Court: Oregon Supreme Court

273 P.3d 87

351 Or. 570

In the Matter of D.S., a Child.DEPARTMENT OF HUMAN SERVICES, Respondent on Review,

v.J.R.F., Petitioner on Review.

(CC 100350J

CA A147396

SC S059732).

Supreme Court of Oregon, En Banc.

Argued and Submitted Jan. 5, 2012.Decided Feb. 16, 2012.

On review from the Court of Appeals.^*Mary Shannon Storey, Senior Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.

Inge D. Wells, Senior Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

LANDAU, J.

At issue in this dependency case is the lawfulness of an order of the juvenile court that requires a father not to interfere with the ability of a child who is a ward of the court to visit other children who live with father but are not wards of the court. The Court of Appeals concluded that the juvenile court possesses authority to enter the order under ORS 419B.337(3), which authorizes the court to “make an order regarding visitation by the ward's parents or siblings.” Father in this case contends that the Court of Appeals erred in so concluding, because the order at issue does not involve visitation “by the parents or the siblings.” The Department of Human Services (DHS) contends that the Court of Appeals was correct, because, although ORS 419B.337(3) does not explicitly authorize the order at issue, the dependency statutes, taken as a whole, authorize the court to “make any order designed to further the best interest of a ward and advance the reunification of the family.”

We conclude that, even if the state is correct about the scope of the authority that the statutes confer on the juvenile court, the record in this case is inadequate to support the order at issue. We therefore reverse the opinion of the Court of Appeals and vacate the order of the juvenile court.

The record discloses the following facts. D is 14 years old and lived with her father before DHS intervened. D's mother is currently incarcerated. Father lives with his girlfriend, Ms. Samuel. There are at least three children living with father and Samuel: R, G, and S. R is the biological brother of D and is approximately 12 years old. G is Samuel's son and apparently is not biologically related to D at all. He is either five or six years old; the record is unclear about his age. Last, S is the child of father and Samuel and, therefore, D's half-sister. S is less than two years old.

D called a DHS hotline and reported that father had physically abused her. DHS responded by removing D from her father's home. DHS could not locate a relative willing to be a placement resource. Consequently, DHS placed D in foster care. Shortly thereafter, the juvenile court established jurisdiction over D and her parents.

Eight months later, the juvenile court held a review hearing pursuant to ORS 419B.449, to determine whether it should continue its jurisdiction or order modifications to the care, placement, or supervision of D. Father and D were not present at the hearing, but both were represented by separate counsel. A DHS caseworker and a Court Appointed Special Advocate (CASA) also attended.

For purposes of the review hearing, the trial court reviewed three reports: a DHS report, a CASA report, and a Child Welfare Case Plan. The contents of the three reports can be summarized as follows. During the eight months prior to the review hearing, D's interaction with father was limited. The CASA report notes that the state brought criminal charges against father regarding the alleged physical abuse of D. It also reports that “[n]either [D] nor [father] wish to have contact with each other at this time,” and that father said that “he wanted [D] to remain in foster care and he did not wish to participate in the court process.” The Child Welfare Case Plan also indicates that father told a DHS representative that D was lying about the physical abuse and was an “out of control” teenager.

All three reports state that D wanted to visit R, G, and S. The CASA report notes that D mentioned that her family connections, with the exception of father, are “extremely important to her” and that she would “love to be able to see her younger siblings.” The Child Welfare Case Plan details that D “has a strong attachment to her younger 1/2 sister, [S],” but that she “is not as close” to R. The DHS report states that, although father and Samuel facilitated one supervised visit between D, R, G, and S, they declined to allow further visitation, stating that, “if [D] isn't willing to see her father, then they are not willing to bring her siblings in for a visit.” At the same time, in none of the three reports does CASA or DHS recommend or request that the juvenile court order father to facilitate visitation between D and the other children.

At the review hearing, the juvenile court and the DHS caseworker discussed how D was faring in foster care. The court then turned to the “very concerning circumstance” raised in all three reports—that is, the fact that D was not having regular contact with R, G, and S. The court commented:

“It is unfortunate enough that [D] has been out of home placement, but to deprive her of the opportunity to have sibling visits strikes me as cruel. If the father doesn't want to participate, so be it. It seems to me that the father is before the Court, so I suppose the Court could make an order around that.”

The caseworker responded that DHS had not requested such an order because prior judges had told her that the court did not have authority to order those visits. D's counsel agreed, stating that, because “those other children are not subject to jurisdiction of the Court, the Court has in the past been unwilling to make the other kids have visits with their sister if the custodial parent is disagreeing or saying they don't want to.”

Father's attorney concurred, stating, “I don't believe there is any authority to make those orders without the children—without those children being before this Court and would encourage the Court not to do so.” He also asserted that the reports by DHS were “not really accurate” in describing father's position. His attorney stated that father was not happy with not having a relationship with D and was not trying to “ostracize” her.

Father's attorney asserted that there were two issues causing father difficulty in participating in DHS services and facilitating visitation with D. First, the criminal charges pending against father, he argued, were a serious barrier to contact, because, either on recommendation of criminal defense counsel or by criminal trial court order, father was prohibited from contacting D during the pendency of those charges. Second, father was struggling financially and was the only person available to provide childcare for R, G, and S. Those two factors, he concluded, made it difficult for father either to participate in DHS services or to facilitate visitation between D and the young children. Father's attorney indicated that father was “willing to do family therapy” but was unsure “specifically what [father's] response would be in regards to visits between the other siblings and [D] or what structure he might or might not approve of.”

The juvenile court expressed sympathy for father's situation, but stated that interaction with her siblings was “necessary for [D's] well being.” Still, the court explained that, based on the pending criminal charges, it was not “making a finding without [father] even being present that he ha[d] obstructed [visitation] in the past.”

The court then discussed with the DHS caseworker the proper scope of the proposed visitation order. She mentioned a holiday party hosted by DHS that she hoped D and her siblings could all attend. She also explained that there was some complexity in ordering visitation:

“The complexity to [visitation without father being present] is that I believe the sibling who D most wants to see and who would be most inclined to see [D] is less than two years old. I don't believe that Ms. Samuel—it is Ms. Samuel's daughter with [father]—I don't believe she is comfortable with giving her child over to me to facilitate a visit.”

The court responded, “Then we won't. That's a little too young,” and then inquired about the other siblings. The caseworker explained that R was a biological sibling, who she “believe[d]” was 12 years old. She also explained that G “is also in the home. He is not a biological sibling, but he is five or six.” The court then concluded that it did not “have any authority with regard to [G's] circumstance, except it is still available to me to say that father will not interfere.”

Father's attorney again objected, arguing that “this Court does have authority with regard to father's participation with regard to [D], but the other children and other aspects of his life are not within the Court's jurisdiction [.]” The court reiterated that “[t]he expectation is he will make the child sibling available for contact; make the child sibling available for this holiday party.” The DHS caseworker requested the court to clarify its holding to address to which children the court was directing its order. After reviewing the facts that G is not biologically related to D and that S was, at the time of the hearing, under the age of two, the juvenile court held that “my order is going to extend to [R]. You can explain that I turned the State down around [S] and the nonsibling[, G].” Four days later, the court entered the order at issue, which provides: “Father will not interfere or obstruct contact between [D] and siblings. Father shall make sibling ( [R] ) available for holiday party. DHS will make gas card available.”

Father appealed, arguing that the juvenile court lacked authority to...