Dep't of Human Servs. v. V. A. R. (In re W. Q.)

• Decision Date: 26 December 2019
• Docket Number: A170264 (Control),A170265
• Citation: 456 P.3d 681,301 Or.App. 565
• Parties: In the MATTER OF W. Q., a Child. Department of Human Services, Petitioner-Respondent, v. V. A. R., Appellant.
• Court: Oregon Court of Appeals

301 Or.App. 565

456 P.3d 681

In the MATTER OF W. Q., a Child.Department of Human Services, Petitioner-Respondent,

v.V. A. R., Appellant.

A170264 (Control)

A170265

Court of Appeals of Oregon.

Argued and submitted November 5, 2019.

December 26, 2019

Sarah Peterson, 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 Lagesen, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

LAGESEN, P. J.

Mother appeals permanency judgments changing the permanency plan for her 13-year-old son, W, from reunification to placement with a fit and willing relative. She contends that the juvenile court erred when it determined that the Department of Human Services made reasonable efforts to reunify W with mother as required by ORS 419B.476 (2)(a). Accepting the juvenile court’s supported factual findings and reviewing for legal error, Dept. of Human Services v. L. L. S. , 290 Or. App. 132, 133, 413 P.3d 1005 (2018),¹ we conclude that mother is correct. We therefore reverse and remand.

Absent exceptions not applicable here, to change W’s permanency plan from reunification to placement with a fit and willing relative under ORS 419B.476, the juvenile court was required to make two predicate determinations: (1) that DHS made "reasonable efforts" to reunify W with mother; and (2) that, notwithstanding those efforts, mother’s progress was not sufficient to allow reunification. L. L. S. , 290 Or. App. at 137-38, 413 P.3d 1005. Here, mother does not dispute that, as of the permanency hearing, her progress was insufficient to permit reunification; the only issue is whether DHS made reasonable efforts toward achieving reunification. "Reasonable efforts" for purposes of ORS 419B.476(2)(a) are "efforts that focus on ameliorating the adjudicated bases for jurisdiction, and that give ‘parents a reasonable opportunity to demonstrate their ability to adjust their conduct and become minimally adequate parents.’ " Id . (quoting Dept. of Human Services v. S. M. H. , 283 Or. App. 295, 306, 388 P.3d 1204 (2017) (second internal quotation marks omitted)). The reasonableness of DHS’s efforts depends on the particular circumstances of the case. S. M. H. , 283 Or. App. at 305, 388 P.3d 1204.

Here, the particular circumstances of the case preclude the conclusion that DHS’s efforts to reunify W with mother were reasonable, by and large because those circumstances show that DHS’s efforts did not afford mother a reasonable opportunity to become a minimally adequate parent to W.

The juvenile court took jurisdiction over W as to mother in March 2017 based on mother’s hostile relationship with father and her lack of the parenting skills needed to manage W’s needs:

"Mother and Father fight verbally and physically when the child is present. This causes an escalation in the child’s destructive and sometimes violent behavior, placing the child and the parents at risk of harm.

"* * * * *

"[W] is a special needs child with multiple issues. Mother lacks the parenting skills to cope with the child’s issues and ensure the child’s safety."

By the time of the permanency hearing in December 2018, parents had long been separated, and no one contended that their current relationship posed a barrier to reunification. Instead, the focus at the hearing was on DHS’s efforts to assist mother in acquiring the parenting skills needed to parent W, and whether those efforts were reasonable, as well as on mother’s progress toward becoming a minimally adequate parent. Noting that the case was complicated by, among other things, the facts that both mother and W "have serious developmental disabilities" and that mother has both "cognitive limitations" and "mental health issues that may affect her ability to take advantage of parenting support services," the court cataloged the services provided to mother over the life of the case and, ultimately, concluded that they represented reasonable efforts by DHS. In the juvenile court’s view, the services were designed to account for mother’s intellectual and developmental limitations and were appropriately evaluated and recalibrated over the life of the case.

On appeal, mother contests that conclusion.² Although she does not dispute that DHS provided her with a number of services (services which, mother points out, she accepted and actively participated in), she contends that those services did not, in the end, give her a reasonable opportunity to demonstrate that she was capable of becoming a minimally adequate parent. That is because, mother argues, it was determined early in the case—by July 2017—that mother required hands-on, in-person parent training, where the parent trainer worked with mother and W while they were together. Sweet, who conducted a psychological evaluation of mother in July 2017 at DHS’s request, advised following that evaluation that mother should have "specialized hands-on training to help her assess and meet [W’s] needs," training that "would require a provider who has a very clear understanding of [W’s] needs and can work with [mother] and child together."

DHS, nonetheless, did not provide that type of training for most of the life of the case. Instead, it offered parenting training through Skype visits with a provider who, when discharging mother from the program in January 2018, echoed Sweet’s recommendations, explaining that mother needed more visitation and "[h]ands on observation and parenting instruction." Not until September 2018 did DHS begin to provide the recommended training, and then only after the juvenile court ordered it to do so in June of that year: "The court finds that 4 hours per month (2 visits twice a month) is not sufficient to attain the goal of the plan. Therefore[,] DHS is ordered to increase the amount of visitation and combine it with parent training in an amount that is optimum to attain the goal of the current plan."

As a result of the delay, mother had had only five sessions of hands-on parenting training by the time of the permanency hearing. This, in mother’s view, did not give her the opportunity to become a minimally adequate parent required by ORS 419B.476. She analogizes this case to Dept. of Human Services v. R. D. , 257 Or. App. 427, 307 P.3d 487 (2013), a case in which we affirmed the juvenile court’s legal conclusion that DHS’s reunification...