Dep't of Human Servs. v. N.S. (In re A.H.)

• Decision Date: 02 November 2011
• Docket Number: J050522; Petition Number 01J050522; A147443.
• Citation: 246 Or.App. 341,265 P.3d 792
• Parties: In the Matter of A.H., a Child.DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent, v. N.S., Appellant.
• Court: Oregon Court of Appeals

246 Or.App. 341

265 P.3d 792

In the Matter of A.H., a Child.DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent,

v.N.S., Appellant.

J050522; Petition Number 01J050522; A147443.

Court of Appeals of Oregon.

Argued and Submitted July 20, 2011.Decided Nov. 2, 2011.

Megan L. Jacquot argued the cause and filed the brief for appellant.

Laura S. Anderson, Salem, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Inge D. Wells, Senior Assistant Attorney General.

Before ORTEGA, Presiding Judge, and DUNCAN, Judge, and ROSENBLUM, Senior Judge.

ORTEGA, P.J.

In this dependency proceeding, mother appeals from a judgment that changed the permanency plan for child from reunification to guardianship. In a previous appeal involving mother and child, we reversed a judgment that established child's maternal aunt and uncle as guardians. State ex rel Dept. of Human Services v. N.S., 229 Or.App. 151, 211 P.3d 293 (2009) ( N.S.–1). The order establishing a guardianship in that case was based on the juvenile court's determination that mother was unable to recognize the risk of harm to child posed by her brother, a convicted and untreated sex offender, making it impossible for child to return to mother's care within a reasonable time. On de novo review, we reversed that ruling because the record lacked evidence demonstrating that her brother posed a risk of harm to child that would preclude child's safe return to mother's home in a reasonable time. After the appellate judgment issued in that proceeding, the juvenile court changed the permanency plan to “return to parent”—but, several months later, the Department of Human Services (DHS) sought to change the plan back to guardianship.

Over the course of several months, the court held a contested permanency hearing, ultimately approved the change in permanency plan, and again entered an order of guardianship. Mother appeals from the judgment changing the permanency plan to guardianship ¹ and advances two arguments: first, that DHS failed to make reasonable efforts to reunify her with child and, second, that she made sufficient progress to make it possible for child to safely return home. See ORS 419B.476(2)(a). DHS responds that, despite reasonable efforts by DHS and mother's completion of the services offered to her, mother has nevertheless failed to make sufficient progress because she does not demonstrate understanding of the importance of protecting child from unsafe individuals and because mother's parenting skills have not improved. We agree with DHS and affirm.

I. STANDARD OF REVIEW

Before we turn to the facts of this case, we must identify the appropriate standard of review. We no longer review all juvenile cases de novo; rather, other than proceedings for termination of parental rights, the exercise of de novo review is within our sole discretion. ORS 19.415(3). If an appellant requests de novo review, she must include a concise statement in the opening brief explaining why we should do so. ORAP 5.40(8)(a), (b). However, such requests are disfavored and there is a presumption against the exercise of de novo review; we review only “exceptional cases” de novo. ORAP 5.40(8)(c).

Here, mother urges us to treat this as such an exceptional case, contending, among other things, that such review is appropriate because the challenged judgment “effectively operates to sever the relationship between [m]other and child[,]” much like in a termination of parental rights case. Guided by the nonexclusive list of factors stated in ORAP 5.40(8)(d), we decline to exercise de novo review in this case. We begin by noting that mother fails to adequately explain how the judgment “effectively terminates” the relationship between her and child given that the guardianship was established under ORS 419B.366 (setting forth the process for establishing “durable” guardianships) and not ORS 419B.365 (permanent guardianships), and the guardianship order allows for contact between mother and child at the discretion of child's guardians. See also ORS 419B.368 (establishing grounds for modification or vacation of a guardianship). Moreover, and in all events, the legislature explicitly chose to continue to require de novo review in termination of parental rights cases but did not do so for the type of judgment challenged by mother here; given that, we are disinclined to make a different decision. Finally, the trial court made express and detailed factual findings, which counsels against the exercise of de novo review. See ORAP 5.40(8)(d)(i).

Accordingly, we review the juvenile court's legal conclusions for errors of law but are bound by its findings of historical fact if there is any evidence in the record to support them. Dept. of Human Services v. C.Z., 236 Or.App. 436, 442, 236 P.3d 791 (2010). “Where findings on disputed issues of fact are not made but there is evidence supporting more than one possible factual conclusion, we presume that the juvenile court decided the facts consistently with its ultimate legal conclusion.” Id. Ultimately, we review the facts found by the juvenile court to determine whether they are supported by any evidence and then to determine if, as a matter of law, those facts provide a basis for the juvenile court's change of the permanency plan from reunification to guardianship under ORS 419B.476. Id.

II. BACKGROUND FACTS

The following facts are taken from the juvenile court's findings, as supported by evidence in the record, and supplemented with procedural or undisputed facts as needed.

DHS originally became involved with the family in 2005 after an incident of domestic violence by father reportedly occurred in the presence of child, who was then one month old.² DHS offered services to mother, but she did not follow through with the individual counseling and domestic violence classes that were offered at that time. Shortly thereafter, father moved out of the state and the case was closed. Father returned a couple of months later, and DHS removed child from the home because of concerns about mother's ability to protect her from father.³ DHS placed child—then six months old—in foster care with her maternal aunt and uncle and she has remained in their care for the intervening six years. Mother's relationship with father continued into 2006, but mother eventually broke it off.

In 2006, mother began supervised visits with child and those visits have continued since that time. In 2007, the weekly visits were expanded to two hours each. However, in late 2006 or early 2007, DHS learned that mother had a close and continuing relationship with her brother, who had been convicted of third-degree sodomy in 1997 but had not completed sex offender treatment. DHS was concerned that mother would allow child to be around her brother and that he presented a significant risk to child.

Mother enrolled in and completed a family sex abuse treatment program, which was designed to help parents gain insight into the risks to children posed by unsafe relationships. The provider of that program recommended that mother be involved with her brother's treatment program to help her gain an understanding of his triggers and “offending cycle” and that mother and her brother formulate a relapse prevention plan. However, mother and her brother did not complete the relapse prevention plan, and he did not complete his treatment program.

DHS petitioned to terminate mother's parental rights in August 2007 but withdrew that petition the following April, as the agency no longer sought to pursue an adoption for child. In the meantime, during an unannounced visit to mother's home in early 2008, DHS observed evidence that the brother had been residing in mother's home. DHS referred mother to parenting classes and “in-home Family Skill Builders counseling.”

On the same day that the juvenile court dismissed the petition to terminate mother's parental rights, it approved a permanency plan of guardianship pursuant to ORS 419B.476. The court set a contested guardianship hearing and ultimately entered an order establishing a guardianship. The juvenile court found that, “at the time of the hearing, mother continued to have difficulty protecting child.” In N.S.–1, we summarized the court's findings this way:

“The court emphasized that, over the previous three years, mother had participated in a number of services designed to help her realize that father and her brother were a threat to child and that, despite those services, she continued to receive mail addressed to her brother, continued to reside near him, and did not acknowledge him to be a threat. In light of those facts and [an] unidentified male [answering the phone] at mother's residence, the court found that safety concerns persisted and that child could not be safely returned to mother's care within a reasonable time.”

229 Or.App. at 156, 211 P.3d 293.

Mother appealed the resulting order establishing a guardianship, and, on de novo review, we reversed, concluding that there was no basis for the required finding that child could not be returned to mother within a reasonable time. In particular, we determined that the record failed to establish that her brother would have contact with child because there was no evidence that they were living in the same house. Id. at 157, 211 P.3d 293. Further, we concluded that the record contained insufficient evidence of a specific risk to child in the absence of evidence regarding the nature of the brother's sex offense. Without any such evidence, we declined to infer from the mere fact that the brother was an untreated sex offender that he was a threat to child in this case. Id. at 158, 211 P.3d 293.

During the pendency of the appeal, the guardianship remained in place and mother's contact with child was controlled by the guardians. She continued to visit with child and attended other family events when invited but did not initiate phone...