Dep't of Human Servs. v. L. A. K. (In re J. A. M. K.)

• Decision Date: 30 September 2020
• Docket Number: A173487
• Parties: In the MATTER OF J. A. M. K., a Child. Department of Human Services, Petitioner-Respondent, v. L. A. K., Appellant.
• Court: Oregon Court of Appeals

306 Or.App. 706

474 P.3d 925

In the MATTER OF J. A. M. K., a Child.

Department of Human Services, Petitioner-Respondent,

v.L. A. K., Appellant.

A173487

Court of Appeals of Oregon.

Argued and submitted August 17, 2020.

September 30, 2020

Shannon Flowers, 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.

Kirsten M. Naito, 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 James, Judge, and Kamins, Judge.

JAMES, J.

Father appeals from a juvenile court judgment changing his son's permanency plan from reunification to guardianship, asserting four assignments of error. In his first assignment of error, father argues that the juvenile court erred in its determination that the Department of Human Services (DHS) satisfied its burden to prove that it made reasonable efforts to assist father in ameliorating the jurisdictional basis pertaining to father's relationship with child, which was, "[D]espite prior services offered to the father [by DHS and] other agencies, the father has been unable and/or unwilling to overcome the impediments to his ability to provide safe, adequate care to the child." We agree, and accordingly reverse and remand.

Neither party has requested de novo review, and this is not the type of "exceptional" case that warrants de novo review. As we have explained, on appeal of a permanency judgment, "[t]he juvenile court's determination[ ] whether DHS's efforts were reasonable * * * [is a] legal conclusion[ ] that we review for errors of law." Dept. of Human Services v. G. N., 263 Or. App. 287, 294, 328 P.3d 728, rev. den., 356 Or. 638, 342 P.3d 1024 (2014). In conducting that review, we are bound by the juvenile court's explicit factual findings if there is any evidence to support those findings. Id. To the extent that a court does not make its findings express, we presume that the court made implicit factual findings in a manner consistent with its ultimate legal conclusion. Id. However, "[i]f an implicit factual finding is not necessary to a trial court's ultimate conclusion or is not supported by the record, then the presumption does not apply." Pereida-Alba v. Coursey, 356 Or. 654, 671, 342 P.3d 70 (2015). The threshold issue here, whether the department made reasonable efforts to assist father in alleviating the jurisdictional basis, is a highly fact-specific inquiry warranting a detailed recitation of the facts below. Dept. of Human Services v. J. E. R. , 293 Or. App. 387, 394, 429 P.3d 420 (2018).

This case concerns father's child, J, who was almost five years old at the time of the permanency hearing at issue in this appeal. J suffered prenatal exposure to methamphetamine and was born drug affected in January 2015.

Father had a history of using methamphetamine and heroin and was convicted for multiple crimes related to possession, manufacture, and delivery of those substances beginning in 2006. In March 2015, three months after J's birth, father pleaded guilty to unlawful possession and delivery of methamphetamine and felon in possession of a firearm and entered the drug court program. In September 2015, the department removed J from mother's care, filed a dependency petition, and placed him with father, who was participating in drug court. Six months later, in March 2016, the court dismissed the department's petition. Father successfully completed drug court in late 2016 and earned a dismissal of the delivery charge. Father began using marijuana shortly thereafter and eventually began using heroin and methamphetamine again. By early 2017, father admitted that he was using "every day."

J remained in father's care until 2018. In January 2018, DHS received reports that J was wandering alone on the street. At that time, DHS also received information that father was delivering methamphetamine and heroin from his home. DHS also learned that father was in a relationship with a woman who used controlled substances. DHS made several in-home visits, referred father to a self-sufficiency case manager, and referred father for periodic urinalysis tests.

In March 2018, police arrested father for unlawful possession and delivery of methamphetamine and heroin, and he spent several days in jail. Father admitted to using controlled substances for more than a year. Subsequently, the department placed J with a worker from the daycare he attended. Upon father's release from jail, DHS held an emergency meeting with father, his family, friends, and agency partners. Together they developed an emergency plan so that J could be returned to father. Father expressed a desire to resume substance abuse treatment, and he enrolled himself for treatment with the same provider who treated him while he was in the drug court program. Although DHS returned J to father's care with an "intensive plan" in place, DHS also filed a petition alleging nine jurisdictional bases, which were annotated "a" through "i." "[A]" through "d" pertained to J's relationship with mother, which is not the subject of this appeal. The alleged jurisdictional bases pertaining to father were as follows:

"e) Further, the father's substance abuse interferes with his ability to safely parent the child.

"f) Further, despite prior services offered to the father through DHS and other agencies, the father has been unable and/or unwilling to overcome the impediments to his ability to provide safe, adequate care to the child.

"g) Further, the father leaves the child with unsafe caregivers.

"h) Further, the father is involved in criminal activities that interfere with his ability to safely parent the child.

"i) Further, the child has specialized needs that father is unable or unwilling to meet without the assistance of a public, child caring agency."

"[G]" and "i" were dismissed by the juvenile court. The court did not annotate any disposition of "e" or "h." The jurisdictional judgment only found that basis "f" had been proved. Accordingly, the sole jurisdictional basis found by the juvenile court was, "[D]espite prior services offered to the father through DHS and other agencies, the father has been unable and/or unwilling to overcome the impediments to his ability to provide safe, adequate care to the child."

Father did not begin substance abuse treatment as he had agreed, and "family members, that originally imparted a willingness to help, and [was] expected to help for the first 5 nights did not show up" as expected. Specifically, father failed to obtain an assessment and forged attendance verification for four recovery meetings. Within a week, in late March 2018, DHS removed J from father's care and placed him in foster care.

In late May, the department returned J to father's care for a trial reunification because father and his partner were both attending substance abuse treatment and received positive reports from their providers. DHS continued in-home visits with father and J five days per week and reported that father was patient with J, despite J's challenging behaviors.

Outside the home, however, father served as a confidential police informant. Despite father's successes at home with J, it became difficult for father to balance their relationship, recovering from substance abuse and addiction, and life outside the home as a confidential informant. A month later, in July 2018, police executed a search warrant on father's home and found methamphetamine, heroin, scales, and "other paraphernalia" throughout the home and, specifically, in J's closet. Police arrested father, and DHS placed J in foster care.

DHS referred J for a mental health evaluation, during which he was diagnosed with global development delay, post-traumatic stress disorder

(PTSD), and it was "highly suspected" that J suffered from child neglect. The evaluation also noted that J has "significant issues with anger and aggression" and has at least 12 tantrums each day. J has "significant sleep issues" and has "enuresis episodes nearly every night." J also has a "general cognitive ability in the Low range," "weakness" in verbal reasoning and comprehension, "significant delays" in non-verbal reasoning, and difficulty with attention, focus, and impulsivity. Finally, the evaluation stated that J requires "significant mental health support with caregiver involvement," and not having a permanent home and caregiver "are highly likely to present a barrier to him getting the full effects of treatment." In the evaluator's opinion, J has "an extremely high need for permanency."

A couple of days after father's arrest, father expressed remorse and acknowledged to DHS that he had "relaps[ed] on meth." In July 2018, father pleaded guilty to unlawful possession of heroin and unlawful delivery of methamphetamine, and the court sentenced him to 25 months of incarceration.

By all accounts, father did exceedingly well in prison, completing a variety of treatment programs "on his own will." In April 2019, father enrolled into the Alternative Incarceration Program, which required participation in 14 hours of structured activities a day, including substance abuse treatment, parenting classes, and anger management classes. He also held a job in the kitchen as one of three cooks, played guitar for weekly religious services held in the prison, and served as part of the council for his therapeutic community in prison and a mentor to some of his peers. According to father, he used his time in prison "to help [himself] grow and just get as much out of it as [he] could[.]"

While father was incarcerated, J was placed in foster care. Several foster care providers were unable to manage J's violent outbursts and difficult behaviors, and he was transferred between foster care providers several times. Although father went to prison in July 2018, the department did not...