State ex rel. Dhs Services v. Shugars, 0000739JV1; A129329.

• Decision Date: 18 October 2006
• Docket Number: 0000739JV1; A129329.
• Citation: 208 Or. App. 694,145 P.3d 354
• Parties: In the Matter of Kimbra Shugars, Minor Child. STATE ex rel DEPARTMENT OF HUMAN SERVICES, Respondent, v. Crystal SHUGARS and Edgar Shugars, Appellants.
• Court: Oregon Court of Appeals

145 P.3d 354

208 Or. App. 694

In the Matter of Kimbra Shugars, Minor Child.

STATE ex rel DEPARTMENT OF HUMAN SERVICES, Respondent, v. Crystal SHUGARS and Edgar Shugars, Appellants.

0000739JV1; A129329.

Court of Appeals of Oregon.

Argued and Submitted July 20, 2006.

Decided October 18, 2006.

James J. Spindor, Klamath Falls, argued the cause and filed the brief for appellant Crystal Shugars.

James A. Palmer, Eugene, argued the cause and filed the brief for appellant Edgar Shugars.

Denise G. Fjordbeck, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General.

Before ARMSTRONG, Presiding Judge, and HASELTON^* and ROSENBLUM, Judges.

ARMSTRONG, P.J.

Mother and father appeal from a judgment authorizing DHS to pursue adoption as the permanency plan for their daughter, K.¹ In that judgment, the juvenile court found that the Department of Human Services (DHS) had made reasonable efforts to reunify K with her parents and that neither parent had made sufficient progress toward meeting expectations for K's return to their home. ORS 419B.470-419B.476. Both parents contend that the evidence does not support changing the permanency plan for K from reunification to adoption. On de novo review, ORS 419A.200(6)(b), we agree and reverse.

A brief chronological overview of the case is helpful. K was brought into state care, along with her two brothers, T and J, on September 26, 2003. K was eight years old at the time, T was almost three, and J was 20 months. Dependency jurisdiction over all three children was established by the juvenile court in March 2004, and parents appealed that decision. While that appeal was pending, the case proceeded in the juvenile court. After a permanency hearing that concluded in March 2005, the juvenile court entered a judgment determining that parents had made sufficient progress to continue with the plan to return all three children to their care, anticipated in April 2005. Accordingly, on April 22, K and her siblings were returned to parents' care. On June 2, they were again removed from the home based on two concerns: (1) that parents had changed K's medication without first notifying DHS; and (2) that they had used physical discipline with the children contrary to DHS rules. A shelter hearing was held on June 3 and a permanency hearing followed on June 27, July 1, and July 8, 2005. After the permanency hearing, the court issued a judgment authorizing a change in the permanency plan for the children from "return to parent" to "achieve adoption"; parents now appeal that judgment. We subsequently decided parents' earlier appeals, affirming the court's dependency jurisdiction over K, but reversing it as to T and J. State ex rel Dept. of Human Services v. Shugars, 202 Or.App. 302, 121 P.3d 702 (2005) (Shugars I).

Our opinion in Shugars I detailed the basis for the court's jurisdiction over K:

"On September 29, 2003, DHS filed a petition for jurisdiction over the three children, alleging:

"`A. On or around 09-26-03, the child, [T], had an unexplained injury in the form of a bruise and swelling to his forehead. This condition places the children, [K], [T], and [J], under a threat of harm.

"`B. The children, [K], [T], and [J], have been victims of neglect in that the parents, Edgar and Crystal Shugars, have failed to provide appropriate and consistent medical treatment for the children. This condition places the children under a threat of harm.

"`C. On or around 09-26-03, the father, Edgar Shugars, exposed the child, [K], to emotional abuse by behaving irrationally and involving her in a volatile situation in which he took [K] in violation of a court order, eluded police while driving recklessly with her in the car, and refused to pull the car over until the police had him surrounded. Mr. Shugars refused to exit the vehicle with [K] and the police were forced to extract him from the vehicle at gunpoint while [K] was present. This condition places the children under a threat of harm for further emotional abuse.

"`D. The parents, Edgar and Crystal Shugars, have a history of involvement with DHS/Child Welfare due to issues of neglect and threat of harm. DHS/Child Welfare has offered numerous remedial services to the family, including Intensive Home Based Services which the family completed, however, most services offered have been refused by Mr. and Mrs. Shugars and they continue to engage in behaviors that are neglectful to the children and place the children under a threat of harm.'"

Shugars I, 202 Or.App. at 309-10, 121 P.3d 702. In March 2004, the juvenile court found that the state had not established the allegation of paragraph A, but it asserted jurisdiction over all of the children based on paragraphs B, C, and D of the petition. Id. at 310-11, 121 P.3d 702.

On appeal, we concluded that the juvenile court properly exercised jurisdiction over K based on paragraphs B and C of the petition but erred in exercising jurisdiction over K based on paragraph D of the petition.² Id. at 322, 121 P.3d 702. Regarding the allegations in paragraph B, we stated:

"[W]ith respect to K[,] there is cogent and persuasive evidence of parents' failure to follow through on medical advice. For example, K had, and has, special needs that require careful and consistent follow-through with psychological and psychiatric treatment. As noted, K was diagnosed with both attention deficit and bipolar disorders and exhibited behavior problems from a very early age. Although DHS emphasizes that, on several occasions, parents discontinued medications without first consulting K's physician, we place less emphasis on that point, given that the evidence demonstrated that the medications at issue were not working and that parents sought new medications. Still, of substantial concern is that parents failed to follow through on advice given by K's therapist concerning tracking of K's moods, and also failed to follow through on advice on how to address some of K's ongoing behavior problems. We conclude that parents' persistent failure in those respects constituted neglect of a medical need sufficient to warrant the imposition of dependency jurisdiction."

Id. at 312-13, 121 P.3d 702.

Based on the totality of the circumstances, including K's special emotional needs, we also concluded that father's conduct in the events described in paragraph C presented a reasonable likelihood of future harm to K and thus warranted the exercise of jurisdiction.³ Id. at 316-18, 121 P.3d 702. We did not, however, agree with the juvenile court that the allegations of neglect in paragraph D were sufficient to support jurisdiction. With regard to those allegations, we concluded:

"Parents did, indeed, have a `history of involvement' with the agency before September 26, 2003. We emphasize, however, that all of that `involvement' occurred in a context in which DHS had not acquired jurisdiction over the children. That is, at the time of the filing of this petition, DHS had never previously established `neglect and threat of harm'—and, indeed, the court had dismissed the only prior (2001) petition alleging such conditions. Further, evidence in the record indicates that parents —perhaps mother more so than father —have not only availed themselves of some offered services, but have actually benefitted from those services.

"With those qualifications, we address the neglect allegations of paragraph D. In that regard, we agree with the trial court that parents were deficient in failing to address `the smell issue' for all three children. Nevertheless, as amplified below, we conclude that parents' default in that regard is insufficient to support the imposition of jurisdiction as to any of the children.

"`The smell issue,' as the trial court characterized it, refers to the children smelling of cat urine. Both parents and many members of both parents' extended families adamantly denied that any of the children ever smelled of cat urine. However, virtually everyone else who came into contact with the children noted the odor. The odor was distinct enough, and unpleasant enough, to cause social problems for K at school, as well as contributing somewhat to her school attendance problems. Moreover, it can be reasonably assumed that T and J may eventually experience some of the same difficulties, given that parents seem unable or unwilling to recognize the nature of the problem and remedy it.

"Thus, the question is whether parents, by allowing the children to frequently smell of cat urine, have `place[d] the children under a threat of harm.' On balance, we conclude that the evidence, while disturbing, is insufficient to establish jurisdiction over the children on that basis."

Id. at 319-20, 121 P.3d 702 (emphasis in original).

With that background in mind, we detail the facts leading up to the permanency hearing judgment.⁴ After K was placed in foster care in September 2003, a permanency plan of "return to parent" was established, along with a concurrent plan of adoption. It is unclear from the record what services, if any, DHS provided to parents between September 2003 and September 2004 to reunite the family,⁵ but, eventually, both parents were given psychological evaluations and completed a 17-week parenting program led by Judy Cooper.⁶ The program taught nonviolent parenting techniques, such as a "chore and reward" system of discipline and the use of "time-outs." Cooper testified that parents were intellectually capable of parenting and did well "on paper" but did not personalize the information they were given or incorporate it into their lifestyle. Instead, parents made consistent statements that they did not belong in the program. Cooper also felt that parents "didn't buy into" the program of not using physical discipline because they never stated in class that they would not use it. At the end of the program, Cooper recommended, as she "almost...