Dep't of Human Servs. v. L.L.S. (In re Z.S.)
290 Or. App. 132
| Or. Ct. App. | 2018Background
- Z, a toddler, was placed in DHS custody in May 2016 after parents admitted facts establishing juvenile court jurisdiction; Z was placed with his maternal grandmother.
- Father had been convicted of sexual offenses against another child and was serving a long sentence (release date in 2046); mother later died of a drug overdose.
- DHS made substantial efforts with mother (substance-abuse focus) but had virtually no direct contact with father for the first nine months; limited phone visits between father and Z were arranged only after months of delay and via prison staff emails.
- DHS sought to change Z’s permanency plan from reunification to adoption; the juvenile court found DHS’s efforts reasonable because father’s lengthy incarceration made amelioration of the jurisdictional basis impossible and also found aggravated circumstances under ORS 419B.340(5).
- The juvenile court changed the plan to adoption; father appealed, arguing DHS’s near-total lack of contact rendered its efforts unreasonable as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a parent’s lengthy incarceration, standing alone, excuses DHS from making reasonable reunification efforts under ORS 419B.476 | Father: DHS’s failure to contact him for nine months and to arrange timely visitation for seven months means efforts were not reasonable as a matter of law | DHS: Because nothing DHS could do would shorten father’s sentence or otherwise eliminate the incarceration-based jurisdictional basis, minimal/passive efforts were reasonable | Reversed: Incarceration alone does not excuse reasonable efforts; DHS must still attempt to ameliorate the adjudicated bases and give parent a reasonable opportunity to demonstrate progress |
| Whether DHS’s specific efforts here met the statutory "reasonable efforts" standard | Father: DHS did not give him a reasonable opportunity to demonstrate ability to ameliorate the risk (never talked to him about conditions of return or caregivers) | DHS & juvenile court: DHS arranged some phone visits and thus satisfied the standard given the futility of acting against the incarceration | Reversed: DHS’s virtually nonexistent, passive efforts were legally insufficient because DHS failed even to consult father about feasible ways (e.g., identifying a caregiver, safety plan) to address the jurisdictional basis |
Key Cases Cited
- Dept. of Human Services v. G.N., 263 Or.App. 287 (Or. Ct. App.) (reasonable-efforts legal-conclusion standard)
- Dept. of Human Services v. S.M.H., 283 Or.App. 295 (Or. Ct. App.) (incarceration alone does not excuse DHS from reasonable efforts)
- Dept. of Human Services v. C.L.H., 283 Or.App. 313 (Or. Ct. App.) (reasonable-efforts focus on ameliorating bases of jurisdiction)
- Dept. of Human Services v. M.K., 257 Or.App. 409 (Or. Ct. App.) (reasonable opportunity standard for parents)
- Dept. of Human Services v. T.L., 279 Or.App. 673 (Or. Ct. App.) (jurisdiction requires current threat of serious loss or injury)
- State ex rel. Juv. Dept. v. Williams, 204 Or.App. 496 (Or. Ct. App.) (incarceration not excusing DHS without more)
- Dept. of Human Services v. S.W., 267 Or.App. 277 (Or. Ct. App.) (length/circumstances of incarceration are relevant to reasonable-efforts analysis)
- Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (parental liberty interest under Fourteenth Amendment)