Department of Human Services v. D. L. H.
251 Or. App. 787
| Or. Ct. App. | 2012Background
- Dependency case where DHS changed children J and A from reunification to adoption; ICWA applies to A (A is Indian child), not to J; father incarcerated and Comanche Nation member; mother with long history of alcohol abuse and incarceration; DHS claims reasonable efforts to reunify J with mother and active efforts to reunify A with mother and father; court found active efforts for A with mother, and active efforts to reunify A with father were lacking; permanency plan changed to adoption; appeal by mother and father from dispositional/permanency judgment.
- ICWA applicability creates requirement of active efforts for A and only reasonable efforts for J; DOC visitation decisions and therapist recommendations influenced reunification prospects; evidence shows DHS made some contact and offered services but faced DOC constraints and child age considerations.
- Mother argued no reunification plan ever existed and that adoption was improper absent reunification; father challenged active efforts to reunify A with him; DHS argued plan existed and efforts were sufficient; court reviewed for legal error and evidence sufficiency.
- Court reviewed legal conclusions for errors of law and findings of historical fact with evidence supporting the findings; judgment largely affirmed except as to DHS’s failure to make active efforts to reunify A with father, which led to partial reversal and remand.
- Key legal standard: active efforts under ICWA require more than reasonable efforts and depend on case-specific circumstances; for incarcerated parents, DHS must engage more than in Williams and Woodruff to reunify Indian children.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DHS made active efforts to reunify A with father | Mother contends DHS failed to actively reunify A with father | DHS argues it made active efforts to reunify A with father given incarceration and tribe involvement | DHS failed to prove active efforts to reunify A with father; remand on this issue |
| Whether DHS made active or at least reasonable efforts to reunify A with mother | Mother asserts DHS did not actively reunify A with her | DHS asserts it made active/appropriate efforts given mother's incarceration and services offered | DHS made active efforts to reunify A with mother; reasonable efforts to reunify J with mother also found |
| Whether DHS made reasonable efforts to reunify J with mother | Mother claims DHS failed to make reasonable efforts to reunify J with her | DHS contends it engaged in adequate contact and services, supporting reasonable efforts | DHS made reasonable efforts to reunify J with mother |
| Whether the permanency plan change to adoption was proper without prior reunification order | Mother argues plan should start with reunification unless aggravating conduct | DHS argues plan could be changed from reunification to adoption based on findings of progress and safety | Court upheld change to adoption, with noted exception on active efforts to reunify A with father; no requirement that further reunification be mandated before plan change in this context |
Key Cases Cited
- State ex rel Juv. Dept. v. Williams, 204 Or App 496 (2006) (active efforts standard for incarcerated parent case; minimum reasonable efforts discussed; supports parsing of active vs reasonable efforts)
- State ex rel Juv. Dept. v. T. N., 226 Or App 121 (2009) (defines active efforts and cites Alaska standard; supports case-specific active efforts analysis)
- State ex rel Juv. Dept. v. S. W., 231 Or App 311 (2009) (uses psychological/psychiatric evaluations to identify problems and propose solutions; relevance to agency offering services)
- State ex rel Juv. Dept. v. R. O. W., 215 Or App 83 (2007) (discusses duties to provide services to facilitate reunification; case-specific tailoring)
- Dept. of Human Services v. C. Z., 236 Or App 436 (2010) (directs standard of review and evidentiary sufficiency under any-evidence standard)
- K. C. J. v. State, 228 Or App 70 (2009) (defines active vs reasonable efforts in ICWA/permanency context)
- State ex rel Juv. Dept. v. S. W., 231 Or App 311 (2009) (see above)
- State ex rel Juv. Dept. v. C. D. J., 229 Or App 160 (2009) (factors for determining whether return to home is possible)