Department of Human Services v. H. P.
252 Or. App. 346
| Or. Ct. App. | 2012Background
- DHS removed A, G, and R (and M and D) from parental custody in 2009; A, G, R, and M placed in foster care; D remained with parents.
- In Oct 2011, juvenile court changed A, G, R’s permanency plan from reunification to adoption based on DHS evidence and CASA input; judgment entered nunc pro tunc Jan 11, 2012.
- Judgments on Jan 11 and Jan 25, 2012 purportedly included ORS 419B.476(5) findings but did not attach or clearly identify the DHS “Fact Findings” relied upon.
- Judgments contained “Fact Findings attached and incorporated herein” statements without actual attachments in the judgment or record.
- Father argued the judgments lacked the required findings under ORS 419B.476(5)(a) and that the court erred in other related determinations; DHS urged preservation issues and argued judgments were sufficient.
- Court reverses and remands for proper inclusion/attachment of the required findings under ORS 419B.476(5).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jan. 11 judgment complies with ORS 419B.476(5)(a) | Father—no attached/identifiable findings; not compliant. | DHS—exhibit admitted at hearing suffices. | Not compliant; remand needed. |
| Whether Jan. 25 judgment complies with ORS 419B.476(5)(a) | Father—same deficiency as Jan. 11. | DHS—record basis in findings. | Not compliant; remand needed. |
| Whether lack of preservation bars review or not for failure to attach findings | M. A. allows reviewing without preservation. | DHS seeks preservation through objection at later hearing. | Court follows M. A. precedent; preserves review for error. |
| Whether there was a compelling reason to defer filing termination petition or other basis tochange plan | Errors in findings undermine change to adoption. | Court found no compelling reason to defer. | Remand precludes addressing merits on this issue. |
| Whether the court properly changed the plan from reunification to adoption | Improper without explicit findings linking DHS efforts. | Findings supported by DHS materials. | Subject to remand due to missing findings. |
Key Cases Cited
- Dept. of Human Services v. W. F., 240 Or App 443 (2011) (reversal for missing ORS 419B.476(5) findings)
- Dept. of Human Services v. J. W., 239 Or App 596 (2010) (reversal for missing ORS 419B.476(5) findings)
- Dept. of Human Services v. L. P. H., 235 Or App 69 (2010) (procedure for including findings under ORS 419B.476(5))
- Dept. of Human Services v. G. E., 233 Or App 618 (2010) (findings must be expressly included in the written order)
- State ex rel Juv. Dept. v. J. F. B., 230 Or App 106 (2009) (precedent on missing findings in judgments)
- H. R., 241 Or App 370 (2011) (unattached DHS report admissible if adopted by judgment)
- T. N., 230 Or App 575 (2009) (insufficient incorporation of reports to satisfy 419B.476(5))
- L. B., 246 Or App 169 (2011) (ORS 419B.476(5) requires explicit findings in judgment)