Department of Human Services v. M. H.
258 Or. App. 83
| Or. Ct. App. | 2013Background
- Two children, A (born May 2010) and V (born June 2011), have been in Department of Human Services (DHS) custody shortly after birth; A placed with maternal great-aunt in May 2011 and V later placed with the same relative.
- Juvenile court changed A’s permanency plan to adoption in July 2011; at a combined permanency hearing in August 2012 the court continued adoption for A and continued reunification (with concurrent adoption) for V.
- Parents have a history with DHS, including prior termination of parental rights to older children and father’s status as a convicted sex offender; parents had previously failed to engage in services and attempted to leave Oregon after V’s birth.
- Parents appealed: for A they challenged the permanency judgment for failing to include the statutorily required determination under ORS 419B.476(5)(d) and ORS 419B.498(2) (whether there were compelling reasons to defer filing termination petitions) and also argued the court abused its discretion as to best interests and continuation of adoption plan.
- For V, parents argued DHS did not make reasonable efforts to reunify (complaining about delayed referrals, reduced visitation, and relocation of V to Keizer causing travel burdens).
- Trial court findings: it did not include the required “no compelling reason” determination in A’s permanency judgment; it found DHS had made reasonable efforts to reunify V (providing visits, transportation assistance, identification of relatives, and services).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the permanency judgment for A must include the ORS 419B.498(2) "no compelling reason" determination per ORS 419B.476(5)(d) | Parents: judgment lacked required written finding on whether there were compelling reasons to defer filing termination petitions; that omission mandates reversal. | DHS: omission is error but should be deemed harmless; parents didn’t preserve objection. | Reversed as to A: omission is error and not harmless; reversal/remand required. |
| Whether omission of the finding was preserved | Parents: could not know omission until judgment issued, so preservation not required. | DHS: parents did not object at hearing. | Court: error unpreserved but review allowed because the defect wasn’t discoverable until judgment issued; reversible error. |
| Whether the permanency plan of adoption for A should be continued (best interest / abuse of discretion) | Parents: there were compelling reasons to defer adoption because they are now willing to engage in services, so adoption is not in A’s best interest. | DHS: (implicitly) adoption plan appropriate and timing for termination/adoption proper. | Court did not resolve merits of best-interest/abuse arguments because judgment defective; remand required for proper findings. |
| Whether DHS made reasonable efforts to reunify V | Parents: DHS failed in reasonable efforts—late referrals (psychosexual evaluation, parenting classes), reduced visitation and move to Keizer created travel hardships. | DHS: offered services, visitation, transportation assistance, relocation to relative placement was reasonable and promoted child’s stability. | Affirmed as to V: record supports juvenile court’s finding that DHS made reasonable efforts to reunify. |
Key Cases Cited
- Dept. of Human Services v. N. P., 257 Or. App. 633 (court reviews juvenile-permanency evidence in light most favorable to trial court)
- Dept. of Human Services v. M. H., 256 Or. App. 306 (background and prior appeals concerning jurisdiction over child V)
- Dept. of Human Services v. T. H., 254 Or. App. 394 (failure to include required permanency findings may be unpreserved but reviewable when defect first appears in judgment)
- State ex rel DHS v. M. A., 227 Or. App. 172 (failure to include required written findings in permanency judgment is reversible error)
- Dept. of Human Services v. H. P., 252 Or. App. 346 (failure to attach/incorporate required findings under ORS 419B.476(5) reversible error)
- Dept. of Human Services v. S. A., 250 Or. App. 720 (failure to include permanency determinations in guardianship judgment reversible error)
- Dept. of Human Services v. W. F., 240 Or. App. 443 (failure to make required permanency findings reversible error)