338 P.3d 191
Or. Ct. App.2014Background
- L, an Indian child, was removed from parents at birth (August 2012) and placed with relative foster caregivers; parents had a prior termination of rights to an older child. DHS filed dependency and provided extensive services (parenting classes, anger management, individualized coaching, supervised visits).
- Parents have cognitive and mental-health impairments; Dr. Sweet diagnosed both parents with significant limitations and recommended permanent alternative placement for L.
- Parenting coach Krista Grensky provided in‑home and visit coaching but terminated services after repeated parental hostility, noncompliance, and failure to apply skills.
- At a January 2014 permanency hearing the juvenile court admitted several reports containing out‑of‑court statements (psych evaluations, mentor report, DHS report), found DHS made “active efforts,” concluded parents had not made sufficient progress, and changed the permanency plan from reunification to adoption.
- Parents appealed, arguing (1) admission of out‑of‑court statements without cross‑examination violated due process; (2) DHS failed to make active efforts and parents had made sufficient progress; and (3) under ICWA the plan change constituted a "foster care placement" requiring qualified expert testimony. The court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of out‑of‑court statements at permanency hearing (due process) | Admission of Sweet, Grensky, and DHS report excerpts without authors available for cross‑examination violated parents’ procedural due process, increasing risk of erroneous deprivation. | Permanency hearings are not the terminal termination stage; ORS 419B.325(2) permits such reports, subpoena power exists, and full protections occur at termination hearings. Burden of additional confrontation is substantial. | Admission did not violate due process given the permanency hearing’s function, available remedies (subpoena, later termination protections), and low risk of erroneous deprivation. |
| Whether DHS made “active efforts” and parents made sufficient progress | Parents contend services were not adequately tailored (esp. to father’s cognitive limits) and they made sufficient progress to reunify. | DHS contends it provided individualized, intensive services; parents were unresponsive, hostile, and failed to apply skills. | Court found DHS provided active efforts and parents had not made sufficient progress to safely reunify. |
| Whether changing plan from reunification to adoption is an ICWA “foster care placement” requiring qualified‑expert testimony | Mother argues plan change is a foster care placement under ICWA, so expert testimony that continued custody would likely cause serious emotional/physical damage was required. | DHS argues L was already removed and in foster care; changing a permanency plan to adoption does not effect a new foster care placement triggering §1912(e). | Change to adoption was not a “foster care placement” under ICWA here; expert testimony under §1912(e) was not required. |
Key Cases Cited
- State ex rel Juv. Dept. v. Geist, 310 Or. 176 (Or. 1990) (juvenile dependency proceedings implicate parental due process interests)
- Lassiter v. Department of Social Services, 452 U.S. 18 (U.S. 1981) (parental custody is a protected liberty interest; due process is flexible)
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (Mathews balancing test for required procedures)
- Dept. of Human Services v. B. J. W., 235 Or. App. 307 (Or. Ct. App. 2010) (ORS 419B.325(2) permits admission of reports about ward’s prognosis without strict evidentiary competency)
- State ex rel Dept. of Human Services v. W. P., 345 Or. 657 (Or. 2009) (recognizes parental liberty interest in child custody)
- Dept. of Human Services v. W. H. F., 254 Or. App. 298 (Or. Ct. App. 2012) (continuation of adoption permanency plan is not a new ICWA "foster care placement")
- Dept. of Human Services v. J. G., 260 Or. App. 500 (Or. Ct. App. 2014) (durable guardianship constituted a significant legal shift and could be a "foster care placement" under ICWA)