Department of Human Services v. S. W., 267 Or. App. 277

Background

A, born 2009 with severe medical and emotional needs, was placed in DHS custody in 2010 and moved between foster care and mother’s care; father was absent for most of A’s life.
Father had a substantial criminal history and multiple incarcerations beginning before and continuing after A’s birth; he served time in Washington and Oregon and had intermittent participation in treatment.
Early in the case (2010), DHS arranged father’s transfer into a residential treatment program, facilitated three in-person visits with A, met with him repeatedly, and issued written "letters of expectation."
From January 2011 to late 2013 (≈33 months) DHS’s contact with father was sporadic: a few calls/letters and one in-person meeting; DHS did not consistently contact out-of-state prison officials about services or visits.
In April 2013 DHS obtained a psychological evaluation finding father lacked understanding of A’s needs and questioned his viability as a visitation resource; DHS concluded visits to the penitentiary would be harmful to A.
The juvenile court changed permanency plan from reunification to adoption (Nov. 2013), finding DHS had made reasonable efforts; father appealed arguing DHS’s efforts during his incarcerations were insufficient.

Issues

Issue	Father’s Argument	DHS’s Argument	Held
Whether DHS made “reasonable efforts” to reunify father and A under ORS 419B.476(2)(a)	DHS’s efforts after Jan 2011 were minimal (few contacts, no outreach to prison counselors, no effort to arrange visits) and therefore not reasonable	DHS had engaged father early, encouraged use of in-prison services, facilitated visits and evaluations, and visitation to OSP would harm A; the totality of circumstances supports reasonableness	Court held DHS’s efforts over the life of the case were reasonable given early efforts, father’s limited engagement, incarceration length, A’s needs, and limited expected benefit of further efforts
Whether DHS was required to arrange or pursue in‑person visitation while father was incarcerated	Visits were feasible or should have been explored further; DHS’s failure to contact prison officials sooner was prejudicial	Visitation would have been medically and emotionally harmful to A (long travel, prison environment), and DHS did consider visits and alternative contacts (letters, calls)	Court held DHS reasonably considered visitation and appropriately declined visits to OSP given A’s fragile condition and psychologist’s evaluation
Admissibility: whether permanency proceedings have separate phases for ORS 419B.325(2) evidence exception (assignments 1–4)	Father argued two-phase approach limits admissible material at permanency hearings	DHS and court relied on existing precedent rejecting father’s two‑phase theory	Court rejected father’s argument in light of Dept. of Human Services v. J. B. V. and denied these assignments of error
Whether juvenile court erred in changing permanency plan to adoption (requires reasonable efforts)	Contingent on showing DHS lacked reasonable efforts; thus change was improper	DHS argued reasonable efforts shown and father had not made sufficient progress	Court affirmed change to adoption because reasonable efforts finding upheld and father had not made sufficient progress

Key Cases Cited

Dept. of Human Services v. N. P., 257 Or. App. 633 (2013) (standard for reviewing juvenile court dispositions and view of evidence in the light most favorable to the court)
Dept. of Human Services v. M. K., 257 Or. App. 409 (2013) (reasonableness of DHS efforts depends on particular circumstances; weigh burdens and expected benefits)
State ex rel Dept. of Human Services v. Shugars, 208 Or. App. 694 (2006) (factors for reasonable‑efforts inquiry include parental attempts to change and refusal to participate)
State ex rel Juv. Dept. v. Williams, 204 Or. App. 496 (2006) (DHS made unreasonable efforts where engagement with incarcerated parent was virtually nonexistent)
Dept. of Human Services v. D. L. H., 251 Or. App. 787 (2012) (DHS’s inquiries and contacts with incarcerated parent and prison counselor can constitute reasonable or active efforts even if visits do not occur)
State ex rel Dept. of Human Services v. H. S. C., 218 Or. App. 415 (2008) (DHS’s cessation of services to a detained parent can make its efforts unreasonable)
Dept. of Human Services v. J. B. V., 262 Or. App. 745 (2014) (rejection of the two‑phase permanency‑proceedings admissibility theory)
State ex rel SOSCF v. Stillman, 333 Or. 135 (2000) (incarceration alone is not per se disqualifying; its effect on the child must be shown)