Department of Human Services v. S. J. M., 283 Or. App. 367

Background

DHS took jurisdiction over infant A (and her half-brother L) after father physically abused L and parents failed to protect; A was placed in relative foster care and the initial permanency plan was reunification.
Juvenile court ordered parents to complete psychological evaluations, counseling, parenting classes, and to secure safe housing; parents engaged in services and showed some progress but continued to have a volatile relationship and other concerns.
At the contested permanency hearing DHS sought to change the plan from reunification to adoption; the court found DHS made reasonable efforts, and that neither parent had made sufficient progress to safely reunify.
The court also checked the judgment box finding no compelling reasons under ORS 419B.498(2)(b) to defer filing a termination petition (i.e., no compelling reason to forgo adoption/termination now).
Parents appealed the sufficiency-of-progress findings; mother also challenged the court’s determination that no compelling reasons existed to delay termination proceedings.
The Court of Appeals concluded the juvenile court must make the ORS 419B.498(2)(b) “compelling reasons” determination before changing a plan to adoption, and that here the record did not support the court’s finding that no compelling reason existed (reversible error). The judgment was reversed and remanded.

Issues

Issue	Mother’s/Parents’ Argument	DHS’s Argument	Held
Whether juvenile court must first determine under ORS 419B.498(2)(b) that no "compelling reasons" exist before changing permanency plan from reunification to adoption	The court must make the ORS 419B.498(2)(b) determination as part of the substantive decision to change plan	The ORS 419B.498(2)(b) determination relates only to the timing of a termination petition and need not precede a permanency change	Court: The statutes read together require the court to determine whether a compelling reason to defer termination exists before changing plan to adoption
Whether father made sufficient progress to permit safe reunification	Father: participation in services and improved parenting/anger management meant he had made sufficient progress	DHS: observable ongoing emotional lability, denial/minimization of abuse, volatile home and conduct at hearing supported insufficient progress	Court: evidence supported juvenile court’s finding that father had not made sufficient progress
Whether mother made sufficient progress to permit safe reunification	Mother: completed services and improved parenting skills so A could safely return	DHS: ongoing prioritization of father, failure to protect L, dishonesty, unstable housing and incomplete programs showed unresolved risk	Court: record supported finding mother had not ameliorated bases for jurisdiction; insufficient progress
Whether the record supports the court’s finding that no compelling reason existed to defer filing a termination petition (ORS 419B.498(2)(b)(A) — successful services enabling return within a reasonable time)	Mother: her successful engagement in services (and bond with A) were compelling reasons to forgo immediate change to adoption	DHS: even if error, the compelling-reasons finding affects timing of filing and is not reversible as to the permanency decision; on the merits DHS contends record supports no compelling reason	Court: record did not support the court’s finding that no compelling reason existed as to mother’s services; error was reversible and required remand

Key Cases Cited

Dept. of Human Services v. D. A. N., 258 Or. App. 64 (discussing standard of review for permanency findings)
Dept. of Human Services v. R. S., 270 Or. App. 522 (explaining ORS 419B.476(2)(a) requirements)
State ex rel Dept. of Human Services v. Rodgers, 204 Or. App. 198 (hostility toward DHS alone does not prove parental unfitness)
State ex rel Juv. Dept. v. J. L. M., 220 Or. App. 93 (court may infer parenting risk from conduct at trial)
Dept. of Human Services v. D. L. H., 251 Or. App. 787 (previously stated court need not make a ‘reasonable time’ finding before changing plan—treated as non-controlling dicta here)
Dept. of Human Services v. A. D., 255 Or. App. 567 (cited D.L.H.; court acknowledged interplay of ORS 419B.476 and ORS 419B.498)
Dept. of Human Services v. C. M. E., 278 Or. App. 297 (assumed compelling-reasons inquiry applies and affirmed where record lacked compelling reasons)
Dept. of Human Services v. M. H., 266 Or. App. 361 (explaining legislative intent that courts carefully evaluate change to adoption and consider ORS 419B.498 factors)
State ex rel DHS v. Kamps, 189 Or. App. 207 (injury to one child can support risk to siblings)
Dept. of Human Services v. S. N., 250 Or. App. 708 (participation in services is not by itself dispositive of reunification)
Dept. of Human Services v. G. N., 263 Or. App. 287 (evidence of ongoing harmful behavior supports insufficient progress)
Dept. of Human Services v. T. M. S., 273 Or. App. 286 (applied compelling-reasons analysis to permanency change)
State ex rel DHS v. M. A., 227 Or. App. 172 (noting court’s child-centered duty to evaluate permanency changes)
Dept. of Human Services v. C. L., 254 Or. App. 203 (compelling-reasons inquiry tied to whether child can be returned within a reasonable time)