Department of Human Services v. M. K.
285 Or. App. 448
| Or. Ct. App. | 2017Background
- Two children (E, 16; J, 10) removed after long history of parental domestic violence, homelessness, exposure to drugs, and school/behavior problems; DHS placed children with paternal grandparents and assumed dependency jurisdiction in 2015.
- Mother completed substance-abuse assessment and domestic-violence classes and participated in an action plan; visitation occurred 13 times but ceased after August 2015 because children refused further visits and visits were deemed "unhealthy."
- Children consistently and adamantly refused therapeutic visitation, reporting fear of renewed exposure to domestic violence, manipulation by mother, and deterioration if returned to parents.
- DHS initially sought reunification but later recommended guardianship with grandparents; children’s attorney, CASA, and father agreed; juvenile court changed permanency plan to guardianship after contested hearing.
- Mother appealed, arguing DHS failed to make reasonable efforts (by not pursuing further therapeutic visitation options) and that completion of required programs proved she had made sufficient progress for reunification.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| Whether DHS made reasonable efforts to effect reunification | DHS should have pursued additional therapeutic-visitation steps (force visits or a letter-writing process) before changing plan | DHS made reasonable efforts; further forced or protracted efforts would harm children and likely be unproductive given their adamant refusal | DHS made reasonable efforts under the totality of circumstances; court may consider risk of harm from forced visitation |
| Whether mother made sufficient progress for safe return of children | Completion of required programs and demonstrated progress meant reunification should remain the plan | Sufficient progress requires that children can be safely returned; continued harmful parental behavior (allowing father back, minimizing domestic violence) can defeat reunification despite program completion | Mother had not made sufficient progress because risk to child safety remained despite completed programs |
| Whether juvenile court improperly relied on evidence extrinsic to jurisdiction (children’s alienation) | Court relied on alienation, which is not a jurisdictional barrier, so consideration was improper | Evidence showed children feared harm—relevant to safety and sufficiency of progress; mother did not preserve this argument below | Argument not preserved; court permissibly considered children’s articulated fears as bearing on safety |
| Whether failure to pursue letter-writing process rendered DHS efforts unreasonable | DHS should have attempted the counselor’s letter-writing method before changing plan | Letter process was unlikely to work given children’s rigid refusal, could take months, and mother minimized harm—making process impractical | Juvenile court reasonably declined to require the letter-writing process; DHS efforts remained adequate |
Key Cases Cited
- Dept. of Human Services v. C. L. H., 283 Or. App. 313 (2017) (appellate deference to juvenile-court factual findings)
- Dept. of Human Services v. T. M. S., 273 Or. App. 286 (2015) (standard of review for sufficiency of evidence supporting disposition)
- Dept. of Human Services v. M. A. H., 284 Or. App. 215 (2017) (reasonable-efforts analysis depends on totality of circumstances and adjudicated facts)
- Dept. of Human Services v. M. K., 257 Or. App. 409 (2013) (reasonable efforts should give parent opportunity to demonstrate ability to be minimally adequate)
- Dept. of Human Services v. S. M. H., 283 Or. App. 295 (2017) (burden to prove reasonable efforts and insufficient parental progress by preponderance)
- Dept. of Human Services v. S. J. M., 283 Or. App. 592 (2017) (child’s health and welfare are paramount in assessing sufficient progress)
- Dept. of Human Services v. G. N., 263 Or. App. 287 (2014) (completion of services does not preclude finding of insufficient progress if harmful behavior continues)
- Dept. of Human Services v. D. W. C., 258 Or. App. 163 (2013) (court must evaluate progress in ameliorating the jurisdictional barrier identified at adjudication)