Department of Human Services v. S. S., 278 Or. App. 725

Background

Mother’s three children (C, M, J) were removed in 2013 after mother tested positive for cocaine and was later jailed for criminal offenses; M and J went to nonrelative foster care that became adoptive placement.
Mother was incarcerated much of the case (transferred to a prison with visitation capabilities in Sept. 2014) and consistently sought contact via letters and requests for calls/visits while participating in prison-based services.
M (age ~5 at rehearing) displayed severe trauma-related behaviors and therapists recommended against contact with mother given M’s anxiety and regression when mother was discussed; J’s record showed less direct evidence of detriment from contact.
DHS curtailed in-person contact for over a year and, after a period with little active effort (mid–2014 to Dec. 2014), engaged in roughly four months of more active reunification efforts before the referee changed the permanency plan to adoption (April 2015).
The juvenile court affirmed the referee after a de novo rehearing, finding DHS had made reasonable efforts (focusing on the recent months) and that reunification was not likely within a reasonable time; the appellate court reversed.

Issues

Issue	Mother’s Argument	DHS/Judge’s Argument	Held
Whether the court may assess reasonable efforts based only on the most recent review period	Court must consider DHS’s efforts “over the life of the case”; focusing only on a short recent window is improper	The referee and juvenile court relied on DHS’s recent months of activity as dispositive	Reversed: court erred by limiting review to the short recent period; must consider efforts over the life of the case
Whether DHS’s overall efforts were reasonable given earlier long lapse in contact	DHS’s post-lapse four months of efforts were insufficient to cure prior six-month failure to facilitate contact; overall efforts unreasonable as a matter of law	DHS argued recent steps (therapy work, arranging one visit, mother’s participation in programs) were reasonable in context	Held: overall efforts were not reasonable because four months of activity could not compensate for prior six-month period in light of adjudicated need to rebuild parent–child bond
Whether the juvenile court could rely on findings that mother lacked a meaningful pre-incarceration bond with the children	Mother: no evidence supports that finding; she was primary caregiver until removal	Court/factfinder had concluded children were traumatized in mother’s care	Appellate court disregarded the unsupported finding that no meaningful relationship existed
Whether the children’s safety/therapy-based concerns justified limiting contact without additional DHS steps to rebuild relationship	Mother: DHS should have pursued therapist skilled in parent–child reunification and taken active steps to prepare children for contact	DHS: therapist recommended against contact given M’s strong anxiety; concern about harm from visits	Held: therapist recommendations did not excuse DHS’s prior failure to seek/implement remedial steps; DHS needed a longer, substantive effort to reestablish contact before changing plan

Key Cases Cited

Dept. of Human Services v. S. W., 267 Or App 277 (2014) (reasonable-efforts inquiry requires consideration of DHS’s efforts over the life of the case)
Dept. of Human Services v. T. S., 267 Or App 301 (2014) (rejects limiting review to the immediate review period; consider all efforts during case)
Dept. of Human Services v. N. P., 257 Or App 633 (2013) (appellate standards for assuming trial-court factual findings and assessing legal sufficiency)
State ex rel Juv. Dept. v. Williams, 204 Or App 496 (2006) (state policy requires offering appropriate reunification services and reasonable efforts)
State ex rel Dept. of Human Services v. H. S. C., 218 Or App 415 (2008) (period reviewed must be sufficient in length to assess parental progress)
Dept. of Human Services v. D. L. H., 251 Or App 787 (2012) (reasonable-efforts analysis depends on particular circumstances of the case)
Dept. of Human Services v. N. T., 247 Or App 706 (2012) (adjudicated bases for jurisdiction frame the sufficiency-of-efforts analysis)