303 Or. App. 399
Or. Ct. App.2020Background
- A was removed from parents’ care the day after birth (Nov 2017) due to maternal substance use and other safety concerns; juvenile court took jurisdiction after parents admitted amended allegations.
- Father admitted untreated mental‑health issues and participation in public safety court; DHS provided services to both parents and supervised visits for father pre‑incarceration.
- Father was arrested in July 2018, later convicted and sentenced to 60 months; by the April 2019 permanency decision he had been incarcerated ~9 months with release not before July 2022.
- DHS filed a second petition noting termination of father’s parental rights to older siblings; the juvenile court relieved DHS of reasonable‑efforts duties as to that second petition but not the initial petition.
- After contested permanency hearings (Feb and Apr 2019), the juvenile court found DHS had made reasonable efforts, but changed A’s permanency plan from reunification to adoption; father appealed arguing DHS failed to make reasonable reunification efforts, especially after his incarceration.
- The Court of Appeals affirmed: it held father’s complaints about DHS’s services to mother were unpreserved, and that DHS’s efforts to assist father, viewed under the totality of circumstances, were sufficient to support the juvenile court’s reasonable‑efforts finding.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| Whether father preserved challenge to DHS’s services to mother | DHS’s services to mother were inadequate and contributed to erroneous change to adoption | Father did not preserve that argument; DHS says it was not contested by father below | Court: Father’s argument about mother is unpreserved and not considered |
| Whether DHS made reasonable efforts for father after incarceration | DHS’s post‑incarceration efforts were "virtually nonexistent" (no contact for ~7 months; insufficient visitation, info, evaluations) | DHS provided pre‑incarceration services, arranged some phone/video contact, funded prison account, sought transfer closer to child, and provided MH/substance services; reasonableness judged under totality and likely benefit | Court: Under the totality of circumstances DHS’s efforts were more than "virtually nonexistent" and were reasonable |
| Whether incarceration excuses DHS’s duty to provide reunification services | Incarceration does not excuse DHS; DHS still must maintain contact and facilitate meaningful services | DHS: incarceration is a relevant circumstance; must weigh burdens and likely benefits of services | Court: Incarceration does not excuse DHS, but services are measured by totality and cost‑benefit; here DHS met the standard |
| Whether changing permanency plan to adoption was error | Change was erroneous because DHS failed reasonable‑efforts requirement | DHS established reasonable efforts and parents failed to make sufficient progress | Court: Change to adoption affirmed (DHS met burden; parents insufficient) |
Key Cases Cited
- Dept. of Human Services v. L. L. S., 290 Or App 132 (2018) (reunification includes restoration of parental decision‑making rights)
- Dept. of Human Services v. S. J. M., 364 Or 37 (2018) (dependency statutes and DHS reunification obligations overview)
- Dept. of Human Services v. S. W., 267 Or App 277 (2014) (reasonable‑efforts measured over life of case and by totality of circumstances)
- Dept. of Human Services v. S. M. H., 283 Or App 295 (2017) (DHS failed reasonable‑efforts where post‑incarceration services were essentially absent)
- State ex rel Juv. Dept. v. Williams, 204 Or App 496 (2006) (DHS involvement with one parent can be ‘‘virtually nonexistent’’ and insufficient)
- Dept. of Human Services v. M. K., 257 Or App 409 (2013) (reasonable‑efforts assessment considers expected benefits of services)
- Dept. of Human Services v. C. L. H., 283 Or App 313 (2017) (juvenile courts must engage in a cost‑benefit style analysis when evaluating service omission)
- Troxel v. Granville, 530 U.S. 57 (2000) (parental liberty interest in child‑rearing decisions)