Dept. of Human Services v. J. L. M.
328 Or. App. 722
| Or. Ct. App. | 2023Background
- Mother gave birth to D in May 2021; both tested positive for heroin and methamphetamine and D required morphine for neonatal withdrawal.
- Mother left the hospital; DHS took protective custody when D was four days old. Mother was later arrested and incarcerated beginning mid‑July 2021 and remained in custody through the permanency hearing.
- Juvenile court exercised jurisdiction (mother's substance abuse leading to incarceration; mother unavailable to parent), ordered a substance abuse evaluation and a safety plan, and directed DHS to make referrals necessary for reunification.
- DHS facilitated phone/video visits and provided letters of expectation and action agreements, but did not obtain a court‑ordered substance abuse evaluation or formal safety plan for mother during ~17 months of incarceration.
- DHS repeatedly contacted DOC counselors, who said DOC services were unavailable and would not permit outside providers; DHS did not explore remote or other alternatives after mother moved to minimum security.
- Juvenile court changed permanency plan to adoption, concluding DHS made reasonable efforts; the Court of Appeals reversed, holding DHS failed to prove it was truly impossible to provide the substance abuse evaluation or that the costs outweighed the benefits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DHS made "reasonable efforts" to reunify while mother was incarcerated | Mother: DHS failed to provide court‑ordered substance abuse evaluation/treatment and a safety plan during incarceration, so efforts were not reasonable | DHS: Made repeated attempts and communicated with DOC; institutional barriers limited available options, so efforts were reasonable | Reversed: DHS did not meet burden; must show services were truly impossible or that costs outweighed benefits |
| Whether DOC institutional barriers alone excuse DHS from arranging services during incarceration | Mother: Institutional barriers do not absolve DHS; DHS must explore alternatives beyond DOC offerings | DHS: Repeated DOC refusals and coordination with prison counselors showed DHS explored options sufficiently | Rejected: Barriers do not automatically excuse DHS; DHS must prove impossibility or perform cost‑benefit analysis when service is key |
| Whether DHS needed to explore non‑in‑person alternatives for a substance abuse evaluation | Mother: DHS should have explored remote/telephone/mail/video evaluations or other means | DHS: Focused on in‑person DOC/outsider entry and relied on DOC responses; did not pursue remote options | DHS failed to develop record on alternatives; reasonable inference other options might have existed; DHS had burden to establish impossibility |
| Whether substance abuse evaluation would have been of little benefit given mother’s history | DHS: Mother’s long history of substance abuse and extended incarceration reduced likely benefit of an evaluation | Mother: Evaluation is critical to ameliorating jurisdictional bases tied to substance abuse and incarceration | Court: Evaluation/treatment was critical to case plan and directly related to jurisdictional bases; DHS must consider benefits in cost‑benefit analysis |
Key Cases Cited
- Dept. of Human Services v. K. G. T., 306 Or App 368 (Or. Ct. App. 2020) (agency must show service truly impossible or perform cost‑benefit analysis when declining to provide key reunification service)
- Dept. of Human Services v. C. H., 327 Or App 61 (Or. Ct. App. 2023) (appellate review limited; reasonable‑efforts determination is a legal conclusion)
- Dept. of Human Services v. C. L. H., 283 Or App 313 (Or. Ct. App. 2017) (incarceration does not absolve DHS of obligation to make reasonable reunification efforts)
- Dept. of Human Services v. D. M. R., 301 Or App 436 (Or. Ct. App. 2019) (reasonable efforts focus on ameliorating adjudicated bases and giving parents opportunity to adjust)