Dep't of Human Servs. v. M. T. P. (In re C. J. P.)Dep't of Human Servs. v. M. T. P. (In re C. J. P.)
Lead Opinion
We view the evidence in the light most favorable to the juvenile court's disposition; we view the evidence as supplemented by permissible derivative inferences; and we assess whether, when so viewed, the record was legally sufficient to permit that outcome.
At school, C is significantly behind his peers academically. He is on an individualized education plan for speech, reading, and behavior. His problem is not cognitive delays but behavioral issues. He is described as "a child that is angry and often views the world as a negative place." When told "no," his tantrums include yelling, crying, and hitting or kicking. C is engaged in weekly counseling. In a mental health assessment, concerns about C include his irritability, inability to concentrate, hyperactivity, and bed-wetting. C was diagnosed with adjustment disorder, as evidenced by emotional and behavioral symptoms. Continued assessment for posttraumatic stress disorder and attention deficit/hyperactivity disorder was recommended. In its report to the court at the most recent permanency hearing, DHS summarized that C needs permanency. DHS reported, "He needs to be able to bond and form healthy attachments to his long-term caregivers given the unavailability of his parents."
In September 2014, when C was removed from his home, he was placed in relative foster care with DG, his maternal grandmother.
"Of considerable concern, is maternal grandmother's overall negative view of [C]. It would appear he was targeted when he lived in the home while his older sister is the favored child. Maternal grandmother has not responded in an appropriate manner to [C's] behaviors such as urinating in his bedroom. Maternal grandmother, admittedly forced him to sleep on the laundry room floor for several nights as punishment. She does not have good insight into trauma responses and believes [C] did this on purpose and does notsee this as the trauma response that it is. [C] has made concerning disclosures regarding his maternal grandmother's discipline techniques such as cold showers and spankings, none of which are within certification standards."
In 2016, the grandmother told a mental health examiner that she was convinced that, when C does not get his way, he deliberately wets himself or urinates on the floor. At trial, the grandmother testified that putting C in the laundry room "was his punishment" for urinating in his bedroom, and it was only one night. The grandmother said that C does get in a lot of trouble and does do a lot of things wrong at school. The grandmother said that she told him that there is nothing worse than a liar, because he is "always lying." The grandmother testified that, despite the report that she treats C unfairly or contributes to his low self-esteem, she treats C with love.
In December 2016, DHS placed C in father's care for a "trial reunification." Also in December 2016, the court entered a permanency judgment that contemplated that further efforts would make it possible for C to safely return to father's care. An earlier psychological evaluation of father had diagnosed him with antisocial personality disorder, methamphetamine use disorder in remission, and alcohol use disorder in remission. The examiner's primary concerns were father's "limited problem-solving ability and his impulsive and irresponsible behavior that has led to incarcerations." After his release from prison, father participated in services including drug and alcohol treatment, parenting classes, and working with a parent mentor. C did "well with his father," who was consistent in taking C to school; and father was responsive to the recommendations of the school and therapists. C had fewer behavioral problems and stopped wetting the bed.
In June 2017, father relapsed and was arrested. Father was accused of driving while under the influence of
As a result of father's inability to provide a home, C was placed with KG, a maternal cousin, in June 2017. C was in KG's care about six months before the hearing and most recent permanency judgment. In that time, C developed a "significant bond" with KG. DHS instructed KG that, given the grandmother's "inappropriate discipline practices and negative view of [C]," the grandmother should never be unsupervised with him. That concern became the issue of the recent permanency hearing.
At the hearing, DHS recommended a change of plan from reunification to adoption. DHS observed that, after four years, the case had been open a significant amount of time and that the recommendation for adoption was actually the second time that adoption was proposed. DHS reported that mother had not participated in services needed to make progress to ameliorate the threats of harm to C and that father was unavailable to parent because he would be incarcerated until about July 2022. DHS recognized that father loves his son and wants to be a part of his son's life, but that C has significant behavioral problems and needs a placement that can meet his needs consistently throughout his life. DHS recommended a change of plan to adoption because adoption "is the most permanent, most stable plan that this child can have." Adoption would assure C "the stability and permanency that he needs in order to grow and thrive, which has been a problem." DHS assured the court that C was adoptable. In its report to the court, DHS noted that KG was willing to adopt, but that DHS was also conducting a diligent relative search to identify potential additional relative adoptive resources.
At the hearing, C's attorney took no position on adoption and noted that C is very attached to his father, but also noted that C was starting to comprehend that reunification
At the hearing, father opposed the change of plan to adoption. Because he will be incarcerated some time into 2022, father's "primary preference" is a plan of guardianship. Father recommended KG as the appropriate caretaker for C while father is imprisoned. He reported that KG had agreed to be guardian until not needed.
The court asked father's attorney if there had been any discussion about the possibility of guardianship versus adoption. Father's attorney replied that she had talked briefly
DHS counsel Dundon explained that the concern about guardianship with KG stemmed from her noncompliance with child safety plans. Dundon said that KG had "struggled to follow those conditions that DHS has put in place for the child's safety." Although DHS had offered reminders and given admonitions, KG had responded with adversity to the rules for keeping C safe. Dundon said that "there is a real concern" about KG's "ability to follow the rules and requirements necessary to keep the child safe."
KG responded that she was not defiant. She said that each time she talked to DHS, she received in writing a new name of a family member subject to a restriction. She felt that C's family was being "ripped away from him." She did not know what "the charge" was against the grandmother.
Caseworker Nikoleishvili responded that DHS supports family ties but needs to ensure interaction will be safe and beneficial to a child. She explained that DHS needed to ensure that the grandmother was never in a circumstance in which she would provide discipline to C. The reason was that there had been inappropriate and excessive discipline in the past. Supervised visitation was fine. Discipline was a sensitive concern due to C's "challenging behaviors." Nikoleishvili explained that C "has a very negative self-image," believing that he is a "bad child that cannot do right." Nikoleishvili assured the court that DHS had talked with KG about why it was important that the grandmother's
In an oral ruling, the juvenile court found that the safety concerns that led to the court's jurisdiction had not been ameliorated and that adoption was in C's best interests. In its judgment, the court determined that DHS had made reasonable efforts toward reunification; that mother and father had not made sufficient progress; that C could not be safely returned to either parent's care; and that the case plan should be changed to adoption. In addition, the court determined that none of the circumstances described in ORS 419B.498(2) applied because, among other things, there was not a "compelling reason" within the meaning of that statute for determining that filing a petition to terminate parental rights would not be in the child's best interests.
On appeal, father disputes only the court's last determination. He does not dispute that DHS had made reasonable efforts to make it possible for C to safely return home or that the parents had not made sufficient progress to make it possible for C to safely return home. He tacitly concedes those first two prerequisites for a change of plan from reunification to adoption. See ORS 419B.476(2)(a) (setting those criteria). He disputes only the third prerequisite. See ORS 419B.476(5)(d) and ORS 419B.498(2) (no compelling reason not to initiate petition to terminate parental rights). As he would prefer to frame the issue, father contends that DHS "failed to prove that there did not exist a compelling reason to forgo a plan of adoption." He argues that another permanency plan, such as guardianship, is better suited to C's needs. He reasons that maintaining C's bonds with his father and with KG is in C's best interests.
In order to address the particular issue that is presented, we step back to describe the context in which it arises. Generally, it is Oregon's policy to offer appropriate reunification services to parents to allow them the opportunity to adjust their circumstances, conduct, or conditions to make it possible for the child to return home within a reasonable time. When abuse or neglect mean that the best
"If the case plan at the time of the hearing is to reunify the family, determine [1] whether the Department of Human Services has made reasonable efforts * * * to make it possible for the ward to safely return home and [2] whether the parent has made sufficient progress to make it possible for the ward to safely return home. In making its determination, the court shall consider the ward's health and safety the paramount concerns."
In addition, ORS 419B.476(5) requires that, within 20 days of the hearing, the court must enter an order making additional determinations. As relevant here, ORS 419B.476 (5)(d) requires that the order include, "[i]f the court determines that the permanency plan for the ward should be adoption, the court's determination of whether one of the
Under ORS 419B.498(1), DHS must file a petition to terminate parental rights after a child has been in foster care for 15 of the most recent 22 months, unless one of the circumstances identified in ORS 419B.498(2) applies. It is subsection (1) that makes significant the fact that C has been in foster care for 15 of the most recent 22 months. That is, a petition to terminate parental rights should be initiated unless subsection (2) applies.
Under ORS 419B.498(2)(b), DHS is required to initiate a petition to terminate parental rights as provided in subsection (1), as relevant here, unless "[t]here is a compelling reason, which is documented in the case plan , for determining that filing such a petition would not be in the best interests of the child or ward ." (Emphases added.) Father does not contend that the case plan documents a circumstance as a compelling reason not to initiate a termination petition. And, we are unable to locate anything in the case plan
With that said, the dispute in this case reduces to the "no compelling reason" requirement, as determined by the juvenile court and as reviewed by us on appeal. Under ORS 419B.498(2)(b), compelling reasons include, but are not limited to:
"(B) Another permanent plan is better suited to meet the health and safety needs of the child or ward, including the need to preserve the child's or ward's sibling attachments and relationships[.]"
As noted in earlier cases, we observe that the court has yet to determine that the statute, referring to the child's sibling attachments, concerns the bond between parent and child. See, e.g., Dept. of Human Services v. C. M. E. ,
Resolution of the "no compelling reason" issue is determined differently in the juvenile court and on appeal. In the juvenile court, the issue presented was whether C's bond with father is a compelling reason to conclude that a
As a trial court, the juvenile court did its part. The juvenile court made an express determination in its judgment that "there is not a 'compelling reason' within the meaning of that term in ORS 419B.498(2)(b) for determining that filing a petition to terminate * * * parental rights would not be in the child's best interests[.]" At the hearing, the evidence that was received was directed to that specific question, because there was no dispute as to other issues and because the court directed DHS to explain why DHS had concerns about father's preference for a guardian-particularly the guardian whom father proposed. At least in this instance, no further explanation is needed for appellate review.
For our part, we conclude that there is sufficient evidence from which the juvenile court could conclude that there was no "compelling reason" that a termination petition was not in C's best interests. Due to her problems, mother was not a parental resource. Although father had been successful with C, father would be imprisoned until July 2022. By the time of the hearing, C had been a ward of the court for four years. He had been in foster care for 15 of the most recent 22 months. Father proffered, as a guardian, KG, C's cousin. DHS, however, provided information that KG had not followed the child's safety plan, and, despite verbal reminders and written instructions, she resisted the plan's directions. To hear their perspectives, the juvenile court elicited colloquy with both KG and the grandmother. Doing so, the court could assess their demeanor.
In considering that controversy, the court observed that it was "not deaf to or ignoring the tension in the courtroom or the statements of the foster mother or the grandmother-or the caseworker, frankly." In all that, the court
Taken together, the record provides sufficient evidence to support the court's conclusion that there was not a "compelling reason" to determine that a termination petition was not in C's best interests. That is, the proposed guardianship, which presumably was offered to preserve C's relationship with father, was not better suited to meet C's health and safety needs, when father will be imprisoned until at least July 2022 and when, at
The dissenting opinion rejects the majority's conclusion. It rejects out of hand the reason DHS offered for adoption over other alternatives.
That reason, given in support of this change of plan, does not "functionally presume" that adoption or a termination petition "is the best plan for every child." But see
As happened here, the juvenile court addressed the actual form of guardianship that father urged in the juvenile court. As noted, father urged a temporary guardianship with KG until his release from prison. The juvenile court gave father's requested form of guardianship meaningful review. On this record, the juvenile court could conclude that the form of guardianship that father sought was contrary to the evidence that C now needs to form a lasting bond with a long-term caregiver. The juvenile court could also conclude that a guardianship, which would be revisited upon father's eventual release, would leave C in what would amount to protracted foster care for yet another four critical years of his life-then to be disrupted just as C is about to become a teenager.
The dissent underscores the bond that C had with father during a past six-month period
Our conclusion does not shift a burden of proof to father but recognizes, instead, that DHS offered a reason to prefer adoption over other alternatives in general and offered reasons to disfavor the form of guardianship that father propounded in particular. As the juvenile court concluded, the record provided evidence to support a change in the plan from reunification to adoption "in the interest of permanency and the best interest of the child." (Emphasis added.)
For all of those reasons, we affirm the judgment of the juvenile court changing the permanency plan from reunification to adoption.
Affirmed.
Notes
The parties have not asked us to exercise our discretion to review this case de novo , and this is not an exceptional case warranting such review. See ORS 19.415(3)(b) (court has discretion to conduct de novo review in equitable cases); ORAP 5.40(8)(c) (de novo review appropriate only in exceptional cases).
DHS had been involved with C in 2011, when father fired several rounds from a firearm outside mother's home while she and C were inside. Also, the agency had been involved in 2012 when police raided the home in search of a suspect. The home lacked water and electricity, and drug paraphernalia was found.
As we explain below, under ORS 419B.498, this length of time in substitute care may become one of the triggers for a petition to terminate parental rights and approve adoption.
To be more precise, the placement was with both grandparents, but the grandfather died in April 2017, and only grandmother is relevant to the placement history.
In March 2016, the court changed C's permanency plan from reunification to adoption. Father appealed, and that earlier permanency judgment was affirmed without opinion.
More precisely, ORS 419B.090(5) provides:
"It is the policy of the State of Oregon, in those cases not described as extreme conduct under ORS 419B.502, to offer appropriate reunification services to parents and guardians to allow them the opportunity to adjust their circumstances, conduct or conditions to make it possible for the child to safely return home within a reasonable time. Although there is a strong preference that children live in their own homes with their own families, the state recognizes that it is not always possible or in the best interests of the child or the public for children who have been abused or neglected to be reunited with their parents or guardians. In those cases, the State of Oregon has the obligation to create or provide an alternative, safe and permanent home for the child."
Those provisions, ORS 419B.498(1) and (2) were adopted in order to comply with the Adoption and Safe Families Act of 1997 (ASFA),
Father argued to the juvenile court that his "primary preference" was guardianship, which he explained by referring to C's improvement in behavior while in father's custody. That argument could be understood to suggest that (a) father is simply a better caregiver, rather than to suggest that (b) C's bond with his father makes guardianship in C's best interest. Asserting such a distinction, the state argues that father failed to preserve error as to any argument about "no compelling reason" under ORS 419B.498(2)(b)(B) because the two arguments are significantly different. We note that father argued that C "was very much happy to be in the care of his father." We doubt that father's relationship with C was not before the court when father disputed adoption. Therefore, we conclude that father's argument preserved the issue of guardianship as it relates to C's bond with father.
Father did not assign error or argue that the juvenile court failed to explain or make required findings. See ORAP 5.45(1) (a question or issue to be decided on appeal shall be raised in the form of an assignment of error). By contrast, in State ex rel. DHS v. M. A. ,
When responding to the notion that she did not have C's best interest at heart, KG described herself as "shaking" in disgust. When the grandmother spoke, the court advised her to "take it down a notch because you're escalating and getting louder and louder, and that just makes it harder to hear."
The dissenting opinion observes that the juvenile court, in its initial findings in the permanency judgment, noted that the child's current placement in substitute care is in the child's best interests. The dissent suggests that it would be inappropriate to understand the juvenile court to make an implicit finding about KG's propriety as a guardian. The court's initial recitals, however, were preliminary recitals that justified the then-current placement of the child in substitute care as an interim measure. Later, the court determined that the child is not being cared for by a relative that is intended to be permanent.
Dissenting Opinion
To be sure, the timelines in the juvenile code aim to avoid indefinite postponement of a stable placement for a child. However, ORS 419B.498(2) also requires the juvenile court to engage, at the permanency stage, in a meaningful inquiry as to whether a plan other than adoption is "better suited to meet the health and safety needs of the child." Before the juvenile court may approve a petition by DHS to change the plan to adoption, DHS must establish that there does not exist such a compelling reason to forgo implementing a plan of adoption. Dept. of Human Services v. S. J. M. ,
Here, DHS failed to meet that burden, merely raising "concerns" about the particular guardian whom father had proposed, and the court briefly inquired into the nature of DHS's concerns. Although the court went on to determine that compelling reasons to forgo implementing a plan of adoption were not present, the record does not support that determination. The court did not engage in the
I begin with the statute. Under ORS 419B.498(2)(b), DHS is required to initiate a petition to terminate parental rights under these circumstances unless "[t]here is a compelling reason, which is documented in the case plan, for determining that filing such a petition would not be in the best interests of the child * * *." Such compelling reasons "include,
The majority does not dispute that C's attachment to father is well-documented in the file. C had been placed with his father for several months after father's completion of a previous period of incarceration, and there is no
In my view, such circumstances present a genuine question about whether termination of father's parental rights, thereby severing his legal relationship with C, is the plan best suited to meet C's health and safety needs. Contrary to the majority's suggestion
DHS failed to meet that burden in this case. It simply indicated at the permanency hearing that father would be incarcerated until 2022 and that adoption "is the most permanent, most stable plan that this child can have." Compared to guardianship, adoption is always more permanent, so that statement has no evidentiary significance; it does not constitute evidence about whether another plan that does not involve terminating the parental rights of the father to whom C is attached would not be better suited to meet his needs. DHS did nothing to indicate that it had meaningfully explored any options other than adoption and termination of father's parental rights.
It was father who introduced at the hearing the prospect of an alternative plan of guardianship. Indeed, he proposed a specific and willing guardian to whom C was
It is clear from the slender record of the permanency hearing in this case that DHS and the foster parent disagreed about the
The Supreme Court has recognized that the fact of incarceration alone does not necessarily establish a level of unfitness that justifies termination of parental rights, where children are attached to an incarcerated parent and where they experience distress at the prospect of termination of his parental rights. See State ex rel. SOSCF v. Stillman ,
Egan, C. J., and Lagesen, James, and Aoyagi, JJ., join in this dissent.
It is notable that, despite DHS's expressed hesitation about KG serving as a guardian (permanently or until father is out of prison), DHS nonetheless identified her as a potential adoptive resource. Moreover, for purposes of C's concurrent plan, the juvenile court expressly found that C's existing placement with KG was in his "best interests" both generally and in specific ways. In these circumstances, it would be inappropriate to read into the court's silence any implicit finding or conclusion about KG's propriety as a guardian. Finally, the legislature has expressed a preference for placement with relatives and maintenance of family ties in lieu of termination of parental rights. ORS 419B.498(2)(a) is a specific exception to the requirement that DHS pursue adoption and termination of parental rights once a child has been in care for 15 of the preceding 22 months, which exception applies when the child is "being cared for by a relative and that placement is intended to be permanent."ORS 419B.498(2)(a). Although no one has argued that the exception applies here, it is indicative of the legislature's preference not to terminate parental rights when a child is in a stable placement with a family member.