In this juvenile dependency case, father and mother separately appeal from a judgment of the juvenile court changing the permanency plan for the child from reunification to adoption. ORS 419B.476. The juvenile court determined that the Department of Human Services (DHS) provided reasonable services to both parents but that the parents had not made sufficient progress to allow the child to safely return home. We affirm.
The facts are largely undisputed.
The parents, who are hearing impaired, acknowledged that they might have been rough with the child, but denied having intentionally caused any injuries. They offered various possible explanations for the injuries, including mother accidentally rolling over the child in bed (the child slept in the same bed as her parents), mistreatment by roommates or other caregivers, and brittle bone disease caused by a lack of vitamins or sun during mother’s pregnancy. There was medical evidence that а child experiencing such injuries would have been in considerable pain and distress. Father acknowledged that he may not have been as attentive as necessary to the child because of marijuana use; however, both parents denied being aware that the child was in distress.
Physicians conducted a skeletal survey and lab tests to assess the child’s bone health, and ruled out the possibility that the broken bones were the result оf a medical condition. They also determined that the injuries could not have come about from normal caregiving. Although it was possible that something rolling over the child could have caused the injuries, the medical opinion was that the injuries were not the result of the child having been rolled over by a parent in bed. Rather, the doctors concluded that the injuries were the result of nonaccidental trauma, i.e., abuse. Since Junе 2010, when the child was placed in foster care, she has not developed any additional fractures. At the time of the permanency hearing, the child was 18 months old.
DHS provided both parents with alcohol and drug abuse services, parent training, individualized counseling, and supervised visits with the child. The parents participated fully with those services. The parents participated in psychological evaluations that ruled out chrоnic disorders that would contribute to or explain physical abuse of the child.
The most critical question in this case was: How was the child injured? The preponderance of the evidence was that the multiple injuries occurred while the child was in the care of one or both parents. DHS did not require the parents to expressly admit culpability for the child’s injuries before engaging in case planning or offering services; however, in the parents’ signed agreements, they each agreed to explain to DHS how the child was injured. Nonetheless, they failed to provide an explanation. Based on expert medical evidence, the agency determined early on
We have the discretion to review this type of case de novo. ORS 19.415(3)(b). However, the parties have not requested de novo review, and we decline to conduct such a review. See ORAP 5.40(8)(c) (we exercise de novo review “only in exceptional cases”). Therefore, our task is to review the facts found by the juvenile court to determine whether they are supported by any evidence, and whether, as a matter of law, those facts provide a basis for thе court’s determination. Dept. of Human Services v. N. S.,
ORS 419B.476 sets forth the requirements for a change in the permanency plan from reunification to adoption and provides, in relevant part:
“(1) A permanency hearing shall be conducted in the manner provided in ORS 418.312, 419B.310, 419B.812 to 419B.839 and 419B.908, except that the court may receive testimony and reports as provided in ORS 419B.325.
“(2) At a permanency hearing the court shall:
“(a) If the case plan at the time of the hearing is to reunify the family, determine whether the Department of Human Services has made reasonable efforts *** to make it possible for the ward to safely return home and 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.
“(5) The court shall enter an order within 20 days after the permanency hearing. In addition to any determinatiоns or orders the court may make under subsection (4) of this section, the order shall include:
“(a) The court’s determination required under subsections (2) and (3) of this section, including a brief description of the efforts the department has made with regard to the case plan in effect at the time of the permanency hearing;
“(d) If the court determines that the permanency plan for the ward should be adoption, the court’s determination of whether one of the circumstances in ORS 419B.498(2) is applicable[.]”
In State ex rel DHS v. S. L.,
“[T]o warrant a change in the permanency plan from reunification to adoption under the circumstances described in ORS 419B.476(2)(a), the court must find that, despite DHS’s reasonable efforts to make it possible for the child to return home sаfely, a parent has not made sufficient progress to enable this to occur.”
The juvenile court in this case determined that DHS had provided appropriate services and that the parents “did an excellent job in those services and that progress shows that the parents may have matured and may be able to have improved skills in the future.” In determining nonetheless that the permanency
The parents’ primary assertion in this case is that, in the context of both the “reasonable efforts” and the “sufficient progress” determinations, the juvenile court gave undue weight to the fact that the parents have not provided specific informatiоn about or directly acknowledged responsibility for the child’s injuries. In separate appeals, father and mother each contend that the trial court erred in determining that DHS had made reasonable efforts to reunify the family, due to DHS’s position that no services could lead to reunification unless there was an explanation for the child’s injuries. In father’s view, there is no expert testimony that it was necessary for the pаrents to admit responsibility for the injuries in order to be adequately treated, and the record shows that the parents were making great progress in the services that were provided and were thereby reducing risk by learning new skills. In both parents’ view, if DHS believed that the parents had caused the child’s injuries, then it was incumbent on DHS to offer services to the parents to address issues of abuse; DHS did not do so, due to its mistaken belief that, in order for those services to be effective, the parents needed to acknowledge responsibility for the child’s injuries. Mother contends, further, and for the first time on appeal, that DHS’s decision to condition the reunification of the family on an explanation of the cause of the child’s injury was not permissible under the Fifth Amendment to the United States Constitution,
We begin by addressing the parents’ contention that the juvenile court erred in determining that DHS made reasonable efforts to make it possible for reunification. When a case plan for the child at the time of hearing is to reunify the family, the juvenile court must, among other requirements, determine whether DHS “has made reasonable efforts * * * to mаke it possible for the ward to safely return home[.]” In making that determination, the child’s health and safety are “the paramount concerns.” ORS 419B.476(2)(a). DHS’s efforts are evaluated by reference to the facts that formed the bases for juvenile court jurisdiction. Dept. of Human Services v. N. T.,
One of the bases for jurisdiction over the child, admitted by both parents, included the many unexplained injuries suffered by the child while in the parents’ custody. Father also admitted to jurisdiction based on a chemical abuse problem including marijuana. The services provided by DHS included drug
The parents contend that, if, as the juvenile court found, the parents are rеsponsible for the child’s injuries, then despite their failure to acknowledge responsibility, there were specific additional services, such as abuse prevention therapies, that DHS should have provided to the parents in order to enable the parents to make sufficient progress to make it possible for the child to safely return home. DHS responds that, even assuming that the parents assumed general responsibility for thе injuries, which they did not, the evidence shows that, in the absence of more specific information as to how the injuries likely occurred, it was not possible for DHS to formulate a plan that could address the specific causes of the abuse. Hartman, a psychologist who evaluated the parents, opined that, before reunification occurred, it would be critical to know the causes of the child’s injuries, because “it is difficult to prevent problems from reoccurring if it is unknown * * * what caused the problems the first time around.” Another psychologist, Gordon, who separately evaluated father, noted that “[tjhere are ongoing concerns about his ability to safely parent his children until it is determined how his daughter got the injuries[.]” We agree with DHS that the evidence in the record supports its contention that, before services could be directed at the sрecific causes of the abuse, it would be necessary for the parents to provide more information as to the causes of the abuse, i.e., how the child came to be injured.
Mother contends, nonetheless, that, by requiring the parents to provide an explanation for the injuries, DHS is, essentially, requiring the parents to admit guilt before it will offer services directed more specifically to abuse, and thereby violating the parents’ privilege to be free оf self-incrimination under the Fifth Amendment. We need not address that argument, as mother failed to make it to the juvenile court.
We turn to the issue of “sufficient progress.” The parents contend that their full and successful participation in all of the offered services, including substance abuse treatment, psychological evaluations, supervised visits, parenting classes, joint and individual counseling, and mentoring services, have reduced the risk that the child will be injured in their care, assuming that one of the parents was the abuser. There was evidence that the parents have a strong bond with the child, that they are a good and cooperative parenting team, and that they have done a large amount of work to reduce
As noted, the juvenile court found that the parents either caused, or knew or should have known of, the child’s injuries, and that finding is not challenged by the parents. A primary concern of DHS and the trial court is that, despite the parents’ cooperation and participation in the provided services, the parents’ categorical denial of any knowledge concerning the source of the child’s injuries has been the major obstacle to DHS’s efforts. In the absence of such information, DHS has taken the position that it is not possible to know whether the provided sеrvices have addressed the underlying cause of the child’s injuries; thus, it could not be determined whether the child would still be at risk if returned home or if the parents had made sufficient progress to allow reunification. There is evidence in support of that concern, which was essentially adopted by the juvenile court. The court found that, despite the parents’ participation in services, in the absence of an acknowledgment of wrongdoing by the parents, the court was not convinced that the parents were rehabilitated or that those services were likely to prevent future abuse of the child. Thus, the court implicitly concluded that the parents had not made sufficient progress to make it possible for the child to return home. The evidence supports that determination by the trial court.
Finally, mother contends that the juvenile court committedreversibleerrorinfailingtoestablishadeadlinefor DHS to file a petition to terminate parental rights and to place the child for adoption, as required by ORS 419B.476(5)(b)(B).
We have never addressed whether the juvenile court’s failure to make the findings required by ORS 476B.476(5)(b)(B) is similarly fatal, and we conclude here, based on the different nature of the findings and language in this particular judgment, that it is not. Unlike the findings required by ORS 419B.476(2)(b) and (c) and ORS 419B.476(5)(a), (d), and (f), which go to the heart of the decision to change the permanency plan to adoption, the juvenile court’s findings under ORS 476B.476(5)(b)(B) as to when the ward will be placed for adoption and when a petition for termination rights
Further, while the juvenile court did not state the date by which the petition for termination of parental rights shall be filed, the juvenile court did include in the judgment that it would conduct a “preliminary hearing on the TPR petition” on November 7, 2011, which was less than 60 days from the date of the judgment. By scheduling a preliminary hearing, the juvenile court notified the parties that the petition for termination would have to be filed before that date. That information contained in the judgment certainly informs the parties of information similar to that required by ORS 419.476(5)(b)(B).
We conclude, for those reasons, that the juvenile court’s failure to make the findings required by ORS 476B.476(5)(b)(B) is not a defect that is fatal to the judgment and reversible error per se. And, to the extent that there was error, we conclude that it was harmless.
Affirmed.
Notes
If there is any factual dispute, we state the facts consistently with the court’s findings of fact. See
Based on that specific finding, the court found that the parents’ credibility was completely undermined.
The Fifth Amendment provides, in part, “No person shall * * * be compelled in any criminal case tо be a witness against himself!.]”
In Dept. of Human Services v. K. L. R.,
“To summarize: (1) requiring an admission of abuse as a condition of family reunification violates a parent’s Fifth Amendment rights; (2) on the other hand, terminating or limiting parental rights based on a parent’s failure to cоmply with an order to obtain meaningful therapy or rehabilitation, perhaps in part because a parent’s failure to acknowledge past wrongdoing inhibits meaningful therapy, may not violate the Fifth Amendment; and (3) providing use immunity from criminal prosecution is a necessary condition to compelling potentially incriminating statements as an inducement for full cooperation and disclosure during dependency proceedings.”
At the conclusion of the hearing in this case, the child’s attorney cited K. L. R. for the proposition that it is unsafe for a child to be with parents who are abusive and violent. The juvenile court also cited the case, as authority for its conclusion that meaningful rehabilitation cannot occur without an acknowledgment of wrongdoing, as distinct from an admission of abuse.
In addition, mother ignores the express language in the judgment of jurisdiсtion, which provides, “The admissions by mother and father on [September 28,2010,] as they relate to resolving the petition shall not be used in any subsequent criminal matter.”
ORS 419B.476(5) provides, in part:
“The court shall enter an order within 20 days after the permanency hearing. * * * [T]he order shall include:
“(b) The court’s determination of the permanency plan for the ward that includes whether and, if applicable, when:
“(B) The ward will be placed for adoption, and a petition for termination of parental rights will be filed[.]”