In this juvenile dependency case, father appeals a judgment changing the permanency plan for three of his children from reunification to adoption. He also appeals a subsequent judgment continuing the permanency plan. Father argues that, as to both judgments, the juvenile court erred in failing to include required statutory determinations under ORS 419B.476(5). He also contends that the court erred in determining that no compelling reason existed to defer filing a termination petition, ORS 419B.498(2), and that the court erred in changing the plan from reunification to adoption. Father concedes that, with respect to the court’s failure to include the statutory determinations, he did not raise these issues below, and the Department of Human Services (DHS) contends that we should affirm the judgments for that reason. Because we agree with father that the judgment changing the permanency plan from reunification to adoption fails to include at least one of the required statutory determinations under ORS 419B.476(5), we reverse and remand.
Three of father’s five children, A, G, and R, are the subjects of this appeal.
At a hearing held on October 27, 2011, the court, based on testimony from a DHS caseworker and the children’s Court Appointed Special Advocates, changed the permanency plan for A, G, and R from reunification to adoption, and ordered DHS to prepare the permanency judgment. For reasons not apparent in the record, the permanency judgment was entered nunc pro tunc on January 11, 2012, despite the mandate in ORS 419B.476(5) that the judgment be entered within 20 days of the hearing.
As part of its findings required under ORS 419B.476(5)(a) regarding DHS’s efforts toward reunification, the juvenile court checked a box stating that “DHS has made reasonable efforts to reunify the family during the period under review at the permanency hearing.” The court then checked another box stating, “Fact Findings attached and incorporated herein.” No such document was attached to the judgment; however, the court admitted a DHS exhibit at the hearing containing two copies of a one-page document titled “Fact Findings” that lists the services and assistance that DHS provided to the family.
The court held a subsequent hearing on January 23, 2012, and entered another judgment on January 25, 2012, continuing the permanency plan of adoption as to A, G, and R. The judgment contained another “check the box” finding that “DHS has made reasonable efforts to place the child(ren) in a timely manner (including, if applicable in an interstate placement) in accordance with the plan and to finalize the child(ren)’s permanent placement.” The court again checked another box stating, “Fact Findings attached and incorporated herein.” Again, no such document was attached to the judgment.
On appeal, father contends that, as to both the January 11 and January 25 judgments, the juvenile court erred in failing to include “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” as required by ORS 419B.476(5)(a).
Because it is dispositive, we begin with father’s argument that the January 11 judgment fails to include the findings required by ORS 419B.476(5). That statute provides, in part:
“The court shall enter an order within 20 days after the permanency hearing. In addition to any determinations 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!.]”
Father contends that the judgment did not satisfy ORS 419B.476(5)(a) because the court neglected to attach findings of DHS’s efforts with regard to reunification, the case plan in effect at the time of the October 27 permanency hearing.
DHS responds, first, that father’s assignment of error is unpreserved because he had an opportunity to object to the January 11 judgment at the January 23 hearing and he did not do so. Father, in turn, argues that under State ex rel DHS v. M. A.,
“Here, the statute dictates that the required findings be made — not at the time of hearing — but in an order issued within 20 days after the hearing. ORS 419B.476(5). Until that order issued, mother had no way of knowing that the court would enter a judgment that did not comply with the statute. Indeed, it was not unreasonable for mother to assume that the court, in entering the written judgment, would make the findings necessary to support its oral ruling. In other words, mother had ‘no practical ability to raise [the] issue,’ * * * because the issue did not arise until the court entered the judgment. Because the error in the judgment that mother raises on appeal is not one that she failed to preserve, it is not one that is subject to the constraints of plain error review.”
Id. (brackets in M. A.; internal citation omitted).
Since M. A., we have reversed and remanded judgments that did not contain the required findings under ORS 419B.476(5), without regard to whether a parent objected to that error below. See Dept. of Human Services v. W. F.,
On the merits, DHS asserts that the January 11 judgment is sufficient because the record contains a document entitled “Fact Findings,” which was submitted and accepted by the court as part of one of DHS’s exhibits at the October 27 hearing. The exhibit lists the services and assistance
We held in Dept. of Human Services v. H. R.,
Conversely, we have held that a permanency judgment did not comport with the requirements of ORS 419B.476(5) when it incorporated by reference “‘attached report(s),’” no reports were attached to the judgment, and it was impossible to determine which reports the court intended to incorporate. State ex rel Dept. of Human Services v. T. N.,
Similarly, in Dept. of Human Services v. L. B.,
“ORS 419B.476(5) expresses the legislature’s intent that ‘the trial court carefully evaluate DHS’s decision to change a permanency plan for a child in order to ensure that the decision is one that is most likely to lead to a positive outcome for the child.’ [M. A.,]227 Or App at 183 . Indeed, the matter is of such import that the legislature has required not only that the findings be made, but that they be expressly included in the court’s written order. In other words, the legislature has manifested its intent that a juvenile court expressly connect all of the dots along the way to a change in the permanency plan.”
Id. at 175. Additionally, the effectiveness of the judgment is diminished by the required factual findings not being attached to the judgment or contained in the trial court file, particularly in juvenile cases such as this one where the court’s findings may be the basis of decisions at subsequent hearings to change the case plan or terminate parental rights.
Here, we could speculate that the trial court relied on DHS’s “Fact Findings” exhibit in support of its conclusion to change the permanency plan at the October 27 hearing, but the fact remains that the court did not adopt the findings as its own by attaching them to the judgment. Further, the judgment does not specifically reference DHS’s exhibit, and unlike in H. R., the trial court did not include the exhibit in the trial court file. We therefore cannot conclude that there is no ambiguity about what the court adopted as its written findings. In sum, the juvenile court did not expressly include its findings in the judgment; therefore, we hold that the judgment is not sufficient to comply with the requirement of ORS 419B.476(5)(a).
The January 25 judgment suffers from the same deficiency. With regard to “reasonable efforts,” the judgment again references “Fact Findings attached and incorporated herein,” and nothing is attached to the judgment. Further, there is no specified document in the record that we could infer the court intended to attach. Therefore, we hold that
Because we reverse and remand for the court to correct the deficiencies in the January 11 and January 25 judgments, we do not reach father’s remaining assignments of error.
The January 11, 2012, and January 25, 2012, judgments reversed and remanded.
Notes
Mother is not a party to this appeal.
Father also assigns error to the court’s failure to enter the January 11, 2012, judgment within 20 days of the October 27, 2011, hearing. Because we are reversing and remanding the judgment on other grounds, we need not reach this assignment of error. Additionally, father assigns error to the January 11, 2012, judgment because it does not identify when the termination petition must be filed. This issue is moot in light of our conclusion here.
Where a remand is necessary because a permanency judgment lacks the determinations required by ORS 419B.476(5), our review of the merits of the permanency plan determination is premature. See, e.g., J. F. B.,