Dept. of Human Services v. C. H. ( 2023 )

No. 363 July 12, 2023 61
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of A. H.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
and
A. H.,
Respondent,
v.
C. H.,
aka C. P., and C. J.,
Appellants.
Multnomah County Circuit Court
20JU00301;
Petition number 113945;
A179463
Kathryn L. Villa-Smith, Judge.
Argued and submitted March 16, 2023.
Sean K. Connor, Deputy Public Defender, argued the
cause for appellant C. H. Also on the briefs was Shannon
Storey, Chief Defender, Juvenile Appellate Section, Office of
Public Defense Services.
Kristen G. Williams argued the cause and filed the brief
for appellant C. J.
Stacy M. Chaffin, Assistant Attorney General, argued the
cause for respondent Department of Human Services. Also
on the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
Christa Obold Eshleman waived appearance for respon-
dent A. H.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
62 Dept. of Human Services v. C. H.
JOYCE, J.
Affirmed.
Jacquot, J., dissenting.
Cite as 327 Or App 61 (2023) 63
JOYCE, J.
Mother and father appeal from a judgment chang-
ing the permanency plan for their child, A, from reunifica-
tion to adoption. By the time of the permanency hearing,
A had been in the care of Department of Human Services
(DHS) for two and one-half years. The juvenile court con-
cluded that DHS had made reasonable efforts to reunify
parents and A, that parents had made insufficient prog-
ress to allow that to happen, and that no compelling reason
existed to forgo changing the plan to adoption. Mother and
father challenge each of those findings. We are “bound by
the juvenile court’s factual findings as to what efforts DHS
has made, so long as there is any evidence in the record to
support them,” and whether DHS made “reasonable efforts”
and whether parents made sufficient progress are legal con-
clusions that we review for errors of law. Dept. of Human
Services v. K. G. T., 306 Or App 368, 370, 473 P3d 131 (2020)
(findings); Dept. of Human Services v. V. A. R., 301 Or App
565, 567, 456 P3d 681 (2019) (reasonable-efforts determina-
tion); Dept. of Human Services v. G. N., 263 Or App 287, 294,
328 P3d 728, rev den, 356 Or 638 (2014) (sufficient progress).
Applying those standards, we affirm.
I. FACTUAL BACKGROUND
Because this appeal involves a challenge to the rea-
sonableness of DHS’s efforts, and because parents and DHS
had worked together for two and one-half years by the time
of the permanency hearing, a somewhat lengthy recitation
of the relevant facts is necessary.
Mother gave birth to A in December 2019. A was
born prematurely and spent time in the Neonatal Intensive
Care Unit (NICU) due to her small size. Hospital staff
became concerned about parents’ ability to care for A—
parents did not regularly visit A in the NICU, did not pro-
vide care for her when they did visit, did not have clothing or
supplies for A, and intended to cosleep on a mattress, which
can be dangerous for an infant. At some point shortly after
A’s birth, DHS became involved due to those concerns about
A’s care. DHS also learned that approximately four months
prior to A’s birth, parents’ rights to two older children had
been terminated in California after parents failed to make
64 Dept. of Human Services v. C. H.
progress in services and were unable to meet those chil-
dren’s specialized medical needs. About two weeks after her
birth, DHS placed A in nonrelative foster care.
A. Jurisdictional Adjudication and Psychological Evalua-
tions
DHS filed a petition to bring A within the jurisdic-
tion of the juvenile court. In February 2020, father admitted
to an allegation that A has specialized medical needs that
father is unable to meet and that place A at risk of harm
and that father needs the court’s and DHS’s assistance to
provide supports and services to safely care for A. The juve-
nile court ordered father to participate in parenting classes,
obtain housing, visit with A, maintain contact with DHS,
and participate in services and A’s medical appointments.
The case was held in abeyance as DHS moved for
appointment of a guardian ad litem. Mother has signifi-
cant cognitive limitations, which we detail below, and the
court ultimately granted the petition to appoint a guardian
ad litem in September 2020.
Shortly thereafter, DHS referred mother for a neu-
ropsychological evaluation with Dr. Guastadisegni. At the
time of the evaluation, mother and father had been living
in a shelter for several months after having moved from the
home of father’s mother. Mother reported that they were
looking for low-income housing. Mother told Guastadisegni
that they had been homeless in California for several years
and had difficulty finding employment. Mother was unable
to describe to Guastadisegni why she did not have custody
of her older children or why A was in care. She also could not
provide detailed information about father.
Mother’s IQ scores fell within the “extremely low
range,” and Guastadisegni diagnosed mother with an intel-
lectual disability, mild to moderate; neurodevelopmental
disorder due to low IQ; executive function deficits; and a
neurocognitive disorder, “major, unspecified.” He provided
recommendations for services for mother, which included:
• Social service assistance and case management;
• Individual counseling to address her history of life
instability, to provide “psycho-education” about
Cite as 327 Or App 61 (2023) 65
her disabilities, and to assist her in developing life
skills;
• Hands-on parent training and a parent mentor;
• Presenting information to mother in a graduated
manner and with written summaries of informa-
tion; and
• Provide mother with a skill set to maximize her
ability to function at a higher level, including set-
ting up regular schedules.
Guastadisegni did not believe that mother, as of the time of
the evaluation, could independently parent A. In his view,
mother did not have the “insight and understanding about
what it takes to parent a child[,]” in part due to her cogni-
tive limitations. He made clear, however, that he was not
concluding that mother could not parent because of her cog-
nitive limitations. Rather, given her intellectual disability,
“she is always going to have limitations.” It would be more
realistic, rather than mother parenting independently, that
she could be a “non-primary co-parent in the home with
her child” with another caregiver who is identified as the
responsible parent. Mother would need “substantial sup-
ports in place to function.”
Guastadisegni identified several objective mea-
surements that could be used to assess mother’s progress,
including (1) attend her appointments and follow through
with the expectations laid out for her; (2) maintain a clean
home and take care of daily tasks like grocery shopping;
(3) attend visits; (4) demonstrate independent parenting
skills, without prompting and guidance and oversight; and
(5) communicate with A’s providers.
Mother had a feedback session scheduled, which
father was to attend with her. Although parents were
reminded of the session and released early from another
service to participate, they cancelled the appointment.
In February 2021, mother admitted to a jurisdic-
tional allegation that her cognitive disability interferes with
her ability to care for A and provide her with stable hous-
ing and that she needs the court’s and DHS’s assistance to
66 Dept. of Human Services v. C. H.
provide supports and services to safely care for A. The juve-
nile court ordered mother to enroll in hands-on parenting
classes, obtain stable housing, engage in individual counsel-
ing or mental health treatment, visit with A, maintain con-
tact with DHS, work with a parent mentor, and participate
in services and A’s medical appointments. The court ordered
DHS to provide information to service providers about “best
communication style for working with the mother, and her
learning style.”
The court also adjudicated two amended allegations
as to father, including that father’s residential instability
interferes with his ability to safely parent A and that he does
not understand how mother’s cognitive limitations affect
her ability to independently and safely parent A. The court
ordered father to participate in a psychological examina-
tion, which—after missing his first two assessment dates—
he did in September 2021 with Dr. Duncan. During the eval-
uation, father admitted that they had been “kicked out” of
the shelter and had resumed living with his mother. Father
said that they were continuing to search for a two-bedroom
apartment.
Father’s IQ fell into the extremely low range. Duncan
diagnosed father with a mild intellectual disability and an
unspecified depressive disorder. In Duncan’s view, the intel-
lectual disability significantly interfered with father’s daily
functioning and parenting capacities. Duncan believed that
father had little insight into his need for parenting services
and his engagement to date had been “poor.” Duncan noted
that father will need a lot of assistance and support to opti-
mize his ability to parent. He recommended that father
receive a referral to Developmental Disability Services, that
he participate in individual therapy, and that he receive
additional education to help him understand A’s needs and
mother’s limitations.
B. Services
DHS offered parents services consistent with the
recommendations from the evaluations. As described below,
parents engaged in some services and declined to partici-
pate in others.
Cite as 327 Or App 61 (2023) 67
1. Developmental Disability Services
Based on the recommendations from the psycho-
logical evaluations, DHS referred parents to Multnomah
County Intellectual and Developmental Disability Services.
Although the record is somewhat sparse on exactly what
Developmental Disability Services would do for parents,
there was evidence that the agency provides case planning
and services management for those with developmental
disabilities, including assistance with obtaining housing.
Mother had a case manager, who explained that “to develop a
support plan and to refer [mother] to paid providers who can
assist her directly[,]” an assessment would need to be com-
pleted. Mother’s case manager then reported that mother
was not interested in services. Father missed several sched-
uled evaluations and ultimately did not participate in any
services.
2. Visitation and parenting training
DHS referred parents to a parenting program, Family
United, which provided hands-on parenting coaching and
parenting education. DHS notified the hands-on parent-
ing coach that mother had an intellectual disability. The
coach explained that Family United had “much experience
working with parents and children with an array of learn-
ing barriers,” and they would work with mother to “present
information in a way” that she could understand.
Parents completed hands-on training twice, first
in May 2021 and again in September 2021. Family United
encountered some “challenges with [father] around his own
ability to understand, remember information and problem
solve that we would like to work with him on.” Although
the facilitator noted that Family United would not be the
“best fit” for teaching father about mother’s needs, Family
United was “totally open to having a [developmental dis-
ability] worker come to our facility to work with the fam-
ily.” However, because parents never utilized Developmental
Disability Services, that never occurred. That said, those
visits generally went well, and parents earned high marks
for their consistency, engagement, and care for A.
68 Dept. of Human Services v. C. H.
Outside of working with parents during their visits
with A, Family United also provided parents with parenting
education, some of which focused on parents who have intel-
lectual or mental health barriers. Family United routinely
texted parents reminders about visitation and education
sessions and reiterated the importance to parents of com-
pleting all of the conditions for A’s return. It also encouraged
father to “consider [mother’s] limitations when being asked
by Service Providers so that the proper assistance can be
provided to the family.”
DHS also referred parents to The Family Room,
which would provide additional visitation with hands-on
support from the staff. Parents did not follow up on the first
referral, so DHS made a second referral. However, by that
point in time, the parents had been asked to leave the shel-
ter in which they had been living because father physically
assaulted mother. The Family Room was not able to have
both parents together at the same time due to the history
of domestic violence and offered separate visitation, which
parents declined.1
Parents then engaged in visits with the Center for
Family Success, although at the time of the permanency
hearing those visits were on pause because the supervisor
had been out on family leave. Parents have been consistent
in attending those visits and by all accounts, those visits
are positive. Father supported mother in her parenting, A
was engaged with parents, and parents gave positive sup-
port and attention to A. A generally seemed excited to see
her parents.
DHS also made two separate referrals for parents to
visit A with a Social Service Assistant (SSA) in early 2022.
That referral was closed due to missed visits. DHS then
made two separate referrals in late March or early April of
2022. The SSA arranged for visits on one or two occasions
and brought A to the office, but parents did not attend the
1
Mother relied on father for transportation, and the parents and their attor-
neys asked that services be provided jointly, which sometimes limited the ser-
vices in which they could participate.
Cite as 327 Or App 61 (2023) 69
visit. DHS then closed both referrals because the SSA never
heard back from the parents.
3. Parent mentoring
DHS referred parents to the Morrison Child and
Family Services for a parent mentor. For mother, DHS made
the referral twice. Mother worked with a parent mentor
for several months in 2021, and her mentor assisted her
with housing needs (including helping with applications),
visitation, support with applying for social security, help-
ing mother understand A’s needs, and other services. DHS
referred mother again in January 2022, but that referral
was closed because mother failed to make contact. DHS
referred father once, and father did not make contact.
4. Housing
DHS engaged in a number of efforts designed to
help parents find stable housing. As just described, a parent
mentor could help parents with housing, but mother stopped
working with her mentor, and father never engaged with
his. DHS also worked with the shelter that parents were liv-
ing in at one point to help parents obtain permanent hous-
ing. DHS then referred parents to the Family Unification
Project and My Father’s House, both of which could help
with housing. The Family Unification Project is a culturally
specific program that supports families to secure safe and
stable housing. It focuses on reducing disproportional rep-
resentation in communities who are over-represented in the
child welfare system. Neither referral resulted in housing
for parents because they were not selected for the programs
or the programs had long waitlists, i.e., through no fault of
parents. DHS also provided mother with help applying for a
housing voucher for New Columbia Apartments, and Family
United paid for mother’s housing application.
In July 2022, the same month as the permanency
hearing, mother spoke with a service coordinator at
Developmental Disability Services and indicated that she
wanted to access the short-term rental assistance program.
DHS also learned that additional openings for Family
Unification Project housing became available, and DHS was
working on an updated application for mother and father.
70 Dept. of Human Services v. C. H.
5. Counseling
DHS also referred mother to counseling services
through Wolfpack Family Therapy Services, which provides
“all kinds of support, whether it’s domestic violence inter-
vention, or just a parent support worker, or regular mental
health individual counseling.” That referral was closed after
mother stopped having contact. Father is not enrolled in the
Oregon Health Plan, which would have paid for the coun-
seling recommended for father. DHS referred father to an
agency that could help him enroll in the Oregon Health Plan
and also referred father to a parent mentor for that same
purpose, but father declined to do so.
6. Communication and relationship with DHS and
resource parents
DHS and parents had a somewhat difficult relation-
ship throughout the case, and communication between them
was inconsistent. Parents’ first permanency worker was
David Udlock. In September 2021, father’s counsel asked
that DHS assign a new “culturally specific caseworker”
because, in father’s view, the relationship had broken down
between father and Udlock, undermining the goal of reuni-
fication. Mother and father are Black, and the first resource
parent was white. Father’s attorney observed that father
felt disrespected as a Black parent, by both DHS and the
resource parent. DHS ultimately declined the request but
identified ways in which Udlock could be more effective in
his relationship with father.
One of the sources of father’s frustration with DHS
and the resource parent was related to caring for A’s hair.
A’s hair was dry and rough, so during visits, mother brought
hair products and tools and spent time each visit moisturiz-
ing it and putting it in braids. Over time, the quality of her
hair improved, and the hair care routine provided import-
ant bonding between mother and A.
The resource parent, however, asked that mother
not put A’s hair in braids because it takes her a long time
to take the braids out and she believed that A did not like
them. A family reunification specialist at Family United
Cite as 327 Or App 61 (2023) 71
reached out to DHS about the issue. She recognized that the
conflict over A’s hair can be “a sensitive subject for folks as
it concerns ethnicity and cultural differences.” Father told
DHS that he did not “want or need anyone else to style [A’s]
hair.” DHS referred A’s resource parent to a program where
“they can meet with an African American hair stylist with
the child to learn about how to do her hair,” but there was no
availability in the program.
After several months, during which time the
resource parent continued to take out A’s braids after visits,
DHS provided the resource parent with a hair consultation
from someone who specializes in “maintaining and styling
textured ethnic hair.” The consultant assessed the resource
parent’s hair care products and accessories and provided
her with some additional items to style A’s hair. The con-
sultant noted that the resource parent had taken other hair
care classes to learn about A’s hair type and texture. She
showed the resource parent how to shampoo, condition, and
moisturize A’s hair. The resource parent agreed to leave A’s
hair in braids between visits.
DHS assigned Jamie Ruiz to the case in March
2022, about four months before the permanency hearing.2
Ruiz spoke with mother “once or twice,” and mother indi-
cated that she was still interested in visits, and they talked
about dates and times. Her subsequent attempts to contact
parents were “unsuccessful”—no one would answer mother’s
phone, and then Ruiz got a message that the “subscriber is
not accepting phone calls.” She left father several voicemails
and did not get a return call. Although Ruiz had the address
where parents were staying (with father’s mother), she did
not travel to the home to make contact, send a letter to that
address, ask either parents’ attorney or mother’s guardian
ad litem for help contacting him, or call father’s mother.
C. Child’s Needs
At the time of the hearing, DHS had moved A to a
new resource family, the same family who had adopted A’s
2
It is unclear whether the change in caseworkers was the result of father’s
request.
72 Dept. of Human Services v. C. H.
two older siblings after parents’ rights had been terminat-
ed.3 The resource parents wanted to adopt A. A was engaged
in physical and occupational therapy. She was small for her
size and needed assistance reaching some early growth
milestones, including motor skills. Because of her prema-
ture birth, she will require close attention to her physical
health and development.
D. Permanency Hearing
At the time of the hearing in July 2022, A had been
in foster care for two and one-half years. Ruiz, who was
the only witness at the hearing, was concerned about par-
ents’ lack of contact and lack of participation in services.
She explained that the referrals that DHS made for men-
tors, therapists, and developmental disability services were
intended to build a community around mother to address
the jurisdictional basis that mother needs a support system
that allows her to safely care for the child. She explained
that mother has not been able to regularly attend scheduled
appointments, maintain a home, or demonstrate that in con-
junction with father’s assistance, they can safely and inde-
pendently parent. Ruiz testified that father has not demon-
strated that he understands mother’s limitations.
At the conclusion of the permanency hearing, the
juvenile court concluded that DHS had made reasonable
efforts to reunify A with her parents, but that A could not be
safely returned to their care. The court therefore changed
the plan from reunification to adoption. In doing so, the
court observed that visits had gone well but that parents had
not been able to advance to unsupervised visits or demon-
strate that they can care for A independently. In the court’s
view, the “most significant barrier has been parents[’] lack
of follow through and unwillingness to attend services.”
The court concluded that “[v]ery little progress has been
made” despite the services offered and “parents still have no
understanding of how their intellectual disability interferes
with daily functioning and parenting capacity.” The court
concluded that no compelling reasons existed to forgo a plan
of adoption because, in part, parents were not participating
3
This resource family is different from the one who had a conflict with par-
ents over A’s hair.
Cite as 327 Or App 61 (2023) 73
in services that will make it possible for A to safely return
home within a reasonable time.
Both parents appeal. In mirror image assignments
of error, mother and father assert that the juvenile court
erred in concluding that DHS had made reasonable efforts
towards reunification, that parents’ progress was insuffi-
cient, that there was no compelling reason to forgo a plan of
adoption, and that A’s permanency plan should be changed
from reunification to adoption.
II. DISCUSSION
We begin with parents’ challenge to the juvenile
court’s conclusion that DHS failed to make reasonable
efforts towards reunifying parents with A. Without ques-
tion, DHS offered parents a wide variety of services over
two and a half years. Having just described in detail those
efforts above (and again below in addressing parents’ spe-
cific arguments), we will not repeat them here.
Given the extensive services that DHS offered, it
would normally be a fairly straightforward matter to con-
clude that DHS’s efforts were reasonable. But two issues of
concern prevent us from so readily reaching that conclusion.
The first is with respect to DHS’s handling of the conflict
between parents and the first resource parent over A’s hair
care. Parents point to that conflict as evidence of DHS’s
failure to provide culturally competent services. As counsel
for DHS candidly acknowledged at oral argument, DHS’s
response to the conflict between parents and the resource
parent over A’s hair contributed to the degradation of the
relationship between parents and DHS. Although the issue
was resolved, it took nearly five months and even then it is
not clear that DHS did so in a way that addressed the disre-
spect and harm that parents experienced as a result of the
resource parent’s resistance to their efforts on A’s behalf.
Unquestionably, the importance of mother and A spending
that time together cannot be overstated.4 Concomitantly, the
4
Parents submitted an exhibit at the permanency hearing that highlighted
the cultural importance of that time together. The exhibit explained that hair has
“played a major role in [B]lack American history,” bringing “families together,
* * * helping children establish a sense of self,” and that “[l]ittle is more precious
and intimate than a [B]lack little girl getting her hair done by her mother.”
74 Dept. of Human Services v. C. H.
impact that the conflict had on parents’ engagement with
DHS cannot be measured. At a point in time where DHS’s
primary purpose was to provide services to reunify parents
with their child, it is troubling that DHS had not prepared
the resource parent better and did not move more quickly to
resolve the conflict in a manner that communicated respect
for the family’s culture.
It is also troubling that DHS did little beyond leav-
ing messages on parents’ phones to contact them in the four
months before the permanency hearing, a timeframe that
is particularly important for assessing reasonable efforts
purposes. See Dept. of Human Services v. S. S., 278 Or App
725, 735, 375 P3d 556 (2016) (DHS’s efforts are evaluated
over the entire duration of the case, “with an emphasis on
a period before the hearing”). This is especially concerning
given what the record indicates about the parents’ disabili-
ties, which interfere with their ability to recognize the need
for services and to follow through with the steps needed for
access. The record does not strongly establish that DHS
did enough to facilitate the support that parents needed to
access the services offered, particularly in those last four
months.
Although it is a close question, we ultimately con-
clude that the juvenile court did not err in concluding that
DHS made reasonable efforts. The issue with the first
resource parent was ultimately resolved in a way that
adjusted the response to parents’ efforts to provide hair
care and that did not result in a disruption in other services.
And while we retain some concern about the level of support
given to parents to access services given their disabilities,
the record also contains many examples in which parents
apparently refused services, even while they did engage
some services. It is difficult to make the case on this record
that parents would have accessed additional services given
the many instances when they did not appear for appoint-
ments or directly rejected services offered.
Parents also submitted DHS’s Vision for Transformation, which itself recognizes
the importance of culturally appropriate services to children, young adults, and
families.
Cite as 327 Or App 61 (2023) 75
Given that we evaluate the reasonableness of DHS’s
efforts in their totality and over time and given the breadth
and length of services that DHS did offer to parents, DHS’s
failure to address the conflict more effectively over A’s hair
and DHS’s failure to take additional steps to contact par-
ents or pursue resources that would help them access ser-
vices does not amount to a failure of reasonable efforts on
this record.5
We disagree with parents’ remaining arguments
about DHS’s efforts. They assert that DHS’s efforts were not
“developmentally and culturally appropriate[.]” Father, for
instance, argues that DHS simply “mechanically referred
parents to services and expected them to access and execute
services on their own,” something that was unrealistic in
light of parents’ cognitive limitations.6 Yet the record shows
that DHS referred parents to resources that were specifically
designed to build a support network for parents and that
were tailored to their cognitive limitations. A parent mentor
or developmental disability services caseworker could have
helped develop support plans and provide referrals to other
providers, yet beyond mother doing some initial work, par-
ents did not avail themselves of those services. DHS worked
to ensure that Family United, which engaged in hands-on
parenting coaching with parents, knew that mother had
intellectual limitations so that they could provide informa-
tion to mother in a way that she could understand. Family
United was also willing to have an additional developmen-
tal disability support worker come to visits to help parents,
but parents did not engage in that service. Those services,
along with the many others described above, in tandem,
were designed to remedy the barriers that parents had to
parenting A by providing parents with a support system
5
In a thoughtful dissent, Judge Jacquot reaches a different conclusion.
Although we disagree over the ultimate outcome, we do not disagree over an
important point, which is that Black parents are disproportionately represented
in the child welfare system and that DHS must work to ensure that parents of
color are respected and supported in culturally appropriate ways.
6
In cases where the parents have disabilities, ORS 419B.090(5) requires
DHS to provide parents with “opportunities to benefit from or participate in
reunification services that are equal to those extended to individuals without
disabilities.” When necessary, DHS must provide “aids, benefits and services dif-
ferent from those provided to parents * * * without disabilities.” Id.76 Dept. of Human Services v. C. H.
that was tailored to the way in which parents needed to
receive information and assistance.
Parents also argue that DHS failed to make rea-
sonable efforts specific to the bases over which the juvenile
court took jurisdiction. Dept. of Human Services v. N. T., 247
Or App 706, 715, 271 P3d 143 (2012) (the juvenile court must
evaluate reasonable efforts through the lens of the adjudi-
cated bases for jurisdiction). For example, they argue that
DHS failed to make reasonable efforts in helping them find
housing. They point to the fact that they were living with
father’s mother and to the extent that that was not stable
housing, DHS did not assist them in finding another place
to live.
There are two flaws with that argument. The first
is that neither parent suggested that father’s mother’s res-
idence was where they intended to establish stable hous-
ing.7 To be sure, father’s mother offered to be a resource
parent for A, but throughout the life of the case, parents
lived in different locations, including a shelter, and engaged
in intermittent services to obtain other housing. Father’s
own attorney, in September 2021, described to DHS that
parents have been “homeless for the duration of this case,”
and mother’s advocate observed in January 2022 that par-
ents needed permanent housing. That was still true, as dis-
cussed above, at the time of the permanency hearing, when
mother had recently reached out to disability services to
access short-term rental assistance program. Second, DHS
provided referrals to three specific housing agencies, as well
as referrals to developmental disabilities and parenting
mentors, each of which could have helped parents with hous-
ing. DHS’s efforts in that regard were therefore reasonable.
For his part, father acknowledges that he did not
“proactively engage in all department-referred services
throughout the life of the case.” He nonetheless suggests
that his resistance does not excuse the department from
making reunification efforts. That much is true, as far as
it goes. “[I]n determining whether DHS made reasonable
7
We appreciate that in some respects, this point overlaps with the question
whether parents made sufficient progress to enable A to return home.
Cite as 327 Or App 61 (2023) 77
efforts, we consider a parent’s lack of cooperation, but we
evaluate such lack of cooperation within the context of
DHS’s conduct and the case circumstances.” Dept. of Human
Services v. R. W., 277 Or App 37, 44, 370 P3d 543 (2016);
cf. Dept. of Human Services v. N. S., 246 Or App 341, 350,
265 P3d 792 (2011), rev den, 351 Or 586 (2012) (although
“[s]ome of DHS’s efforts were hampered by mother’s conduct,”
DHS’s efforts in response to that conduct were reasonable).
Although a parent’s resistance to services does not legally
excuse DHS from making reasonable efforts, at no point did
DHS stop providing efforts in light of father’s resistance to
them. In fact, as recently as the week leading up to the per-
manency hearing, the caseworker was still working with a
housing agency to help the family in obtaining stable hous-
ing. Framed slightly differently, DHS did not use father’s
resistance as an “excuse” to stop providing services.
In sum, as the juvenile court found, DHS engaged
with parents over the course of two and one-half years with
an array of services that were designed to ameliorate the
jurisdictional bases and that were tailored to parents’ devel-
opmental limitations.
We turn to the question of whether the juvenile
court correctly ruled that parents had not made sufficient
progress so as to allow A to safely return to their care. “In
determining whether the parent has made sufficient prog-
ress, the juvenile court gives the highest priority to a child’s
health and welfare.” Dept. of Human Services v. M. K., 285
Or App 448, 460, 396 P3d 294, rev den, 361 Or 885 (2017).
Under our standard of review, we view the evidence “in
the light most favorable to the trial court’s disposition and
assess whether, when so viewed, the record was legally suf-
ficient to permit that outcome.” Dept. of Human Services v.
N. P., 257 Or App 633, 639, 307 P3d 444 (2013). We agree
with the juvenile court’s conclusion that “very little progress
has been made” by parents.
Although parents engaged and did well with the
hands-on parenting services, they did not engage with all
the visiting services available to them and, as the juvenile
court noted, they had not been able to move to unsupervised
visits or demonstrate that they could parent independently.
78 Dept. of Human Services v. C. H.
And while it may be true, as parents argue, that parent-
ing independently is not a necessary precursor to having a
child returned to their care, the record does not contain evi-
dence showing that parents had a plan other than to parent
independently. They did not, for instance, suggest that they
intended to parent in conjunction with another person or
with services that could help in areas where parents other-
wise struggled. And although the visits between parents
and A went well, one-hour visits once or twice a week are,
without more, insufficient to demonstrate that parents had
made the progress needed to allow A to return home safely.
That holds particularly true given that parents generally
otherwise did not engage in the services that would have
enabled them to make the progress required to safely par-
ent A. Parents’ lack of follow through and engagement with
services presents a particular concern given that A has reg-
ular occupational and physical therapy appointments and
needs close attention to her physical development.
Finally, we conclude that the juvenile court cor-
rectly concluded that no compelling reason exists to forgo
a permanency plan of adoption for A and in changing the
plan from reunification to adoption. See ORS 419B.498(2)(b)
(DHS must file a petition to terminate parental rights in
a certain timeframe 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”). A “compelling reason” exists if parents
demonstrate that “[a]nother 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 * * * sibling attach-
ments and relationships.” ORS 419B.498(2)(b)(B); Dept. of
Human Services v. S. J. M., 364 Or 37, 55, 430 P3d 1021
(2018) (parents carry the burden of showing a compelling
reason).
Parents contend that they met that burden because
they showed that they have a bond with A and that pre-
serving her “positive relationship with her biological family”
was a compelling reason not to change the plan to adoption.
We have previously assumed, without deciding, that a bond
could be found by the juvenile court to be a compelling rea-
son not to change the permanency plan to adoption. Dept. of
Cite as 327 Or App 61 (2023) 79
Human Services v. M. T. P., 294 Or App 208, 218, 430 P3d
585 (2018), rev den, 364 Or 407 (2019).
To be sure, no party disputes that parents love A
and that she enjoys seeing them during visits. If the agency
pursues a termination of parents’ rights, it will need to
establish that severing A’s legal relationship with them is
in her best interests. As we have explained, “significant
weight” must be accorded “to the importance of preserving
a child’s relationship with [her] biological parent where that
is possible to do consistent with [her] best interests.” Dept.
of Human Services v. D. F. R. M., 313 Or App 740, 746, 497
P3d 802, rev den, 368 Or 702 (2021) (reversing the juvenile
court’s judgment terminating the mother’s parental rights
because the department did not prove that the child’s need
for permanency could only be achieved through adoption).
Nevertheless, parents did not carry the burden
of demonstrating that “[a]nother permanent plan is bet-
ter suited to meet [A’s] health and safety needs” so that a
compelling reason exists not to file a termination petition.
ORS 419B.498(2)(b)(B). Although parents suggested below
that a permanent guardianship should be pursued, they
did not address that proposal in any detail. On appeal, it
is not entirely clear what permanent plan they are urging
should be pursued, only that the plan should not be adop-
tion.8 Accordingly, the juvenile court did not err.
Affirmed.
JACQUOT, J., dissenting.
I am not persuaded that the Department of Human
Services (DHS) made reasonable efforts under the circum-
stances to reunify parents and A. The reasonableness of
DHS’s efforts depends on the particular circumstances of
the case. Dept. of Human Services v. S. M. H., 283 Or App
295, 305, 388 P3d 1204 (2017). We cannot look at these cases
8
We note that DHS likewise has not established that a permanent guard-
ianship could not be pursued, and also acknowledge the dissent’s concern about
whether DHS has adequately explored how and whether father’s mother might be
a resource for the family. Nevertheless, at this stage of the proceedings, parents
bear the burden of establishing that termination should not be pursued because
another permanent plan is better suited to meet the child’s needs. See S. J. M.,
364 Or at 55.
80 Dept. of Human Services v. C. H.
in a vacuum and minimize the full context giving rise to
parents’ struggles with DHS and DHS’s responsibility to
repair the relationship. My primary concern lies with DHS’s
response to parents’ requests for culturally specific services.
Mother and father are Black individuals with dis-
abilities. Black parents are disproportionately represented
in the child welfare system, and that disparity often creates
a tension between the parents and state entities.1 During
this case, father felt disrespected as a Black parent by both
DHS and the resource parent, and his attorney requested
that a new culturally sensitive caseworker be assigned.
However, despite father’s view that the relationship had
irreparably broken down for reasons related to his race,
DHS initially denied the request.
DHS’s attempts to deal with the disabilities of the
parents primarily consisted of referring the parents to
other brokerage services. DHS did not attempt to reduce
the resistance to using those services or assist parents with
understanding the need to develop a family system from the
resources available to them that could support child safety
without agency involvement in the future. Finally, the prac-
tice of prohibiting relatives from serving as foster placements
for children if the relative is also providing housing support
for parents deprived the family of the opportunity to parent
their child with the help of father’s mother, an arrangement
that may have been a workable solution for this family.
When DHS did replace the caseworker in March
2022, it did not assign someone who could provide culturally
specific services. Instead, DHS assigned a new caseworker
who failed to do more than attempt to call parents monthly.
DHS was aware of the mounting tension in its relationship
with parents, but in the months leading up to the hearing,
it did no more than leave a few voicemails despite having
multiple other ways to contact parents.
1
The 2021 Child Welfare Data Book indicates that 3.8 percent of Oregon’s
children are Black but 7.1 percent of Oregon’s foster care population come from
that demographic. That data trend has persisted despite efforts to develop cri-
teria equitably at the central office level and provide training to field offices to
reduce disparity. Oregon Dep’t of Human Services, 2021 Child Welfare Data
Book 16 (Sept 2022), https://www.oregon.gov/dhs/CHILDREN/CHILD-ABUSE/
documents/2021-cw-data-book.pdf (accessed May 31, 2023).
Cite as 327 Or App 61 (2023) 81
When the conflict arose between parents and the
resource parent regarding A’s hair, DHS took five months
to resolve the issue. Engaging in this culturally relevant
activity strengthened the relationship between parents and
A and connected her to her culture in a way the resource
parent and caseworker did not appreciate. By failing to
resolve parents’ concerns in a timely manner, DHS further
degraded its relationship with parents.
These parents needed more. They deserved more.
They needed to believe that DHS’s goal was reunification
and that DHS would both respect them and also support
them. The distrust between a marginalized community and
the institution that has repeatedly taken its children only
grows when that community’s culture and practices are
impeded and their importance disregarded. Black parents
are disproportionately represented in the child welfare sys-
tem, and we will never make progress towards changing
that disparity unless we actively work against it one family
at a time. Because DHS failed to make reasonable efforts
to reunify parents and A under the circumstances of this
particular case, I would reverse. Therefore, I respectfully
dissent.