Dept. of Human Services v. S. G. W. ( 2024 )

No. 702 October 2, 2024 343
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of A. W. M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
and
A. M.-S.,
Respondent,
v.
S. G. W.,
Appellant.
Marion County Circuit Court
20JU06875; A182707
Natasha A. Zimmerman, Judge.
Argued and submitted March 12, 2024.
George W. Kelly argued the cause and filed the brief for
appellant.
Inge D. Wells, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General; and Benjamin Gutman,
Solicitor General.
Before Joyce, Presiding Judge, Lagesen, Chief Judge, and
Egan, Judge.*
JOYCE, P. J.
Reversed.
______________
* Egan, Judge vice Jacquot, Judge
344 Dept. of Human Services v. S. G. W.
JOYCE, P. J.
Mother appeals from a juvenile court order find-
ing that her 3-year-old son’s placement in California was
not in his best interests. See ORS 419B.349(1). We review
the court’s best interests determination for abuse of dis-
cretion and the juvenile court’s findings for whether there
is evidence in the record to support them, Dept. of Human
Services v. T. C. A., 251 Or App 407, 414-15, 283 P3d 956,
rev den, 352 Or 665 (2012), and reverse.
0The Department of Human Services (DHS) placed
mother’s son, A, with his great-aunt in California after
mother moved there with A. For a time, mother and A lived
with his great aunt and then mother moved out; A remained
with his great-aunt. By all accounts, A had done well in his
great-aunt’s custody for the past two years and they were
bonded. Father, who is incarcerated, asked the juvenile
court to end that placement and direct placement with A’s
paternal uncle in Oregon to increase contact with father’s
family.1
At the hearing on father’s motion, the court heard
evidence that A’s great aunt had previously had difficul-
ties with technology and virtual visits with father at the
prison; that those technological difficulties had abated and
the great-aunt had unilaterally increased the visits from
once a week to twice a week when her schedule allowed;
that the great-aunt did not disclose that she had multiple
sclerosis, a condition that did not currently interfere with
her ability to care for A; that mother and the great-aunt’s
relationship was somewhat difficult because mother contin-
ued to use drugs; that it was unclear whether mother and A
had a “close bond”; and that A’s attorney had difficulties get-
ting information about A other than through DHS reports.
Based on that evidence, the juvenile court ultimately con-
cluded that A’s placement with the great-aunt was not in his
best interests and ordered DHS to “plan accordingly, with
an emphasis on an Oregon placement.”
1
We note that father’s request that the juvenile court direct a particular
placement is not one that the juvenile court has the statutory authority to grant.
ORS 419B.349(1) (“[U]nless otherwise required by law, the court may not direct a
specific placement.”).
Nonprecedential Memo Op: 335 Or App 343 (2024) 345
On appeal, mother argues that the juvenile court
abused its discretion in finding that A’s placement was not
in his best interests. DHS concurs and asks that we reverse
the juvenile court’s determination. Father, who filed the
motion to change A’s placement, has not appeared on appeal.
To change a DHS-chosen placement under ORS
419B.349, a juvenile court must determine that the place-
ment is not in the child’s best interests. This standard,
which reflects a presumption that the placement selected
by DHS is in a child’s best interests, necessarily places the
burden on the party challenging the placement to prove
facts allowing for a determination that the placement is det-
rimental to the child in some way. We have reviewed the
record and agree with mother and DHS that, on this record,
the juvenile court abused its discretion in concluding that
A’s placement was not in his best interests. That is primar-
ily because the facts on which the juvenile court relied do
not allow for the conclusion that A’s placement placed A at
risk of harm or was otherwise detrimental to his interests.
The bases for the juvenile court’s decision included
• Technology issues;
• Mother’s difficult relationship with the great-aunt;
• A’s attorney’s difficulty in contacting A, other than
through DHS; and
• The great-aunt’s failure, two years earlier, to disclose a
medical condition.
The primary problem with those bases is that they
do not speak to how the placement was detrimental to A.
Moreover, as for the technology issues, the great-aunt had
worked with DHS to resolve them. In fact, the great-aunt
increased visits between father and A and recent missed vis-
its were the result of father being unable to attend because
of prison restrictions. As to the relationship between mother
and the great aunt, the record contains no evidence as to
how that was detrimental to A or why that fact meant that
A’s placement was not in his best interests. Regarding A’s
attorney’s difficulty contacting A, the juvenile court did not
account for the fact that that difficulty was largely the result
346 Dept. of Human Services v. S. G. W.
of the attorney’s failure to maintain contact.2 With respect
to the great-aunt’s failure to disclose her medical condition,
the juvenile court noted that it had no medical evidence that
her condition is “currently actively degenerating” or “in any
way limiting” her ability to parent. Instead, the court was
concerned that she had not disclosed the condition initially.
While that omission understandably concerned the juvenile
court, in the absence of any evidence that that medical con-
dition impacted her ability to care for A or that DHS or any
other party was concerned that that omission was part of a
larger pattern of omitting important information to DHS, it
was not a basis for concluding that A’s placement was not in
his best interests.
We therefore agree with mother and DHS that, on
this record, the juvenile court abused its discretion in find-
ing that A’s placement was not in his best interests.
Reversed.
2
Indeed, A’s attorney supported the juvenile court finding that his current
placement was in A’s best interests.