Dept. of Human Services v. L. S. , 300 Or. App. 594 ( 2019 )

594
Argued and submitted July 29, affirmed November 20, 2019
In the Matter of Z. S.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
L. S.,
aka L. L. S.,
Appellant.
Marion County Circuit Court
16JU02171; A170190
453 P3d 607
Father appeals from a judgment entered after a permanency hearing, assign-
ing error to the juvenile court’s denial of his motion to dismiss dependency juris-
diction and change of the permanency plan from reunification to adoption for
his child, Z. Father argues that, because the child’s maternal grandmother can
continue to care for Z in a “probate” guardianship while father is in prison, the
jurisdictional basis does not pose a current, nonspeculative risk of harm to the
child and, thus, the court was required to dismiss the dependency jurisdiction
and terminate the court’s wardship of Z. Held: The evidence supports the juvenile
court’s findings that father’s plan did not ameliorate the threat of harm posed to
Z by the jurisdictional basis and those findings were sufficient to continue the
dependency jurisdiction.
Affirmed.
Cheryl A. Pellegrini, Judge.
Sarah Peterson, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Shannon Storey,
Chief Defender, Juvenile Appellate Section, Office of Public
Defense Services.
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 Ortega, Presiding Judge, and Powers, Judge, and
Mooney, Judge.
ORTEGA, P. J.
Affirmed.
Cite as 300 Or App 594 (2019) 595
ORTEGA, P. J.
In this dependency proceeding, father appeals from
a judgment entered after a permanency hearing, assigning
error to the juvenile court’s denial of his motion to dismiss
dependency jurisdiction and change in the permanency plan
from reunification to adoption for his child, Z. Father argues
that, because the child’s maternal grandmother can con-
tinue to take care of Z in a “probate” guardianship while
father is in prison, the jurisdictional basis does not pose a
current, nonspeculative risk of harm to the child and, thus,
the court was required to dismiss the dependency juris-
diction and terminate the court’s wardship of Z. The juve-
nile court found that father’s plan did not ameliorate the
threat of harm to Z posed by the jurisdictional basis, and
we conclude that the evidence supports the court’s findings.
Accordingly, we affirm.
Father does not ask us to take de novo review, and
we decline to do so. ORAP 5.40(8). Thus, we “view the evi-
dence, as supplemented and buttressed by permissible deriv-
ative inferences, in the light most favorable to the [juvenile]
court’s disposition and assess whether, when so viewed, the
record was legally sufficient to permit that outcome.” Dept.
of Human Services v. D. A. N., 258 Or App 64, 65, 308 P3d
303, rev den, 354 Or 490 (2013).
In May 2016, the juvenile court took jurisdiction of
Z, when he was two years old, based on the parents’ admit-
ted allegations that “mother’s substance abuse interferes
with her ability to safely parent the child” and that “father
has been convicted of sexually abusing another child and
is incarcerated and currently unavailable to be a custodial
resource.” Father’s scheduled release date from prison is in
2046, at which time Z will be in his thirties. Z was placed
with his maternal grandmother (grandmother). In October
2016, mother died of a drug overdose.
After mother’s death, the juvenile court changed Z’s
plan from reunification to adoption, and father appealed
that judgment. While that appeal was pending, the juvenile
court terminated father’s parental rights to Z, and father
also appealed that judgment. On appeal, we reversed the
juvenile court’s permanency judgment changing Z’s plan
596 Dept. of Human Services v. L. S.
to adoption because the Department of Human Services
(DHS) had not made reasonable efforts to reunify Z with
father. Dept. of Human Services v. L. L. S., 290 Or App 132,
133, 413 P3d 1005 (2018). As a result, we also vacated the
judgment terminating father’s parental rights to Z. Dept. of
Human Services v. L. L. S., 292 Or App 212, 213, 418 P3d 776
(2018).
Following the disposition in those appeals, in July
2018, father moved to dismiss jurisdiction and terminate
the court’s wardship of Z. In support of his motion, father
explained that, while he is incarcerated, his plan for Z is to
be cared for by grandmother under a probate guardianship,
which does not require juvenile court involvement. He also
stated that, if grandmother was unwilling to serve as Z’s
guardian, father’s friend, Glenn Fluhr, would serve as Z’s
guardian. DHS also sought a plan change for Z from reuni-
fication to adoption, which father opposed.
The juvenile court conducted a combined hearing
on the request to change Z’s plan and father’s motion to dis-
miss. At the time of the hearing, Z was four years old. At the
hearing, DHS presented evidence that Z has confusion about
who father is and has anxiety about his video visitations
with father, which results in Z having difficulties, such as
tantrums, on those days. Z is very attached to grandmother.
However, it took nearly a year for Z to trust that he was safe
with grandmother and that she would return if she dropped
him off somewhere. Z has demonstrated symptoms sugges-
tive of post-traumatic stress disorder, such as nightmares,
separation anxiety, and difficulty trusting others, and was
having episodes “that could be termed a dissociation” that
have dissipated over time with his current placement but
would return with disruption to that placement. Z still has
difficulties with separation anxiety, and he requires stabil-
ity to develop trust and a secure attachment. Any question
about who is going to care for him or disruption to his daily
routine causes Z to suffer anxiety. Z is very aware of what
is going on around him and has a constant need to know
“what we’re doing, where we’re going, and who we’re going to
be with.” Z’s caseworker testified that guardianship “doesn’t
offer the ongoing level of stability and security that [Z]
would need, particularly that would ease the anxiety that
Cite as 300 Or App 594 (2019) 597
he experiences and will continue to experience if he doesn’t
have a permanent placement.”
Grandmother is willing to adopt Z but, if that is not
possible, she is willing to become his permanent guardian.
However, she does not believe that father’s plan would be
good for Z because efforts by father to dissolve the guard-
ianship or resolve disputes over Z’s care in court would fur-
ther disrupt Z’s life, when what he needs is permanency and
stability.
Father’s friend, Fluhr, who father proposed as an
alternate guardian, has had no recent contact with Z and he
has not sought to establish that contact. Fluhr also did not
follow through with paperwork to become a foster parent for Z.
Father testified at the hearing about his plan for
Z. He clarified that he was proposing a guardianship that
would not have any DHS involvement. He testified that
“[r]ight now I’d like to see a guardianship with [grand-
mother]. * * * And then when my appeal goes through, I’ll be
sitting in that courtroom with you getting my son back.” He
also stated at various times that “when I get out, I’m going
to take control of my son. There’s no reason for adoption”;
that Z should wait for father to get out of prison “[p]robably
as long as it takes” because “I’m his dad”; and that it was
not his plan that Z would still be placed with grandmother
in five years. Father testified that he does not like mem-
bers of grandmother’s immediate family and that is why it is
best for Z to be taken care of by father. Father also testified
that he cannot contribute financially to Z’s care and con-
firmed that he has not discussed his plan of care for Z with
grandmother.
The juvenile court denied father’s motion to dis-
miss and changed Z’s permanency plan from reunification
to adoption, explaining its reasoning in a lengthy letter
opinion. As relevant to the issue raised on appeal, the court
first found that the jurisdictional basis—i.e., that “father
has been convicted of sexually abusing another child and
is incarcerated and currently unavailable to be a custodial
resource”—continues to pose a threat to Z “that remains
reasonably likely to be realized.” The court explicitly found
that was so because father remains incarcerated with a
598 Dept. of Human Services v. L. S.
release date of 2046, he was convicted of sex crimes involv-
ing a child but denies that he committed the acts, and father
“denies that the charges bear any relevance to his parenting
skills or judgment and does not believe he needs a parenting
class.” The court also found that father was focused on his
own circumstances and not on Z’s circumstances.
The juvenile court also found that father’s plan of
guardianship for Z would not mitigate that threat. In mak-
ing that determination, the court stated:
“It is important to note that the jurisdictional basis is
not simply that Father is incarcerated; it is that he was
convicted of sexually abusing another child and is incarcer-
ated. Simply being released from custody or having another
caregiver available would not ameliorate the risk of harm
to the child posed by Father’s history of sexually abusing
another child, particularly given that the child Father sex-
ually abused was a child he resided with and parented.”
(Emphasis in original.) The court first found that Fluhr
was not a viable guardianship resource and that placing Z
with him would not ameliorate the risks to Z, because Fluhr
has spent virtually no time with Z, has been unwilling to
work with DHS to learn about Z’s needs and circumstances,
has made no effort to establish a relationship with Z, and
“appears to view his role as guardian as being a mere place-
holder who would warehouse [Z] until such time as Father
came to get him.”
The court also found that a guardianship with
grandmother would not ameliorate the current threat of
harm to Z. With respect to that finding, the court stated:
“While the Court finds that maternal grandmother
would take all available steps to ameliorate the threat posed
by Father’s lack of insight into his parenting deficits, the
plan of guardianship would undermine her efforts. Father
made clear that he proposed this plan precisely because it
is the one best calculated to achieve his goal of regaining
custody of the Child with as little resistance as possible. In
other words, he is proposing this plan because he believes
it is the one he can most quickly and easily dissolve.”
The court also set out its reasoning for changing
Z’s plan to adoption. With respect to that change, the court
Cite as 300 Or App 594 (2019) 599
found that father “has made no effort to ameliorate his con-
siderable parenting deficits and adjust his conduct to become
a minimally adequate parent,” that the proposed guardian-
ship would not meet Z’s health and safety needs for security
and certainty, and that Z expresses confusion about who
father is and has not bonded with father during the video
visits. The court further found that father’s plan, which
includes father’s express intent to dissolve the guardianship
as soon as feasible, exposes the child to uncertainty, possi-
ble disruption, and instability and would delay permanency
and the opportunity for Z to form a healthy attachment to
his long-term caregiver. The court then entered a perma-
nency judgment changing Z’s permanency plan to adoption,
which also incorporated the court’s letter opinion.
Father appeals from the permanency judgment,
assigning error to the juvenile court’s denial of his motion
to dismiss dependency jurisdiction and change in Z’s per-
manency plan. On appeal, father’s sole argument for both
assignments of error is that the court was required to dis-
miss dependency jurisdiction.
A motion to dismiss dependency jurisdiction pres-
ents a two-part inquiry. Dept. of Human Services v. T. L.,
279 Or App 673, 684, 379 P3d 741 (2016). First, “[t]he court
must determine whether the original bases for jurisdiction
continue to pose a current threat of serious loss or injury.”
Id. at 685. “If the court determines that they do, it then must
assess the likelihood that the risk will be realized.” Id. “If
there is no reasonable likelihood of harm to the child’s wel-
fare in the absence of dependency jurisdiction, there is no
basis for dependency jurisdiction to continue.” Id. Evidence
that another person is available to assist the parents in
providing care for the child is relevant to the inquiry, and
the court must consider it in making that determination.
Id. Here, because the plan for Z was reunification, DHS, as
the proponent of continued jurisdiction, bore the burden by
a preponderance of the evidence to show that “the factual
bases for jurisdiction persisted to a degree that they posed
a current threat of serious loss or injury that is reasonably
likely to be realized.” Dept. of Human Services v. A. R. S.,
258 Or App 624, 635, 310 P3d 1186 (2013), rev dismissed,
355 Or 668 (2014).
600 Dept. of Human Services v. L. S.
On appeal, father does not dispute the juvenile
court’s finding that the original basis for jurisdiction over
Z continues to pose a current threat of serious loss or injury
to Z. Father argues only that, because grandmother can
continue to care for Z in a probate guardianship, there is
no likelihood of that risk being realized in the absence of
dependency jurisdiction. Specifically, father asserts that the
evidence showed that, even without dependency jurisdiction,
grandmother would safely care for Z, which ameliorates the
risks of father being unavailable to parent due to his incar-
ceration. Father argues that grandmother disfavoring that
plan does not matter because grandmother testified that
she would still care for Z. Father further argues that any
disputes between father and grandmother could be resolved
in circuit court, without juvenile court involvement.
Although a court must consider a parent’s plan to
have a third party provide care for their child in making
the required two-part inquiry on a motion to dismiss, such a
plan is not dispositive of that inquiry. The key question the
factfinder must address is whether the parent’s plan, as a
factual matter, mitigates the threat posed to the child’s wel-
fare by the jurisdictional bases such that that threat is no
longer reasonably likely to be realized. See T. L., 279 Or App
at 686 (explaining how a parent’s plan for caregiver help
can be probative to the factfinder’s inquiry); see also Dept.
of Human Services v. A. B., 271 Or App 354, 372, 350 P3d
558 (2015) (“[T]he mere fact that a child is being adequately
cared for by a nonparent does not prohibit the court from
taking jurisdiction, as long as the totality of the child’s cir-
cumstances expose the child to a current risk of serious loss
or injury.”). In assessing the court’s factual findings on that
inquiry, we
“(1) assume the correctness of the juvenile court’s explicit
findings of historical fact if these findings are supported by
any evidence in the record; (2) further assume that, if the
juvenile court did not explicitly resolve a disputed issue of
material fact and it could have reached the disposition that
it reached only if it resolved that issue in one way, the court
implicitly resolved the issue consistently with that disposi-
tion; and (3) assess whether the combination of (1) and (2),
along with nonspeculative inferences, was legally sufficient
to permit the [juvenile] court[‘s determination].”
Cite as 300 Or App 594 (2019) 601
Dept. of Human Services v. N. P., 257 Or App 633, 639-40,
307 P3d 444 (2013).
In this case, the juvenile court explicitly found that
father’s plan did not ameliorate the threat of harm to Z
posed by the jurisdictional basis, and we conclude that the
evidence supports the court’s findings. The court identified
the current threats to Z’s welfare posed by father’s lengthy
incarceration for sex crimes against a minor was not just
his unavailability to parent, but also that father denies his
crimes, does not recognize a connection between his crimes
and his parenting skills, denies that he has any parenting
deficits, and was focused throughout his testimony on his
own circumstances and regaining “control” of Z and not on
Z’s circumstances. Those findings are supported by the evi-
dence, and father does not assert otherwise.
The court also found that father’s plan to place Z
in a probate guardianship with grandmother did not ame-
liorate those risks because father’s plan would undermine
grandmother’s efforts to protect Z from the harms posed by
father’s incarceration for sex crimes. Specifically, the court
found that father only proposed the probate guardianship
because it would be the easiest guardianship to dissolve and
regain control of Z. Again, those findings are supported by
the evidence. Additionally, in addressing the appropriate
plan for Z, the court further found that father’s proposed
guardianship plan, in general, would not ameliorate the
nonspeculative risk of harm to Z because that plan pre-
vents Z from having his health and safety needs met, which
include his heightened need for security, permanency, and
secure attachment. Those findings were also supported by
evidence in the record.
We also conclude that the court’s findings taken
together were sufficient for the court to conclude that it could
continue its jurisdiction over Z. In so concluding, we empha-
size that this is not a case in which a parent was working
cooperatively with a caregiver to obtain stability and per-
manency for their child outside of juvenile court dependency.
Here, father had not discussed his plan with grandmother,
and grandmother, the proposed guardian, opposed the
plan and believed that it would harm Z’s welfare. Father’s
602 Dept. of Human Services v. L. S.
alternative proposed guardian, Fluhr, had not even made
minimal efforts to contact Z or learn about his needs. As the
juvenile court found, father was seeking to establish a pro-
bate guardianship as a means to regain control of his son in
the easiest way possible. As a result, that proposed plan did
not ameliorate the likelihood that the current, nonspecula-
tive threats to Z’s welfare caused by father’s incarceration
for sex crimes against a minor would be realized.
Thus, we conclude that, viewing the evidence, as
we must, in the light most favorable to the juvenile court’s
decision to deny father’s motions to dismiss jurisdiction, the
record is legally sufficient to support the court’s determina-
tion. Accordingly, we affirm.
Affirmed.