Dept. of Human Services v. V. A. R. , 301 Or. App. 565 ( 2019 )

565
Argued and submitted November 5, reversed and remanded December 26, 2019
In the Matter of W. Q.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
V. A. R.,
Appellant.
Wallowa County Circuit Court
16JU10116, 17JU09739;
A170264 (Control), A170265
456 P3d 681
Mother appeals permanency judgments changing the permanency plan for
her 13-year-old son, W, from reunification to placement with a fit and willing
relative. She contends that the juvenile court erred when it determined that the
Department of Human Services (DHS) made reasonable efforts to reunify W with
mother as required by ORS 419B.476(2)(a) because only five sessions of hands-on
parenting training before the permanency hearing did not reasonably allow her
the opportunity to demonstrate that she could be a minimally adequate parent for
W. DHS argues that its efforts were reasonable and that, in any event, mother’s
intellectual disability is an insurmountable barrier to reunification. Held: DHS’s
efforts to reunify W with mother were not reasonable because, at the time of
the hearing, mother’s training had not been going on long enough to allow for a
meaningful evaluation of whether mother could become a minimally adequate
parent.
Reversed and remanded.
Thomas B. Powers, 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 Lagesen, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.
566 Dept. of Human Services v. V. A. R.
LAGESEN, P. J.
Reversed and remanded.
Cite as 301 Or App 565 (2019) 567
LAGESEN, P. J.
Mother appeals permanency judgments changing
the permanency plan for her 13-year-old son, W, from reuni-
fication to placement with a fit and willing relative. She con-
tends that the juvenile court erred when it determined that
the Department of Human Services made reasonable efforts
to reunify W with mother as required by ORS 419B.476
(2)(a). Accepting the juvenile court’s supported factual find-
ings and reviewing for legal error, Dept. of Human Services
v. L. L. S., 290 Or App 132, 133, 413 P3d 1005 (2018),1 we
conclude that mother is correct. We therefore reverse and
remand.
Absent exceptions not applicable here, to change
W’s permanency plan from reunification to placement with
a fit and willing relative under ORS 419B.476, the juvenile
court was required to make two predicate determinations:
(1) that DHS made “reasonable efforts” to reunify W with
mother; and (2) that, notwithstanding those efforts, mother’s
progress was not sufficient to allow reunification. L. L. S.,
290 Or App at 137-38. Here, mother does not dispute that,
as of the permanency hearing, her progress was insuffi-
cient to permit reunification; the only issue is whether DHS
made reasonable efforts toward achieving reunification.
“Reasonable efforts” for purposes of ORS 419B.476(2)(a) are
“efforts that focus on ameliorating the adjudicated bases for
jurisdiction, and that give ‘parents a reasonable opportu-
nity to demonstrate their ability to adjust their conduct and
become minimally adequate parents.’ ” Id. (quoting Dept. of
Human Services v. S. M. H., 283 Or App 295, 306, 388 P3d
1204 (2017) (second internal quotation marks omitted)). The
reasonableness of DHS’s efforts depends on the particular
circumstances of the case. S. M. H., 283 Or App at 305.
Here, the particular circumstances of the case pre-
clude the conclusion that DHS’s efforts to reunify W with
mother were reasonable, by and large because those cir-
cumstances show that DHS’s efforts did not afford mother
1
Neither party has requested de novo review, and this does not otherwise
appear to be the type of “exceptional” case that would warrant it. See ORAP
5.40(8)(c).
568 Dept. of Human Services v. V. A. R.
a reasonable opportunity to become a minimally adequate
parent to W.
The juvenile court took jurisdiction over W as to
mother in March 2017 based on mother’s hostile relation-
ship with father and her lack of the parenting skills needed
to manage W’s needs:
“Mother and Father fight verbally and physically when
the child is present. This causes an escalation in the child’s
destructive and sometimes violent behavior, placing the
child and the parents at risk of harm.
“* * * * *
“[W] is a special needs child with multiple issues.
Mother lacks the parenting skills to cope with the child’s
issues and ensure the child’s safety.”
By the time of the permanency hearing in December 2018,
parents had long been separated, and no one contended that
their current relationship posed a barrier to reunification.
Instead, the focus at the hearing was on DHS’s efforts to
assist mother in acquiring the parenting skills needed to
parent W, and whether those efforts were reasonable, as
well as on mother’s progress toward becoming a minimally
adequate parent. Noting that the case was complicated by,
among other things, the facts that both mother and W “have
serious developmental disabilities” and that mother has
both “cognitive limitations” and “mental health issues that
may affect her ability to take advantage of parenting sup-
port services,” the court cataloged the services provided to
mother over the life of the case and, ultimately, concluded
that they represented reasonable efforts by DHS. In the
juvenile court’s view, the services were designed to account
for mother’s intellectual and developmental limitations and
were appropriately evaluated and recalibrated over the life
of the case.
On appeal, mother contests that conclusion.2
Although she does not dispute that DHS provided her with
a number of services (services which, mother points out, she
2
Mother also raises several other arguments as to why the permanency judg-
ments should be reversed. Our conclusion that DHS’s efforts were not reasonable,
and to reverse for that reason, obviates the need to address those arguments.
Cite as 301 Or App 565 (2019) 569
accepted and actively participated in), she contends that
those services did not, in the end, give her a reasonable
opportunity to demonstrate that she was capable of becom-
ing a minimally adequate parent. That is because, mother
argues, it was determined early in the case—by July 2017—
that mother required hands-on, in-person parent training,
where the parent trainer worked with mother and W while
they were together. Sweet, who conducted a psychological
evaluation of mother in July 2017 at DHS’s request, advised
following that evaluation that mother should have “special-
ized hands-on training to help her assess and meet [W’s]
needs,” training that “would require a provider who has a
very clear understanding of [W’s] needs and can work with
[mother] and child together.”
DHS, nonetheless, did not provide that type of train-
ing for most of the life of the case. Instead, it offered par-
enting training through Skype visits with a provider who,
when discharging mother from the program in January
2018, echoed Sweet’s recommendations, explaining that
mother needed more visitation and “[h]ands on observation
and parenting instruction.” Not until September 2018 did
DHS begin to provide the recommended training, and then
only after the juvenile court ordered it to do so in June of
that year: “The court finds that 4 hours per month (2 visits
twice a month) is not sufficient to attain the goal of the plan.
Therefore[,] DHS is ordered to increase the amount of visita-
tion and combine it with parent training in an amount that
is optimum to attain the goal of the current plan.”
As a result of the delay, mother had had only five
sessions of hands-on parenting training by the time of the
permanency hearing. This, in mother’s view, did not give
her the opportunity to become a minimally adequate parent
required by ORS 419B.476. She analogizes this case to Dept.
of Human Services v. R. D., 257 Or App 427, 307 P3d 487
(2013), a case in which we affirmed the juvenile court’s legal
conclusion that DHS’s reunification efforts were not rea-
sonable. There, we upheld the court’s “legal conclusion that
DHS failed to make reasonable efforts to provide services to
mother,” where mother required sex offender treatment to
address the basis for jurisdiction but 16 months had elapsed
570 Dept. of Human Services v. V. A. R.
between the time the court took jurisdiction over the child
and the time that such treatment was started shortly before
the permanency hearing. Id. at 432-33.
Responding to mother’s argument, DHS does not
appear to argue that its efforts to supply training met the
standard articulated in S. M. H.3 DHS acknowledges that
in-person parent training was recommended early in the
case but that “it took some time to arrange in-person parent
training for mother and [W]” in view of the distance between
Salem, where W’s foster home is located, and Wallowa
County, where mother lives.4 Rather than arguing that its
efforts gave mother a reasonable opportunity to demon-
strate that she could be a minimally adequate parent for W,
DHS argues that we should conclude that its efforts were
reasonable because, in its view, mother’s intellectual dis-
ability so impairs her ability to parent that she will never be
able to parent W: “[T]he real barrier to reunification in this
case is mother’s own intellectual disability, and her result-
ing inability to understand how to manage [W’s] behaviors
and meet his significant special needs.” DHS argues further
that, “despite mother’s bond with [W], the parent-training
offered by DHS could not assist her in overcoming her own
deficits in order to appreciate the level of care [W] requires.”
We agree with mother that, under the circumstances
of this case, DHS’s efforts do not meet the standard articu-
lated in our case law. From June 2017 on, DHS was aware
that, given mother’s intellectual disability and W’s disabil-
ity and needs, hands-on parenting training was required if
mother was to develop the skills needed to parent W with
minimal adequacy. Yet, with little in the way of explanation,
3
At oral argument, DHS expressed disagreement with our articulation of
the reasonable efforts standard in S. M. H., suggesting that the case was wrongly
decided.
4
Although DHS’s brief suggests that it is possible the distance between
Wallowa County and Salem contributed to the delay in arranging hands-on par-
enting, the record discloses that mother “consistently engaged in * * * bi-monthly
in-person visits with [W] in Salem, Oregon” after W was placed in Salem. The
record does not disclose why the hands-on training initiated in September 2018
was not started earlier in connection with those visits, and we do not under-
stand the juvenile court to have made a finding that the distance between Wallow
County and Salem was the reason that DHS delayed starting in-person parent
training for mother.
Cite as 301 Or App 565 (2019) 571
DHS did not begin to offer those services until the end of
September 2018, which meant that mother had had only five
training sessions before the permanency hearing. Similar
to the circumstances in R. D., the delay in providing ser-
vices means that mother was not given a reasonable oppor-
tunity to demonstrate that, with those services, she could
become a minimally adequate parent. Simply put, as of the
time of the hearing, it was too soon to tell if mother, having
been provided with the type of parenting training needed in
view of her intellectual disability, could develop the skills to
parent W.
DHS’s argument that mother’s intellectual disabil-
ity is an insurmountable barrier to reunification does not
provide a basis for concluding the contrary. That argument
is, in effect, that reasonable efforts—that is, efforts that
will give mother a reasonable opportunity to demonstrate
that she can become a minimally adequate parent—will
be futile because of mother’s intellectual disability. But, as
mother points out, if DHS perceives insurmountable obsta-
cles to reunification, it may seek to be relieved from the
obligation to make reasonable reunification efforts under
ORS 419B.340(5), something DHS did not do here. And,
beyond that, because of DHS’s delay in starting the type of
hands-on parenting training that mother required,5 it can-
not yet be ascertained whether the training will be futile
because, as of the time of the hearing, the training had not
been going on long enough to allow for a meaningful evalua-
tion of whether mother could become a minimally adequate
parent.
Reversed and remanded.
5
DHS has never argued that the cost of hands-on training was prohibitive
under the circumstances or that there were other circumstances that would
make it reasonable not to make that training available to mother.