Dept. of Human Services v. T. K. K. ( 2023 )

624
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted October 25, 2022, reversed and remanded
January 5, 2023
In the Matter of P. K.,
aka P. S., a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
T. K. K.,
Appellant.
Clackamas County Circuit Court
20JU01308; A178733
Heather Karabeika, Judge.
George W. Kelly argued the cause and filed the brief for
appellant.
Patricia G. Rincon, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
SHORR, P. J.
Reversed and remanded.
Nonprecedential Memo Op: 323 Or App 624 (2023) 625
SHORR, P. J.
In this juvenile dependency appeal, father appeals
from a judgment changing the permanency plan for his
three-year-old daughter, P, from reunification to adoption.1
In his sole assignment of error, he asserts that the juvenile
court erred in determining that the Department of Human
Services (DHS) made reasonable efforts to reunify him with P.
We reverse and remand.
In the absence of de novo review, which is not
requested or warranted in this case, “we view the evidence,
as supplemented and buttressed by permissible derivative
inferences, in the light most favorable to the trial court’s dis-
position and assess whether, when so viewed, the record was
legally sufficient to permit” the permanency plan change.
Dept. of Human Services v. N. P., 257 Or App 633, 639, 307
P3d 444 (2013). Whether DHS’s efforts constitute “reason-
able efforts” for purposes of ORS 419B.476(2)(a) is a ques-
tion of law that we review for legal error. Dept. of Human
Services v. K. G. T., 306 Or App 368, 370, 473 P3d 131 (2020).
“[B]efore the court may change a child’s plan from
reunification to anything else, DHS must prove by a prepon-
derance of the evidence both that (1) DHS made reasonable
efforts to make it possible for the child to be reunified with
his or her parent, and (2) despite those efforts, the parent’s
progress was insufficient to make reunification possible.”
Id. at 374. For purposes of ORS 419B.476(2)(a), “reasonable
efforts” are those “that focus on ameliorating the adjudi-
cated bases for jurisdiction, and that give parents a reason-
able opportunity to demonstrate their ability to adjust their
conduct and become minimally adequate parents.” Dept. of
Human Services v. W. M., 310 Or App 594, 598, 485 P3d 316
(2021) (internal quotation marks omitted).
“The assessment of the reasonableness of DHS’s efforts
has a temporal component. Although we take into account
DHS’s efforts over the life of the dependency case, the
focus is on the period of time leading up to the perma-
nency hearing. To qualify as reasonable, the efforts must
go on long enough to allow for a meaningful assessment of
1
Mother is not a party to this appeal.
626 Dept. of Human Services v. T. K. K.
whether parents are making sufficient progress to permit
reunification.”
Id. at 598-99 (citations omitted).
We have previously recognized that “[d]ependency
cases involving incarcerated parents present unique chal-
lenges.” Dept. of Human Services v. S. W., 267 Or App 277,
286, 340 P3d 675 (2014). A parent’s incarceration does not
relieve DHS of its “obligation, over the life of the case, to
make reasonable efforts to give the parent the opportu-
nity to ameliorate the bases for jurisdiction.” K. G. T., 306
Or App at 376 (internal quotation marks omitted); see also
Dept. of Human Services v. H. K., 321 Or App 733, 749, 517
P3d 1044 (2022) (recognizing the challenge presented by the
circumstances of that case, which included the COVID-19
pandemic and its associated shutdowns and restrictions,
but noting that “institutional barriers do not categori-
cally excuse DHS from meeting its obligation under ORS
419B.476(2)(a), an obligation that includes allowing enough
time to give parents a reasonable opportunity to use those
efforts to ameliorate the risk of harm to their child caused
by the jurisdictional bases” (internal quotation marks omit-
ted)); S. W., 267 Or App at 286 (“mere fact of a parent’s incar-
ceration does not excuse DHS from making the reasonable
efforts required by statute”).
In February 2020, DHS obtained temporary cus-
tody of P and she was placed in substitute care; P was
approximately 11 months old at that time. In January 2021,
the juvenile court entered a judgment asserting jurisdic-
tion over P, based, in part, on father’s admissions to three
jurisdictional bases: (1) “father has substance abuse issues
which need continued treatment,” (2) “father is currently on
supervision for a conviction of harassment, which occurred
in the presence of the child * * * [and] needs the assistance
of the state to access services to understand the impact this
had on the child and to avoid such behavior in the future,”
and (3) “father is in-custody charged with Manslaughter 2
and is not currently a custodial resource.” The court ordered
father to engage in drug and alcohol treatment, engage in
parent training, attend visits with P, and seek and maintain
Nonprecedential Memo Op: 323 Or App 624 (2023) 627
employment and safe and stable housing, among other
things. In between the time the juvenile court took juris-
diction over P and the permanency hearing in April 2022,
father spent time in custody related to various criminal
matters and had periods of time when he was out of cus-
tody. Notably, father was out of custody from February 2021
through September 2021; he then went back into custody
and at the time of the contested permanency hearing, father
was incarcerated and awaiting trial on criminal charges
that included second-degree manslaughter.
At the conclusion of the permanency hearing, the
juvenile court stated, in part, that “DHS has provided some
services, although I’m sure they’re not enough and ideal,
and we would appreciate more services * * *.” Ultimately,
though, the court found that “the efforts were reasonable
as to Father, not ideal, but I find them to be reasonable in
light of all of the circumstances that were involved with
Father’s multiple * * * incarcerations and charges and the
other various sundry issues that he was up against.” The
juvenile court also recognized that the pandemic had likely
contributed to the challenges for father.
Father acknowledges that, during the periods when
he was out of custody, DHS provided him with services,
including attempts to refer him to housing, a drug and
alcohol assessment and resulting referral for treatment, a
phone, an attempt to set up a parent trainer, bus passes,
and visits with P. Father also acknowledges that, except for
the visits with P, only some of which he attended, he did
not fully engage in the services provided to him. Father’s
argument on appeal focuses on the months leading up to
the permanency hearing. He argues that, between August
2021 and April 2022, DHS did not make reasonable efforts.
He asserts, among other things, that the caseworker only
had four meetings with him; she did not discuss services
with him until the third meeting—in January 2022;
she did not refer any services to him; and, upon learning
that the jail had one-on-one Alcoholics Anonymous (AA)
meetings—after having a conversation with father in which
he told her that no meetings or treatment were available due
to COVID-19—she did not inform him of the availability
628 Dept. of Human Services v. T. K. K.
of those meetings.2 Father also relies on Dept. of Human
Services v. B. A. C. M., 319 Or App 267, 508 P3d 999 (2022),
and contends that, even if the caseworker had done more, that
would not have been sufficient. He points to the COVID-19
pandemic as being largely responsible for his inability to
access the necessary services and argues that any change
in plan should be delayed to allow him time to access ser-
vices so there can be a meaningful assessment of his ability
to become an adequate parent. See id. at 268 (“[I]t appears
that the pandemic is largely—if not entirely—responsible
for father not being able to access the necessary services.”).
In response, DHS argues that the proper analysis
should take into consideration its efforts throughout the
entire duration of the case based on the particular circum-
stances of this family, including the bases that brought the
child within the juvenile court’s jurisdiction. DHS asserts
that it was able to, and did, offer father a broad scope of
services aimed at addressing each of those bases, despite
father’s periods of incarceration and the pandemic. Further,
according to DHS, the question whether DHS made reason-
able efforts depends on whether the services DHS provided
afforded the parent a reasonable opportunity to demon-
strate that they were capable of becoming a minimally ade-
quate parent, and that father’s focus on what DHS did not
do in the eight months prior to the permanency hearing does
not resolve that question. In DHS’s view, the totality of its
efforts—over the span of almost two years—afforded father
a fair opportunity to demonstrate his ability to adjust his
conduct and become a minimally adequate parent. Lastly,
in regard to father’s assertion that the pandemic is largely
responsible for father’s inability to access services, DHS
responds that it was still able to offer father a variety of
services throughout the duration of the case despite the fact
that the pandemic made providing services more difficult.
After reviewing the record, which we do not recite
in detail here, we agree with father that the evidence is
insufficient to support the juvenile court’s conclusion that
2
The initial DHS permanency caseworker worked on this case from February
2020 until mid-July 2021; a new caseworker was assigned in September 2021 and
had her first meeting with father in October 2021.
Nonprecedential Memo Op: 323 Or App 624 (2023) 629
DHS had engaged in reasonable efforts toward reunifica-
tion. Although we agree with DHS that reasonable efforts
are to be considered over the life of the case, we emphasize
the period leading up to the hearing. W. M., 310 Or App at
598. The problem with DHS’s argument is that the bulk of
the services offered to father was during the time that he
was out of custody. From August 2021 to April 2022, the
majority of which father was in jail, the caseworker spoke
to father four times and sent him two letters of expectation.
She spoke to father’s jail counselor and put funds in father’s
account so that father could call her. Father had virtual vis-
its with P, but in-person visits were not allowed at the jail.
The caseworker inquired about parent training but was told
by the program she contacted that P was too young to do vir-
tual parent skill training; she informed father that, when
he was no longer incarcerated, she would provide him with
a referral to that training.
We are particularly concerned about the reasonable
efforts surrounding father’s substance abuse issues, which
is one of the jurisdictional bases, and, we understand, also
played a role in the criminal charges and incarceration that
is one of the other jurisdictional bases. The record does not
demonstrate that the caseworker provided any guidance to
father on substance abuse services while father was incar-
cerated. The caseworker failed to relay to father the avail-
ability of one-on-one AA meetings. She learned that father,
on his own initiative, was engaging in substance abuse
treatment in jail but had no follow up with father to commu-
nicate with him regarding the suitability of those services.
Based on our review of the record, DHS made no affirmative
efforts with father on his substance abuse issues during the
seven-month period he was incarcerated and leading up to
the permanency hearing, despite evidence that father had
begun to engage in such services on his own.3
3
We do not need to undertake a cost-benefit review in this case to assess
whether DHS should have invested in additional substance abuse services that
may not have otherwise been available to father for free in jail; nor do we need to
balance those potential additional DHS costs against the likely benefit to father
in possibly ameliorating the bases for jurisdiction. See K. G. T., 306 Or App at
380-81 (discussing the cost-benefit analysis as applied to incarcerated parents).
Here, DHS did not engage in efforts to work with father on those services that
were already available to father in prison.
630 Dept. of Human Services v. T. K. K.
In sum, DHS did not provide services aimed at
resolving the jurisdictional bases during the time that
father was incarcerated, and, as a practical matter, the
only service DHS provided to father during that time was
visitation with P. DHS’s efforts did not give father a fair
opportunity to demonstrate the ability to adjust his behav-
ior and be a minimally adequate parent. We recognize the
challenges presented by this case, including the pandemic
and father’s incarceration. However, under the legal stan-
dard articulated above, DHS is not relieved of its obligation
to make reasonable efforts because of father’s incarceration,
and we cannot conclude that DHS met its burden to prove
that it made reasonable efforts toward reunification here.
We therefore conclude that the juvenile court erred in deter-
mining that DHS made reasonable efforts toward reunifi-
cation and, as a result, erred in changing the permanency
plan from reunification to adoption.
Reversed and remanded.