Dept. of Human Services v. V. M. ( 2023 )

536
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted February 9, affirmed March 8, petition for review denied June 15,
2023 (371 Or 175)
In the Matter of J. M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
and
J. M.,
Respondent,
v.
V. M.,
Appellant.
Columbia County Circuit Court
19JU08971; A179108 (Control)
In the Matter of K. M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
and
K. M.,
Respondent,
v.
V. M.,
Appellant.
Columbia County Circuit Court
19JU08972; A179109
Ted E. Grove, Senior Judge.
Shannon Storey, Chief Defender, Juvenile Appellate
Section, and Holly Telerant, Deputy Public Defender, filed
the brief for appellant.
Nonprecedential Memo Op: 324 Or App 536 (2023) 537
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent Department of Human
Services.
Ginger Fitch and Youth, Rights & Justice filed the brief
for respondents children.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
EGAN, J.
Affirmed.
538 Dept. of Human Services v. V. M.
EGAN, J.
In this consolidated juvenile dependency case,
mother appeals permanency judgments that changed the
permanency plan for her two children from reunification
to guardianship. Mother raises six assignments of error;
the first and second assignments assert that the juvenile
court erred in determining that the Department of Human
Services (DHS) made reasonable efforts to reunify mother
with her children; the third and fourth assignments assert
that the juvenile court erred in determining that mother’s
progress was insufficient for the children to be safely returned
home; the fifth and sixth assignments assert that the juve-
nile court erred in changing the permanency plans from
reunification to guardianship. We affirm.
Mother does not request de novo review, and this is
not an exceptional case warranting de novo review. ORAP
5.40(8)(c). “When the permanency plan at the time of a per-
manency hearing is reunification, the juvenile court is autho-
rized to change the plan away from reunification only if DHS
proves that (1) it made reasonable efforts to make it possi-
ble for the child to be reunified with his or her parent and
(2) notwithstanding those efforts, the parent’s progress was
insufficient to make reunification possible.” Dept. of Human
Services v. S. M. H., 283 Or App 295, 305, 388 P3d 1204
(2017). Whether DHS’s efforts are reasonable and whether
a parent’s progress was sufficient are both “evaluated by
reference to the facts that formed the bases for [the] juve-
nile court” asserting jurisdiction. Dept. of Human Services v.
N. T., 247 Or App 706, 715, 271 P3d 143 (2012). DHS’s efforts
can only be considered reasonable if the department has
given the “parents a reasonable opportunity to demonstrate
their ability to adjust their conduct and become minimally
adequate parents.” S. M. H., 283 Or App at 306. The juvenile
court may consider a parent’s “conduct and response to ser-
vices that are offered” when evaluating whether DHS has
made reasonable efforts under the totality of circumstances.
Dept. of Human Services v. S. W., 267 Or App 277, 292 n 7,
340 P3d 675 (2014).
Because we do not engage in de novo review, we are
bound by the juvenile court’s findings, as long as there is
Nonprecedential Memo Op: 324 Or App 536 (2023) 539
any evidence in the record to support them. Dept. of Human
Services v. J. F. D., 255 Or App 742, 744, 298 P3d 653 (2013).
Whether DHS’s efforts qualify as “reasonable” and whether
a parent’s progress is “insufficient” for purposes of ORS
419B.476(2)(a) are questions of law that we review for legal
error. Dept. of Human Services v. V. A. R., 301 Or App 565,
567, 456 P3d 681 (2019); Dept. of Human Services v. G. N., 263
Or App 287, 294, 328 P3d 728, rev den, 356 Or 638 (2014).
Here, we conclude legally sufficient evidence sup-
ported the juvenile court’s determination that DHS’s efforts
were reasonable, and that mother’s progress was insufficient.
Sometime in 2020, the children’s individual thera-
pist spoke to mother to discuss the children and to assess
whether mother would be able to successfully engage in
family therapy. But family therapy was not able to move
forward because mother was “unable to accept responsibil-
ity” and lacked understanding of why the children were in
DHS custody. After that failed attempt, DHS continued to
try to engage mother in individual and family therapy and
its efforts were rejected by mother because mother believed
that family therapy would require her regularly to travel
from Nevada to Washington.
Then, in March 2022, the juvenile court explained
to mother that family therapy does not require her to travel
and that family therapy would be conducted either online
or via telephone.1 However, during the June 2022 perma-
nency hearing at issue in this case, mother testified again
that she did not understand that engaging in family ther-
apy would not require her regular travel to Washington. By
the time of the June 2022 permanency hearing, the children
had been in DHS care for 30 months, during which mother
had reasonable time to begin to engage in family therapy,
but she did not. See S. W., 267 Or App at 292 n 7 (“[A] par-
ent’s conduct and response to services that are offered is
relevant to the juvenile court’s determination of whether
1
In November 2021, we reversed and remanded the first permanency plan
judgment and ruled that the juvenile court erred by relying on “facts extrinsic to
the juvenile judgment,” such as information regarding mother’s age, health, and
medical history. Dept. of Human Services v. V. M., 315 Or App 775, 784-86, 502
P3d 773 (2021).
540 Dept. of Human Services v. V. M.
DHS has made ‘reasonable efforts’ under the totality of the
circumstances.”).
Further, the juvenile court did not err in concluding
that mother’s progress has also been insufficient because
she has failed to address the bases upon which the juve-
nile court took jurisdiction, namely, that the children do not
want to return to her care and that the family requires ser-
vices to repair the relationship. Mother has not engaged in
therapeutic services, and the testimony of her willingness
to do so during the permanency hearing does not counter
the 30 months of mother’s conduct in which she rejected or
refused to engage in those services.
Therefore, for the reasons set forth above, we con-
clude that the juvenile court did not err in changing the
permanency plans for the children from reunification to
guardianship.
In sum, we reject mother’s first through fifth assign-
ments of error.
Affirmed.