Dept. of Human Services v. K. K. ( 2024 )

436 October 9, 2024 No. 721
This is a nonprecedential memorandum opinion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 J. J. L.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
and
J. J. L.,
Respondent,
v.
K. K.,
Appellant.
Klamath County Circuit Court
21JU01988; A183710 (Control)
In the Matter of H. J. L.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
and
H. J. L.,
Respondent,
v.
K. K.,
Appellant.
Klamath County Circuit Court
21JU01989; A183711
Andrea M. Janney, Judge.
Argued and submitted August 21, 2024.
Nonprecedential Memo Op: 335 Or App 436 (2024) 437
Gabe Newland, 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/Oregon Public Defense Commission.
Erica L. Herb, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Daniel J. Casey filed the brief for respondents J. J. L. and
H. J. L.
Before Lagesen, Chief Judge, Mooney, Judge, and DeVore,
Senior Judge.
MOONEY, P. J.
Affirmed.
438 Dept. of Human Services v. K. K.
MOONEY, J.
In these consolidated juvenile dependency cases,
mother appeals the permanency judgments concerning her
children, J and H, in which the juvenile court changed the
case plans from reunification to adoption and ordered the
Department of Human Services (DHS) to file petitions to
terminate mother’s parental rights and sever her legal rela-
tionship with them. Mother raises the same two assignments
of error in each case challenging (1) the juvenile court’s find-
ings that DHS made reasonable efforts to reunite her with
her children and (2) its orders changing the plan in each
case from reunification to adoption. We are satisfied that
mother adequately preserved her arguments for appeal and
we reject the contrary argument of counsel for J and H with-
out discussion. We affirm.
We recently described the standard of review in
permanency judgment appeals:
“We review findings of fact—such as what DHS did
or did not do—for any evidence. We review conclusions of
law—such as whether the facts support the conclusion that
DHS made reasonable efforts—for legal error. We view the
evidence in the light most favorable to the court’s dispo-
sition to determine if it supports the court’s legal conclu-
sions. We draw the facts from the record that was before
the juvenile court when it changed the permanency plan.”
Dept. of Human Services v. T. F., 331 Or App 682, 684, 548
P3d 510 (2024) (citations, internal quotation marks, and
footnotes omitted). That standard applies here, and we state
the relevant facts accordingly.
DHS removed J and H from their mother’s care in
early 2021 after mother physically abused J with a belt. She
was convicted of related criminal offenses and sentenced
to probation. In May of that same year, the juvenile court
established jurisdiction over J and H after finding that
mother physically abused J and that she neither under-
stood her children’s needs nor had the skills to safely parent
them. She was offered domestic violence courses, a psycho-
logical evaluation, transportation assistance, visits with J
and H, and hands-on parenting time and training. Things
Nonprecedential Memo Op: 335 Or App 436 (2024) 439
appeared to be on track toward reunification, with mother
participating in services and spending time with J and H.
Things took a turn, however, in February 2022
when mother’s youngest child, P,1 who had remained in
mother’s care, was removed because of an incident where,
among other things, mother was found to have been intox-
icated, with a blood alcohol content (BAC) of .25 percent,
while P was in her care. As a result, mother was sanctioned
for violating her probation in the criminal matter, and she
was directed to participate in a drug and alcohol program by
the juvenile court in this dependency case. Mother attended
the drug and alcohol assessment and was diagnosed with
mild alcohol use disorder. The program recommended out-
patient treatment, in which mother participated for sev-
eral months. She produced negative urinalyses (UAs) from
February to April 2022, at which point her participation in
alcohol treatment waned. Mother also continued her mental
health treatment services until late summer 2022 when she
was charged with driving under the influence of intoxicants
(DUII) while having a BAC over .15 percent.
DHS referred mother for a comprehensive psycho-
logical evaluation, which was completed in January 2023.
The evaluator recommended that mother engage in mental
health services as well as drug and alcohol treatment. Over
the course of the next several months, DHS referred mother
to two different agencies for those services, providing more
than one referral to each agency. Mother participated in
some of those services, but her overall engagement was spo-
radic, and she produced several positive UAs. Eviction pro-
ceedings were initiated against mother in the fall of 2023,
and a judgment awarding restitution of the premises to the
landlord was reportedly entered in that case, but it is not
clear from the record before us whether mother still resides
at the subject premises. The juvenile court took jurisdiction
over J and H on two new bases in October 2023, including
substance abuse and residential instability.
As of November 2023, mother’s Klamath Basin
Behavioral Health (KBBH) services were “transferred” to
1
There is a separate dependency case concerning P. His case is not before us
in this appeal.
440 Dept. of Human Services v. K. K.
her probation officer. She was again evaluated for drug and
alcohol treatment and mental health issues in January 2024
at the request of her probation officer who, in turn, referred
mother for related services. As of the date on which the
permanency hearing took place in January 2024, the DHS
caseworker had not received any updates on mother’s par-
ticipation in services. It is worth noting that DHS provided
other services for mother, including skills focused training,
a parent mentor who helps mother “navigate services,” reg-
ular visitation time with J and H, assistance with trans-
portation, and the like. The juvenile court changed the plan
to adoption following the permanency hearing held in mid-
January 2024.
We recently described the legal principles that apply
in permanency hearings when DHS has requested that the
permanency plan be changed away from reunification:
“The juvenile court may not change the permanency
plan to something other than reunification unless DHS
proves, by a preponderance of the evidence, that DHS made
reasonable efforts to make reunification possible, and that
notwithstanding those efforts, the parent failed to make
sufficient progress toward reunification. The reasonable-
efforts inquiry focuses on DHS’s conduct, and a parent’s
resistance to DHS’s efforts does not categorically excuse
DHS from making meaningful efforts toward that parent.
We measure the reasonableness of DHS’s efforts based on
the totality of the circumstances. We especially scruti-
nize the period before the permanency hearing sufficient
in length to afford a good opportunity to assess parental
progress. Additionally, because we consider the child’s
health and safety as paramount, we evaluate DHS’s efforts
in light of the particular circumstances of the parent and
child. Importantly, the reasonableness of DHS’s efforts is
measured through the lens of the adjudicated bases for
jurisdiction.”
Id. at 688-89 (citations, internal quotation marks, and
brackets omitted). Those principles apply here. Mother
relies upon T. F. to argue that DHS “referred mother to
programs related to some of the jurisdictional bases, but it
failed to assist with others.” In particular, she contends that
DHS “failed to direct any efforts toward mother’s ‘residen-
tial instability,’ which became a jurisdictional basis three
Nonprecedential Memo Op: 335 Or App 436 (2024) 441
months before the permanency hearing[,]” and she asserts
that DHS’s “efforts must address all the adjudicated bases
for jurisdiction[.]” But mother reads T. F. too broadly.
As we stated in T. F., “[w]e measure the reason-
ableness of DHS’s efforts based on the totality of the cir-
cumstances.” Id. at 689. We look at the efforts DHS made
to assist the parents in correcting the circumstances that
led to jurisdiction through the lens of the circumstances
on which the juvenile court actually based jurisdiction. For
example, if the issue is a lack of parenting skills, then we
measure the reasonableness of DHS’s efforts by looking at
what DHS did or what it made available to the parents to
help them learn the skills that the juvenile court found lack-
ing. But T. F. does not say that DHS’s efforts must perfectly
match each and every basis of jurisdiction to be reasonable.
To be sure, we reversed a change away from reuni-
fication in T. F. because the record did not support the rea-
sonable efforts finding made by the juvenile court in that
case. But T. F. is readily distinguishable from this case.
T. F. concerned an out-of-state father who voluntarily sub-
mitted to jurisdiction in Oregon after he had been separated
from his son for more than a decade. Efforts in the first 12
to 20 months of jurisdiction were directed at developing and
establishing a relationship between father and son. Id. at
684-85. New allegations that focused on father’s conduct
were added six months before the plan was changed. Id. at
687. The corresponding jurisdictional bases found by the
juvenile court changed the case. It went from a voluntary
case focused on developing a relationship between father
and son to a case in which father was found to have endan-
gered his son’s safety by his conduct. Very little effort had
been put into assisting father to address those new juris-
dictional bases before DHS sought to change the plan. We
concluded that “something more than an initial phone call
and monthly emails was needed to support a finding that
DHS made reasonable efforts” given the “totality of the cir-
cumstances.” Id. at 690, 692.
Here, the new jurisdictional bases did not change
the focus of the case. Mother had been recommended for
drug and alcohol treatment as far back as the beginning
442 Dept. of Human Services v. K. K.
of 2022 after she was found to have had a .25 percent BAC
while caring for one of her children. Drug and alcohol treat-
ment was included in the services that DHS asked mother
to engage in from very early in the case. DHS provided at
least three referrals for such treatment services over the
course of jurisdiction, including in early 2023, as a result of
mother’s psychological evaluation.
We need not address whether DHS’s efforts directed
solely to the residential instability basis of jurisdiction would
have been sufficient, without more. The juvenile court’s on-
the-record explanation of its decision demonstrates that the
basis for its decision to change the plan was that mother
“does not understand the needs of the child and lacks the
parenting skills to be able to safely and appropriately par-
ent” and “she has a substance-abuse problem that is signifi-
cantly affecting * * * her ability to make safe and appropri-
ate parenting decisions.” Because, under the totality of the
circumstances, DHS’s efforts to assist mother in addressing
those conditions were reasonable, and because it is undis-
puted on appeal that mother had not made sufficient prog-
ress for J and H to return safely home, the juvenile court did
not err in its reasonable efforts determination, and it did
not err when it changed the permanency plan away from
reunification.
Affirmed.