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

414
This is a nonprecedential memorandum opinion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 March 22, affirmed April 19, 2023
In the Matter of I. M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
A. M. M.,
Appellant.
Multnomah County Circuit Court
20JU05342;
Petition Number 114195;
A179658
Patrick W. Henry, Judge.
Kristen G. Williams filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kistler, Senior Judge.
TOOKEY, P. J.
Affirmed.
Nonprecedential Memo Op: 325 Or App 414 (2023) 415
TOOKEY, P. J.
In this juvenile dependency case, mother appeals a
judgment changing the permanency plan for her child, M,
from reunification to adoption. She assigns error to the juve-
nile court’s rulings that (1) DHS made reasonable efforts to
effect reunification; (2) mother’s progress was insufficient to
make reunification possible; (3) no compelling reason pre-
vented a change in plan; and (4) the plan should be changed
away from reunification to adoption. We affirm.
Because mother does not request de novo review, we
“view the evidence, as supplemented and buttressed by per-
missible derivative 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 the
juvenile court’s change to the permanency plan.” Dept. of
Human Services v. S. M. H., 283 Or App 295, 297, 388 P3d
1204 (2017) (internal quotation marks omitted). We “defer to
the juvenile court’s explicit findings of historical fact if those
findings are supported by any evidence in the record.” Id.Reasonable Efforts. Mother argues that, in chang-
ing the permanency plan away from reunification, the juve-
nile court erred in determining that DHS made reasonable
efforts to assist her in ameliorating the jurisdictional bases.
We disagree.
Under ORS 419B.476(2)(a), “the juvenile court is
authorized to change the plan away from reunification only
if DHS proves that * * * it made reasonable efforts to make
it possible for the child to be reunified with his or her par-
ent[.]” S. M. H., 283 Or App at 305. “DHS’s efforts are evalu-
ated over the entire duration of the case, with an emphasis
on a period before the hearing sufficient in length to afford
a good opportunity to assess parental progress.” Id. at 306(internal quotation marks omitted). DHS’s efforts are rea-
sonable “only if DHS has given the parents a reasonable
opportunity to demonstrate their ability to adjust their con-
duct and become minimally adequate parents.” Id. (internal
quotation marks omitted). Further, “[t]he reasonableness of
DHS’s efforts * * * is assessed in the totality of the circum-
stances with reference to the facts that formed the adju-
dicated bases for jurisdiction.” Dept. of Human Services v.
416 Dept. of Human Services v. A. M. M.
M. K., 285 Or App 448, 455-56, 396 P3d 294, rev den, 361 Or
885 (2017) (brackets and internal quotation marks omitted).
Here, the juvenile court took jurisdiction over M
in June 2021 on the following bases: (1) “mother’s current
cognitive functioning interferes with her ability to parent
and requires her to engage in services to learn and apply
appropriate parenting skills to safely parent the child”; and
(2) “mother’s residential instability and financial instability
interfere with her ability to safely parent the child.” Viewed
in the light most favorable to the juvenile court’s disposition,
we conclude that the evidence of DHS’s efforts—including,
among other things, referral for substance abuse services,
multiple referrals for hands-on parenting classes, provi-
sion of personal service workers, provision of motel vouch-
ers and offers to provide “case-managed” housing, provision
of monthly “family decision meetings,” and visitation with
M—is legally sufficient to support the juvenile court’s deter-
mination that those efforts were “reasonable” under ORS
419B.476(2)(a).
Insufficient Progress. Mother argues that the juve-
nile court erred in ruling that mother made insufficient
progress to ameliorate the jurisdictional bases. She contends
that her “progress since late 2021 was positive and steady,
and her circumstances significantly improved,” and that
“the record is devoid of evidence of how mother’s progress
was insufficient for [M] to safely return home.” We disagree.
A juvenile court may change the permanency plan
away from reunification only if, notwithstanding DHS’s rea-
sonable efforts, “the parent’s progress was insufficient to
make reunification possible.” S. M. H., 283 Or App at 305.
“[T]he sufficiency of a parent’s progress toward reunification
is analyzed with reference to the bases for juvenile court
jurisdiction.” Dept. of Human Services v. C. M. E., 278 Or
App 297, 308-09, 374 P3d 969 (2016). Importantly, “a par-
ent’s mere participation in services is not sufficient to estab-
lish adequate progress toward reunification.” Id. at 308(brackets and internal quotation marks omitted).
Here, in ruling to change the permanency plan, the
juvenile court reasoned:
Nonprecedential Memo Op: 325 Or App 414 (2023) 417
“Progress in this case has been delayed due to [mother]
having inconsistent contact with the agency for significant
periods of time and has not demonstrated a willingness or
ability to accept needed supports and services. Mother has
failed to meet referral deadlines, further delaying the plan
for reunification. Historically, [mother] has had a pattern
of residential instability which has only recently been ame-
liorated. Mother also has an ongoing pattern of engaging
with people who do not improve her ability to safely parent
[M]. Despite the reasonable efforts of the agency, mother
has not made sufficient progress for [M] to be able to return
to her care in a reasonable time.”
After reviewing the evidence in the record, we conclude that
it supports the juvenile court’s findings and—viewed in the
light most favorable to the juvenile court’s disposition—
is legally sufficient to support the court’s determination
that mother had not made sufficient progress to enable
reunification.
Compelling Reasons. Mother argues that the juve-
nile court erred in changing M’s case plan to adoption,
because mother “established a compelling reason under ORS
419B.498(2) to forgo implementing a plan of adoption.” DHS
argues that that argument is not preserved, because mother
did not raise it to the juvenile court. We have reviewed the
record, and we conclude that mother did not adequately pre-
serve that argument for purposes of appellate review. See
State v. Alvarado-Ek, 224 Or App 630, 634, 198 P3d 971
(2008) (“Because defendant did not present the argument
that he raises on appeal, his argument is unpreserved. The
trial court * * * certainly was not given the chance to correct
any error in that regard.”).1
Change of Permanency Plan. Lastly, mother sum-
marily asserts that the juvenile court erred in ruling to
change M’s case plan away from reunification to adoption.
Because the juvenile court’s decision to change the plan
turned on its determinations that DHS had made reasonable
efforts and that, despite those efforts, mother’s progress was
insufficient—and because we affirm both determinations,
1
Even assuming that mother preserved the argument advanced in her third
assignment error, we would reject it on the merits.
418 Dept. of Human Services v. A. M. M.
as well as conclude that mother’s compelling reason argu-
ment was unpreserved—we reject that argument.
Affirmed.