Dept. of Human Services v. M. G. J. ( 2023 )

426
Submitted February 14 on respondent’s motion to dismiss filed March 16, appel-
lant’s response filed March 30, respondent’s reply filed April 6, and appellant’s
sur-reply filed April 12; motion to dismiss denied, affirmed June 14; petition for
rewiew denied October 5, 2023 (371 Or 476)
In the Matter of S. H. P.,
aka S. T., aka S. T., a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
M. G. J.,
Appellant.
Jackson County Circuit Court
20JU02316; A179410 (Control)
In the Matter of P. J. R. J.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
M. G. J.,
Appellant.
Jackson County Circuit Court
20JU06985; A179411
532 P3d 905
Mother appeals from two judgments changing the permanency plans for two
of her children from reunification to tribal customary adoption. Mother argues
that the juvenile court erred in determining that the Department of Human
Services (DHS) made active efforts to reunify the family and that mother’s prog-
ress was insufficient to make it possible for the children to be safely returned to
her care. Mother also argues that the juvenile court relied on extrinsic facts to
evaluate mother’s progress. Held: The evidence in the record was legally suffi-
cient to support the juvenile court’s determination that DHS made active efforts
and that mother made insufficient progress. DHS referred mother to numerous
services to address concerns about the children’s exposure to domestic violence
and mother’s substance abuse, but mother did not complete any of those services.
The juvenile court did not rely on extrinsic facts when it changed the plans to
tribal customary adoption, a change supported by the Pit River Tribe. DHS
moved to dismiss the appeal but failed to meet its burden of showing that the
appeal was moot.
Motion to dismiss denied; affirmed.
Cite as 326 Or App 426 (2023) 427
David J. Orr, Judge.
Kristen G. Williams filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kirsten M. Naito, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
PAGÁN, J.
Motion to dismiss denied; affirmed.
428 Dept. of Human Services v. M. G. J.
PAGÁN, J.
This is a juvenile dependency proceeding that con-
cerns two of mother’s children, S and P, both of whom are
Indian children within the meaning of the Oregon Indian
Child Welfare Act (ORICWA) and the federal Indian Child
Welfare Act (ICWA). See ORS 419B.600 - 419B.665; Indian
Child Welfare Act of 1978, 25 USC §§ 1901 - 1963. Mother
appeals from two judgments changing the permanency
plans for S and P from reunification to tribal customary
adoption (TCA).1 Mother raises nine assignments of error.
We summarily reject mother’s seventh, eighth, and ninth
assignments of error which purport to make arguments on
behalf of S’s father. S’s father is not a party to this appeal,
he did not appear at the permanency hearing, and mother
did not preserve her ability, if any, to make arguments on
his behalf. In mother’s first through sixth assignments of
error, she asserts that the juvenile court erred in determin-
ing that DHS had made active efforts, that her progress
toward reunification was insufficient, and that the perma-
nency plans should be changed. We are not persuaded that
the juvenile court erred when it changed the plans from
reunification to TCA. We therefore affirm.
Changes to permanency plans are governed by ORS
419B.476. As relevant here, ORS 419B.476(2)(a) provides:
“If the case plan at the time of the hearing is to reunify
the family, [the court shall] determine whether [DHS] has
made reasonable efforts or, if the ward is an Indian child,
active efforts as described in ORS 419B.645 to make it pos-
sible for the ward to safely return home and whether the
parent has made sufficient progress to make it possible for
the ward to safely return home. In making its determina-
tion, the court shall consider the ward’s health and safety
the paramount concerns.”
“Active efforts” are efforts that are “affirmative, active, thor-
ough, timely and intended to maintain or reunite an Indian
child with the Indian child’s family.” ORS 419B.645(1).
1
S’s father and P’s father are not parties to this appeal. A “tribal customary
adoption” is “the adoption of an Indian child, by and through the tribal custom,
traditions or law of the child’s tribe, and which may be effected without the ter-
mination of parental rights.” ORS 419B.656(1).
Cite as 326 Or App 426 (2023) 429
In juvenile cases, “other than proceedings for ter-
mination of parental rights, the exercise of de novo review is
within our sole discretion.” Dept. of Human Services v. N. S.,
246 Or App 341, 344, 265 P3d 792 (2011), rev den, 351 Or
586 (2012). A TCA may occur without the termination
of parental rights, the parties do not argue that the case
is exceptional, ORAP 5.40(8)(c), and they do not request
de novo review. Consequently, we review the juvenile court’s
“legal conclusions for errors of law and are bound by its find-
ings of historical fact if there is any evidence in the record
to support them.” Dept. of Human Services v. K. S. W., 299
Or App 668, 670, 450 P3d 1029 (2019). Regarding the juve-
nile court’s determinations, “we review the evidence * * * in
the light most favorable to the juvenile court’s determina-
tion and assess whether, when so viewed, the record was
legally sufficient to permit” the permanency plan changes.
Dept. of Human Services v. T. L., 287 Or App 753, 755, 403
P3d 488 (2017). We describe the facts with a focus on DHS’s
efforts and mother’s progress.
FACTS
In April 2020, DHS filed a dependency petition
regarding S, who was three years old. The petition alleged
that S was at risk of harm due to exposure to domestic vio-
lence. At that time, mother was pregnant with P. Mother
was a victim of domestic violence involving P’s father, but
she continued to have contact with him. S and her older sis-
ter, J, were removed from mother’s care.2 Mother filed for a
restraining order against P’s father. In June 2020, the juve-
nile court entered a jurisdictional judgment for S based on
mother’s admission that domestic violence placed S at risk of
harm.3
At the time the juvenile court took jurisdiction
over S, DHS created an action agreement for mother, who
agreed to engage in domestic violence classes and parenting
classes. DHS reviewed those services with mother during
family engagement meetings and made referrals. However,
2
J’s case was closed when she was placed with her father.
3
In February 2021, a second dependency petition was filed for S based on
new information about S’s biological father. In April 2021, the juvenile court
entered a new jurisdictional judgment for S.
430 Dept. of Human Services v. M. G. J.
mother failed to begin or follow through with the court-
ordered services. DHS referred mother to Adapt Navigator,
to assist mother with housing, but mother failed to engage
with the service.
In June 2020, DHS referred mother to Parker House,
a women’s-only facility that provides housing for victims of
domestic violence. DHS returned S and her older sister to
mother’s care, but due to complaints that mother was fail-
ing to supervise her children, and unexcused absences from
Parker House, mother was terminated from the program
and she and the children had to move out. In August 2020,
DHS referred mother to another housing facility called Hope
House. Around the same time, DHS referred mother to the
Family Nurturing Center for parenting assistance and help
finding housing. Mother failed to engage with the services
offered by the center, and the referral was closed without
completion.
In August 2020, mother gave birth to P. In September
2020, a caseworker discovered that mother and her children
had been absent from Hope House for over a week. Mother
had moved out of Hope House and moved into a hotel called
the Red Roof Inn. In October 2020, DHS discovered that
P’s father was also staying at the hotel. He was arrested.
Mother moved out of the hotel and into a Traveler’s Inn.
During that time, DHS consulted with mother’s tribe, the
Pit River Tribe, and made additional referrals to mother for
services, including to Family Solutions, but mother did not
follow through.
In December 2020, mother was evicted from the
Traveler’s Inn because she assaulted a person at the hotel
in an incident that involved P’s father. DHS received reports
that the children were exposed to domestic violence, and
that mother was abusing controlled substances. Mother
admitted using methamphetamine.
DHS assisted mother with a move to another hotel,
and it made plans to assist mother to move with all three
children to Harney County, where J’s father lived, but the
plan changed when mother was required to go to the hospi-
tal with P. DHS called law enforcement for a welfare check
Cite as 326 Or App 426 (2023) 431
on S and J. The police found P’s father in the hotel room with
the two children. The police also found drug paraphernalia
in the room. P’s father had escaped from work release to be
with mother. P’s father was arrested, and DHS removed all
three children from mother’s care.
After that incident, DHS filed a dependency petition
for P, which alleged that P, who was three months old, was
at risk of harm for reasons including exposure to domestic
violence, and mother’s substance abuse, “chaotic lifestyle,”
and “residential instability.” DHS placed J, mother’s oldest
child, with J’s father in Harney County. S and P were placed
in foster care.
In February 2021, the juvenile court entered a judg-
ment asserting jurisdiction over P. After the jurisdictional
hearing, DHS went over the terms of an action agreement
with mother. DHS referred mother to Addictions Recovery
in Harney County, where she participated in some drug
testing and a drug and alcohol assessment, but the referral
was closed due to mother’s lack of continued participation.
In March 2021, mother was admitted for inpa-
tient treatment at the Native American Rehabilitation
Association (NARA) in Portland, and S and P were returned
to her care. However, while at NARA, mother continued to
have contact with P’s father. In April 2021, mother was ter-
minated from NARA for violating the terms of her behav-
ioral contract, which required her to cease “socializing and
communicating with male peers.” Her problems at NARA
included “fraternizing with men, not following basic rules,
being disrespectful to staff and entering people’s room[s].”
After mother’s termination from NARA, DHS returned S
and P to foster care.
In May or June 2021, a new DHS caseworker was
assigned, who provided mother with copies of her action
agreements and discussed with mother the services that she
was required to complete. By that time, which was over a
year after the initial dependency petition was filed, mother
had not completed any court-ordered services. DHS con-
tinued to work with mother and the tribe. In June 2021,
mother participated in an alcohol and drug assessment at
432 Dept. of Human Services v. M. G. J.
Phoenix Counseling. The service assessed mother as requir-
ing intensive outpatient treatment, but mother would only
agree to participate in a relapse prevention class, which met
less frequently. Mother did not attend consistently, and she
was terminated from the program in November 2021.
In July 2021, DHS referred mother to a domestic
violence advocate and made bus passes available, but mother
failed to pick up the passes or connect with the advocate. In
September 2021, DHS referred mother, once again, to Adapt
Navigator to help her find housing. Adapt Navigator had dif-
ficulty connecting with mother, and the service was eventu-
ally terminated due to lack of engagement.
DHS referred mother for a psychological evalua-
tion. Mother missed appointments in September, November,
and December 2021, but she completed the evaluation in
January 2022. Mother was described as having “a tendency
to go against the grain of authority on a steady basis.” After
DHS received the resulting report, DHS offered to have a
qualified mental health professional review the report with
mother, but she did not respond to that offer.
In November 2021, mother moved into a shelter
facility in Grants Pass called the Women’s Gospel Rescue
Mission. Mother requested copies of her action agreements.
While at the facility, mother attended parenting classes. In
December 2021, mother completed an online domestic vio-
lence class and an online parenting class. However, DHS
learned that the classes consisted of reading material only,
and, during meetings with mother, DHS expressed concern
about its ability to evaluate mother’s retention, understand-
ing, or internalization of the material.
In February 2022, mother was required to leave
the Women’s Gospel Rescue Mission. “It was reported that
there were concerns regarding fraternization with the men
at the men’s mission and after conversations redirecting
the behavior, the behavior continued.” That program did
not permit fraternizing with men because it sought to help
women to break the cycle that led to domestic violence.
Each time DHS removed S and P from mother’s
care, DHS attempted to find relative placements who met
Cite as 326 Or App 426 (2023) 433
ICWA requirements. In August 2021, DHS began the pro-
cess of moving S and P to Illinois to reside with mother’s
cousin, who was willing to serve as a placement. Mother’s
cousin was eligible for enrollment in the Pit River Tribe; he
began the process of enrolling, and the tribe approved the
placement.
In February 2022, DHS moved S and P to Illinois.
P transitioned well, but S had trouble adjusting to the move.
S shared with the resource parent that she had witnessed
domestic violence between mother and P’s father. S suffered
from a speech impediment, but, by the time of the perma-
nency hearing, S’s speech and behavior had improved with
therapy.
After the children were moved to Illinois, mother did
not attend all virtual visits, but she did visit virtually with
S and P once a week on Saturdays. In April 2022, mother’s
cousin informed DHS that he could no longer supervise the
visits because S behaved inappropriately, and mother made
inappropriate comments. DHS arranged for a professional
third-party to supervise the visits, but mother stopped vis-
iting with her children. Mother’s cousin asked mother to
restart the visits, but mother responded that “she wasn’t
going to allow agencies to control the narrative.” Mother’s
cousin reported that S missed her mother.
In March 2022, mother emailed DHS and directed
her caseworker to stop contacting her. Mother wanted DHS
to assign a new caseworker. The DHS caseworker continued
to attempt to make contact with mother between March and
June 2022, but mother never replied. In April 2022, DHS
requested a change of plan for the two children from reuni-
fication to TCA.
In June 2022, the juvenile court held a permanency
hearing for S and P. At the time of the hearing, P’s father
was incarcerated, and he appeared by telephone. He did not
object to changing the plan for P to TCA. DHS was unable
to contact S’s father, and he did not appear at the hearing.
Mother attended the hearing and testified regarding recent
positive changes she had made. Mother was not in a rela-
tionship, and she had no contact with P’s father for over a
year. Mother was staying clean and sober.
434 Dept. of Human Services v. M. G. J.
At the end of the hearing, the juvenile court com-
mended mother for her positive changes, and stated that it
found her testimony to be credible and sincere. However, the
juvenile court found that mother had not made sufficient
progress for reunification. The court also determined that
DHS had made active efforts to safely return the children
home. The court entered permanency judgments for both
children changing their plans to TCA. Mother appeals.4
ANALYSIS
At the permanency hearing, the juvenile court must
determine whether DHS made “active efforts” to reunify the
family and whether the parent made “sufficient progress” for
the safe return of the child or children. ORS 419B.476(2)(a).
DHS could show it made active efforts by, among other
things, conducting a comprehensive assessment of the cir-
cumstances of the Indian child’s family with a focus on reuni-
fication, by identifying appropriate services, and by inviting
representatives of the Indian child’s tribe to participate in
providing support and services. ORS 419B.645(5). In deter-
mining whether a parent has made sufficient progress, “the
juvenile court gives the highest priority to a child’s health
and welfare.” Dept. of Human Services v. M. K., 285 Or App
448, 460, 396 P3d 294, rev den, 361 Or 885 (2017). “Even if a
parent has completed all services that have been required,
evidence that a parent continues to engage in behavior that
is harmful to a child supports a determination that the par-
ent has not made sufficient progress to make it possible for
the child to return home.” Dept. of Human Services v. G. N.,
263 Or App 287, 297, 328 P3d 728, rev den, 356 Or 638 (2014).
4
DHS has moved to dismiss the appeal as moot because, in March 2023,
the juvenile court accepted the TCAs, entered judgments of adoption, and ter-
minated its jurisdiction over S and P. Mother asserts that she is challenging the
TCAs within the mechanisms provided by the Pit River Tribe and, as such, this
decision may be relevant for those proceedings. In addition, mother has appealed
the judgments of adoption. Under those circumstances, we conclude that DHS
has not met its burden of showing that the appeal is moot because our resolution
of the arguments that mother raises in this appeal could have a practical effect
on mother’s rights. See State v. K. J. B., 362 Or 777, 785, 416 P3d 291 (2018)
(“[A] case becomes moot when a court’s decision will no longer have a practical
effect on the rights of the parties.” (Internal quotation marks omitted.)); see also
Dept. of Human Services v. K. J. V., 320 Or App 56, 61-62, 512 P3d 469 (2022)
(appeal not moot because resolution of mother’s arguments could have an impact
on whether DHS should have consented to adoption). For those reasons, we deny
DHS’s motion to dismiss the appeal.
Cite as 326 Or App 426 (2023) 435
As noted above, mother contends that the juvenile
court erred by ruling that DHS made active efforts and that
her progress toward reunification was insufficient. More spe-
cifically, mother argues that, by the time of the permanency
hearing, there was no evidence that domestic violence con-
tinued to endanger S or P. Mother faults the juvenile court
for relying on “extrinsic facts”—that is, facts extrinsic to the
bases on which the juvenile court exercised jurisdiction over
the children—including mother’s failure to visit with her
children, and her “ego,” and she challenges whether DHS
made active efforts to reunify the family.
DHS responds that mother failed to preserve her
arguments that DHS did not make active efforts or that
the juvenile court relied on extrinsic facts. We begin with
the preservation question. “The general requirement that
an issue, to be raised and considered on appeal, ordinarily
must first be presented to the trial court is well-settled in
our jurisprudence.” Peeples v. Lampert, 345 Or 209, 219,
191 P3d 637 (2008). The policies underlying the preserva-
tion requirement include providing “a trial court the chance
to consider and rule on an objection,” ensuring fairness to
an opposing party, and fostering “full development of the
record, which aids the trial court in making a decision and
the appellate court in reviewing it.” Id.Considering those policies, we conclude that mother
largely preserved her appellate arguments. At the end of the
permanency hearing, mother challenged whether the state
had “met its burden to change the plan to tribal adoption
by clear and convincing evidence as to all the required ele-
ments in this case.” Those elements include whether DHS
made “active efforts” and whether the parent made “suffi-
cient progress.” ORS 419B.476(2)(a). At the beginning of the
two-day permanency hearing, DHS argued that the juvenile
court was required to focus on “two issues. Has the agency
made active efforts to return these children to a parent, and
has the parent made sufficient progress to allow the children
to return?” Certainly, the record is well-developed regard-
ing DHS’s efforts and mother’s progress. We conclude that
mother can challenge the juvenile court’s findings regard-
ing active efforts. Turning to mother’s argument regarding
whether the juvenile court relied on extrinsic facts, we need
436 Dept. of Human Services v. M. G. J.
not decide whether that argument is preserved. Even assum-
ing that it is preserved, we conclude below that the juvenile
court did not rely on evidence extrinsic to the jurisdictional
bases when changing the plans away from reunification.
On the merits, we disagree with mother’s claim
that, by the time of the permanency hearing, there was no
evidence of a risk that S or P would be exposed to domestic
violence. At the permanency hearing, mother testified that
she had no contact with P’s father for over a year. However,
P’s father was incarcerated during most or all of that time.
Mother admitted that her prior relationships with S’s father
and J’s father also involved domestic violence. Yet, through-
out the course of this case, and up until the time that he was
incarcerated, mother repeatedly had contact with P’s father.
More importantly, mother failed to engage with or complete
any court-ordered services for victims of domestic violence,
despite numerous referrals by DHS.
In December 2021, mother completed an online
domestic violence course that she had found herself, but,
according to an expert witness called to testify by DHS, that
course was not aligned with DHS’s requirements because
it did not involve group sessions, sharing information, or
developing insight. A DHS caseworker also testified regard-
ing the limitations of the online domestic violence class com-
pleted by mother. After mother completed that class, she
was discharged from the Women’s Gospel Rescue Mission
in February 2022. Thus, the record supports the juvenile
court’s conclusion that mother failed to make sufficient
progress addressing DHS’s concerns about domestic vio-
lence. See T. L., 287 Or App at 755 (we focus on whether the
evidence in the record was legally sufficient to support the
juvenile court’s determination).
Next, mother argues that the juvenile court erred
by relying on extrinsic facts to evaluate mother’s progress.
Mother claims that the juvenile court relied on her failure
to maintain visits with the children, and her ego. We are
not persuaded that the juvenile court relied on those facts in
making its determination.
Regarding extrinsic facts, a juvenile court may not
“change the permanency plan for the child from reunification
Cite as 326 Or App 426 (2023) 437
to adoption based on conditions or circumstances that are
not explicitly stated or fairly implied by the jurisdictional
judgment.” Dept. of Human Services v. A. R. S., 256 Or App
653, 660, 303 P3d 963, rev den, 354 Or 386 (2013). The juris-
dictional judgment serves to provide a parent with consti-
tutionally adequate notice of the deficiencies that must be
addressed. Dept. of Human Services v. N. M. S., 246 Or App
284, 300, 266 P3d 107 (2011). Therefore, a juvenile court’s
reliance on extrinsic facts “can affect a parent’s right to both
notice of what conditions or circumstances the parent must
remediate and a reasonable opportunity—through access to
services—to remediate them.” Dept. of Human Services v.
N. T., 247 Or App 706, 715, 271 P3d 143 (2012).
Here, when making its findings at the end of the
two-day permanency hearing, the juvenile court commented
upon mother’s failure to visit with her children since April
2022, and her tendency to be controlled by her “ego,” but the
juvenile court did not rely on those facts to evaluate moth-
er’s progress. Instead, the juvenile court relied on mother’s
failure to complete any court-ordered services. Based on the
action agreements and numerous referrals, it is clear that
mother had notice of the need to engage with those services.
Yet, she repeatedly failed to do so. When the juvenile court
commented upon mother’s failure to visit with her children
and her ego, the court was pointing out that her conduct and
approach were harmful to the children. Those comments
were not inappropriate because, in determining whether
mother made sufficient progress, the juvenile court was
required to consider the health and safety of the children.
See M. K., 285 Or App at 460 (“the juvenile court gives the
highest priority to a child’s health and welfare”).
Although mother’s housing and employment situa-
tion had improved by the time of the permanency hearing,
mother failed to engage with or complete services designed
to combat substance abuse, which was a basis for jurisdiction
over P. Mother was terminated from inpatient treatment at
NARA, and she refused to participate in outpatient treat-
ment offered by Phoenix Counseling. When asked how she
planned to stay clean and sober without going to treatment,
mother responded, “It’s sheer will and wanting to be there
438 Dept. of Human Services v. M. G. J.
for my children.” However, a clinical supervisor from NARA
testified that mother faced a high risk of relapse. Based on
the evidence of mother’s repeated failures to participate in
or complete services, the juvenile court did not err when it
concluded that mother had not made sufficient progress for
the safe return of her children. See Dept. of Human Services
v. M. D. P., 285 Or App 707, 717, 397 P3d 582, rev den, 361
Or 803, 361 Or 885 (2017) (concluding that parents did not
make sufficient progress in part because “each parent had
yet to successfully complete specifically ordered programs
that were intended to address their ability to care for and
protect the children”).
Mother also argues that DHS failed to make active
efforts to assist her in maintaining visitation and to work
collaboratively with DHS. We disagree. The DHS case-
worker who took over the case in May or June of 2021 tes-
tified that she sent mother between 150 and 180 emails.
The caseworker attempted to contact mother by telephone.
After mother was terminated from the Women’s Gospel
Rescue Mission in February 2022, mother did not inform
DHS that she had been terminated or provide new contact
information. As a result, DHS could not visit with mother
in person, or assess her living conditions. When the chil-
dren were moved to Illinois, a move supported by the tribe,
DHS arranged for a third party to facilitate online visits
between mother and S and P, but mother did not make her-
self available for those visits. Considering the record, and
especially given the numerous services offered to mother,
there is ample support for the juvenile court’s determination
that DHS made active efforts to reunify mother with her
children. See Dept. of Human Services v. L. B., 325 Or App
176, 181-82, 528 P3d 808 (2023) (affirming change in plan
where the record showed that DHS actively worked with
mother, her children, and the tribe toward reunification).
Motion to dismiss denied; affirmed.