Dept. of Human Services v. K. G. T. , 306 Or. App. 368 ( 2020 )

368
Argued and submitted June 15, reversed September 2, 2020
In the Matter of B. M. T.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
K. G. T.,
Appellant.
Benton County Circuit Court
18JU06003; A172396
473 P3d 131
In this juvenile dependency case, father appeals a judgment changing the
permanency plan for his five-year-old son, B, from reunification to adoption.
Father, who is incarcerated, challenges the juvenile court’s determination that
the Department of Human Services (DHS) made reasonable efforts to reunify
B with father, which is a necessary predicate to changing his plan away from
reunification. The crux of the parties’ disagreement is as to whether DHS had
any obligation to consider offering services beyond those available through the
Department of Corrections (DOC). Father argues that DHS could not rely solely
on the services provided through DOC, when it is undisputed that DOC did not
offer any of the services that father needed. DHS argues that it was reasonable
for DHS not to offer services beyond those available through DOC. Held: The
juvenile court erred in determining that DHS made reasonable efforts toward
reunification. Given the lack of necessary services available through DOC, DHS
had to at least consider other options to provide services to father. Having failed
to do so, and having failed to provide the necessary information for the court to
consider the relative costs and benefits of such services, DHS failed to satisfy its
burden of proof to establish that it made reasonable efforts toward reunification.
Reversed.
Locke A. Williams, Judge.
Elena Stross, 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.
Inge D. Wells, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Cite as 306 Or App 368 (2020) 369
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
AOYAGI, J.
Reversed.
370 Dept. of Human Services v. K. G. T.
AOYAGI, J.
In this juvenile dependency case, father appeals a
judgment changing the permanency plan for his five-year-
old son, B, from reunification to adoption. Father, who is
incarcerated, challenges the juvenile court’s determination
that the Department of Human Services (DHS) made rea-
sonable efforts to reunify B with father. We agree with father
that the juvenile court erred and, accordingly, reverse.
FACTS
Father has not requested de novo review, and we
decline to conduct de novo review. See ORS 19.415(3)(b);
ORAP 5.40(8)(c). We are therefore bound by the juvenile
court’s factual findings as to what efforts DHS has made, so
long as there is 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 those efforts constitute “reasonable
efforts” for purposes of ORS 419B.476(2)(a) is a question 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).
B was born in February 2015. It is unclear whether
father ever lived with B and mother, but he “was around”
when B was a baby. In 2016, a court awarded sole legal
custody of B to mother, with no parenting time for father.
Thereafter, father was not a consistent parental resource to
B, although B did spend some time with father on weekends
and, in June 2018, spent three weeks with father.
In July 2018, DHS removed B from his maternal
aunt’s home, where he was living, and subsequently filed a
dependency petition. The juvenile court entered a judgment
asserting jurisdiction over B in early November 2018, iden-
tifying six jurisdictional bases related to mother and five
jurisdictional bases related to father. Only the jurisdictional
bases related to father are relevant to this appeal:
• that father’s substance abuse interferes with his
ability to safely parent B,
• that father has a history of mental health diagnosis
that is currently untreated and interferes with his
ability to safely parent B,
Cite as 306 Or App 368 (2020) 371
• that father has exposed B to unsafe circumstances,
• that father’s residential instability interferes with
his ability to safely parent B, and
• that father was unable to provide for and parent B
at that time.
The specifics of those jurisdictional bases are not especially
relevant to this appeal, but, for context, father has a his-
tory of methamphetamine and alcohol use, has a possible
past diagnosis of schizoaffective disorder or schizophrenia,
may have untreated bipolar disorder, has difficulty man-
aging his emotions and avoiding impulsive behavior, lacks
adequate parenting knowledge, has been an inconsistent
parental resource for B and lacks a strong bond with B, and
has a history of homelessness.
In September 2018, shortly before the juvenile court
entered its judgment asserting jurisdiction over B, father
was convicted of theft and felon in possession of a firearm
and sentenced to 30 months in prison. While in prison, he
was further convicted, in June 2019, of unlawful possession
of methamphetamine, felon in possession of a restricted
weapon, reckless driving, unlawful entry into a motor vehi-
cle, and theft. In part due to the pending charges, father
was moved between facilities repeatedly, especially during
his first seven months of incarceration. Since March 2019,
father appears to have remained primarily at one facility,
the Eastern Oregon Correctional Institution. Father’s earli-
est possible release date is (or was) in the spring of 2020.
In April 2019, DHS sent father a “letter of expecta-
tions.” The letter stated that the juvenile court had ordered
father to complete a DHS/CWP approved parent training
program; to complete a DHS/CWP approved drug and alco-
hol rehabilitation program; to participate fully in mental
health services approved by DHS/CWP, including but not
limited to individual therapy and medication management;
and to maintain safe and stable housing as approved by
DHS/CWP.
DHS maintained “not frequent but regular” contact
with father while he was incarcerated. Over 12 months, the
372 Dept. of Human Services v. K. G. T.
caseworker spoke with father on the phone six times, and a
DHS “courtesy worker” met with father twice in person to
discuss the case. The caseworker did not contact father after
July 2019, however, because father relayed that his attor-
ney had advised him not to speak to the caseworker with-
out his attorney present. During the same 12-month period,
DHS arranged 10 video visits with B (typically lasting five
minutes) and one in-person visit (that lasted 10-15 minutes).
Another 17 video visits were scheduled but not held due to
technical or logistical issues. In addition to the visits, father
sent letters to B, using stamped envelopes provided by DHS.
Beyond visitation, DHS relied on the Department of
Corrections (DOC) to provide father with the services that
he needed to comply with the case plan, even though DHS
knew—from contacting the prison twice in 2018 to deter-
mine what services were available through DOC—that vir-
tually no services were available to father through DOC.
Regarding substance abuse services, father
attended Narcotics Anonymous (NA) meetings at the prison.
No other services were available to him through DOC, and
DHS did not offer him any services related to substance
abuse.
As for parent training, father completed a par-
enting program that was not “recognized by DHS” and a
cognitive thinking program, which were the only services
available through DOC. The DHS caseworker did not know
whether DHS can contract to have someone provide a par-
enting assessment in prison.
As for mental health services, as described by the
DHS caseworker, DOC determined that father “did not need
any mental health services” and did not qualify for mental
health services through DOC. In July 2019, the DHS case-
worker offered to arrange a mental health assessment for
father, but father told her that he did not need mental health
services and was not eligible for an evaluation or services
through DOC, and he “declined” an assessment.1 Because
1
In her testimony, the DHS caseworker initially said that she thought that
she had also offered father a mental health assessment in December 2018, but
she then clarified that she was looking at her notes for the wrong date. Based on
her notes, in December 2018, father had “expressed frustration” to her about the
Cite as 306 Or App 368 (2020) 373
father did not feel that he needed an assessment, the case-
worker never scheduled or attempted to schedule one. She
did consider scheduling one but decided not to do so because
of father’s history of being moved among facilities.2
In September 2019, the juvenile court held a per-
manency hearing for B, who had been in foster care for
14 months at that point. The witnesses were father and the
DHS caseworker, who testified consistently with the above-
described facts (except that father denied having declined a
mental health evaluation in July 2019—but the court found
that he did). After the hearing, the court changed B’s per-
manency plan from reunification to adoption and entered a
permanency judgment to that effect.
As a necessary predicate to changing B’s plan, the
juvenile court concluded that DHS had made reasonable
efforts towards reunification. The court noted that DHS’s
efforts were “complicated” by father’s incarceration and “fur-
ther complicated” by his multiple moves among facilities,
making it “difficult to set up services.” Regarding substance
abuse services, the court found that DHS had offered those
services “to the extent possible” but that attending NA meet-
ings is not generally considered sufficient substance abuse
treatment, no other classes were offered or available in the
prison, and it would not “be reasonable to require DHS to
send someone out to conduct drug and alcohol counseling
just for [father].” The court did not address parent training
services. As for mental health services, the court found that
father had declined the assessment offered by DHS but that,
even if he had agreed to it, DOC would not provide men-
tal health services to father because he did not qualify, and
it would not be “reasonable to expect DHS to send a coun-
selor out to the facility.” Finally, the court found that DHS
had arranged visits between father and B in a reasonable
lack of mental health services at the prison, and, in July 2019, father had said
that he was not eligible for a mental health evaluation or services through DOC.
It was in the latter call, the caseworker recalled, that she had offered father an
assessment and he declined, although she failed to include that information in
her notes.
2
The DHS caseworker had been a caseworker for about a year when she was
assigned to B’s case, and she had worked with only one other incarcerated parent,
who was not moved around like father was.
374 Dept. of Human Services v. K. G. T.
manner and had communicated with prison counselors to
the best of its ability to try to determine what services could
be provided to father. In its written permanency judgment,
the only “service” that the court marked as having been pro-
vided to father by DHS was visitation with B.
Father appeals the juvenile court’s judgment. In
his first assignment of error, father challenges the court’s
determination that DHS made reasonable efforts to reunify
B with him. In his second and third assignments of error,
father challenges the juvenile court’s reasoning related to
reasonable efforts, which are not proper assignments of
error, so we treat those as part of the first assignment of
error. See ORAP 5.45(3). In his fourth assignment of error,
father asserts that the juvenile court erred in changing
B’s permanency plan, because DHS did not make reason-
able efforts. Thus, the only substantive issue on appeal is
whether the juvenile court was correct in concluding that
DHS made reasonable efforts to reunify B with father.
ANALYSIS
It is the policy of the State of Oregon to offer appro-
priate reunification services to parents to allow them the
opportunity to adjust their circumstances, conduct, or con-
ditions to make it possible for a child to safely return home
within a reasonable time. ORS 419B.090(5). In accordance
with that policy, as long as a child’s permanency plan is
reunification, the juvenile court must determine at each
permanency hearing “whether [DHS] has made reason-
able efforts * * * to make it possible 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.” ORS 419B.476(2)(a). Relatedly, before the court may
change a child’s plan from reunification to anything else,
DHS must prove by a preponderance 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 insuf-
ficient to make reunification possible. Dept. of Human
Services v. S. M. H., 283 Or App 295, 305, 388 P3d 1204
(2017).
Cite as 306 Or App 368 (2020) 375
“DHS’s efforts are evaluated over the entire dura-
tion 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). Whether DHS made reasonable efforts
toward reunification “depends on the particular circum-
stances.” Dept. of Human Services v. M. K., 257 Or App 409,
416, 306 P3d 763 (2013). “Whether DHS has provided rea-
sonable efforts should be evaluated in view of the nature of
the parent’s problems.” Dept. of Human Services v. D. M. R.,
301 Or App 436, 443, 455 P3d 599 (2019) (internal quotation
marks omitted). “Thus, it is through the lens of the juris-
dictional basis that we must analyze the reasonableness of
DHS’s efforts.” Id.“Reasonable efforts to reunify a child with [his or]
her parent focus on ameliorating the adjudicated bases for
jurisdiction and give parents a reasonable opportunity to
demonstrate their ability to adjust their conduct and become
minimally adequate parents.” Id. at 444 (internal quotation
marks omitted); see also Dept. of Human Services v. L. L. S.,
290 Or App 132, 142, 413 P3d 1005 (2018) (“Our case law
is clear: DHS’s efforts qualify as reasonable for purposes of
ORS 419B.476 if and only if those efforts supply a parent
with a reasonable opportunity to demonstrate his ability to
adjust his conduct and become a minimally adequate par-
ent.” (Internal quotation marks and brackets omitted.)). In
general, DHS must give parents a reasonable opportunity to
demonstrate their abilities and become minimally adequate
parents even if DHS “will bear the expense of providing the
necessary services.” M. K., 257 Or App at 417.
“It is well established that DHS is not excused
from making reasonable efforts toward reunification sim-
ply because a parent is incarcerated.” L. L. S., 290 Or App
at 139. The length and circumstances of incarceration may
be properly considered as part of the totality of circum-
stances in assessing the reasonableness of DHS’s efforts
toward reunification. Id. at 149. However, although the “cir-
cumstances and duration of a parent’s incarceration may
well bear significantly on whether a parent is able to make
‘sufficient progress’ as required by ORS 419B.476(2)(a),” a
376 Dept. of Human Services v. K. G. T.
parent’s incarceration does “not absolve DHS of its sepa-
rate obligation, over the life of the case, to make reasonable
efforts to give the parent the opportunity to ameliorate the
bases for jurisdiction.” Dept. of Human Services v. C. L. H.,
283 Or App 313, 330, 388 P3d 1214 (2017).
In this case, the fundamental disagreement between
father and DHS is whether and to what extent DHS had to
offer father services beyond those available through DOC to
prove that it made reasonable efforts toward reunification.
Father argues that DHS could not just rely on the services
provided through DOC, when it is undisputed that DOC did
not offer any of the services that father needed, and then
claim that DHS made reasonable efforts but that father did
not make sufficient progress despite DHS’s efforts. Father
argues that, on this record, DHS failed to give him a reason-
able opportunity to demonstrate his abilities and become a
minimally adequate parent.
In response, DHS recognizes that “it is undisputed
that father needs substance abuse treatment, mental health
services, and parent training before [B] can safely be placed
in his care.” DHS also admits that it has not offered any
of those services to father during his incarceration, except
for offering him a mental health assessment in July 2019
(without attendant services). However, DHS argues that
this is not a case of DHS not giving a reason for not provid-
ing needed services—its reason is that DOC did not offer
those services or father did not qualify for them. In DHS’s
view, “the question is whether it is subjectively reasonable
to expect DHS to provide the services father needs while he
is in prison, in the custody of [DOC],” and the juvenile court
correctly answered that question in the negative, because it
would be “contrary to the goal of achieving timely perma-
nency for children to compel a child to languish in foster
care when a parent’s incarceration prevents participation in
a treatment program needed to address the reasons why the
child was initially removed from the home.”
With that understanding of the parties’ arguments,
we turn to the legal question of whether, on this record, the
juvenile court erred in concluding that DHS made reasonable
Cite as 306 Or App 368 (2020) 377
efforts to reunify B with father, as a predicate to changing
B’s plan to adoption.
We have previously rejected a contention that DHS
must fund all services that it requires a parent to complete,
“regardless of cost,” in a juvenile dependency case. M. K.,
257 Or App at 416. At the same time, we also have rejected
the notion that “evidence of a greater-than-usual cost in pro-
viding services aimed at reunification is enough, standing
alone, to justify a decision not to provide those services.” Id.Ultimately, the proper inquiry requires the juvenile court to
“consider not only the burdens that the state would shoul-
der in providing those services, but also what benefit might
reasonably be expected to flow from them.” Id. “Put bluntly,
when a parent contends that DHS’s efforts have not been
reasonable because the agency has declined to provide a
particular service, the court’s ‘reasonable efforts’ determi-
nation should include something resembling a cost-benefit
analysis, at least when * * * the agency itself has deemed
that service to be ‘key’ to the reunification plan.” Id. at 418.
We recently explained in helpful detail how the
“benefit” portion of that cost-benefit-like analysis should be
understood:
“[I]n assessing the ‘benefit’ portion of the required
cost-benefit analysis, the juvenile court must consider the
importance of the service that was not provided to the case
plan and the extent to which that service was capable of
ameliorating the jurisdictional bases. Further, when avail-
able, the juvenile court also properly considers evidence tied
to a parent’s willingness and ability to participate in and
benefit from the particular service that was not provided.
However, * * * an assessment of the ‘benefit’ of a particular
service does not turn upon whether that service will ulti-
mately make reunification possible. While a juvenile court
may consider the length and circumstances of a parent’s
incarceration in assessing DHS’s efforts, the reasonable-
efforts inquiry focuses on whether DHS provided the
parent with an opportunity to demonstrate improvement
regarding the jurisdictional bases.
“Put another way, our cases do not stand for the proposi-
tion that DHS may withhold a potentially beneficial service
to an incarcerated parent (or any parent) simply because, in
378 Dept. of Human Services v. K. G. T.
DHS’s estimation, reunification with the child is ultimately
unlikely even if the parent successfully engages in the ser-
vices and programs that DHS provides. Such a proposi-
tion is inconsistent with ORS 419B.476(2)(a), which treats
evaluation of the agency’s efforts as a distinct inquiry from
whether the parent has made ‘sufficient progress’ to make
reunification possible. The agency must make reasonable
efforts so that the juvenile court is in a position to evalu-
ate the parent’s progress toward the goal of reunification.
Although a court appropriately considers a parent’s respon-
siveness when assessing the choices that DHS made with
respect to that parent, in most circumstances, whether a
parent has attempted to make appropriate changes, or is
likely to be able to parent the child within a reasonable
time, bears primarily upon whether the parent has made
adequate progress toward reunification—not on the rea-
sonableness of DHS’s efforts.
“The circumstances and duration of a parent’s incar-
ceration may well bear significantly on whether a parent
is able to make ‘sufficient progress’ as required by ORS
419B.476(2)(a). However, those circumstances alone do
not absolve DHS of its separate obligation, over the life
of the case, to make reasonable efforts to give the parent
the opportunity to ameliorate the bases for jurisdiction.
Consequently, a juvenile court properly assesses the agen-
cy’s efforts, and particularly the ‘benefit’ of services that
were not provided, in terms of their potential effect upon
the jurisdictional bases, not in terms of whether, in light of
all the surrounding circumstances, reunification will ulti-
mately be possible.”
C. L. H., 283 Or App at 328-31 (internal quotation marks,
emphases, brackets, and citations omitted).
With those principles in mind, we consider some of
our existing precedent involving incarcerated parents.
In M. K., the juvenile court asserted jurisdiction
over a child based on the father’s incarceration and his
status as a convicted and untreated sex offender. 257 Or
App at 412. The child did not remember the father, so DHS
intended to provide services to develop their relationship,
but it would not do so until the father completed a psycho-
sexual evaluation so that DHS could determine whether vis-
itation would be safe. Id. at 413. The evaluation was the “key
Cite as 306 Or App 368 (2020) 379
element” for the father to progress toward reunification. Id.When DHS learned that it would cost $5,000 to conduct the
evaluation in prison—which was more than five times what
DHS usually paid—DHS put off the evaluation, telling the
juvenile court that the father could undergo a more rea-
sonably priced evaluation in a year when he was released
from prison. Id. at 414. The juvenile court concluded that
DHS made reasonable efforts toward reunification, because,
although the father needed the evaluation, it was reason-
able for DHS not to provide it while father was incarcerated,
given the cost. Id. at 414-15. We reversed, explaining that
the juvenile court had erred when it considered only the cost
of providing the evaluation in prison and did not also con-
sider the potential benefit of doing so, including avoiding a
delay that might significantly postpone—and thus lessen—
the chances of family reunification. Id. at 418-19.
In Dept. of Human Services v. S. W., the juvenile
court asserted jurisdiction over a child based on the father’s
use of intoxicants, incarceration, and need for DHS assis-
tance to establish a safe relationship with the child. 267
Or App 277, 280, 283, 340 P3d 675 (2014). Early in the
case, DHS made significant efforts to engage the father in
treatment and to develop his relationship with the child.
Id. at 290. Over time, however, DHS’s efforts diminished.
Id. at 289. In a particular 33-month period, DHS sent let-
ters of expectation, called the father twice, met with the
father once, encouraged the father to write letters to the
child and delivered them, and arranged for a psychological
evaluation—but went lengthy periods without any contact.
Id. The juvenile court determined that, nonetheless, over
the life of the case, DHS made reasonable efforts toward
reunification. Id. at 284. Describing it as a “difficult case,”
we affirmed. Id. at 289. Although DHS’s efforts in the 33
months prior to the permanency hearing were “hardly vig-
orous,” DHS had made significant efforts earlier in the case,
the father did not respond to those efforts constructively,
and the father did not explain how further efforts by DHS
would have materially advanced his ability to reunify with
the child, particularly given his lengthy prison sentence.
Id. at 290-93. “Considering the totality of the circumstances,
including the department’s early efforts, father’s pattern of
380 Dept. of Human Services v. K. G. T.
conduct, the specific circumstances of his incarceration, the
potential benefit of the additional efforts that father con-
tends should have been made, and the needs of [the child],”
the juvenile court did not err in its reasonable-efforts deter-
mination. Id. at 294-95.
Finally, in C. L. H., the juvenile court asserted
jurisdiction over a child based on the father’s inability to
adequately care for her given her medical condition, the
father’s anger-control problem, and the father’s failure to
supply adequate food to the child. 283 Or App at 317. For
the first five months of the case, the father did not visit the
child or participate in any court-ordered services. Id. The
father then went to jail, and, for the next eight months,
DHS did not speak to him, even though it knew that he was
incarcerated. Id. at 317-18. Then, over five months, the DHS
caseworker spoke to the father on the phone five times, sent
him photos of the child, and contacted the child’s doctor to
inquire about getting materials about the child’s condition
for the father. Id. at 318. The juvenile court concluded that
DHS made reasonable efforts, citing S. W. and concluding
that there “would have been no ‘benefit’ to DHS making
additional efforts because, regardless, nothing that DHS
could do would change the fact that father was and would
continue to be incarcerated until almost a year after the
permanency hearing.” Id. at 320, 324.
We reversed, stating that the juvenile court had
failed to consider all of the relevant circumstances in con-
ducting the cost-benefit analysis. Id. at 331-32. Although
providing additional services would not change the fact of
the father’s incarceration, the “benefit” had to be evaluated
“in terms of its importance to the case plan and the poten-
tial magnitude of its effect on the jurisdictional bases,” not
in terms of “the probability that the service would actually
facilitate reunification.” Id. at 327-28 (emphasis in original).
Because DHS did not meaningfully attempt to provide ser-
vices to help the father to ameliorate the jurisdictional bases,
the juvenile court had little evidence concerning his will-
ingness and ability to participate in and benefit from those
services. Id. at 331. The father had resisted services early in
the case, but, unlike in S. W., there was no “body of evidence
derived from an extended period of time demonstrating that
Cite as 306 Or App 368 (2020) 381
there would be little ‘benefit’ to DHS providing additional
services” to him. Id.From the foregoing cases, we discern that DHS is
not required to do the impossible. That is, if it is truly not
possible to provide a particular service to a particular par-
ent, the “cost” necessarily outweighs the benefit, no matter
how great the benefit might be.3 But DHS must show that it
is truly not possible. Otherwise, if providing a needed ser-
vice is possible—albeit perhaps expensive or inconvenient—
the court must engage in a cost-benefit-like analysis that
is fundamentally tied to the goal of providing the parent,
over the life of the case, with a reasonable opportunity to
demonstrate improvement, if not ameliorate the jurisdic-
tional bases. See C. L. H., 283 Or App at 327. It is for DHS
to establish the cost. As for the benefit, the court is to con-
sider the importance of the service to the case plan and the
extent to which that service was capable of ameliorating the
jurisdictional bases. Id. at 327-28. The court also may con-
sider, when available, evidence of the parent’s willingness
to participate in and benefit from services and, when appli-
cable, evidence of the length and circumstances of the par-
ent’s incarceration. Id. at 328-29. But “an assessment of the
‘benefit’ of a particular service does not turn upon whether
that service will ultimately make reunification possible.”
Id. at 329. Whether DHS has made reasonable efforts is also
a separate inquiry from whether the parent has made suffi-
cient progress. Id. at 330.
We return to the facts of this case. The difficulty
for DHS in this case is twofold. First, on the cost side, DHS
3
Father argues that, if DHS viewed his incarceration as an “insurmount-
able barrier” to providing needed services, it should have moved for an order
under ORS 419B.340(5), a statute that allows the juvenile court to relieve DHS
of its obligation to make reasonable efforts toward reunification in certain cir-
cumstances. That argument is not well taken. ORS 419B.340(5) applies only in
the most extreme circumstances—such as when a parent has caused the death of
a child or the child’s other parent, has intentionally starved or tortured a child,
has been convicted of specific crimes, or has had his or her rights to another child
terminated involuntarily—none of which appear to exist here. We disagree with
father that, if DHS cannot provide a needed service, DHS will never be able to
establish reasonable efforts, and unless DHS is excused from that requirement
by an order under ORS 419B.340(5), the child’s plan may never be changed away
from reunification. See ORS 419B.476(2)(a) (“In making its determination, the
court shall consider the ward’s health and safety the paramount concerns.”).
382 Dept. of Human Services v. K. G. T.
failed to provide any evidence to the juvenile court regarding
the cost of providing to father a DHS/CWP approved drug
and alcohol rehabilitation program, a DHS/CWP approved
parent training program, or DHS/CWP approved mental
health services—in person or otherwise—while he is incar-
cerated. DHS did not even consider providing services to
father while he is incarcerated, instead taking the position
that, if DOC did not have any services available, then father
would not get them, at least for so long as he is incarcerated.
An “incarcerated parent is not charged with the burden of
finding solutions to institutional barriers.” Dept. of Human
Services v. M. C. C., 303 Or App 372, 383, 463 P3d 592 (2020).
DHS’s failure to even consider providing services to father
during his incarceration, given the lack of services avail-
able through DOC, in itself seriously hampered the juvenile
court’s ability to conduct a proper cost-benefit analysis.
Second, on the benefit side, both DHS and the juve-
nile court appear to have given little, if any, consideration to
the benefit of the services that were not provided to father.
“[W]hen a parent complains that DHS has not provided ade-
quate services, a court making a ‘reasonable efforts’ deter-
mination must consider not only the burdens that the state
would shoulder in providing those services, but also what
benefit might reasonably be expected to flow from them.”
M. K., 257 Or App at 416. Here, it is undisputed that the
services that were not provided are needed, are critical to
the case plan, and go directly to ameliorating the jurisdic-
tional bases. That is particularly true of substance abuse
treatment, in that DHS has described this case as “a case
about substance abuse,” but also true of parent training and
mental health counseling. Providing those services to father
would give him an opportunity to make progress on key
issues, and it would put the juvenile court in a position to
evaluate father’s progress toward the goal of reunification.
The benefit of providing those services while father is incar-
cerated is amplified by the fact that father was scheduled for
release possibly as early as seven months after the perma-
nency hearing, making his period of incarceration a critical
time to be working toward reunification. Cf. M. K., 257 Or
App at 418 (“Given the importance of the psychosexual eval-
uation to the reunification plan, the juvenile court should
Cite as 306 Or App 368 (2020) 383
have considered the extent to which the family might ben-
efit if father received a psychosexual evaluation promptly,
instead of waiting a year to be evaluated after his release.”).
DHS did offer one mental health service to father,
when it offered in July 2019 to arrange a mental health
assessment. That offer related to only one jurisdictional
basis though, and it is not clear how important that basis
was to the case plan, given the conflicting information about
father’s mental health history. Moreover, it appears undis-
puted that, no matter what the outcome of an assessment,
DHS did not intend to provide any counseling or other men-
tal health services to father while he remained in prison.
An assessment alone, without resulting services, would
not allow father to demonstrate improvement in his men-
tal health or put the juvenile court in a position to evaluate
father’s progress in addressing that jurisdictional basis.4
There is no question that dependency cases involv-
ing incarcerated parents present unique challenges. S. W.,
267 Or App at 286. Yet we have long recognized “that the
fact of incarceration, standing alone, does not relieve DHS
of its obligation to make reasonable efforts to ameliorate the
bases of jurisdiction.” L. L. S., 290 Or App at 140. Here, the
juvenile court focused almost entirely on the inconvenience
to DHS of setting up services for father to receive in prison,
without meaningfully considering the actual cost of doing so
4
Under the circumstances, we also reject any suggestion that father declin-
ing a mental health assessment in July 2019 demonstrates a general unwilling-
ness to engage in services, as relevant to DHS’s ongoing obligation to provide
services. It is undisputed that father engaged in every service available to him
in prison, and the DHS caseworker testified that father himself expressed frus-
tration about the lack of mental health services available in prison. When father
declined DHS’s offer, he pointed out that DOC had determined that he did not
need mental health services and did not qualify for them, and it must be remem-
bered that DHS was not offering to provide any actual counseling or the like,
only an assessment. In those circumstances, father’s response to DHS’s offer is
not particularly telling as to his willingness to participate in mental health ser-
vices, and it says nothing about his willingness to participate in substance abuse
treatment or parent training. In any event, “a parent’s resistance to DHS’s efforts
does not categorically excuse DHS from making meaningful efforts toward that
parent.” S. M. H., 283 Or App at 306; see also D. M. R., 301 Or App at 444-45 (“[A]
parent’s prior choice not to use DHS services does not excuse DHS from continu-
ing to offer them.”). This is not a case in which a “body of evidence derived from
an extended period of time” demonstrates that father is unwilling to engage in
services. C. L. H., 283 Or App at 331.
384 Dept. of Human Services v. K. G. T.
or the benefit of doing so. The court’s legal analysis therefore
did not comply with the standard laid out in our case law.
Cf. M. K., 257 Or App at 418 (“[I]n concluding that DHS’s
efforts were reasonable, the juvenile court appears to have
considered only the cost of performing the psychosexual
evaluation while father is incarcerated, and not the poten-
tial benefits of providing that evaluation promptly, instead
of waiting until he is released.”). Relatedly, the court’s state-
ments that it would not be “reasonable to expect DHS to
send a counselor out to the facility” to provide mental health
services to father and that it would not “be reasonable to
require DHS to send someone out to conduct drug and alco-
hol counseling just for [father]” are conclusory assertions,
not derived from a proper cost-benefit analysis.
In sum, when DHS determined in 2018 that DOC
did not have any substance abuse programs, parent train-
ing programs, or mental health services available to father
to help him address his problems relevant to the jurisdic-
tional bases, DHS could not simply stop there and not even
consider other ways to provide services to father while he
is incarcerated. Cf. State ex rel Dept. of Human Services v.
H. S. C., 218 Or App 415, 427, 180 P3d 39 (2008) (“[W]hen
a parent is detained by immigration authorities and DHS
makes no inquiry into what services are possible at that
location, the mere detention of the parent does not excuse
the state from making reasonable efforts by inquiry and
arranging the services that might be available under the
circumstances.”). Because DHS failed to explore any options
beyond whatever happened to be available through DOC, it
is impossible to know what other options might exist or what
they would cost. It is correspondingly impossible to know
whether DHS’s efforts were reasonable or not. Because the
burden is on DHS to prove that it made reasonable efforts
toward reunification, S. M. H., 283 Or App at 305, it follows
that the trial court erred in concluding on this record that
DHS made reasonable efforts.
Father faces significant obstacles to becoming a
minimally adequate parent for B. Reunification may or may
not be achievable in the end, and the passage of time while
father is incarcerated may play a role in the ultimate out-
come. See C. L. H., 283 Or App at 333 (recognizing that, if
Cite as 306 Or App 368 (2020) 385
the child bonded with her foster parents while the father
was incarcerated, and the father was “unable to develop a
relationship with her within a reasonable time,” that would
bear significantly on the sufficiency of the father’s progress).
However, father must be given a reasonable opportunity to
demonstrate his ability to adjust his conduct and become
a minimally adequate parent, taking into account the rel-
ative cost and benefit of specific services. See id. (notwith-
standing the possibility that reunification might not occur,
the juvenile court was not authorized to change the plan
“[u]ntil the agency makes meaningful efforts to provide
father with reunification services”). On this record, the juve-
nile court erred in concluding that DHS made reasonable
efforts toward reunifying B with father, as a predicate to
changing B’s permanency plan to adoption.
Reversed.