Dept. of Human Services v. D. W. M. , 336 Or. App. 226 ( 2024 )

226 November 14, 2024 No. 821
This is a nonprecedential memorandum opinion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 L. F. M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
D. W. M.,
Appellant.
Lane County Circuit Court
21JU00505; A183941
Amit K. Kapoor, Judge.
Submitted October 4, 2024.
Shannon Storey, Chief Defender, Juvenile Appellate
Section, and Holly Telerant, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and Emily N. Snook, Assistant
Attorney General, filed the brief for respondent.
Before Shorr, Presiding Judge, Powers, Judge, and
Pagán, Judge.
SHORR, P. J.
Affirmed.
Nonprecedential Memo Op: 336 Or App 226 (2024) 227
SHORR, P. J.
In this juvenile dependency case, father appeals
from the judgment changing the permanency plan for his
child, L, from reunification to permanent guardianship.
Father challenges the juvenile court’s determination that his
progress toward reunification was insufficient and asserts
that the juvenile court improperly relied on facts extrinsic
to the jurisdictional basis in concluding that he had made
insufficient progress. We conclude that the trial court did
not err and affirm.
Neither party has requested de novo review, and
this is not the type of “exceptional” case that would warrant
it. See ORAP 5.40(8)(c). In the absence of de novo review, “we
view the evidence, as supplemented and buttressed by per-
missible derivative inferences, in the light most favorable
to the trial court’s disposition and assess whether, when so
viewed, the record was legally sufficient to permit” the per-
manency plan change. Dept. of Human Services v. N. P., 257
Or App 633, 639, 307 P3d 444 (2013).
When the permanency plan at the time of a per-
manency hearing is reunification, the juvenile court can
change the plan only if the Department of Human Services
(DHS) proves that “(1) it made reasonable efforts to make it
possible 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 a parent’s progress was sufficient is
“evaluated by reference to the facts that formed the bases for
[the] juvenile court” asserting jurisdiction. Dept. of Human
Services v. N. T., 247 Or App 706, 715, 271 P3d 143 (2012).
L was removed from father’s care in January 2021
following L presenting with injuries to his hands, back, and
buttocks from being physically punished by father. Father
was convicted of criminal mistreatment and placed on pro-
bation. The juvenile court took jurisdiction over L on a single
admitted basis: “Father knowingly caused physical injury
to the child, which presents a threat of harm. The father
has been criminally convicted as a result of his conduct. The
228 Dept. of Human Services v. D. W. M.
father needs the assistance of the court and DHS to safely
parent the child.”1 Father was ordered to participate in and
successfully complete a number of programs, including par-
ent training, a comprehensive psychological evaluation,
counseling and mental health services, and batterer’s inter-
vention counseling, as well as participate in therapeutic ser-
vices with L as recommended by L’s therapist and comply
with all terms of his probation.
Father completed each of the required programs and
engaged in some mental health treatment. L was returned
to his care for a few months at the end of 2022 with L’s
paternal grandmother serving as an in-home safety service
provider. However, L was again removed in January 2023
due to concerns of mental, emotional, and physical abuse,
based on reports of father yelling at and mocking L, chasing
him through the house, and using power and control over
grandmother.
Following the permanency hearing in October 2023,
the juvenile court concluded that DHS made reasonable
efforts toward reunification, but that father had not made
sufficient progress, and L could not be safely returned to his
care. The court therefore changed the permanency plan to
permanent guardianship, with the intent that L’s paternal
grandfather serve as the guardian.
Father asserts on appeal that DHS failed to meet its
burden to prove that his progress was insufficient to make
reunification possible. He argues that the fact that he had
ongoing conflict with his partner and his mother does not
prove that he had failed to ameliorate the risk of criminal
behavior or physical harm to L, as described in the adjudi-
cated basis for jurisdiction. Father further asserts that the
court erred in relying on evidence of his contentious rela-
tionships with other adults because those facts are extrin-
sic to the adjudicated basis, and he otherwise completed all
programs that were required of him.
We first conclude that the court did not improp-
erly rely on facts extrinsic to the adjudicated basis. “In
1
The court also took jurisdiction over L with respect to mother on four addi-
tional bases. Mother has been absent from L’s life for a number of years and is not
a party to this appeal.
Nonprecedential Memo Op: 336 Or App 226 (2024) 229
determining whether a parent was on notice that his or her
progress would be assessed based upon particular facts, we
look to the petition, the jurisdictional judgment, and docu-
mentation attached to the jurisdictional judgment providing
the parent notice as to the conditions for reunification.” Dept.
of Human Services v. C. E., 288 Or App 649, 656-57, 406 P3d
211 (2017). In order to determine whether the facts that the
juvenile court relied upon were fairly implied by the juris-
dictional judgment, “we assess whether a reasonable par-
ent would have known that he or she ‘needed to address the
condition or circumstances exemplified by those facts.’ ” Id.
at 657 (quoting Dept. of Human Services v. T. L., 287 Or App
753, 763, 403 P3d 488 (2017)).
Father admitted to the jurisdictional basis of
having caused physical injury to L and, significant to this
appeal, needing “the assistance of the court and DHS to
safely parent.” The dependency judgment required father to,
among other things, successfully complete and demonstrate
learned skills from a parent training program, engage in
mental health services, and complete batterer’s intervention
counseling and demonstrate a “violence-free lifestyle.”
Here, father’s anger and impulse control issues
are fairly implied by the jurisdictional basis of his admit-
ted need for assistance from the court and DHS to safely
parent L. In light of the jurisdictional allegation that father
needed assistance to safely parent L and the jurisdictional
judgment’s requirement that father learn parenting skills
and demonstrate a violence-free lifestyle, the court’s consid-
eration of father’s anger and aggressive behavior towards
the other adults in the household was not extrinsic to the
adjudicated basis of father needing the assistance of the
court and DHS to safely parent L.
We also conclude that legally sufficient evidence
supported the juvenile court’s determination that father’s
progress was insufficient. The record contains evidence
that father continues to struggle with anger and volatility,
supporting the juvenile court’s determination that father’s
progress toward reunification—namely to safely parent
the child without the assistance of the court or DHS—was
insufficient. In addition to the evidence of father’s ongoing
230 Dept. of Human Services v. D. W. M.
volatility with the adults around him, a psychological eval-
uator opined that father’s anger creates an escalated risk of
harm to others, including and especially children, and rec-
ommended against reunification based on his intermittently
aggressive behavior and inability to accept that change was
needed. A psychological evaluation of L also recommended
against reunification due to the detrimental impact on L.
L’s therapist discontinued family therapy due to father’s
manipulative and controlling behavior, commenting that
it made the relationship emotionally and mentally danger-
ous for L. There was evidence from which the trial court
could conclude that father had not made sufficient progress
and that a change in plan to permanent guardianship was
warranted.
Affirmed.