Dept. of Human Services v. C. S. C. ( 2020 )

399
176 of Human Services v. C. S. C.
Dept. 303 8,
April Or2020
App
Submitted December 19, 2019, affirmed April 8, 2020
In the Matter of A. C.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
C. S. C.,
Appellant.
Clackamas County Circuit Court
17JU10026, 18JU06568;
A171381 (Control), A171382
463 P3d 582
In these consolidated cases, father appeals a juvenile court judgment chang-
ing his child’s permanency plan from reunification to adoption. Father argues
that the juvenile court erred in concluding that the Department of Human
Services (DHS) had made reasonable efforts to enable either father or mother to
become a minimally adequate parent for their child. DHS responds that father’s
arguments with respect to mother are not preserved and that its efforts as to
father were reasonable under the circumstances. Held: The juvenile court did not
err. Father’s arguments regarding DHS’s services to mother are unpreserved.
Although DHS’s efforts with respect to father may have been less than ideal,
the Court of Appeals concluded that they were sufficient to support the juvenile
court’s reasonable-efforts determination.
Affirmed.
Michael C. Wetzel, Judge.
Matthew J. Steven filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
DeHOOG, J.
Affirmed.
400 Dept. of Human Services v. C. S. C.
DeHOOG, J.
In this juvenile dependency case, we address the
familiar question whether reunification services provided to
an incarcerated parent, although perhaps less than ideal,
are nonetheless sufficient for purposes of a juvenile court’s
reasonable-efforts determination made in the course of
changing a child’s permanency plan to adoption. In a sin-
gle assignment of error, father contends that the juvenile
court erred in concluding that the Department of Human
Services (DHS) has made reasonable efforts to enable either
father or mother to become a minimally adequate parent
for their child, A. DHS responds that father’s argument as
to the services it provided to mother are unpreserved and
that its efforts as to father were reasonable under the cir-
cumstances. For the reasons that follow, we conclude that
the record supports the juvenile court’s reasonable-efforts
determination and that it therefore did not err. Accordingly,
we affirm.
Neither party has requested de novo review, and
we do not view this to be an exceptional case warranting
de novo review. See ORAP 5.40(8)(c). Thus, in this appeal,
we review the juvenile court’s permanency-plan rulings as
follows:
“[O]n appeal of a permanency judgment, the juvenile court’s
determination whether DHS’s efforts were reasonable is a
legal conclusion that we review for errors of law. In con-
ducting that review, we are bound by the juvenile court’s
explicit factual findings if there is evidence to support
those findings. To the extent that a court does not make
its findings express, we presume that the court made any
necessary implicit factual findings in a manner consistent
with its ultimate legal conclusion. However, if an implicit
factual finding is not necessary to a trial court’s ultimate
conclusion or is not supported by the record, then the pre-
sumption does not apply.”
Dept. of Human Services v. L. L. S., 290 Or App 132, 133, 413
P3d 1005 (2018) (internal brackets, citations, ellipses, and
quotation marks omitted). We state the procedural history
of the case and the relevant facts in accordance with that
standard of review.
Cite as 303 Or App 399 (2020) 401
The material facts are largely undisputed. In
November 2017, one day after her birth, DHS removed A
from parents’ care based upon a variety of concerns, includ-
ing mother’s suspected methamphetamine use shortly before
A’s birth and ongoing safety concerns that had recently
resulted in the juvenile court changing the permanency
plans for A’s two older siblings, C and L, from reunification
to adoption. The dependency petition alleged, in relevant
part, that “father’s mental health issues interfere with his
ability to parent safely” and that his “substance use and/or
abuse escalate his anger issues, which interferes with his
ability to parent safely.” On January 18, 2018, father and
mother admitted to certain amended allegations of the orig-
inal petition, and the juvenile court took jurisdiction and
placed A in the temporary custody of DHS. Father specifi-
cally admitted that (1) his “mental health issues[,] without
treatment and medications[,] interfere with his ability to
parent safely” and (2) he was “engaged in public safety court
and is required to participate in UAs, mental health [treat-
ment] including medications, and compl[y] with his proba-
tion and failure to participate interferes with his ability to
safely parent.”1
Pursuant to A’s initial plan of reunification, DHS
provided various services to mother throughout the course
of this case, some of which are described in greater detail
below. And, for the first six months after the juvenile court
took jurisdiction, DHS also provided father with services
directed at the issues that he had admitted were interfering
with his ability to safely parent A. The services provided to
father included at least two supervised visits with A every
week, parenting skills training, a neuropsychological eval-
uation, mental health counseling, and substance-abuse
treatment.2
1
For her part, mother admitted that she “has mental health or cognitive
impairment and without further treatment it interferes with her ability to safely
parent,” and that she “has substance abuse issues that she has been addressing
but needs to continue treatment in order to remain sober or the child would be at
risk of harm.”
2
Father also received a recommendation that he attend batterer’s interven-
tion counseling, most likely directed towards allegations in the juvenile petition
that mother had been subjected to domestic violence by father. DHS subsequently
withdrew that allegation, however, and it appears to have played no further part
in either parent’s proceedings.
402 Dept. of Human Services v. C. S. C.
Several significant events occurred between the
time of father’s admissions in January 2018 and the juve-
nile court’s ultimate decision to change A’s permanency
plan to adoption. First, in a separate dependency proceed-
ing, the court terminated father’s parental rights as to A’s
older siblings. As a result of that development, DHS filed a
second petition regarding A, in which it alleged that father’s
parental rights to his older children had been terminated
and that the conditions giving rise to that action—including
mother’s emotional, mental, or cognitive issues and father’s
corresponding failure to learn or assume sufficient parent-
ing skills to safely raise the children—had not been amelio-
rated. Second, in July 2018, father was arrested for, among
other things, burglary in the first degree and attempted
first-degree rape. Father was subsequently convicted of
those offenses and received a 60-month prison sentence. As
a result, when the juvenile court changed A’s permanency
plan to adoption in April 2019, father had been incarcerated
for nine months, and he had an anticipated release date of no
earlier than July 2022. Third, pursuant to ORS 419B.340,
the juvenile court had relieved DHS of its obligation to make
reasonable efforts as to the second petition, although it did
not relieve DHS of its obligations as to the initial petition.3
By the time of A’s first permanency hearing in
December 2018, father’s visitation with A had ceased; fur-
ther, father’s visitation did not resume in any form before A’s
next permanency hearing in February 2019. In its December
2018 permanency judgment, the juvenile court concluded
that DHS’s reunification efforts had not been reasonable,
because DHS had not provided mother with a family skills
builder or parenting consultant with the requisite training,
education, and experience to address “mother’s cognitive
and intellectual disabilities.” The court did not, however,
order DHS to provide any additional reunification services
to father, nor did it order father to participate in any such
services.
The juvenile court’s decision to change A’s perma-
nency plan from reunification to adoption took place over
3
Although DHS argued to the juvenile court that the order relieving it of fur-
ther reunification efforts as to the second petition relieved it of all reunification
efforts on behalf of both parents, it does not advance such an argument on appeal.
Cite as 303 Or App 399 (2020) 403
the course of two contested hearings held in February and
April 2019. Mother participated in both days of the hearing
and contested DHS’s request to change A’s plan, but she did
not argue that DHS’s reunification efforts had not been rea-
sonable as to her.4 Father also participated and contested
the change in plan but, like mother, he did not argue that
DHS had not made reasonable efforts as to her. Rather, he
contended only that DHS had not met its reunification obli-
gations as to him.
At the conclusion of the February 2019 hearing,
the juvenile court concluded that DHS had made reason-
able efforts as to both parents. In response to father’s con-
cerns, however, the court ordered DHS to “set up video visits
between [A] and father,” to “notify parents of all medical
appointments,” and to “provide parents with updates regard-
ing [A] monthly.” The court then continued the hearing until
April and indicated that A’s permanency plan would remain
reunification until then.
The efforts that DHS made to comply with the juve-
nile court’s February 2019 order and otherwise engage in
reunification efforts on behalf of father were the subject of
competing testimony in both February and April. For its
part, DHS acknowledged its obligation to provide parents
with information about A’s health, her well-being, and the
scheduling and results of any medical appointments she
attended; DHS contended, however, that it had complied
with that obligation. According to DHS’s witnesses, both
before and after being reminded at the February hearing of
its duty to keep father informed, DHS had given father the
required information “through discovery.” DHS employees
also testified to other efforts that DHS had made on father’s
behalf following his incarceration, including (1) providing for
phone calls between father and A during mother’s parenting
time; (2) putting money in his prison account to facilitate
video calls with A; and (3) calling father’s prison counselor
and writing the Department of Corrections to request that
he be transferred to a facility close enough to A to allow for
in-person visitation.
4
Mother is not a party to this appeal.
404 Dept. of Human Services v. C. S. C.
At one point in the hearing, father interjected
that he had not gotten the required materials, and father’s
trial attorney separately observed that disclosing materi-
als in discovery was not the same as providing it to father
as ordered, an observation that the juvenile court later
endorsed.5 Counsel did not, however dispute having received
the materials herself. Father also testified that, although
he had twice been able to talk to A and her younger brother
during mother’s visitation sessions, on other occasions he
had heard someone “kind of scream at [mother], tell her to
get off the phone, [and tell her] it’s not appropriate.” Father
testified that, in his view, DHS’s efforts to promote visita-
tion with A had fallen far short of expectations.
Despite father’s arguments to the contrary, the
juvenile court concluded at the April 2019 hearing that
DHS’s reunification efforts had been reasonable. The court
observed that father was “making a great amount of prog-
ress under some difficult and challenging circumstances”
and that he was commendably “learning a lot of great
skills.” Nonetheless, after observing that it had set “bench-
marks” at the February hearing and that “we didn’t hit
the benchmarks; we didn’t even come close,” the juvenile
court changed A’s permanency plan to adoption. Father now
appeals.
We begin with an overview of the relevant stat-
utes and standards, none of which either party disputes
on appeal. As the Supreme Court has explained, when a
“juvenile court takes jurisdiction of a child, a series of com-
plex statutes and proceedings come[s] into play.” Dept. of
Human Services v. S. J. M., 364 Or 37, 50, 430 P3d 1021
(2018). Courts exercising dependency jurisdiction are sub-
ject to Oregon’s underlying policy, which “recognizes that,
even when parents are unable to care for their children for a
period of time, there is a ‘strong preference that children live
in their own homes with their own families[.]’ ” Id. at 50-51(quoting ORS 419B.090(5)). As a result, “DHS is obligated,
except in cases involving ‘extreme conduct,’ to work with
5
Specifically, the juvenile court told A’s permanency worker “when I say,
especially when somebody’s in custody, that they’re to get reports, that means
directly from the [a]gency. And, if I didn’t make that clear, I’m making that clear
now.”
Cite as 303 Or App 399 (2020) 405
families toward family reunification at the outset.” Id. at
51 (citing ORS 419B.090(5) and ORS 419B.502) (emphasis
added). And the question whether, and for how long, DHS’s
obligation to make reunification efforts continues, is one
that the juvenile court must decide under ORS 419B.476.
ORS 419B.476 governs permanency hearings. If, at
the outset of a permanency hearing, a child’s plan remains
reunification of the family, the juvenile court must deter-
mine (1) whether DHS “has made reasonable efforts * * * to
make it possible for the ward to safely return home”; and
(2) “whether the parent has made sufficient progress to
make it possible for the ward to safely return home.” ORS
419B.476(2)(a).6 If DHS advocates for a change in the child’s
permanency plan, DHS must establish, by a preponderance
of the evidence, both that it has made reasonable efforts
towards safely reunifying the family and that the child’s
parents have nonetheless made insufficient progress for
that to occur.7 Id.; Dept. of Human Services v. S. M. H., 283
Or App 295, 305, 388 P3d 1204 (2017).
To support a “reasonable efforts” finding, DHS must
establish that it has provided a child’s parents “a reason-
able opportunity to demonstrate their ability to adjust their
conduct and become minimally adequate parents.” Dept. of
Human Services v. S. W., 267 Or App 277, 286, 340 P3d 675
(2014) (internal quotation marks omitted). When assessing
whether DHS’s reunification efforts have been reasonable,
the juvenile court must consider those efforts over the life
of the dependency case and in light of a parent’s and child’s
specific circumstances, with the child’s health and safety
being the court’s “ ‘paramount concerns.’ ” Id. at 290 (quoting
6
ORS 419B.476 provides, in relevant part:
“(2) At a permanency hearing the court shall:
“(a) If the case plan at the time of the hearing is to reunify the family,
determine whether the Department of Human Services 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. In making its determination, the court shall
consider the ward’s health and safety the paramount concerns.”
7
In this case, father does not contend that either he or mother has made suf-
ficient progress to enable A safely to return home; accordingly, only the question
whether DHS has made reasonable efforts to make reunification possible is at
issue on appeal.
406 Dept. of Human Services v. C. S. C.
ORS 419B.476(2)(a)). Among other things, the court may con-
sider a parent’s own conduct and response to DHS’s efforts
to assist the parent in ameliorating the circumstances that
gave rise to the juvenile court’s jurisdiction. S. W., 267 Or
App at 290.
Notably, we have repeatedly observed “that the
mere fact of a parent’s incarceration does not excuse DHS
from making the reasonable efforts required by the statute.”
Id. at 286-87 (citing State ex rel Juv. Dept. v. Williams, 204
Or App 496, 506, 130 P3d 801 (2006)). Rather, to the extent
that a parent’s incarceration affects either DHS’s ability to
provide a particular service to a parent or the likelihood
that those efforts will advance the ultimate goal of reunifi-
cation, that fact is merely part of the totality of the circum-
stances that the juvenile court must consider as part of its
reasonable-efforts determination. See S. W., 267 Or App at
286-87, 291 (citing Dept. of Human Services v. M. K., 257
Or App 409, 416, 306 P3d 763 (2013), which explains that
“a court making a ‘reasonable efforts’ determination must
consider not only the burdens that the state would shoulder
in providing [certain] services, but also what benefit might
reasonably be expected to flow from them”); see also Dept. of
Human Services v. C. L. H., 283 Or App 313, 323, 388 P3d
1214 (2017) (noting that “the juvenile court must engage in
something resembling a cost-benefit analysis” to determine
whether failing to offer a specific type of service was reason-
able (internal quotation marks omitted)).
Finally, because a parent’s liberty interest in par-
enting “encompasses ‘the fundamental right of parents to
make decisions concerning the care, custody, and control
of their children[,]’ ” reunification within the meaning of
the juvenile code “is not limited to physical reunification.”
L. L. S., 290 Or App at 138 (quoting Troxel v. Granville, 530
US 57, 66, 120 S Ct 2054, 147 L Ed 2d 49 (2000) (emphasis
added)); see also L. L. S., 290 Or App at 138 (acknowledg-
ing that, pursuant to ORS 419B.090(4), dependency stat-
utes must be “ ‘construed and applied’ ” consistently with the
requirements of the federal constitution). Rather, “reunifi-
cation of a child with a parent means the restoration of the
parent’s right to make decisions about the child’s care, cus-
tody, and control without state supervision, even if the child
Cite as 303 Or App 399 (2020) 407
will not be returned to the parent’s physical custody because
of other impediments, such as incarceration.” L. L. S., 290
Or App at 138. With those guiding principles in mind, we
turn to the parties’ arguments.
As an initial matter, we address DHS’s contention
that father did not preserve his arguments regarding the
services that DHS provided mother. We further consider—
as we must in every case—whether father preserved any of
his arguments for appeal, and not just his arguments as to
mother’s services. We note that father’s single assignment of
error asserts that “[t]he juvenile court erred when it found
that DHS had provided the parents with reasonable reunifi-
cation efforts and changed the permanency plan from reuni-
fication to adoption.” (Emphasis added.) We similarly observe
that, although father makes separate arguments under his
assignment of error as to services provided to mother and
services provided to him, he intertwines those arguments
into a single conclusion: “Because the evidence shows that
DHS’s efforts were inadequate as to mother and ‘virtually
nonexistent’ as to father[,] they were insufficient as a mat-
ter of law.” Finally, father neither disputes DHS’s contention
that his argument about DHS’s services to mother is unpre-
served nor argues that his contention is reviewable as plain
error.8
In our view, the question whether—and to what
extent—father preserved his arguments for appeal depends
on how we read them. One plausible reading is that DHS’s
services to mother were not sufficient and that, due largely
to that inadequacy, the court erred in changing A’s plan
from reunification to adoption. A second reading could be
that, because DHS’s reunification efforts to mother were
insufficient, they somehow rendered DHS’s services to father
inadequate as well. Either of those readings would lead us
to conclude that father failed to preserve any argument for
8
Notably, even the preservation section of father’s opening brief does not
suggest that father preserved his argument as to the sufficiency of DHS’s services
to mother. Rather, he quotes arguments by mother’s counsel. Even assuming,
however, that mother’s argument could otherwise be viewed as preserving the
issue for purposes of father’s appeal, we note that neither the quoted argument
nor any other of mother’s arguments contends that DHS failed to make reason-
able efforts as to her.
408 Dept. of Human Services v. C. S. C.
appeal, because both of those arguments are based on the
adequacy of DHS’s services to mother, which, as DHS points
out, father never challenged.
We conclude, however, that, despite father’s failure
to preserve any argument specific to mother, he did preserve
his ultimate argument; namely, that the juvenile court erred
in changing A’s permanency plan. That is, we understand
father’s argument in a third way, reading it to contend that
the juvenile court’s ruling changing A’s plan to adoption was
erroneous for either of two reasons, one rooted in the unpre-
served argument that DHS provided insufficient services
to mother, and the other rooted in the specifics of DHS’s
reunification efforts as to him. Thus, although we agree
with DHS that father’s argument as to the services DHS
provided mother is not preserved—and we will not consider
it further—we will proceed to consider father’s argument as
to the services DHS provided him.
Turning, then, to the merits of father’s reasonable-
efforts argument, we conclude for the reasons that follow
that the juvenile court did not err. The crux of father’s argu-
ment is that the fact of his incarceration did not relieve DHS
of its obligation to make reasonable efforts on his behalf,
and yet DHS’s services to him were “virtually nonexistent”
following his arrest and imprisonment. See S. M. H., 283
Or App at 306 (a parent’s incarceration does not end DHS’s
duty to provide reunification services); Williams, 204 Or App
at 507-08 (DHS’s efforts were not reasonable where, despite
having provided extensive services to the child’s mother, its
involvement with the father was “virtually nonexistent”).
Father acknowledges that we must evaluate the
sufficiency of DHS’s efforts over the entire duration of child’s
case and under the totality of the circumstances. See S. W.,
267 Or App at 291 (assessing reasonableness of efforts under
the “totality of the circumstances”); see also Dept. of Human
Services v. S. S., 278 Or App 725, 735, 375 P3d 556 (2016)
(evaluating DHS’s efforts over the duration of the case,
but emphasizing a period before the hearing “sufficient in
length to afford a good opportunity to assess parental prog-
ress” (internal quotation marks omitted)). Father argues,
however, that DHS’s failure to contact him at all over the
Cite as 303 Or App 399 (2020) 409
first seven months of his incarceration renders its services
inadequate as a matter of law. That is especially true, father
reasons, because of his demonstrated willingness and abil-
ity to participate in services while in prison. See S. M. H.,
283 Or App at 308 (when evaluating the sufficiency of DHS
efforts, a court may consider, among other factors, a parent’s
response to those efforts). As to what services DHS should
have provided, father contends that DHS was required to
(1) maintain contact with him regarding A’s care and well-
being; (2) facilitate visitation with A; and (3) provide him
with an updated psychological evaluation due to both his
recent sobriety and his discontinued use of psychiatric
medications.
In response, DHS does not dispute father’s view of
the applicable law. It contends, however, that, viewed under
the totality of the circumstances, the efforts that it made
to help father become a minimally adequate parent were
reasonable. First, DHS points out the various services that
it provided to father following his incarceration, including
the arrangements it had made for phone visitation, the
money it had put in father’s prison account, and its advo-
cacy in favor of father being relocated to a facility closer to
A.9 Second, DHS notes that the reasonableness of its efforts
is measured in relation to the basis or bases of the juvenile
court’s jurisdiction, which, in father’s case, is the effect that
his mental health has on his ability to safely parent A. See
Dept. of Human Services v. N. M. S., 246 Or App 284, 293-94,
266 P3d 107 (2011) (recognizing that the reasonable efforts
“assessment is made on the basis of the case plan in effect
at the time of the permanency hearing” (internal quotation
marks omitted)). Finally, DHS argues that, in assessing the
reasonableness of its services to father, we “must consider
9
Although the parties give it little emphasis in its briefing, we note that,
in its April 2019 permanency judgment, the juvenile court found that, over the
course of A’s case, DHS had provided father with a mental health evaluation and
treatment or counseling, medication management, a substance abuse evaluation
or treatment, urinalysis or other drug testing, transportation assistance, super-
vised visits, parenting training, and family counseling and skill building. See,
e.g., S. W., 267 Or App at 291 (noting that, “although father’s analysis ignores the
initial efforts that DHS made on his behalf * * * and father’s conduct in response
to those efforts, that evidence was part of the totality of the circumstances for the
juvenile court to consider in evaluating the reasonableness of the department’s
efforts over the life of this case”).
410 Dept. of Human Services v. C. S. C.
‘whether the parent is likely to benefit from services in a
way that would increase the chances of family reunification.’
[M. K., 257 Or App at 418].”
Viewing DHS’s reunification efforts on behalf of
father under the totality of the circumstances, we conclude
that the services DHS provided, while perhaps less than
ideal, were nonetheless sufficient to support the juvenile
court’s reasonable-efforts determination. Although we have
concluded that father’s argument regarding DHS’s services
to mother is unpreserved, it bears emphasizing that the
focus of everyone’s energy in this case—including father’s—
was on enabling mother to become a minimally adequate
parent. Indeed, in arguing that DHS had not made reason-
able efforts as to father, his attorney specifically argued,
“I think there are specific services that can be offered
to both parents, noting that [father] is not the custodial
caretaker for [A], that the reality is that he’s going to be in
custody probably for at least 40 more months. But he has
taken it upon himself to be a cheerleader for mother.”
(Emphasis added.) Thus, even though father was advocat-
ing for additional contact with A and a better exchange of
information with DHS, he did not suggest that he could, at
least within the reasonable future, be a parental resource
to A, either as a physical caretaker or as a “decision[maker]
about the child’s care, custody, and control.” L. L. S., 290 Or
App at 138 (“reunification of a child with a parent means the
restoration of the parent’s right to make decisions about the
child’s care, custody and control without state supervision,
even if the child will not be returned to the parent’s physical
custody”). That, of course, did not relieve DHS of its obliga-
tion to continue providing reunification services to father.
See S. M. H., 283 Or App at 305 (“DHS must make reunifi-
cation efforts directed at each parent[.]” (Emphasis added.)).
It does, however, help place the services that it did provide
to him in perspective.
Further, although father sought in this appeal to
challenge the legal sufficiency of DHS’s efforts in regard
to mother, he does not dispute that they were extensive.
In addition to providing mother with the types of services
it provided father before his incarceration, DHS provided
Cite as 303 Or App 399 (2020) 411
mother with in-person visitation with A three times a week,
hands-on parenting training with multiple professionals,
domestic-violence counseling, a neuropsychological examina-
tion, and specialized treatment directed at her co-occurring
mental-health and substance-abuse disorders.
It is in that context that we evaluate father’s con-
tention that DHS’s services to him were inadequate under
our case law. Citing cases such as S. M. H. and Williams,
father characterizes those services as “virtually nonexis-
tent.” Admittedly, there are some similarities between those
cases and his. As in S. M. H., for example, father contends
here that DHS denied him all services for an extended time.
See S. M. H., 283 Or App at 306-09 (although DHS provided
services to mother in the two or three months immediately
preceding the permanency hearing, it provided no services
for approximately six months after mother was incarcer-
ated). Further, father contends that, like the mother in
S. M. H., he “was demonstrably willing to engage in ser-
vices following [his] arrest,” id. at 309, including participat-
ing in Dialectical Behavioral Therapy (DBT) and creating a
relapse plan and initiating a 12-step program, efforts that
the juvenile court implicitly acknowledged in commending
father for his progress.
Notably, however, in S. M. H., “DHS provided no
assistance in arranging and paying for phone and video vis-
its until just prior to the permanency hearing” and “made no
efforts whatsoever to arrange in-person visits with the chil-
dren[.]” Id. at 306-07. Here, on the other hand, the evidence
of DHS’s efforts in that regard, though certainly not exhaus-
tive, showed that DHS had arranged for phone visitation
(albeit through mother), had paid money towards father’s
prison account to facilitate video calls, and had made efforts
towards having father transferred to a prison closer to A
to make in-person visitation possible. Further, unlike the
mother in S. M. H., father was not viewed as a potential
custodial parent, at least not in the reasonable future. See
id. at 309-10 (noting that the mother anticipated her poten-
tial release from prison “roughly seven months after the
permanency hearing”). Thus, unlike in that case, here there
was little if anything here to suggest that father “would * * *
412 Dept. of Human Services v. C. S. C.
have benefited from additional services.” Id. at 309; see also
S. W., 267 Or App at 291 (though DHS could have maintained
better contact with the father, “father [did] not explain how,
even if DHS had had more contact with prison officials or
called father more frequently, that would have furthered the
statutory objective of allowing [the child] ‘to safely return
home.’ ORS 419B.476(2)(a)”); M. K., 257 Or App at 416(reasonable-efforts determination considers what benefits
might flow from further services).
Williams is likewise distinguishable. In that case,
like this one, the mother had received extensive services
from DHS, significantly more than the father. Williams,
204 Or App at 507. There, however, we described DHS’s
involvement with the father as “virtually nonexistent,” id.,a description father attributes to DHS’s efforts in his case.
Specifically, in Williams, DHS had only contacted the father
twice outside of the courtroom, the first time to have him
sign a service agreement—which, it turns out, did not offer
or suggest any services—and a second time by writing him
“a letter suggesting that he should continue with any ser-
vices provided in the jail” where he was being held. Id. This
case is not like Williams. As noted above, 303 Or App at 409
n 9, father received considerable services from DHS before
he committed and was incarcerated for serious crimes. And,
although the efforts DHS made on father’s behalf after his
incarceration were certainly limited, under the circum-
stances, we cannot characterize them as “virtually nonexis-
tent,” as father himself characterizes them.
In our view, father’s case is more similar to S. W.
than it is to the cases that father relies on. To be sure, in
that case, the father had been resistant to services in a way
that is not reflected in the record here, or at least not in
any way that DHS has brought to our attention. S. W., 267
Or App at 291-92. As more directly relevant here, however,
DHS argued in S. W. that
“its failure to contact the prison counselors or to arrange
for visitation is not significant in light of the circumstances
and the other efforts that DHS did make, and that, under
the totality of the circumstances, the agency made rea-
sonable efforts to give father a reasonable opportunity to
Cite as 303 Or App 399 (2020) 413
demonstrate that reunification with [the child] was possi-
ble in a realistic period of time.”
Id. at 289 (internal quotation marks omitted). In ultimately
accepting that argument, we acknowledged that DHS cer-
tainly “could have done more,” notwithstanding the father’s
incarceration. Id. However, comparing the services that
DHS had provided the father over the life of that case with
those provided to the father in Williams, we characterized
DHS’s involvement as “something more than ‘virtually non-
existent,’ * * * but less than ideal.” Id. (emphasis added).
Given DHS’s lengthy delay before resuming ser-
vices following father’s incarceration, together with the
limited services that it provided even then, DHS’s efforts in
this case can be characterized much the same way. That is,
although they were more than “virtually nonexistent,” they
were probably “less than ideal.” The question is not, how-
ever, whether DHS provided ideal services; the question is
whether the services that DHS did provide were reasonable.
We conclude that they were.
In reaching that conclusion, we reject father’s sug-
gestion that, because DHS’s reunification efforts on his
behalf were limited and late, they were unreasonable as a
matter of law. We do so for several reasons. First, we note
that, like the father in S. W., here father “completely dis-
counts the efforts that DHS made in the initial phase of this
case to promote the development of a relationship between
[the] father and [the child].” Id. at 292. Those efforts were
extensive, and yet, at the first permanency hearing in
December 2018, there was no indication that father had
made any progress towards ameliorating the bases of the
juvenile court’s jurisdiction during the time that they were
provided. We further observe that father has not identified
what, if any, additional benefits would have flowed from
DHS making additional efforts of any particular kind. See
id. at 291-93 (rejecting argument that further efforts were
required when father had not explained how those efforts
would advance the statutory goal of reunification); cf. Dept.
of Human Services v. M. C. C., 303 Or App 372, 381-82, 463
P3d 592 (2020) (concluding that DHS’s efforts had not been
reasonable when they failed to afford incarcerated father
414 Dept. of Human Services v. C. S. C.
“a reasonable opportunity to enlist the help of his sister to
care for [his child], which he had sought to do since early
in the case”). Finally, although the juvenile court did not
articulate its reasoning when it ruled that DHS’s reunifi-
cation efforts on behalf of father were reasonable, father
has not argued that the court’s “cost-benefit analysis” was
somehow deficient. See C. L. H., 283 Or App at 323 (requir-
ing juvenile court addressing a parent’s reasonable-efforts
argument to “engage in something resembling a cost-benefit
analysis” (internal quotation marks omitted)). In light of all
of those circumstances, we conclude that the juvenile court
did not err in determining that DHS’s reunification efforts
on behalf of father were reasonable, and we affirm.
Affirmed.