Dept. of Human Services v. D. L. , 303 Or. App. 286 ( 2020 )

286
Argued and submitted February 25; reversed and remanded for correction of
reasonable efforts determination, otherwise affirmed April 1, 2020
In the Matter of A. L.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
D. L.,
Appellant.
Marion County Circuit Court
19JU03181; A172301
462 P3d 781
Mother appeals a juvenile court judgment taking dependency jurisdiction
under ORS 419B.100(1)(c) over her 13-year-old daughter, A, on the grounds that
mother had physically assaulted A by hitting her with a stool and that mother
“has anger and impulse control problems which interfere with her ability to
safely parent the child.” Mother contends that (1) the evidence is insufficient to
support the court’s determination that it has dependency jurisdiction over A,
(2) the court erred in concluding that DHS made reasonable efforts to reunify
A with mother as required by ORS 419B.340, and (3) the court plainly erred
in ordering mother to participate in a psychological evaluation. Held: (1) The
juvenile court did not err in concluding that mother’s assaultive conduct (and
her minimization of it) was sufficient to support its determination that it had
dependency jurisdiction over A, (2) the court erred in concluding that DHS made
reasonable efforts to reunify A with mother, and (3) the court did not plainly err
in directing mother to undergo a psychological evaluation.
Reversed and remanded for correction of reasonable efforts determination;
otherwise affirmed.
Audrey J. Broyles, Judge.
Shannon Flowers, Deputy Public Defender, argued the
cause for appellant. Also on the opening and reply briefs was
Shannon Storey, Chief Defender, Juvenile Appellate Section,
Office of Public Defense Services. D. L. filed the supplemen-
tal brief pro se.
Beth Andrews, 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 303 Or App 286 (2020) 287
Before Lagesen, Presiding Judge, and Powers, Judge, and
Kamins, Judge.
LAGESEN, P. J.
Reversed and remanded for correction of reasonable efforts
determination; otherwise affirmed.
288 Dept. of Human Services v. D. L.
LAGESEN, P. J.
Mother appeals a juvenile court judgment taking
dependency jurisdiction under ORS 419B.100(1)(c) over her
13-year-old daughter, A, on the grounds that mother had
physically assaulted A and also that mother “has anger and
impulse control problems which interfere with her ability to
safely parent the child.” In five assignments of error, mother
contends that (1) the evidence is insufficient to support the
court’s determination that it has dependency jurisdiction
over A, (2) the court erred in concluding that DHS made rea-
sonable efforts to reunify A with mother as required by ORS
419B.340, and (3) the court plainly erred in ordering mother
to participate in a psychological evaluation. We reverse as to
the reasonable efforts finding but otherwise affirm.
Psychological evaluation. We start with mother’s
assignment of error challenging the juvenile court’s order
directing mother to undergo a psychological evaluation.
Mother did not preserve that assignment of error, making
our review for plain error. But in Dept. of Human Services
v. L. J. W., 302 Or App 126, 460 P3d 540 (2020), we recently
held that a claim identical to mother’s did not constitute
plain error. Id. at 132. That holding forecloses mother’s
claim of plain error.
Jurisdiction. We next address mother’s challenge to
the sufficiency of the evidence supporting the juvenile court’s
determination that it has dependency jurisdiction over A
under ORS 419B.100(1)(c). On this question, we review the
juvenile court judgment by “view[ing] the evidence, as sup-
plemented and buttressed by permissible derivative infer-
ences, in the light most favorable to the [juvenile] court’s
disposition and assess[ing] whether, when so viewed, the
record was legally sufficient to permit that outcome.” Dept.
of Human Services v. N. P., 257 Or App 633, 639, 307 P3d
444 (2013). ORS 419B.100(1)(c) authorizes a juvenile court to
take dependency jurisdiction over a child where the eviden-
tiary record before the court allows for the determination
that the “child’s condition or circumstances expose child to
a current threat of serious loss or injury that is likely to be
realized.” Dept. of Human Services v. C. D. B., 299 Or App
513, 514, 450 P3d 1032 (2019).
Cite as 303 Or App 286 (2020) 289
A detailed recitation of the facts about mother’s
relationship with A would not be beneficial. It is sufficient to
note that the evidence developed at the jurisdictional hear-
ing, including A’s testimony (testimony that the juvenile
court explicitly credited in the face of mother’s conflicting
testimony), demonstrated that approximately three and a
half months before the jurisdictional hearing, mother got
angry with A, kicked her, and intentionally threw a heavy
wooden stool at her head. The kick was not hard but A “felt
it and it hurt.” The stool hit A in the face, giving her a black
eye. The experience caused A to have “nightmares about the
wooden stool being thrown at me again.” DHS removed A
from mother’s home as a result of the incident.
Mother described her conduct differently at the
jurisdictional hearing in a way that minimized its abusive
nature and diverged from the truth (as the juvenile court
found it to be). Mother said that she had “tapped” A with
her foot, and then “haphazardly” tossed a few things at A—
things, according to mother, that A had thrown at mother.
One of the items was a “wooden block” (not a stool) that, to
mother’s astonishment, hit A in the eye and bruised her.
Mother told A to seek treatment from the school nurse but
to tell the nurse that she had fallen rather than the truth.
The juvenile court determined that those facts
were sufficient to demonstrate that A faced a current threat
of serious loss or injury likely to be realized absent DHS
involvement. The court explained that mother’s dishonesty—
her “minimization and untruths”—played a significant role
in its determination, noting that it might have reached a
different conclusion if mother had been honest about what
she had done to injure A.
On appeal, mother argues that the evidence on
which the court relied was insufficient to support its deter-
mination that A faced a “current” risk at the time of the
hearing, even if she had faced a risk at the time mother
threw the stool. Mother characterizes the stool-throwing
incident as an isolated one and contends that, whatever risk
might have been present at that time, the record does not
allow for the inference that A remained at risk by the time
of the hearing. Mother also contends, as a separate matter,
290 Dept. of Human Services v. D. L.
that the record does not permit a determination that she
had “anger and impulse control” issues at the time of the
hearing, contrary to the juvenile court’s finding.
We disagree. Although this record is not one that
would have compelled the juvenile court to conclude that A
faced a risk of serious loss or injury reasonably likely to be
realized at the time of the jurisdictional hearing, it is one
that allows for that determination. Viewed in the light most
favorable to the juvenile court’s determination, the record
shows that mother’s frustration with A caused her to phys-
ically assault her in two different ways and that, as of the
time of the hearing, mother was unable to admit that she
had injured A and otherwise be truthful about what she had
done to A. Mother’s inability at the hearing to acknowledge
how she had physically injured her daughter with a heavy
wooden stool allows for the reasonable inference that, at the
time of the hearing, A remained at risk from mother. That
is because mother’s “minimization and untruths” about
her injurious conduct permit the inference that it is rea-
sonably likely that mother will repeat that conduct, having
not grasped fully the nature of her conduct and the risk of
physical injury that it caused to A—a risk that was, in fact,
realized.
With respect to mother’s particular contention that
the record does not support a finding that she has issues
with anger and impulse control, A’s testimony about moth-
er’s behavior allows for that finding.
Reasonable efforts. The remaining question is
whether the juvenile court’s “reasonable efforts” determina-
tion under ORS 419B.340(1) is supported by the record. ORS
419B.340(1) generally requires DHS “to make ‘reasonable
efforts’ to make possible a child’s safe return home while
the dependency case is pending.” Dept. of Human Services
v. J. F. D., 255 Or App 742, 747, 298 P3d 653 (2013) (quoting
ORS 419B.340(1)). “Reasonable efforts” for purposes of ORS
419B.340 are ones that assist parents in making the adjust-
ments needed to become minimally adequate parents. State
ex rel Juv. Dept. v. Williams, 204 Or App 496, 506-07, 130
P3d 801 (2006).
Cite as 303 Or App 286 (2020) 291
Here, much as was the case in J. F. D. and Williams,
and as the juvenile court itself recognized, DHS did very little
to assist mother to make the adjustments needed to achieve
reunification with A. To be sure, as the juvenile court noted,
this case was complicated by the facts that A did not want
to return to mother and that mother was potentially facing
criminal charges for hitting A with the stool. It is possible
that those complications may have provided DHS grounds
for seeking to be excused from making reasonable efforts
to reunify A with mother. See ORS 419B.340(5) (identify-
ing nonexclusive list of circumstances that permit juvenile
court to excuse DHS from making reasonable efforts toward
reunification). But those complications do not allow for the
conclusion that the meager efforts that DHS did make were
ones that met the “reasonable efforts” standard, that is, that
gave mother a reasonable opportunity to make the adjust-
ments needed to become a minimally adequate parent. We
therefore reverse the judgment insofar as it determined that
DHS made reasonable efforts toward reunification.
Reversed and remanded for correction of reasonable
efforts determination; otherwise affirmed.