Dept. of Human Services v. D. M. , 310 Or. App. 171 ( 2021 )

171
Argued and submitted January 15, affirmed March 24, 2021
In the Matter of E. B.-M.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
and
E. B.-M.,
Respondent,
v.
D. M.,
aka D. D. R. M.,
Appellant.
Deschutes County Circuit Court
18JU06441; A174476
483 P3d 1248
Father appeals from a permanency judgment that changed the plan for his
child from reunification to adoption. He argues that the Department of Human
Services (DHS) failed to prove that it made reasonable efforts to reunify father
and the child and that father failed to make sufficient progress to allow for reuni-
fication. He also argues that he proved that a compelling reason exists for DHS
not to file a petition for termination of his parental rights, because he was mak-
ing sufficient progress for the child to return home within a reasonable time.
Held: Under the totality of the circumstances, the juvenile court did not err in
concluding that DHS had made reasonable efforts and that father had not made
sufficient progress. Additionally, the record supported the juvenile court’s find-
ings, which in turn were sufficient to support the legal conclusion that father had
not proved a compelling reason not to terminate his parental rights.
Affirmed.
Alicia N. Sykora, Judge.
Kristen G. Williams argued the cause and filed the briefs
for appellant.
Kirsten M. Naito, Assistant Attorney General, argued the
cause for respondent Department of Human Services. Also
on the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
Erica Hayne Friedman argued the cause for respondent
E. B.-M. Also on the brief was Youth, Rights & Justice.
172 Dept. of Human Services v. D. M.
Before Ortega, Presiding Judge, and Powers, Judge, and
Kamins, Judge.
ORTEGA, P. J.
Affirmed.
Cite as 310 Or App 171 (2021) 173
ORTEGA, P. J.
Father appeals from a permanency judgment that
changed the plan for his child, E, from reunification to adop-
tion. He argues that the juvenile court erred in concluding
that the Department of Human Services (DHS) had proved
that it made reasonable efforts to reunify father and E and
that father failed to make sufficient progress to allow for
reunification. Father also argues that he proved that a com-
pelling reason exists for DHS not to file a petition for ter-
mination of his parental rights. Based on those arguments,
father argues that the court erred in changing E’s case plan
from reunification to adoption.1 We conclude that the juve-
nile court did not err in making any of the rulings chal-
lenged by father, and we therefore affirm.
Father does not ask us to take de novo review, and
we decline to do so. ORAP 5.40(8). The juvenile court’s deter-
minations that DHS made reasonable efforts, that father
made insufficient progress, and that father failed to prove
a compelling reason are legal conclusions that we review for
errors of law. Dept. of Human Services v. S. J. M., 364 Or
37, 56-57, 430 P3d 1021 (2018); Dept. of Human Services v.
G. N., 263 Or App 287, 294, 328 P3d 728, rev den, 356 Or 638(2014). “In conducting that review, we are bound by the juve-
nile court’s explicit factual findings if there is evidence to
support those findings.” Dept. of Human Services v. L. L. S.,
290 Or App 132, 133, 413 P3d 1005 (2018). We also “presume
that the court made any necessary implicit factual findings
in a manner consistent with its ultimate legal conclusion.”
Id. We summarize the facts most important to our analysis
in accordance with that standard. We note, however, that
our summary does not capture the totality of evidence pre-
sented in this case and on which the juvenile court relied in
making its findings.
E was born in June 2017. At the time of the perma-
nency hearing, E was three years old. Outside of four or five
months that she lived with her father, E had lived her entire
life with her foster parents. When E was about one month
old, she was removed by DHS for the first time and placed
1
We reject father’s assignment of error to the court’s denial of his motion for
summary judgment without further discussion.
174 Dept. of Human Services v. D. M.
with foster parents. In March 2018, at 10 months old, E was
returned to father’s care, and, a couple of months later, the
DHS dependency case was closed. During that reunifica-
tion, E lived with father and stepmother,2 and stepmother’s
son, who was about two and one-half years old at that time.
Shortly after E was reunited with father, stepmother gave
birth to E’s half-sister. After about four months in father’s
and stepmother’s care, in July 2018, E was again removed
and placed with the same foster parents she had been
placed with before. E’s stepbrother and half-sister were also
removed at that time and placed with the same foster family
as E.
A domestic violence incident prompted the children’s
removal, when father called the police due to a loud and phys-
ical argument between father and stepmother that included
stepmother throwing and breaking items. Father was hold-
ing E’s baby half-sister and filming stepmother during part
of the argument. By all accounts, father and stepmother
fought often. Upon further investigation, the police and
DHS became concerned about physical injuries to E and her
stepbrother, as well as the unsafe and unsanitary condition
of the home. Father reported that he was concerned about
stepmother’s anger toward the children and that he had
suspicions about stepmother’s care of E, because of bruising
on E that he had seen, but he did not want to accuse step-
mother of anything. Father also stated that he thought step-
mother was “jealous” of the bond between him and E. Father
and stepmother had pictures on their phones of bruises and
red marks on E. The police also learned that stepmother
was verbally abusive toward the children, would withhold
water from E and her stepbrother as punishment, and also
would ignore E or lock her in her room as punishment.
As a result of the investigation, stepmother was
charged with multiple counts of first-degree criminal mis-
treatment and third-degree assault. She pleaded guilty, by
Alford plea, to one count of first-degree criminal mistreat-
ment for “unlawfully and knowingly caus[ing] physical
2
When E first started living with father, he and stepmother were not mar-
ried. However, they soon after married, and, for ease of reference, we refer to
father’s wife as E’s stepmother.
Cite as 310 Or App 171 (2021) 175
injury to E,” the other charges were dismissed, and step-
mother was sentenced to probation.
The court took jurisdiction of E, based on father’s
admission to the following allegations, as amended, in the
dependency petition:
“A. The father’s volatile relationship with [stepmother]
presents a serious risk of psychological and physical harm
to the child.
“B. The father failed to protect the child from the
physical abuse and maltreatment by father’s significant
other by continuing to leave the child in her care.
“C. The father failed to maintain a safe environment
for the child because the father has allowed the child to
live in [a] home that is unsafe and unsanitary, including
prescription medication and spoiled food being left within
access of the child.
“D. The mother is not currently a custodial resource,
due to living out of state and residential instability.
“E. The father’s substance abuse, if continued and left
untreated, interferes with his ability to safely parent the
child.”
Nearly two years after E’s removal, DHS sought to
change her permanency plan from reunification to adoption.
The hearing to change E’s plan (and to change the other two
children’s plans) was held over four days—two days in June
2020 and two days in July 2020.
At the hearing, E’s foster mother testified that,
when E was 10 months old and reunited with her father,
she was “meeting or exceeding all of her ages and stages
assessments,” was almost walking by pulling herself up
with furniture, and she knew seven words of sign language.
When E returned to foster mother’s care four months later,
E had regressed socially and emotionally and was no lon-
ger using sign language or pulling herself up. She was also
underweight. E had to have water with her for security and
would eat quickly and compete with her stepbrother to grab
more food. E’s issues around food resolved in a few weeks,
and issues around water resolved in about six months. E
also exhibited aggressive behaviors and would bite and hit
176 Dept. of Human Services v. D. M.
her siblings and foster parents, scream, and would have
emotional outbursts and observable dissociation, where
she would stare off and be unresponsive to her environ-
ment. When E’s siblings visit their maternal grandparents
and she is alone with foster parents, she “is like a different
child.” She talks and is silly and “essentially comes out of
her shell.” When her siblings return, E reverts into her shell,
not talking as much, and being “a little bit more unhappy.”
E’s foster mother testified to a sense that being in the same
home as her stepbrother and half-sister is having “a pretty
significant effect on her behavior and mental health” and
that the children do not seem to mind being away from each
other. E’s foster mother, who is a potential adoptive resource
for E, is committed to keeping the children in each other’s
lives even if E were to remain in her care without the other
children.
E began individual counseling in September 2018
and was diagnosed with “adjustment disorder, with focus on
anxiety and emotional disturbance.” Her treatment goals
are emotional regulation, how to debrief trauma in a pos-
itive way, and social skills with her sibling interactions.
Since starting work with her current counselor in May
2019, E has improved her language skills, has become more
engaged with people, has increased her emotional ability,
and has become less dissociated. She has regressed a few
times, usually after in-person supervision with father and
stepmother. Her ability to rebound after a regression has
improved—taking two days, when it used to take three to
five days. E’s counselor testified that she cannot be reunited
with father and stepmother without first repairing the rela-
tionships. Repairing the relationships requires active lis-
tening by the parents, consistent eye contact, and playing
and interacting with E. Her caregivers also need partic-
ular skills to parent E, because of her trauma. E’s coun-
selor stated that her caregiver needs to have ongoing com-
munication with the counselor to learn those skills and E’s
needs. She estimated that a six- to eight-month therapeutic
reintroduction with home visits would be necessary for E
to safely reintegrate with father and stepmother. She also
emphasized that repairing their relationship with E would
require father and stepmother to acknowledge the trauma
Cite as 310 Or App 171 (2021) 177
that E experienced, and that dismissing that trauma causes
more trauma.
Father was given E’s counselor’s contact informa-
tion in June 2019, and, in December 2019, he contacted the
DHS caseworker to provide a release for the counselor to
speak with them. The caseworker provided a release the
same day. Father did not contact E’s counselor until the end
of January 2020, when he contacted the counselor by email.
Father and stepmother had a conversation with E’s counselor
in February and met her in person in March. During those
conversations, E’s counselor stressed the tools they need to
support E and gave them her direct phone number to con-
tact her with their schedule. E’s counselor did not hear from
them again until after the June 2020 hearing dates. They
then arranged to meet with E’s counselor and the children
before the next hearing date in July. However, due largely
to father’s and stepmother’s mismanagement of time, E’s
counselor was able to observe father and stepmother inter-
act with the children for only 10 or 15 minutes.
Before coronavirus restrictions began in March
2020, E would have visits with father both by video and
supervised in person. Due to the distance to the foster par-
ents’ house, in-person visits were once or twice a month, and
video visits were two to three times a week. After restric-
tions, visits were only by video for a few months prior to
the permanency hearing. For the first six months following
removal, E visited only with father, because stepmother was
under a no contact order pending the criminal mistreatment
charge. After expiration of that order, E, along with her step-
brother and half-sister, began visiting with father and step-
mother at the same time. E’s foster mother testified that,
when stepmother was added to visitation, E would have dis-
sociative episodes and would only engage when father was
present. After all-day in-person visits with father and step-
mother, upon her return, E would “go into her shell” and not
eat. Often during video visits, father or stepmother would
be doing other things—such as driving, shopping, working,
or talking to each other—which would cause the children to
disengage from the visit, but, if father and stepmother were
engaged, the children were also. Before December 2019,
178 Dept. of Human Services v. D. M.
foster mother was never sure if father and stepmother would
call for the video visits, but since that time, they have been
more consistent.
Following the children’s removal, father and step-
mother continued to have an unstable relationship, telling
people they were separating then coming back together, and
they continued to have physical arguments. They started
attending group and one-on-one marital counseling sessions
with their pastor in the summer of 2019. However, their
pastor is not a licensed counselor, having only taken two
college courses and some self-taught counseling modules.
The most recently reported physical argument occurred in
September 2019, during which father grabbed stepmother’s
glasses off her face, breaking them, and took stepmother’s
phone. Stepmother left the home so she could make a call
and later returned and locked herself in a separate room
away from father. At the time, she told others that she
was afraid of father. At the permanency hearing, however,
stepmother minimized the argument and claimed that she
just went into another room to be alone and not because
she was in fear. Stepmother also minimized the argument
that led to the children’s removal, testifying that the chil-
dren did not hear it because they were asleep in another
room.
Father and stepmother testified that, after the
September incident, which occurred nine months before the
hearing, they recommitted to their relationship and in using
the skills they have gained from their pastor, and other
sources, they now have a good marriage. They both testi-
fied that they still have disagreements, but now they talk
things through and do not yell or become physical. Father
and stepmother also have a new baby son, who was born
in April 2020. Father admitted that, around the time his
son was born, he was “talking to another chick,” but that he
then cut off all contact with that person and is committed to
stepmother. With regard to their new son, DHS conducted
an assessment due to the ongoing cases with the other chil-
dren, but DHS did not determine that any actions needed to
be taken as to him. At the time of the permanency hearing,
father and stepmother were parenting their baby son with-
out DHS involvement.
Cite as 310 Or App 171 (2021) 179
At the hearing, both father and stepmother flatly
denied that stepmother ever abused E or the other children,
emphasizing that stepmother made an “Alford plea” to the
criminal mistreatment charge, meaning that she main-
tained her innocence. Father minimized his previous con-
cerns about stepmother and testified that he did not believe
that any criminal mistreatment happened and that he had
no current concerns about stepmother parenting E. When
asked how he would protect the children if he were to develop
concerns, given that he did nothing when he had concerns
before their removal, he testified that “I guess I would treat
all the kids equal * * * [and] just make sure that if I even had
a remote suspicion, to make the call, make—make the effort
to get everything sorted out before it gets that far again.”
Stepmother testified that she took a plea deal only
to get her children back. She admitted that she still had a
short temper when her “buttons” get pushed, but she testi-
fied that “I will never admit to abusing my children, and [E]
never pushed my buttons” and maintained that she “did not
verbally, emotionally, or physically abuse my children.” She
also testified that the children have not experienced any
trauma from abuse; that the only trauma they have is from
being removed from her care by DHS.
With respect to services engagement, both father
and stepmother engaged in case planning, obtained suit-
able housing, completed parenting courses, and completed
mental health assessments. Father’s mental health assess-
ment found that he had no substance abuse issues and no
mental health diagnoses, and no additional services were
recommended. At the hearing, father did admit that he
drank alcohol in April 2020. During an unannounced visit
to his home in June 2020, the DHS caseworker observed
empty alcohol containers and garbage piled up outside the
door. Father started individual counseling one month before
the hearing. He is also enrolled in a batterer’s intervention
program (BIP) that he started in October 2019, after being
required by the court to attend one in April 2019. However,
father continued to have attendance issues that, if contin-
ued, would result in his termination from BIP. When he did
attend class, he was prepared and engaged. His BIP coun-
selor testified that father had attended 22 sessions, had
180 Dept. of Human Services v. D. M.
missed nine sessions, and needed to attend at least 14 more
sessions. If father’s attendance issues continued, it could take
him six months to complete the course, but he would likely
be terminated from the program first. If he started attend-
ing regularly, he could complete the remaining sessions in
seven to 14 weeks.
Stepmother’s mental health assessment found that
she had no substance abuse issues; she was diagnosed with
“adjustment disorder with mixed anxiety and depressed
mood” and was recommended for anger management treat-
ment. Stepmother was referred to “Saving Grace,” which
works with victims of domestic violence, but she chose not to
work with them. Stepmother completed an anger manage-
ment class and is participating in individual counseling.
As noted, father and stepmother have been engag-
ing in marital counseling with their pastor, who has no for-
mal counseling training. Their pastor testified that their
relationship improved once they saw the value to the lessons.
In addition to efforts mentioned above, DHS efforts
to assist in reunification of E with father include facilitat-
ing case planning contact with family, monthly contact with
father and E, a referral for mental health assessment and
drug and alcohol assessment, a referral to Neighborhood
Impact for housing assistance, a referral for BIP, referral for
counseling, assistance in finding a licensed marital coun-
selor that would accept father’s insurance, encouragement
to father to communicate with E’s counselor, referrals for
assessments and counseling for E, gas vouchers and hotel
accommodations for father and stepmother for in-person vis-
its, and travel reimbursements for foster parents to facili-
tate in-person visits.
At the close of evidence, the juvenile court changed
E’s plan from reunification to adoption. The court found that
father and stepmother were credible in some respects, but
were not consistently credible. The court particularly noted
that stepmother asserted, with observable anger, that she
will never admit to abusing the children. The court found,
however, that she did abuse and neglect the children, and,
specifically, abused and neglected E by physically causing
bruises, locking E in her room, ignoring E, and withholding
Cite as 310 Or App 171 (2021) 181
fluids. The court further found that father did not protect
E, based on his own admission. The court also found that
neither father nor stepmother were acknowledging what
domestic violence is.
The court found that DHS made reasonable efforts,
adopting the summary of those efforts provided by DHS.
The court also found that father and stepmother have not
made sufficient progress. As relevant to E, the court found:
“The primary concern in changing the permanency
plan from reunification with the parent is always the
child’s health and safety. When we have parents sitting
here saying, ‘There was no domestic violence. I will never
admit there’s domestic violence,’ right there, right out of
the starting blocks, we have a problem. On this record, on
these jurisdictional bases that have been admitted.
“The Court concurs with the State and other lawyers
that * * * the parties are minimizing conflict, abuse of the
children.
“Turning to Father, Father has been offered a lot of
services but still, as of yesterday, he still has 14 batterer’s
intervention visits to attend to. It—it’s not that hard to do
this. * * *
“It’s unclear why the parents refuse to have a licensed
counselor. They’ve got, very kindly, [father’s] former bus
driver, who’s a pastor. That’s great, but we don’t need to
reiterate his background does not include licensure or col-
lege except two classes.
“* * * * *
“That is in no way to say that this service that the pas-
tor has provided is not helping. * * * But the problems with
these parents are greater than the background and train-
ing that the pastor has identified.”
The court further found that stepmother, based on
her demeanor in the courtroom, still “doesn’t get it” with
respect to anger management. When asked whether E
pushes stepmother’s buttons, the court stated that “[t]he
anger [step]mother demonstrated exceeded the reasonable
calm question that was asked.” The court found that father
and stepmother are not fully engaged in using what they
have learned and are not engaged with E’s counselor, they
182 Dept. of Human Services v. D. M.
lack insight, and their home is not calm and safe. The court
also noted that there seems to still be trash piled up around
the home. The court noted with regard to father’s admitted
substance abuse jurisdictional basis that urine sampling
was not asked for and recognized that father was not for-
bidden from drinking alcohol. However, the court found it
concerning that father was still drinking as of April 2020,
given the limited amount of time he has with the children,
even his new baby, because of his long work hours.
The court determined that DHS met its burden
and changed E’s plan from reunification to adoption. The
court also determined that there was no compelling reason
not to proceed with termination of father’s parental rights,
because father “has not established that he’s successfully
participating in services sufficiently to let [E] return home
in any reasonable time, particularly given [E’s] needs.”
Under ORS 419B.476(2)(a), in order to change E’s
permanency plan from reunification to adoption, “the juve-
nile court was required to make two predicate determina-
tions: (1) that DHS made ‘reasonable efforts’ to reunify [E]
with father; and (2) that, notwithstanding those efforts,
father’s progress was not sufficient to permit reunification.”3
L. L. S., 290 Or App at 138. If the court determines that the
plan should be changed, then it must also determine, under
ORS 419B.498(2)(b),4 whether the party resisting the plan
change has proved that there is a “compelling reason” that
3
ORS 419B.476(2)(a) provides:
“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 reasonable
efforts or, if the Indian Child Welfare Act applies, active 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.”
4
ORS 419B.498(2)(b) provides, in part:
“(2) The department shall file a petition to terminate the parental rights
of a parent in the circumstances described in subsection (1) of this section
unless:
“* * * * *
“(b) There is a compelling reason, which is documented in the case plan,
for determining that filing such a petition would not be in the best interests
of the child or ward. Such compelling reasons include, but are not limited to:
Cite as 310 Or App 171 (2021) 183
DHS should not file a petition to terminate parental rights.
S. J. M., 364 Or at 55.
We begin with father’s arguments regarding the ade-
quacy of DHS’s efforts to reunify father and E. Reasonable
efforts are “efforts that focus on ameliorating the adjudi-
cated bases for jurisdiction, and that give ‘parents a reason-
able opportunity to demonstrate their ability to adjust their
conduct and become minimally adequate parents.’ ” L. L. S.,
290 Or App at 138 (quoting Dept. of Human Services v.
S. M. H., 283 Or App 295, 306, 388 P3d 1204 (2017) (internal
quotation marks omitted)). “It is always the burden of DHS
to prove by a preponderance of the evidence that its efforts
to assist a parent in ameliorating the jurisdictional basis
were reasonable.” Dept. of Human Services v. D. M. R., 301
Or App 436, 443, 455 P3d 599 (2019). The reasonableness of
DHS’s efforts depends on the totality of circumstances of the
parent and child. Dept. of Human Services v. D. M. D., 301
Or App 148, 156, 454 P3d 838 (2019). “When DHS does not
provide a particular service to a parent, we view the ade-
quacy of DHS’s efforts in light of the potential benefits that
providing that service could have yielded.” Id.Father argues that the department failed to make
reasonable efforts because (1) it did not refer him to any
further substance abuse treatment for his alcohol use, even
after DHS received evidence that father had started drink-
ing alcohol again a year after his first assessment; (2) it
did not refer father to services that would directly address
his “volatile relationship” with stepmother, because father
and stepmother attended marital counseling without the
support or assistance of DHS, and, to the extent it would
address that basis for jurisdiction, DHS did not give father
adequate time to complete BIP; and (3) DHS did not refer
father to services that addressed the jurisdictional bases of
failure to protect the child from stepmother and failure to
maintain a safe environment.
“(A) The parent is successfully participating in services that will make it
possible for the child or ward to safely return home within a reasonable time
as provided in ORS 419B.476(5)(c); [or]
“(B) Another permanent plan is better suited to meet the health and
safety needs of the child or ward, including the need to preserve the child’s or
ward’s sibling attachments and relationships[.]”
184 Dept. of Human Services v. D. M.
We reject father’s arguments. With respect to sub-
stance abuse, father was referred to an assessment, which
did not recommend any further treatment. Given that
father did not have a substance abuse issue that required
treatment, there is no indication that father could have been
referred to a further service that would have yielded bene-
fits. In the juvenile court’s findings, it did note that father’s
decision to drink was concerning, given his limited time
with his children. However, the court did not find that father
had an active substance abuse issue, rather it was focused
on father’s failure to prioritize his children’s needs.
With respect to his “volatile” relationship with step-
mother, father was referred for counseling and BIP to
address that issue. Although the referral for BIP did not
occur until April 2019, it was made with sufficient time
for father to engage and complete that program, had he
attended regularly. DHS also provided assistance for father
to find a licensed marital counselor that would accept his
insurance. With respect to his failure to protect E, father
was also referred for parenting courses, in addition to the
counseling, as noted. More specifically, given E’s needs,
DHS attempted to facilitate father’s and stepmother’s con-
tact with E’s counselor so that he could repair that relation-
ship and learn about E’s needs, which directly relates to pro-
tecting E and maintaining a safe home. Given the totality
of the circumstances, those efforts of DHS, along with the
other efforts that DHS made, were reasonable.
We next address whether DHS proved that father
failed to make sufficient progress. “In determining whether
the parent has made sufficient progress, the juvenile court
gives the highest priority to a child’s health and welfare.”
Dept. of Human Services v. M. K., 285 Or App 448, 460, 396
P3d 294, rev den, 361 Or 885 (2017). “Even if a parent has
completed all services that have been required, evidence
that a parent continues to engage in behavior that is harm-
ful to a child supports a determination that the parent has
not made sufficient progress to make it possible for the child
to return home.” G. N., 263 Or App at 297.
Father argues that he made sufficient progress,
as demonstrated by the fact that he and stepmother were
Cite as 310 Or App 171 (2021) 185
successfully parenting their newborn child without DHS
assistance or intervention. He also argues that there was
insufficient evidence that father’s alcohol use or failure to
maintain a safe home continued to pose safety risks to E,
that father cannot protect E from physical abuse or mal-
treatment by stepmother, that father and stepmother must
fully acknowledge past conduct for E to return safely, or that
father’s “volatile relationship” with stepmother prevents
reunification.
Here, the record supports the juvenile court’s find-
ings that E suffered harm from father’s and stepmother’s
past conduct and that acknowledging that E suffered trauma
as a result of that conduct is necessary for E to return safely.
E’s counselor testified that such acknowledgement was nec-
essary, and that father and stepmother would have to engage
in E’s treatment to learn her needs and the tools necessary
to parent her without triggering her. The court could rea-
sonably infer that father had not made sufficient progress
to be able to protect E based on father’s minimization of his
and stepmother’s past conduct and its effect on E, includ-
ing his tacit denial that any of stepmother’s past conduct
with E constituted abuse, his minimal engagement with E’s
counselor, and his inability to articulate what he would do
if he again had concerns about stepmother’s conduct with E.
The court could also reasonably infer from the record that
father’s and stepmother’s relationship continued to be vola-
tile, given their minimization of past conduct, downplaying
of current disagreements, and father’s admission to “talking
with another chick” in April 2020 when his son was born.
The record also supports the juvenile court’s findings that
father and stepmother both continue to demonstrate a lack
of insight and ability to apply lessons from services to their
life and parenting. Under the totality of the circumstances,
the court could reasonably make the findings that it did,
and those findings support the conclusion that father has
not made sufficient progress for E to safely return home.
Finally, we address compelling reasons. As stated
above, if the juvenile court determines that the child’s plan
should be changed from reunification to adoption, then it
must determine whether the party resisting the plan change
proved that there is a “compelling reason” that DHS should
186 Dept. of Human Services v. D. M.
not file a petition to terminate parental rights. S. J. M., 364
Or at 55; ORS 419B.498(2)(b).
Father argues that he proved a compelling reason,
because he was successfully participating in services, specif-
ically BIP and marital counseling, and E’s return to his home
could occur within a reasonable time. Father also argues
that adoption is not an appropriate plan for E, because one
of her siblings has a plan of guardianship and her other sib-
ling is in father’s care without DHS intervention.
On this record, father did not meet his burden. First,
father did not propose an alternate plan for E below. Second,
father did not demonstrate that E could be returned home in
a reasonable time. The record supports the juvenile court’s
findings, as described above, which include that E could not
safely return home without father acknowledging the harm
to her from his and stepmother’s past conduct, which they
refuse to do, that father and stepmother were not engaging
with E’s counselor, and father had inconsistent engagement
with BIP. Those findings are sufficient to support the juve-
nile court’s legal conclusion that there was “no compelling
reason” that the filing of a petition to terminate parental
rights would not be in the best interests of E. That legal
conclusion is further supported by father’s failure to propose
an alternative plan that would better serve E’s needs or to
demonstrate that keeping E in the same placement with her
siblings was a compelling reason not to pursue an adoption
under these circumstances.
Accordingly, we affirm the juvenile court’s judg-
ment changing E’s permanency plan from reunification to
adoption.
Affirmed.