Dept. of Human Services v. C. W. ( 2021 )

572
Submitted March 29, reversed June 30, 2021
In the Matter of B. D.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
C. W.,
Appellant.
Douglas County Circuit Court
16JU07326;
Petition Number 1600312;
A174224
493 P3d 74
In this juvenile dependency case, mother appeals a judgment changing the
permanency plan for her seven-year-old son, B, from reunification to adoption.
The juvenile court’s jurisdiction was originally based on mother’s substance
abuse and problems with anger control. Mother engaged in treatment aimed at
those problems, and the court later dismissed jurisdiction as to anger control,
but determined that mother’s substance abuse continued to pose a risk to B.
At the permanency hearing, the Department of Human Services (DHS) argued
that mother’s progress toward reunification was insufficient for purposes of ORS
419B.476(2)(a) because she had stopped engaging in treatment. DHS did not
provide evidence that mother had resumed drinking. Mother argued that she
had graduated from treatment four times and had taken to heart what she had
learned. The juvenile court determined that mother’s progress toward reunifica-
tion had been insufficient and granted DHS’s motion, stating that mother needed
to prove that she did not have an alcohol problem. Held: DHS did not meet its
burden to prove that mother’s progress toward ameliorating the effects of her
substance abuse qualified as insufficient for purpose of ORS 419B.476(2)(a).
Accordingly, the juvenile court lacked authority to change B’s permanency plan
away from reunification.
Reversed.
Ronald D. Grensky, Judge.
Shannon Storey, Chief Defender, Juvenile Appellate Section,
and Sarah Peterson, Deputy Public Defender, Office of Public
Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jona J. Maukonen, Assistant Attorney
General, filed the brief for respondent.
Cite as 312 Or App 572 (2021) 573
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
ARMSTRONG, P. J.
Reversed.
574 Dept. of Human Services v. C. W.
ARMSTRONG, P. J.
In this juvenile dependency case, mother appeals a
judgment changing the permanency plan for her seven-year-
old son, B, from reunification to adoption. Mother challenges
the juvenile court’s determination that mother’s progress
toward reunification was insufficient. We agree with mother
that the juvenile court erred and, accordingly, reverse.
Neither party has requested de novo review, and
this does not otherwise appear to be the type of “excep-
tional” case that would warrant it. See ORAP 5.40(8)(c). We
therefore are bound by the juvenile court’s findings, 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 mother’s progress was sufficient for
purposes of ORS 419B.476(2)(a) is a legal question that we
review for legal error. Dept. of Human Services v. G. N., 263
Or App 287, 294, 328 P3d 728 (2014).
I. BACKGROUND
We describe the facts in three parts: (1) the period
before B was last removed from the home and placed in sub-
stitute care, April 2016 to July 2019; (2) the period between
the July 2019 removal and the jurisdictional hearing in
December 2019; and (3) the period between the December
jurisdictional hearing and the hearing to change the per-
manency plan from reunification to adoption.
A. Circumstances Before B’s Removal to Substitute Care
B was born in 2013. In August 2016, DHS received
a report that mother dropped B off at a relative’s home
and that mother smelled of alcohol. B was wearing dirty
clothes and had bandages covering wounds on his feet that
appeared to be burn marks. Later that month, B was in
mother’s care when mother was intoxicated and, along with
two others, physically assaulted mother’s sister. The juve-
nile court established jurisdiction over B based on mother’s
stipulation that her anger-control problem and substance
abuse interfered with her ability to safely parent B.1 After
1
Father’s severe mental health issues prevented him from safely parenting B.
Father’s parental rights were terminated in 2018.
Cite as 312 Or App 572 (2021) 575
that, mother participated in substance-abuse treatment,
parenting classes, and therapy with B. In an assessment
during her treatment, mother was diagnosed with an
alcohol-use disorder. DHS reported that mother’s alcohol
use led to impulsive and aggressive behavior.
In July 2017, DHS told the juvenile court that
mother had “made good progress in addressing her sub-
stance abuse and mental health.” DHS also noted a positive
change in mother’s behavior, stating that the “manner in
which [mother] relates to her caseworkers and others indi-
cates a significant shift in her thinking and worldview.”
Based on mother’s progress DHS returned B to mother’s
care in July 2017, and DHS reported that the trial reunifi-
cation was going well.
Four months later, in November 2017, DHS received
a call that mother had reportedly used alcohol and that she
had been “talking down” to B. DHS investigated, found
alcohol in the home, and determined that a safety threat
existed. DHS removed B from mother’s care that day.
After B’s November 2017 removal, mother continued
engaging in services aimed at alcohol recovery and mental-
health care. DHS told the court that mother had been “provid-
ing negative [urinalyses].” In March 2018, mother reported
to DHS that she had used alcohol. After her reported relapse,
the juvenile court held a contested permanency hearing
and changed the permanency plan for B from reunification
to adoption in April 2018. Mother continued attending the
alcohol-treatment programs that DHS requested.
In January 2019, having determined that mother
had made significant progress in her counseling and par-
enting classes, DHS returned B to mother’s care, and the
juvenile court restored the permanency plan from adoption
to reunification. DHS implemented an in-home safety plan
that required safety-service providers to check in on mother
at least three times a week. Those providers were to report
to mother’s caseworker whether mother had “relapsed on
any mind[-]altering substance.”2
2
At one point, DHS had listed B’s maternal grandmother as a safety-service
provider, but mother contacted her caseworkers to notify them that, because the
grandmother used alcohol, she was not an appropriate safety-service provider.
576 Dept. of Human Services v. C. W.
Mother brought B to weekly visits with a clinical
therapist. According to the therapist, mother was dedi-
cated to obtaining therapy for B and prioritized attending
counseling with him. In March 2019, DHS reported that
mother had graduated from treatment in substance-abuse
programing and had completed all counseling and anger-
management classes that DHS had recommended. Mother
and B were working well together in parent-child therapy,
and mother’s caseworkers reported that B was receiving the
parenting he needed “to feel safe, cared for and secure that
his needs will be met.” Further, it reported that “[B’s] behav-
iors [had] decreased now that he [was] home with mom.”
Since B’s return to mother in January 2019, mother’s
caseworker, Maxwell, visited mother monthly at mother’s
home to talk with mother and B and assess how the trial
reunification was going. Maxwell reported that mother
appeared to be meeting B’s needs. In April 2019, mother
reported to DHS that she had drunk alcohol. She immedi-
ately contacted her caseworker and her alcohol-abuse coun-
selor to inform them of the relapse, then she self-referred for
further treatment. During that time, mother’s caseworker
visited mother and B and reported that she had observed no
safety threat to B. Moreover, DHS reported to the court that
B appeared to be “receiving the close supervision, limit set-
ting, predictable routines, non-physical consequence, non-
violent role modeling, and positive affirmation/attention he
needs to feel safe, cared for and secure that his needs will
be met.” According to B’s therapist, since B was returned
to mother in January 2019, B was improving, and mother
collaborated in B’s treatment. The therapist stated that
mother supported B’s development and growth, and that
there were “no indicators” that she was unable to safely
parent.
After mother’s early-April 2019 relapse, DHS reported
to the juvenile court that mother had provided alcohol-
negative urinalyses on April 19, April 26, April 30, May 10,
May 13, June 7, and June 21 in 2019. Mother had missed four
appointments around that time, but her substance abuse
counselor noted that it was because the local drug-testing
office had temporarily closed.
Cite as 312 Or App 572 (2021) 577
By July 2019, mother had attended numerous one-
on-one alcohol abuse counseling sessions and had four times
completed an outpatient alcohol-treatment program rec-
ommended by DHS, each time lasting roughly 40 weeks.
According to mother, anytime she reported a relapse, DHS
asked her to engage in the program again, and she did.
Mother also made regular contact with safety-service pro-
viders, completed anger-management treatment, engaged
in parenting classes, and regularly attended therapy ses-
sions with B in addition to her weekly visits with him.
On July 2, 2019, DHS was notified that mother had
tested positive for alcohol and methamphetamine. After
that, mother provided four more random UAs on July 7, 11,
12, and 16, each time testing negative for substances. On
July 12, 2019, DHS reported to the juvenile court that B’s
therapist was concerned about B’s “mental health if he has to
be moved from home again” and that, at home with mother,
B “is active, appears healthy, is following routines, and acts
like he is comfortable and safe at home.” On July 18, 2019,
mother provided a UA that was positive for alcohol. Due to
those two positive test results on July 2 and July 18, and a
missed doctor’s appointment for B, DHS again removed B
from mother’s care.
B. Circumstances Leading Up to December 2019 Jurisdic-
tional Hearing
After B was removed from mother’s care for the
third time in July 2019, mother requested a new caseworker.
DHS denied her request, and mother stopped communicat-
ing with her assigned caseworker. Mother’s attendance in
alcohol-treatment programs waned, and she expressed frus-
tration about completing the program multiple times. DHS
reported that mother did not acknowledge her use of alcohol
as a problem. Mother remained consistent in therapy ses-
sions and visitation with B. In December 2019, the juvenile
court held a hearing on mother’s motion to dismiss depen-
dency jurisdiction and terminate its wardship over B.
At the hearing, mother admitted to drinking after
DHS removed B and that she had drunk alcohol the night
before the hearing. She also said that she occasionally used
578 Dept. of Human Services v. C. W.
alcohol to help her fall asleep. She stated that she has an
“alcohol issue” but denied that she was an alcoholic. After
the hearing, the court dismissed its jurisdictional basis per-
taining to mother’s anger control but continued jurisdiction
over B based on mother’s substance abuse, generally con-
cluding that the risks of harm to B were still present.3
C. Circumstances at Time of Change in Permanency Plan
In June 2020, the juvenile court held a permanency
hearing on DHS’s motion to change B’s permanency plan
from reunification to adoption. At the hearing, DHS argued
that, despite its efforts to reunite B with mother, mother’s
progress toward reunification was insufficient. DHS con-
tended that mother had not responded to its letters of expec-
tation or to her caseworker’s phone calls. Mother had told
DHS to speak to her through her attorney. Mother’s case-
worker testified that, because mother had not “engaged in
any types of treatment,” she was not meeting the “in-home
criteria” DHS had set for her. The caseworker stated that
mother was a good parent for B when she was not drink-
ing, but that mother needed to provide “verification” of her
claimed sobriety.
When asked whether mother would be willing to
engage in the alcohol treatment program again—the one
that she had completed four times—she responded “I will
not engage in [the program] anymore.” She said that she
would voluntarily submit to urinalysis testing if DHS
returned B to her care, but that she had “done every class”
multiple times and believed that she had taken to heart
the skills that she had learned. She also explained that she
was facing eviction and that she could not afford to take
the time off work necessary to attend the program again.
Mother stated that she understood that she was “an alco-
holic” and that, since admitting that, her recovery had only
improved. She said that she had not had a drink since the
jurisdictional hearing in December 2019 and that staying
sober for B was her top priority. DHS did not provide any
evidence that mother had resumed drinking or that she
3
On mother’s appeal, we affirmed the juvenile court’s order in November
2020 without issuing a written opinion. Dept. of Human Services v. C. W., 307 Or
App 659, 476 P3d 131 (2020).
Cite as 312 Or App 572 (2021) 579
had engaged in violent behavior as a result of any recent
relapses.
B’s foster-care provider testified that she and
mother had developed a good relationship and that mother
always acknowledged the effort that the provider puts in
with B. Mother visits the provider’s home to spend time
with B. The provider said that she had never experienced
any interpersonal difficulties with mother and that mother
spent Christmas in 2019 with B in the provider’s home with
her whole family and has kept in close contact throughout
B’s placement there. The provider testified that she has
never had any reason to be concerned about mother’s behav-
ior and that mother and B “have a very strong bond.” The
provider had cared for more than 30 foster children over the
years, and, among them, she has “never really seen a bond
quite like what [B] has with his mom.” She explained that B
often expresses his desire to be reunited with mother.
B’s therapist, who treats B weekly, said that mother
“engages in family therapy with [B] every other week to sup-
port his treatment goals.” She testified that “mother was able
to follow treatment guidelines” and was “able to support her
son.” The therapist said that mother’s attendance at therapy
with B was “regular” and “consistent” and that there had
been only four instances when mother had to reschedule.
Apart from mere attendance, B’s therapist said that
mother was able to “accurately read and interpret [B’s] cues
regarding emotions,” and that she had observed mother
apply the principles she had learned in therapy to engage in
difficult discussions, help B relax, and guide B in regulating
his feelings safely. She further said that mother’s participa-
tion had been “helpful” to B.
Mother’s attorney argued that mother’s ability to
absorb material and integrate it into her interactions with
B demonstrates her capacity to have accomplished the same
with the alcohol-treatment programs. Mother’s attorney
questioned the caseworker, asking whether, despite mother’s
relapse in April 2019, DHS had nevertheless “felt that the
conditions for the in-home plan were met and that reuni-
fication was appropriate” at that time? The caseworker
answered “yes.” She also acknowledged that, when someone
580 Dept. of Human Services v. C. W.
is engaged in recovery from substance abuse, periods of
relapse are part of the pattern and do not always equal
failed recovery.
At the end of the hearing, mother argued against
any change in plan, asserting that DHS had failed to meet
its burden of proving that mother was still abusing alcohol
and that she did not bear the burden to prove to DHS that
she was sober.
The juvenile court granted the department’s motion
and changed B’s permanency plan from reunification to
adoption. In doing so, the court reasoned that mother was
“gonna have to play the game, so to speak, at least as far as
proving to [DHS] that you don’t have this alcohol problem”
because, without doing so, “then there’s no hope for you, in,
in terms of reunification.” The court did not make specific
findings as to DHS’s efforts or mother’s progress. When the
juvenile court does not make findings on disputed issues of
fact, but the evidence supports more than one factual deter-
mination, “we presume that the court decided those issues
in a manner consistent with its ultimate conclusion.” Dept.
of Human Services v. J. R. L., 256 Or App 437, 439, 300 P3d
291 (2013). Mother appealed. The parties reprise the argu-
ments that they made below.
II. ANALYSIS
To change B’s permanency plan from reunification
to anything else, under ORS 419B.476, DHS must prove by
a preponderance of the evidence both: (1) that DHS made
“reasonable efforts” to reunify B with mother; and (2) that,
notwithstanding those efforts, mother’s progress was not
sufficient to allow reunification. Dept. of Human Services
v. V. A. R., 301 Or App 565, 567, 456 P3d 681 (2019). Both
DHS’s efforts and a parent’s progress are evaluated by ref-
erence to the facts that formed the bases for juvenile court
jurisdiction. Dept. of Human Services. v. C. M. E., 278 Or
App 297, 307, 374 P3d 969 (2016). The basis for the juve-
nile court’s jurisdiction in December 2019 was mother’s sub-
stance abuse and its connection to mother’s violent behavior.
At the jurisdictional hearing, mother admitted that she had
used alcohol on several occasions, including the night before
Cite as 312 Or App 572 (2021) 581
the hearing, but testified that she had not engaged in any
violent behavior as a result.
Here, mother does not challenge the court’s conclu-
sion that DHS had made reasonable efforts. Therefore, we
address whether DHS provided sufficient evidence for the
court to conclude that mother’s progress was insufficient
to make it possible for B to safely return home. The “para-
mount concern” in ORS 419B.476 is the “health and safety”
of the child.
Summarizing the facts presented at the hearing
as recounted above, DHS offered evidence that (1) by 2019,
mother had completed multiple alcohol-treatment programs
and other forms of therapy; (2) after B’s July 2019 removal,
mother stopped attending alcohol-treatment classes and
was therefore not meeting the in-home criteria that DHS
had established for mother; and (3) mother was only willing
to communicate with DHS through her attorney. DHS did
not present any evidence that mother currently abused alco-
hol4 but asserted that mother needed to engage in further
treatment to prove that she was sober. DHS likewise pre-
sented no evidence that mother continued to have a problem
with violence that was tied to her drinking.
At the jurisdictional hearing in 2019, mother mini-
mized her use of alcohol, yet she told the juvenile court that
she had drunk alcohol on occasion in the time leading up
to the hearing. Accordingly, the juvenile court had direct
testimony from mother concerning her substance abuse at
that time. Thus, its jurisdictional findings were supported
by evidence.
At the permanency hearing, mother did not min-
imize her alcohol use. She said that she understood that
she is an alcoholic. She testified that, due to the programs
in which she had participated, she had made significant
progress in her recovery and had not had any alcohol since
December 2019. It was also mother’s testimony that she
4
On appeal, DHS argues that B’s maternal grandmother “believed” that
mother was currently abusing substances. However, the evidence was that the
grandmother had no personal knowledge of any alcohol use by mother and had
not been in contact with mother in several months. DHS did not dispute that
evidence at the permanency hearing.
582 Dept. of Human Services v. C. W.
believed that, if she did relapse, she nevertheless would be
able to safely parent B now, just as she had in April 2019
when she had relapsed and when DHS had determined that,
despite the relapse, no safety threat existed.
DHS did not present evidence to the contrary. Rather,
the caseworker confirmed that, when mother had relapsed
in April 2019, she was apparently still meeting B’s needs.
Neither B’s therapist nor foster provider identified any “indi-
cators” to suggest that mother was unable to safely parent
B, and neither had observed anything inappropriate about
mother’s behavior. Mother’s attorney pointed to the thera-
pist’s statement that mother was able to take to heart thera-
peutic techniques and tools and apply those tools in emotion-
ally difficult situations. In mother’s view, that demonstrated
her ability to do the same with the tools that she had learned
in alcohol treatment.
In the context of dependency jurisdiction, where DHS
expects the parent to complete treatment to ameliorate a
parental deficit, we have determined that a parent’s failure
to complete treatment, in and of itself, does not establish
that the deficit continues. See Dept. of Human Services v.
G. E., 246 Or App 136, 138-39, 265 P3d 53 (2011) (reversing
juvenile court’s denial of the mother’s motion to terminate
the wardship, where, despite the parent’s nonparticipation
in treatment, DHS failed to prove that mother’s drug prob-
lem continued). Similarly, alcohol use, on its own, does not
prove that mother posed a risk of harm to B. See Dept. of
Human Services v. E. M., 264 Or App 76, 83, 331 P3d 1054
(2014) (no jurisdiction where record did not contain evidence
that mother’s drug use posed a nonspeculative threat of
serious loss or injury to child); Dept. of Human Services v.
R. L. F., 260 Or App 166, 172-73, 316 P3d 424 (2013) (same).
The juvenile court did not discuss whether mother
was credible in her testimony concerning her sobriety, only
that mother had failed to “play the game” and do what DHS
had requested, which was that she engage in the treatment
programs again to prove that she was sober. Though mother’s
participation in the services recommended by DHS bears
on the progress that she has made towards reunification,
the “paramount concern” in ORS 419B.476 is the “health
Cite as 312 Or App 572 (2021) 583
and safety” of the child. Here, the evidence from the fos-
ter provider and B’s therapist was that mother was able to
provide B with support and care and recognize his needs,
and that there were no indicators of any current safety con-
cern. Further, B has a “strong bond” with mother and has
expressed his desire to be returned to her care. B’s therapist
stated a concern that B would experience distress the longer
separation from mother continued. Mother’s caseworker did
not contradict that testimony.
In sum, we conclude that DHS did not meet its bur-
den to prove that mother’s progress toward ameliorating
the effects of her substance abuse qualified as “insufficient”
for purposes of ORS 419B.476(2)(a). If DHS fails to provide
sufficient evidence that the parent’s progress qualified as
insufficient, then the court lacks authority to change the
child’s permanency plan away from reunification under ORS
419B.476(2)(a). Dept. of Human Services v. R. D., 257 Or App
427, 433, 307 P3d 487 (2013). Accordingly, the juvenile court
was precluded from changing B’s permanency plan away
from reunification.
Reversed.