Dept. of Human Services v. D. M. D.

148
Submitted October 1, affirmed December 4, 2019
In the Matter of L. L. D.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
D. M. D.,
Appellant.
Multnomah County Circuit Court
17JU06042;
Petition Number 112531;
A170969 (Control)
In the Matter of D. D., Jr.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
D. M. D.,
Appellant.
Multnomah County Circuit Court
17JU06043;
Petition Number 112531;
A170975
454 P3d 838
Father appeals from judgments changing the permanency plan for his two
children from reunification to adoption. He assigns error to the juvenile court’s
conclusion that the Department of Human Services (DHS) made reasonable
efforts to reunify him with his children. Father specifically argues that DHS’s
efforts were unreasonable because it delayed referring father to batterer’s inter-
vention treatment for nearly seven months after the juvenile court ordered DHS
to do so. Held: The juvenile court did not err. DHS delayed father’s referral
because (1) father was arrested in the week following the order and (2) a psycholo-
gist recommended that father needed to demonstrate at least one year of sobriety
before ensuring that batterer’s intervention would be effective, which he had not
yet done. Given those two facts, and in light of the particular circumstances of
father and children, the juvenile court did not err.
Affirmed.
Cite as 301 Or App 148 (2019) 149
Katherine E. Tennyson, Judge.
Franz Bruggemeier filed the brief for appellant. Also on
the brief was Youth, Rights & Justice.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Carson L. Whitehead, Assistant
Attorney General, filed the brief for respondent.
Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Mooney, Judge.
MOONEY, J.
Affirmed.
150 Dept. of Human Services v. D. M. D.
MOONEY, J.
Father appeals from judgments changing the per-
manency plan for his two children, L and C, from reunifi-
cation to adoption. He specifically challenges the juvenile
court’s1 determination that the Department of Human
Services (DHS) made reasonable efforts to reunify father
with his children. We address the sole question of whether
DHS’s efforts were reasonable despite a delayed referral
for certain services. We conclude that the delay was rea-
sonable under the circumstances and therefore affirm the
judgments.
L and C were in DHS custody between 2014 and
2016 after they witnessed father assault their mother.2
During that time, DHS referred father to substance abuse
and domestic abuse treatment services, and the juvenile
court dismissed that case in April 2016 when it found that
father had ameliorated the bases for jurisdiction. In June
2017, police arrested father on various charges, including
child neglect. When officers arrived at father’s home to
check on his children, the house was unlocked and they
found L (10 years old) and C (five years old) alone. The chil-
dren had easy access to several dangerous and unsanitary
items, including knives, lighters, methamphetamine pipes,
and heroin needles. Shortly thereafter, DHS was granted
temporary custody of the children and it referred father to
a drug and alcohol assessment. Father spent several days in
inpatient substance abuse treatment.
1
The relevant proceedings in this consolidated juvenile dependency case
were conducted by a juvenile referee, whose findings and rulings were fully
adopted by the juvenile court.
2
The parties do not request that we engage in de novo review under ORS
19.415(3)(b), and we see no reason to do so. See ORAP 5.40(8)(c) (giving us dis-
cretion to engage in de novo review in “exceptional cases”). Accordingly, we defer
to the juvenile court’s findings of historical fact if they are supported by any
evidence. Dept. of Human Services v. C. L. H., 283 Or App 313, 315, 388 P3d 1214
(2017). We “view the evidence, as supplemented and buttressed by permissible
derivative inferences, in the light most favorable to the [juvenile] court’s dispo-
sition and assess whether, when so viewed, the record was legally sufficient to
permit that outcome.” Dept. of Human Services v. D. A. N., 258 Or App 64, 65,
308 P3d 303, rev den, 354 Or 490 (2013) (citing Dept. of Human Services v. N. P.,
257 Or App 633, 307 P3d 444 (2013)). We state the facts in accordance with that
standard of review.
Cite as 301 Or App 148 (2019) 151
On August 24, 2017, father admitted that his
(1) substance abuse, (2) intimate partner violence and anger,
and (3) inability to maintain a safe home interfered with
his ability to safely parent his children. The juvenile court
accepted his admissions and thereafter found L and C to be
within the dependency jurisdiction of the court. Father was
ordered to undergo drug and alcohol evaluation and com-
plete any recommended treatment; participate in random
drug testing; enroll in parenting classes; obtain stable and
suitable housing; maintain regular contact with his children
and engage in children’s services and therapy if arranged
by DHS; undergo a psychological evaluation and begin any
recommended treatment; enroll in “anger management/
domestic violence counseling/Batterer’s Intervention pro-
gram as directed by DHS”; and maintain contact with DHS.
(Underscoring in original.)
DHS first scheduled a psychological evaluation for
father in October, but he failed to report for that. It was
rescheduled and, in November 2017, Dr. Basham conducted
father’s psychological evaluation. According to Basham’s
report, father had a history of relapsing into drug use
and violent behavior after periods of sobriety, one of which
lasted nearly two years. Basham noted that father had most
recently relapsed following his previous dependency case.
He also noted that father minimized his history of domestic
abuse, which was “a problem at least as serious as his drug
use and as much a threat to future parental functioning as
his drug use.” Basham then concluded that “[t]here would be
little point in pursuing treatment for [domestic abuse] until
he has a significant period clean and sober, but he now has
two clearly identified issues and would need to show prog-
ress in both of those before he would be ready to resume
care of his children.” Basham concluded that father needed
at least one year of sobriety before DHS could accurately
assess his progress in batterer’s intervention or domestic
violence counseling.
Father did not respond to DHS’s attempts to contact
him for nearly half a year after that evaluation. A review
hearing was scheduled for January 12, 2018, but father was
not present because he had been arrested the night before.
152 Dept. of Human Services v. D. M. D.
To that point, DHS had attempted to provide many of the
court-ordered or recommended services, but father avoided
contact with DHS throughout fall 2017 and spring 2018.
DHS was not able to successfully contact father
until the DHS caseworker saw him at the next review hear-
ing on April 10, 2018. After that hearing, the juvenile referee
ordered DHS to refer father to a “FIT” screening (a drug
and alcohol assessment) and batterer’s intervention pro-
gram “within one week.” That was the first time the court
affirmatively ordered DHS to provide a referral for any type
of domestic violence program. Even the original order for
services directed to father required such services only “as
directed by DHS.” In other words, until the April 10, 2018,
hearing, the decision whether to refer father for domestic
violence services arguably remained up to DHS. DHS did
refer father to a FIT screening following the April 10, 2018,
hearing, but, before it referred him to batterer’s interven-
tion, father was again arrested. He voluntarily entered
Washington County’s Family Sentencing Alternative Pilot
Program (FSAP), which he completed in August 2018.
Immediately after he completed FSAP, he began outpatient
substance abuse treatment. He began his sobriety on May 8,
2018.
Father’s participation in FSAP prevented him from
attending a review hearing in July 2018. At that hearing,
the juvenile referee found that DHS continued to make
reasonable efforts. Father has not challenged that ruling.
By father’s next review hearing on October 12, 2018, DHS
had not yet referred father to a batterer’s intervention pro-
gram, despite the April court order. Notwithstanding the
lack of referral, the referee again found that DHS continued
to make reasonable efforts toward reunification and, once
again, father has not challenged that ruling. In both the
July and October review hearings, the referee found that
DHS’s efforts were reasonable because DHS had provided
father with FIT and other residential treatment referrals,
a psychological evaluation, and case management services,
and because it had facilitated communication between
father and children. The referee made no mention of DHS’s
lack of a referral to batterer’s intervention.
Cite as 301 Or App 148 (2019) 153
On November 14, 2018, one year after Basham’s
psychological evaluation and after only seven months of
sobriety, DHS referred father to batterer’s intervention. The
batterer’s intervention treatment provider and the DHS
caseworker spent nearly one month setting up father’s treat-
ment plan. On December 12, DHS paid for father to attend
an intake screening at the program. DHS and the provider
then spent several weeks deciding who would pay for treat-
ment. DHS and father wanted DHS to pay for it, but the
provider insisted that its participants pay for at least some
treatment costs. DHS ultimately arranged for funding for
father’s treatment, which he began in January 2019.
In addition to assisting father with treatment, DHS
made numerous efforts throughout the case to facilitate
communication between father and L and C. Any commu-
nication between father and the children filtered through
numerous therapists and caseworkers. However, L, the older
child, refused multiple times to have father’s letters read
to her. In October 2018, before father’s review hearing, L
wrote to the court requesting that she not have any contact
with father because, among other concerns, she witnessed
multiple instances of father’s domestic violence toward his
girlfriend and she did not feel safe in his home. She also
wrote a letter directly to father telling him that he made
her feel unsafe and that he failed his “second chance” at
being her parent. C did listen to a therapist read him a let-
ter from father in the fall of 2018. However, when he heard
what father wrote, he immediately recalled a traumatic
experience in which he witnessed father’s violence toward
his girlfriend, which then caused C to have a nervous
reaction. Both children consistently expressed a desire to
remain with their foster parents and to never again have
contact with father. By the time of the permanency hearing,
which the court held in January 2019, the children had been
in DHS custody for over 18 months. They had also spent
approximately 32 months in substitute care before this case,
meaning that, by the 2019 permanency hearing, they had
been in substitute care for 50 of the previous 66 months.
The referee considered the above facts when she
presided over father’s three-day permanency hearing in
154 Dept. of Human Services v. D. M. D.
January 2019. Focusing on father’s recent sobriety and
progress in batterer’s intervention services, the referee
found that the children could not safely return home within
a reasonable amount of time, explaining:
“Father has maintained sobriety since his release from cus-
tody in November, and appears to be stable and engaging
well with the intensive FSAP probation program. Father
has a long pattern of sobriety prior to catastrophic relapses,
however, so a period of sobriety much longer than he cur-
rently has would be necessary to have assurance that this
is not yet another round in his ongoing cycle of substance
abuse. Father is only just now beginning [batterer’s] inter-
vention services, which will be a critical service for him.
The evidence demonstrates a long and extreme pattern of
domestic violence on Father’s part, most recently towards
his girlfriend [S] in front of the children. Father contin-
ues in a relationship with [S.] * * * The ongoing traumatic
responses from the children clearly demonstrate that Father
needs significant [batterer’s] intervention and that a great
deal more work would be needed before the children could
even contemplate visitation with Father, much less having
[S] reintroduced into their lives.”
She also found that father had yet to ameliorate the court’s
jurisdictional bases:
“The Court finds that the barriers to return at this time are
Father’s short period of sobriety given his long history of
relapse, Father’s lack of engagement thus far to address his
domestic violence issues, and the traumatic responses that
the children continue to have as a result of this behavior
by Father. Father has yet to ameliorate the jurisdictional
bases. Were this still close to the removal of the children,
Father would be owed an opportunity to further engage in
[batterer’s] intervention and to demonstrate a long period
of sobriety. At this time, however, the children have been in
substitute care for 19 months and have already been in fos-
ter care twice in the past. The children’s therapist testified
credibly that both children need permanency as quickly as
possible and made clear that another failed reunification
would be devastating for the children. The children can-
not wait any longer to see whether Father can maintain
sobriety and address his long standing domestic violence
issues.”
Cite as 301 Or App 148 (2019) 155
Finally, the referee found that DHS made reasonable efforts,
which included
“[m]indsights evaluations of the children with feedback
sessions offered to each parent, * * * consultation with chil-
dren’s therapist regarding recommendations for visitation
for both parents, FIT screening for Father, residential treat-
ment waitlist referral for Father, psychological evaluation
for Father, Batterers Intervention referral for Father plus
payment for intake and ongoing work to arrange contact
for payment of service, coordination with children’s thera-
pist for Father to write appropriate clarification letters to
the children, coordination with Father’s [probation officer]
and treatment providers, case management services.”
The juvenile court adopted the referee’s findings
and entered judgments changing the children’s permanency
plans from reunification to adoption. Father now appeals
from those judgments, assigning error to the court’s deter-
minations that DHS made reasonable efforts. Father argues
that DHS’s efforts were unreasonable “because DHS delayed
the provision of a critical service, one that it was ordered
multiple times to provide, to father until it was too late to
demonstrate his engagement and progress in that service.”
When a juvenile court grants DHS temporary cus-
tody over a child, DHS must protect the parents’ fundamen-
tal rights by “offer[ing] appropriate reunification services
to parents and guardians * * * to make it possible for the
child to safely return home within a reasonable time.” ORS
419B.090(5). A juvenile court may change a child’s perma-
nency plan away from reunification only if DHS proves, by
a preponderance of evidence, “that (1) it made reasonable
efforts to make it possible for the child to be reunified with
his or her parent and (2) notwithstanding those efforts, the
parent’s progress was insufficient to make reunification pos-
sible.” Dept. of Human Services v. S. M. H., 283 Or App 295,
305, 388 P3d 1204 (2017) (citing ORS 419B.476(2)(a)). DHS’s
efforts toward reunification are reasonable if DHS gives
“a parent a fair opportunity to demonstrate the ability to
adjust his or her behavior and act as a ‘minimally adequate’
parent.” Dept. of Human Services v. C. L. H., 283 Or App 313,
322, 388 P3d 1214 (2017) (quoting S. M. H., 283 Or App at
305-06).
156 Dept. of Human Services v. D. M. D.
We measure the reasonableness of DHS’s efforts by
looking at the totality of the circumstances. Dept. of Human
Services v. M. K., 257 Or App 409, 418, 306 P3d 763 (2013).
We look at the particular circumstances of each parent’s
case to determine whether the type and extent of services
offered rendered DHS’s efforts reasonable. See C. L. H., 283
Or App at 323 (requiring “something resembling a cost-
benefit analysis” to determine whether failing to offer a spe-
cific type of service was reasonable); State ex rel Juv. Dept.
v. Williams, 204 Or App 496, 507, 130 P3d 801 (2006) (“[T]he
reasonableness of DHS’s efforts is dependent on the unique
circumstances of a particular case[.]”). We especially scruti-
nize the “period before the [permanency] hearing sufficient
in length to afford a good opportunity to assess parental
progress.” Dept. of Human Services v. S. S., 278 Or App 725,
735, 375 P3d 556 (2016) (internal quotation marks omitted).
We also consider “whether a parent has attempted to make
appropriate changes in his or her life * * * and whether par-
ents ignored or refused to participate in plans suggested by
the state[.]” State ex rel Dept. of Human Services v. Shugars,
208 Or App 694, 712, 145 P3d 354 (2006) (citations omit-
ted). Additionally, because we consider the child’s health
and safety as “paramount,” ORS 419B.476(2)(a), we evalu-
ate DHS’s efforts “in light of the particular circumstances of
[the parent and child],” Dept. of Human Services v. S. W., 267
Or App 277, 290, 340 P3d 675 (2014).
When DHS does not provide a particular service
to a parent, we view the adequacy of DHS’s efforts in light
of the potential benefits that providing that service could
have yielded. Dept. of Human Services v. S. N., 250 Or App
708, 717, 282 P3d 901, rev den, 352 Or 564 (2012). In S. N.,
for example, the juvenile court adopted a psychologist’s
findings that, given that the parent’s mental health issues
“could not be effectively treated,” mental health treatment
would “invariably be low yield.” Id. It found DHS’s efforts
reasonable, despite the fact that it did not refer the parent
to intensive mental health treatment. Id. We affirmed, hold-
ing that DHS’s efforts were reasonable in light of the likely
ineffectiveness of those withheld services. Id.Here, the state argues that “referring father to
Batterer’s Intervention earlier, against Dr. Basham’s
Cite as 301 Or App 148 (2019) 157
recommendation, would have been unreasonable.” We agree.
As a preliminary matter, and as previously mentioned, the
court’s original order concerning domestic violence services
left the decision about whether to refer father for those ser-
vices up to DHS. Between the time the court assumed juris-
diction over L and C in August 2017 and the time of father’s
sobriety on May 11, 2018, father was arrested twice and the
record indicates that he largely refused contact with DHS.
Once sober, father entered into a deferred sentencing pro-
gram and engaged in substance abuse treatment. At that
point, father had only been sober for about four months,
which was well short of the year that Basham suggested
that father demonstrate before entering a domestic violence
program. The court’s April 2018 order for DHS to provide
a referral for batterer’s intervention services notwithstand-
ing, the record, including Basham’s testimony, indicates
that father would not likely have benefitted from batterer’s
intervention until May 2019 or later. The juvenile court did
not enforce its April 2018 order. It continued to make rea-
sonable efforts findings despite DHS’s failure to comply with
the order and the record does not reflect that father sought
enforcement of the order or a “no reasonable efforts” finding
until the January 2019 permanency hearing.
Looking to the rest of DHS’s efforts, the juvenile
court found that DHS referred father to various evaluations
and drug treatments, facilitated communication between
father and L and C, referred father to substance abuse treat-
ment, and ultimately arranged funding for his batterer’s
intervention treatment, despite the provider’s initial objec-
tion to DHS paying for treatment. Under the totality of the
circumstances, those efforts gave father “a fair opportunity
to demonstrate the ability to adjust his * * * behavior and
act as a minimally adequate parent.” C. L. H., 283 Or App
at 322 (internal quotation marks omitted).
We, of course, also “evaluate DHS’s efforts over the
life of this case, in light of the particular circumstances of
father and [L and C].” S. W., 267 Or App at 290. At the time
of the permanency hearing, this case had been active for
19 months. Father’s previous case lasted nearly two years,
meaning that L and C had been in substitute care for the
vast majority of the past five years. The juvenile court found
158 Dept. of Human Services v. D. M. D.
that “another failed reunification would be devastating for
the children. The children cannot wait any longer to see
whether father can maintain sobriety and address his long-
standing domestic violence issues.” DHS’s efforts to provide
services to father reflected the urgency that the children’s
circumstances required. Again, the delays to the treatment
recommended are largely attributable to father, not DHS.
DHS, in fact, referred father to treatment much earlier than
recommended.
Notwithstanding the fact that the juvenile ref-
eree ordered DHS to refer father to batterer’s intervention
in April 2018, father’s circumstances precluded an earlier
referral. Accordingly, the juvenile court did not err in mak-
ing its reasonable efforts determination.
Affirmed.