CaselawThe mother appealed a judgment terminating her parental rights to her three children, KJC, KMC, and KJM. All three children were taken into protective custody in March 2009, based on allegations of substance abuse, domestic violence, and neglect. In two subsequent psychological evaluations, the mother was diagnosed with posttraumatic stress disorder (PTSD), a major depressive disorder, and antisocial personality traits. All of the children had special needs, and an attempt to reunify the two older children with the mother was unsuccessful.
At the time of the termination trial, the mother had been clean and sober for two years, and she argued that her mental health issues were “minimal.” However, the trial court rejected her contention that she was presently fit, finding that her testimony was not credible. The Court of Appeals affirmed, holding that “despite the positive steps that mother has taken, there is clear and convincing evidence that mother's mental condition negatively affects her ability to meet the children's physical and emotional needs, particularly in light of the special needs of these children.” The court held that while a parent’s truthfulness is not a basis for termination, in this case the mother’s “chronic untruthfulness relating to matters directly affecting her receipt of services complicates any assessment of her progress.” The court also rejected the mother’s claim that the children could be returned in a reasonable time, in light of their special needs and the mother’s failure to make sufficient progress despite 22 months of DHS involvement.
The father appealed a permanency judgment that changed the permanency plan for her child to adoption. The Court of Appeals reversed the judgment because it failed to include the findings required by ORS 419B.476(5). See State ex rel Juv. Dept. v. J. F. B., 230 Or App 106, 115, 214 P3d 827 (2009).
The department alleged that the mother had cognitive limitations "which impair[ed] her ability to care for the child[ren]" and, at trial, presented evidence that the mother was not capable of parenting independently. However, at the time of the trial, the mother and one of her children were living in the home of a family friend who supported and assisted the mother in parenting. Nonetheless, the juvenile court asserted jurisdiction over the mother's children based on mother's cognitive limitations.
The mother appealed, arguing (1) that the juvenile code does not require that a parent personally provide all care for her children, so long as her inability to provide care did not endanger her children; and (2) that the children might be endangered in the future should the mother choose to move did not establish that they were subject to a current threat of serious loss or injury. The Court of Appeals agreed and reversed, concluding that the department "failed to prove that the children would be at risk of 'serious loss or injury,' [Dept. of Human Services v. A.F., 243 Or App 379, 386, 259 P3d 957 (2011)], while living with mother in the home of [their family friend]."
The Court of Appeals reversed the permanency judgment changing the children's permanency plans from reunification to adoption based on the juvenile court's failure to make and include in the permanency judgment the findings required by ORS 419B.476(5).
The Department of Human Services originally became involved with the mother and her child in 2005, after an incident of domestic violence occurred in the presence of child. The department removed the child five months later and placed her with her maternal aunt and uncle.
In late 2006 or early 2007, the department learned that mother had a "close and continuing relationship" with her brother, who had been convicted of third-degree sodomy in 1997 but had not completed sex offender treatment. The mother completed a family sex abuse treatment program, which was designed to help parents gain insight into the risks to children posed by unsafe relationships. That treatment provider recommended that the mother be involved in her brother's treatment and that they develop a relapse prevention plan. They did not complete a relapse prevention plan, and the brother did not complete his treatment program.
The department petitioned to terminate the mother's parental rights in August 2007, but moved to dismiss its petition in April 2008. The juvenile court dismissed the termination petition, changed the permanency plan to guardianship, and ultimately entered an order appointing the aunt and uncle as guardians. The mother appealed the order establishing a guardianship, and the Court of Appeals reversed, concluding that there was no basis for the required finding that the child could not be returned to the mother within a reasonable time. The Court of Appeals specifically concluded that the department failed to prove that the brother would have contact with the child and that he posed a risk to the child in the absence of evidence about the nature of his sex offense.
On remand, the juvenile court changed the child's permanency plan back to reunification. However, in September 2009, police arrested the brother at the mother's home for failure to register as a sex offender, and the brother informed police that he regularly stayed at the mother's home two days per week.
The department again moved the juvenile court to change the child's plan to guardianship. The court held a permanency hearing over nine days from April through November 2010, and changed the child's plan to guardianship. The mother appealed, arguing that the department's reunification efforts were not reasonable and her progress was sufficient. The Court of Appeals affirmed.
The Court of Appeals agreed with the juvenile court that the department's efforts were reasonable. The court explained that the primary concern throughout the case had been the mother's inability to recognize and implement protective actions in response to threats posed by the men in the mother's life. With respect to that concern, the department offered the mother individual counseling, psychological evaluations, and classes related to parenting, domestic violence, family sexual abuse, and healthy relationships.
The Court of Appeals also agreed with the juvenile court that the mother's progress was not sufficient and that the child could not be returned to the mother within a reasonable time. First, despite the mother's participation in numerous services, she continued her relationships with unsafe men without "due regard for [the] child's safety." Second, the mother's relationship with child had "not improved and her parenting abilities ha[d] not evolved, with the result that [the] mother and child ha[d] a weak attachment, [the] mother is unable to independently parent, and a change in [the] child's placement would cause a regression in [the] child's behavior and emotional functioning."
DHS petitioned the juvenile court to assert jurisdiction over the father’s children because he “failed to protect” the children from the threat of harm that the mother and her substance abuse posed.
The father had a master’s degree in clinical social work, was employed by a county mental health agency, and worked as a service provider for the Department of Human Services. The mother had a significant history of abusing drugs and alcohol, seeking and completing treatment, maintaining her sobriety, and then relapsing into drug and alcohol abuse. The father allowed the mother to stay in the family home when she was not using, but sent her away if she was. The father explained the mother’s absences to the children by telling them that the mother “gets sick and goes to the doctor’s house.” At no time did he allow the mother to care for the children without supervision.
On two occasions in July 2010 and December 2010, the mother became sick as a result of her substance abuse and had to be hospitalized. The children were aware that mother was ill. When the hospital prepared to discharge the mother in December 2010, a hospital social worker and a nurse believed mother would need someone to stay with and assist her. A DHS caseworker spoke with father and informed him that if he planned to take the mother home, the caseworker would have to make other plans for the children. The caseworker then filed petitions alleging that the children were endangered by the mother’s substance abuse and by the father’s “failure to protect” the children from the mother’s substance abuse.
At the trial on the petitions, the DHS worker testified that the children were bonded to the father, well cared for, and developing fine. However, the worker asserted that the children were “at risk” because they might see the mother when she had relapsed and know that she uses. The father argued that he had never allowed the mother to have unsupervised contact with the children and that the children’s limited, supervised contact with mother was not a valid basis for asserting jurisdiction. DHS responded that its theory was that the father might expose the children to the mother when she relapsed and the mother might physically harm the children. The father countered that DHS had not presented evidence of any dangerous behavior by the mother in the children’s presence.
The juvenile court concluded that DHS had proven that the father’s conduct endangered the children, and the father appealed. The Court of Appeals reversed, concluding that DHS failed to prove that the children were at risk of either emotional or physical harm that would warrant dependency jurisdiction. As to DHS’s theory that the children would be emotionally harmed, the court concluded (1) that evidence that a child is aware of her parent’s substance abuse problem fails to prove that the child is at risk of serious loss or injury, and (2) that DHS failed to prove that the father’s responses to the children’s questions and feelings about the mother’s condition put them at risk of emotional harm. And as to DHS’s theory that the mother might physically harm the children while under the influence, the Court of Appeals found that DHS presented no evidence that mother had been verbally or physically aggressive with the children or in their presence.
The juvenile court asserted jurisdiction over the children based on the mother’s admission that one “child * * * presented with unexplained physical injuries deemed by medical professionals to have been non-accidental.” Thereafter, the court held a permanency hearing and ruled to change the children’s permanency plans away from reunification, in part, because the mother’s “progress in hygiene, parenting skills, and her overall judgment was minimal” and her “mental health problems * * * affected her ability to carry out her ‘parental responsibilities.’”
The mother appealed, and citing Dept. of Human Services v. G.E., 243 Or App 471, 260 P3d 516, adh’d to as modified on recons, 246 Or App 136, 265 P3d 53 (2011), argued that the juvenile court did not have authority to change the children's permanency plans based on facts that were extrinsic to the adjudicated factual bases for jurisdiction. The department responded that the juvenile court was not limited to the adjudicated factual bases for jurisdiction when ruling to change a permanency plan because the court is required to “consider the ward’s health and safety the paramount concerns.” The Court of Appeals rejected that argument, explaining, inter alia, that “if the facts have been determined to be insufficient to support continue jurisdiction, the court lacks authority to act, let alone to decide that adoption is an appropriate plan for a child.” The court further explained that the holding of G.E. does not require the juvenile court to ignore parental deficiencies that were not adjudicated as a basis for jurisdiction. Rather, “it envisions amendment of the jurisdictional petition in those circumstances.”
The Court of Appeals agreed with the mother that the juvenile court impermissibly changed the children’s permanency plans based, at least in part, on facts extrinsic to the jurisdictional judgment. The court explained that although “poor judgment and mental health problems * * * may conceivably be implicated in an allegation of unexplained, nonaccidental injury, concerns about hygiene and general parenting skills are not.”
The juvenile court changed the permanency plans for the mother's children from reunification to adoption. The mother appealed, arguing that the juvenile court's failure to include its "compelling reason" determination, as required by ORS 419B.476(5)(d), required reversal. The mother further argued, in the alternative, that (1) she had no practical opportunity to object to the court's failure because the error did not arise until the juvenile court entered the judgment, and (2) the court's failure to include its determination in the judgment constituted plain error over which the court should exercise its discretion to review. The Court of Appeals reversed, explaining that it "need not resolve the parties' preservation dispute because, even if ordinary preservation principles were to apply to this circumstance, we would nonetheless exercise our discretion to correct the plainly erroneous judgments."
The mother moved the Court of Appeals to reconsider its decision in Dept. of Human Services v. G.E., 243 Or App 471, 260 P3d 516 (2011). In that opinion, the court concluded that the juvenile court "may have based its decision [denying mother's motion to dismiss] on some facts that are extrinsic to the jurisdictional judgment. For that reason, we must reverse and remand for clarification and possible amendment of the original jurisdictional judgment." Id. at 478-79. The mother specifically argued that the court erroneously concluded that the mother continued to have a substance abuse problem that endangered the child, notwithstanding that the mother never completed recommended substance abuse treatment.
The uncontradicted testimony of the caseworker was that the mother did not currently suffer from a substance abuse problem. Moreover, the record contained no evidence of any threat a possible substance abuse problem would pose to the child. Consequently, the Court of Appeals reversed and remanded to the juvenile court for entry of a judgment dismissing jurisdiction.
The mother reported to police that the father had physically abused her and had sexually abused their 4-year-old daughter, V. The mother specifically reported that she had witnessed father inserting his fingers into V’s vagina and that V had informed her that her vaginal area hurt because the father had put his finger in it. The child at various times also told a number of people, including a caseworker, the mother’s friend, child advocacy center interviewers, and her preschool teacher, that father had touched her. In addition to the abuse allegations, the mother reported that the father used cocaine and drank heavily.
Three months later, the mother retracted her statements that the father had touched V inappropriately. DHS filed a dependency petition concerning V and her sibling C. At a contested hearing on the petition, the juvenile court admitted into evidence V’s out-of-court statements describing the touching. The mother testified that she had instructed V to say that the father had touched her.
The juvenile court found that the “‘father placed his fingers in [V’s] vagina at least one time as described by [V] and [the] mother.’” The court asserted jurisdiction based on the father’s “history of cocaine abuse, his history of alcohol use, his actions in exposing the children to domestic violence, and the fact that father was ‘an untreated sex offender [who had] sexually abused’ V.” Based on its conclusion that the father had subjected a child to sexually abuse, the juvenile court entered a judgment, pursuant to ORS 419B.340(5)(a)(D), concluding that aggravated circumstances excused DHS from making reunification efforts.
The father appealed, arguing, inter alia, that the juvenile court erred in admitting the child’s out-of-court statements pursuant to the Court of Appeals’ holdings in State ex rel Juv. Dept. v. Cowens, 143 Or App 68, 922 P2d 1258, rev den, 324 Or 395, 927 Pd 600 (1996) and State ex rel Dept. of Human Services v. Meyers, 207 Or App 271, 140 P3d 1181, rev den, 341 Or 450, 143 P3d 773 (2006). In Cowens and Meyers, the Court of Appeals held that a child’s out-of-court statements were admissible in dependency and termination of parental rights cases as nonhearsay statements of a party offered against the party, pursuant to OEC 801(4)(b)(A). The court reasoned that, in such proceedings, the children have interests in both maintaining their relationship with their parents and in being protected by the state; therefore, a child’s out-of-court statement is offered not only against the parent, but also against the child. The Court of Appeals adhered to its holdings in Cowens and Meyers and concluded that the juvenile court properly admitted V’s out-of-court statements.
The father also argued that the juvenile court erred in finding that the state proved that he was an untreated sex offender who sexually abused V and that aggravated circumstances existed. The father requested that the Court of Appeals review those findings de novo. The court declined to do so and concluded that evidence in the record supported the juvenile court’s findings.
The mother had a history incarceration, drug abuse, and failed attempts at recovery and reform. At the time of the termination trial, she had been involved with the department for seven years resulting in all three of her children living in the care of her mother. She had been diagnosed with a personality disorder “not otherwise specified.” At the time of the termination trial, the mother had been clean and sober for 46 days and had submitted to 14 drug and alcohol tests, all of which showed that she did not have any controlled substances in her system. Her drug and alcohol counselor “was optimistic for mother’s recovery.” She testified that she would prefer one year of sobriety before resuming the care of her daughter. Mother’s daughter, H, was doing well in relative foster care. The juvenile court terminated the mother’s rights concluding that, in light of mother’s history, “the serious detriment to the [child] speaks for itself. The Court of Appeals reversed, concluding that (1) the department failed to prove that the mother’s conduct or condition “has been, or will be, seriously detrimental to H. H was born healthy and remains happy and healthy;” (2) the department failed to prove that H’s integration into mother’s home was improbable within a reasonable period of time, because there was no evidence specifically addressing H’s need for permanency or whether it would be reasonable for her to wait a year to 18 months pending determination of mother’s ability to sustain recovery.
The juvenile court terminated mother's parental rights on several bases, including that mother "abandoned" the child. Mother appealed, arguing, inter alia, that the department failed to prove abandonment, and the department agreed. The Court of Appeals affirmed the judgment terminating mother's parental rights, but, citing Dept. of Human Services v. B.J.B., 242 Or App 534, 256 P3d 167 (2011), "note[d] that [its] decision is not based on any allegation of abandonment."
Both parents appealed judgments terminating their parental rights. The mother and father met in prison approximately 10 years before the termination trial. They had three children: H., born in 2005, L., born in 2006, and K., born in 2008. DHS had been involved with the mother and the children since H.’s birth. DHS was aware of the relationship between the mother and father, and knew that the father was an untreated sex offender. However, the father did not come forward to acknowledge paternity, and the mother was not truthful about her ongoing relationship with him. At the time of the termination trial, H. had been removed from the mother’s care three times, and L. had been removed twice. K. had been in foster care since she was three months old. The foster parents and H.’s therapists testified that the transitions in and out of foster care were difficult for H. and L., and that too many “changes of primary care providers” can lead to adjustment disorders in children. Both parents were diagnosed with personality disorders, and the mental health professionals who evaluated them believed that their disorders were not treatable.
The Court of Appeals reversed the judgments terminating parental rights. Although the court found that the parents’ personality disorders and the mother’s conduct in lying to DHS about her relationship with father constituted “conduct or conditions” under ORS 419B.504, the court held that the state failed to prove serious detriment, because “there was no evidence that mother harmed her children,” and no evidence that the father’s personality disorder “had a direct detrimental effect on any of the children.” The court placed particular importance on the fact that at the time of the termination trial, the children “appear[ed] to be doing well.”
The juvenile court asserted jurisdiction over the father's child based on the father's physical assault of the child, D. At a review hearing the court ordered the father to allow his other children--who were not wards of the court--to have contact with D. The father appealed, arguing that the juvenile court lacked statutory authority to order the father to do anything with respect to his children who were not wards of the court, and further, that the juvenile court's order violated his constitutional right under the Fourteenth Amendment to the United States Constitution to direct the upbringing of his children.
The Court of Appeals affirmed, concluding that the juvenile court's order was authorized by ORS 419B.337(3), which provides that the juvenile court "may make an order regarding visitation by the ward's parents or siblings." The Court of Appeals rejected the father's constitutional argument, concluding that it was unpreserved.
The mother had a long history of alcoholism, treatment, and relapse. When the mother was drinking she was unable to adequately parent and neglected her children. She had a history of criminal convictions related to alcohol and child neglect. And she had been diagnosed with anxiety disorder, post traumatic stress disorder, and social phobia. The mother did not undergo treatment for her mental health issues and an expert testified that “if one has mental health problems that are untreated, they’re at higher risk for relapse.” At the time of the trial, mother had been sober for two and one half years.
Experts testified that the children “had problems attributable to mother and her instability, such as developmental delays, mood disorders, and PTSD, and that both children needed therapy and immediate permanency.” The trial court terminated the mother’s parental rights on numerous bases including addictive use of alcohol to the extent that parental ability has been substantially impaired, and mental illness. The mother appealed arguing that the department failed to prove (1) that she was unfit at the time of trial, and (2) that integration of the children was improbable within a reasonable time because her condition was unlikely to change. The Court of Appeals affirmed, explaining that the mother's failure to address her mental health problems and the consequent increased likelihood of relapse proved that the mother "engaged in conduct or is characterized by a condition that must be considered for its effects on [her children] under ORS 419B.504(1)-(3).” The court further explained that “although mother’s alcohol-induced neglect of the children and mother’s criminal conduct making her unavailable to parent were not current at the time of trial, mother’s current conditions” pose a serious detriment to the children because the children have “various developmental, behavioral, and mental health problems attributable to mother.” And evidence that the children needed permanency immediately and that mother’s condition would take a “considerable amount of time” to change was sufficient to prove that the integration of the children with mother was improbable within a reasonable time because her condition was unlikely to change.
The mother killed the father during a domestic dispute. At the time of the killing, one child was present in the home and the mother had been drinking. Police arrested the mother and the department placed the child with her maternal aunt. Thereafter and while in jail, the mother gave birth to her second child. The mother pleaded guilty to criminally negligent homicide and the trial court sentenced her to 60 months’ imprisonment. For awhile, the children remained in their aunt’s care and were doing well. After the juvenile court changed the children’s permanency plans to adoption, the department removed the children from their placement with their aunt and placed them in the care of their paternal grandmother.
After the move, the children began therapy. One of the children exhibited temper tantrums, prolonged crying, and aggression. In the meantime, the mother participated in services in the prison including submitting to a psychological evaluation, the results of which demonstrated that she did not suffer from any personality disorders associated with domestic violence. The trial court terminated mother’s parental rights on the basis that she was unfit because of (1) her substance abuse; (2) her conduct of repeatedly exposing her youngest child to domestic violence; (3) her criminal conduct deprived both children of their father; and (4) her criminal conduct rendered her unavailable to parent for “at least another 36 months.” The mother appealed arguing that the department had failed to prove that she was unfit at the time of trial. The Court of Appeals agreed and reversed, holding that evidence of the mother’s historical substance abuse and domestic violence together with her current incarceration was insufficient to prove that the mother was unfit at the time of the termination trial.
The department removed the child, H, from her mother’s care shortly after birth. The mother had ongoing issues with drugs and alcohol, and had been diagnosed as having a personality disorder not otherwise specified. When H was one year old, the father became a party to the case. At the time of the termination trial, an expert testified that—with treatment—it would take a minimum of six months for the father to resolve his issues with the mother. “The juvenile court terminated father’s rights based on unfitness pursuant to ORS 419B.504 because of (1) his relationship with mother and lack of insight and understanding regarding mother’s serious deficits as a parent; (2) his unsuitable living situation and failure to formulate a viable plan for caring for H; and (3) his inability or lack of desire or effort to adjust his circumstances to meet H’s needs over his or mother’s needs even after repeated reasonable efforts.” The Court of Appeals held that the department’s failure to present any evidence regarding how a six month delay in achieving permanency would affect H’s emotional and developmental needs or her ability to form and maintain lasting attachments was dispositive and required reversal.
In Dept. of Human Services v. N.L., 237 Or App 133, 239 P3d 255 (2010), the Court of Appeals reversed a jurisdictional and dispositional judgment. In that case, the juvenile court and counsel had discussed the possibility that the children were Indians, which would require DHS to satisfy the more stringent requirements of the Indian Child Welfare Act (ICWA) before the juvenile court could assert jurisdiction. At the time of the jurisdiction hearing, the Indian tribe had not responded to inquiries regarding the children’s enrollment status, and counsel all agreed that, as such, there was no need to comply with ICWA. The juvenile court applied a “preponderance of evidence” standard, rather than “clear and convincing” as required by ICWA and did not make findings required under ORS 419B.340(7) in ICWA cases. The court asserted jurisdiction over the children based on neglect, and the parents appealed, arguing that the court failed to comply with ICWA when it asserted jurisdiction. The Court of Appeals agreed and reversed the jurisdictional and dispositional judgment based on the juvenile court’s failure to comply with ICWA.
While that appeal was pending, the juvenile court held a permanency hearing and changed the children’s permanency plans to adoption. The parents appealed, arguing that because the juvenile court never properly asserted jurisdiction after the Court of Appeals reversed the jurisdictional and dispositional judgment, the juvenile court lacked jurisdiction to change the children’s permanency plans. The Court of Appeals agreed and reversed the permanency judgments.
The court asserted jurisdiction on the basis of the conditions in mother’s family home, mother’s “history of substance abuse which could impact her ability to safely parent,” and because her brother had pointed a gun at her while she was holding her daughter. At the subsequent permanency hearing, the mother moved to dismiss jurisdiction and wardship arguing that the factual bases for jurisdiction had ceased to exist. The court denied the motion to dismiss and changed the permanency plan to adoption based, in part, on the mother’s mental health issues and inattentiveness to the child. The Court of Appeals reversed, holding that the juvenile court lacked authority to change a permanency plan away from reunification based on facts that are extrinsic to the jurisdictional judgment. The court explained that facts are extrinsic to the jurisdictional judgment “if a reasonable parent would not have had notice from the petition or the jurisdictional judgment as to what he or she must do in order to prevent the state from assuming or continuing jurisdiction over the child.” DHS petitioned the juvenile court to assert jurisdiction over the father’s children, inter alia, on the basis that the father “displayed sexually inappropriate behaviors.” To meets its burden, DHS presented evidence that (1) one year prior to the jurisdictional hearing, the father’s wife had given his computer to the police; and (2) a forensic search of the computer revealed a significant amount of adult pornography and remnants of child pornography, including three “thumbnails” of still images and six partially downloaded videos. The juvenile court asserted jurisdiction, reasoning that the children were at risk of being exposed to the pornography and that the child pornography established that the father presented a risk to the children.
The father appealed arguing that DHS had failed to present sufficient evidence that his possession of pornography endangered either of his children. The Court of Appeals agreed with the father and reversed the jurisdictional judgments, holding that “for the juvenile court to have jurisdiction over a child pursuant to ORS 419B.100(1)(c), the child’s conditions or circumstances must give rise to a threat of serious loss or injury to the child” that is “current” and reasonably likely to be “realized.” First, the Court of Appeals concluded that DHS failed to prove that the children were likely to be harmed by exposure to pornography because (1) it presented no evidence of how the children would be harmed, and (2) it presented no evidence that the father had possessed pornography since police seized his computers more then a year before the jurisdiction trial. Second, the Court of Appeals concluded that DHS failed to prove that father himself posed a risk to the children, because its own expert testified that he would need additional information to determine whether father posed a risk. Moreover, DHS’s expert emphasized that the fact that a person possesses pornography does not necessarily mean that the person will commit a sexual offense.
The mother appealed a judgment terminating her parental rights to two children, A and V. The court affirmed that judgment without discussion. The father also appealed the judgment terminating his parental rights to V.
V was born in July 2008. Because of the mother's child welfare history, DHS obtained temporary custody of V at birth and placed her in the father’s physical custody. V was placed in substitute care after the father and mother violated the terms of the temporary custody order. The mother and father had a volatile relationship, and the juvenile court ordered that they have no contact with each other. Less than one month later, the father admitted that he and the mother had violated the no-contact order. The mother reported to police that the father had threatened her and entered her apartment without permission. In January 2009, the father was charged with third-degree sexual abuse, based on allegations that he had touched the breast of a 14-year-old girl (that charge was later dismissed).
For much of 2009, the father was in and out of jail or in detention on an immigration hold, and DHS was unable to provide services. When the father was not in custody, he consistently visited V. At trial, the father testified that he was “very much in love” with the mother, but that he would discontinue contact with her in order to obtain custody of V. The court found that the evidence in the record concerning V was “scant and very general,” but her foster parent testified that she was doing well and was capable of forming an attachment to an adoptive family.
The court held that it “need not decide whether the father was unfit, because we conclude that, in any event, DHS has failed to prove, by clear and convincing evidence, that V's integration into father's home was improbable within a reasonable time.” With regard to the father’s relationship with the mother, the court found that “we do not believe that father actually remained involved with mother or that he was likely to again become involved with her, even if he wanted to do so.” The court also found that DHS failed to prove that the father could not successfully complete any needed treatment within a reasonable time, in light of the “lack of evidence” regarding the child’s needs.
The mother appealed a judgment terminating her parental rights to her child based on (1) extreme conduct under ORS 419B.502, (2) unfitness under ORS 419B.504, (3) neglect under ORS 419B.506, and (4) abandonment under ORS 419B.508. The department did not argue that it proved abandonment, but instead argued that the Court of Appeals need not address that issue because the court could affirm the termination on other bases.
The mother argued--and the Court of Appeals agreed--that affirmance of a judgment without specifying which allegations the court has concluded were proven "can potentially have adverse collateral consequences in a subsequent proceeding." The court concluded that although the department had not proven abandonment, the mother had not specified a particular adverse collateral consequence that might flow from the erroneous inclusion in the judgment of abandonment as basis for termination. The Court of Appeals affirmed, but noted that, "[i]n the future, if a party specifies on appeal the collateral consequences that could result from a disposition that was based on some but not all of the allegations in a petition for termination of parental rights, we will, if appropriate, specify any allegations that play no part in our disposition."
The youth appealed a judgment finding him within the juvenile cour'ts jurisdiction based on acts that would constitute the crimes of recklessly endangering another person, ORS 163.195, and criminal mischief in the second degree, ORS 164.354.
The victim was driving when something hit and shattered the windshield of her car. She immediately pulled over and called her husband, who drove to meet her. The victim got out of the car, looked around, and found a tennis-ball-sized rock. The husband saw two young men walking away from the area, and when they saw the husband they looked nervous and began walking faster. Police arrived and questioned the youth and Jackson-Grixby, and Jackson-Grixby ultimately admitted he was responsible for breaking the window. At the hearing on the petition, Jackson-Grixby testified that he and youth were together on the night in question and had thrown rocks at passing cars while hiding behind a bush.
On appeal, the youth argued that Jackson-Grixby's accomplice testimony was not sufficiently corroborated under ORS 138.440. In the youth's view, the evidence corroborating Jackson-Grixby's testimony was insufficient because it "merely shows that youth was with Jackson-Grixby close in time and place to the incident without evidence that the two 'were together at a place and under circumstances not likely to have occurred unless there was criminal concert between them.'"
The Court of Appeals explained that the "corroboration evidence" included (1) testimony that the victim's car's windshield was shattered by something hitting it; (2) the tennis-ball sized rock found near the victim's car immediately thereafter; (3) the husband's testimony that he saw the youth and Jackson-Grixby close to the location shortly after the incident took place and that both looked nervous and began walking faster when they saw the husband. The court concluded that the "fact that youth and Jackson-Grixby may have had some other, non-criminal, reasons to be together at the time and place of the crime does not defeat the corroborative value of the evidence." The court affirmed, further concluding that the evidence "fairly and legitimately" connected the youth with the commission of the crime.
The mother appealed a permanency judgment that changed the permanency plan for her child from reunification to adoption. The mother argued (1) that the juvenile court failed to include the court's description of DHS's reunification efforts as required under ORS 419B.476(5); and (2) that the juvenile court erred in concluding that there was no reason under ORS 419B.498(2) to defer filing a termination petition. See ORS 419B.476(5)(d) (requiring that when the court determines the plan should be adoption, its determination "whether one of the circumstances in ORS 419B.498(2) is applicable).
The Court of Appeals affirmed the judgment. First, it concluded that the juvenile court's "adoption" of DHS's court report as its written findings concerning "reasonable efforts" satisfied the requirement under ORS 419B.476(5) that the court include a brief description of DHS's efforts in the permanency judgment.
Second, the court concluded that "adoption" and "placement with a fit and willing relative," in the context of the juvenile code, referred to two distinct permanency plans. Thus, the "reference in ORS 419B.498(2) to when '[t]he child or ward is being cared for by a relative and that placement is intended to be permanent' refers to placement with a relative other than adoption. Therefore, although the child was living with a relative who intended to adopt him, the juvenile court did not err in concluding that none of the circumstances under ORS 419B.498(2) existed.
The juvenile court originally asserted jurisdiction over child because mother’s marijuana use and storage of “controlled substances and paraphernalia” within child’s reach endangered child. The mother participated in several inpatient and outpatient substance abuse treatment and recovery support programs, but ultimately “relapsed” into heroin use. Shortly thereafter, mother again entered residential substance abuse treatment. The mother successfully completed treatment the day before the termination trial began. She denied that she used any controlled substances after beginning this treatment episode. The mother planned to participate in a recovery support program and Narcotics Anonymous, and continue Suboxone therapy, medication that decreases opiate cravings and prevents highs. She also was interested in living in an Oxford House and her father planned to help her get an apartment after that. Experts believed that the mother could be ready to parent in three to 18 months.
The mother’s two children each had some delays when DHS removed them from mother’s home, but their conditions improved in foster care. One of the children, AA, was diagnosed with adjustment disorder and was “traumatized by the separation from mother” and was anxious about fighting he observed between the mother and father.
The mother did well in visits with the children, generally addressing each child’s needs, being affectionate, and displaying good parenting skills. However, she missed some visits without warning or explanation, which upset AA.
The juvenile court terminated the mother’s parental rights on the basis of unfitness under ORS 419B.504, and the Court of Appeals reversed the termination judgment. The court declined to address whether the mother was unfit, because it concluded that, “in any event, DHS failed to prove that the children’s integration into mother’s home is improbable within a reasonable time due to conduct or conditions not likely to change.” It concluded that the “record is devoid of evidence regarding how * * * a delay in achieving permanency [of three to 18 months] would affect the children’s emotional and developmental needs or their ability to form and maintain lasting attachments.” And although the court found the delay the children had experienced “troubling,” it could not conclude that integration was improbable within a reasonable time without evidence of how any further delay would affect the children.
The mother appealed a permanency judgment that changed the permanency plan for her child to adoption. The Court of Appeals reversed the judgment because it failed to include a finding as to whether one of the reasons to defer filing a termination petition under ORS 419B.498(2) applied, as required by ORS 419B.476(5). See State ex rel Juv. Dept. v. J. F. B., 230 Or App 106, 115, 214 P3d 827 (2009).
The father appealed judgment terminating his parental rights, arguing that termination was improper under both ORS 419B.504 and ORS 419B.502. The court affirmed, concluding that the department proved that the father was unfit under ORS 419B.504, and therefore the court need not reach the issue of whether termination was proper under ORS 419B.502.
The mother appealed from two successive judgments and the appeals were consolidated. Both judgments indicated that they arose out of permanency hearings. But the record showed that the court treated the first hearing as a review hearing and not a permanency hearing. The Court of Appeals held that the juvenile court’s entry of a permanency judgment after a permanency hearing rendered mother’s appeal from the review hearing moot.
The mother appealed a permanency judgment that changed the permanency plan for her child from reunification to adoption. She argued that the juvenile court erred in changing the plan to "open adoption" because (1) the juvenile code does not provide "open adoption" as a permanency plan, and (2) a plan of guardianship would better protect child's health and safety needs.
The Court of Appeals affirmed. It first concluded that the juvenile court did not change the plan "open adoption" which it explicitly stated it "cannot mandate"; rather, it ordered a plan of adoption, a plan that undisputedly is contemplated by the juvenile code. The Court of Appeals then concluded that evidence in the record supported the juvenile court's conclusions that an open adoption would best meet the child's needs for permanency and continuing contact with his birth family, and that it was very likely that the child's current foster parents would adopt the child and would agree to continuing contact.
The juvenile court asserted jurisdiction over the youth based on acts that, if committed by an adult, would constitute sexual abuse in the third degree under ORS 163.415. Over the youth’s objection, the court ordered the youth to pay restitution of $761.20 to an insurance carrier and $311.80 to the Criminal Injuries Compensation Account.
On appeal, the youth argued that (1) the juvenile code defines “victim” differently than the criminal code, and (2) that the insurance carrier and the account are not “victims” for the purpose of restitution in delinquency cases. The Court of Appeals affirmed, concluding that the legislature incorporated the definition of “victim” contained in ORS 137.103(4), which includes insurance carriers and the account.
The juvenile court asserted jurisdiction over the youth based on acts that, if committed by an adult, would constitute first-degree sexual abuse under ORS 163.427 and coercion under ORS 163.275. The court ordered the youth to pay $853.59 to the Criminal Injuries Compensation Account.
On appeal, the youth argued that the juvenile court lacked authority to order restitution to the account because (1) the account is not a “victim” as defined in the juvenile code, and (2) ORS chapter 147, which describes the procedure for paying restitution to the account, was not incorporated into the juvenile code. The Court of Appeals affirmed, concluding that State v. E.V., 240 Or App 298, 246 P3d 78 (2010) was dispositive of the youth’s first argument, and declining to reach the second argument because it was unpreserved and the error was not “plain error.”
The father appealed a permanency judgment that changed the permanency plan from reunification to adoption. The Court of Appeals reversed, because the juvenile court failed to include findings required under ORS 419B.476(5). See, e.g., Dept. of Human Services v. L.P.H., 235 Or App 69, 70-71, 230 P3d 75 (2010).
The mother appealed a permanency judgment that changed the permanency plan for her two children from reunification to guardianship. The Court of Appeals reversed, because the juvenile court failed to include findings required under ORS 419B.476(5). See, e.g., Dept. of Human Services v. L. P. H., 235 Or App 69, 70-71, 230 P3d 75 (2010).
The father downloaded and viewed child pornography and was convicted of first-degree encouraging child sexual abuse. He was incarcerated for a year and upon release was subject to a post-prison supervision (PPS) condition that restricted him from any contact with minors. At the time of the termination trial, he had completed four months of a 22- to 26-month sex offender treatment program for four months. Although the sex offender treatment provider and the probation officer believed father might be able to have contact with his child at an earlier time, they also believed it was unlikely the child could be reintegrated into father’s home for about two years.
The child was six years old and had not seen the father for a year and a half at the time of the termination trial, because the child’s therapist had recommended that the child not visit father while he was incarcerated and when the juvenile court ordered contact, DHS provided only sporadic visits. Due to a premature birth, the child was developmentally delayed by about a year and a half. He also suffered from severe headaches and possibly seizures. He was diagnosed with borderline cognitive functioning and adjustment disorder and was at risk for “developmental behavioral and emotional issues.” The child also had “traits of post-traumatic stress disorder (PTSD) and reactive attachment disorder.”
Because of these problems, the child had difficulty with transitions, and a psychologist who evaluated the child believed that difficulty would continue and cause him to regress, particularly in a neglectful or harmful environment. The child’s occupational therapist concurred and opined that child needed permanency in less than two years.
DHS petitioned to terminate the father’s parental rights based on unfitness under ORS 419B.504 and extreme conduct under ORS 419B.502. The juvenile court terminated father’s parental rights. A majority of the Court of Appeals affirmed, concluding that father was unfit under ORS 419B.504. And because the court affirmed on the basis of unfitness, it declined to address extreme conduct as a basis for termination.
The majority concluded that father was unfit under ORS 419B.504 because he was subject to the PPS condition that he have no contact with minors. That condition, coupled with his earlier incarceration, prevented him from providing the child a stable home. And this condition was seriously detrimental to the child because the child needed a stable home to prevent him from developing “full-blown RAD.” The majority further concluded that child’s integration into father’s home was improbable within a reasonable time because father could not provide a stable home for two years and child could not wait that long.
Father also argued that DHS failed to prove that his conduct or condition was unlikely to change because it failed to offer him sex offender treatment prior to his incarceration and he was unable to begin any treatment until after his release from prison, shortly before the termination trial. The majority rejected that argument, concluding that the issue was whether a parent’s conduct or condition is likely to change at the time of the termination hearing, not whether it was susceptible to change at some point in the past.
Judge Wollheim dissented, concluding that DHS failed to prove extreme conduct under ORS 419B.502 or unfitness under ORS 419B.504. ORS 419B.502 provides that the juvenile court may terminate a parent’s rights for, among other things, “rape, sodomy, or sex abuse of any child.” The dissent reasoned that father’s downloading and viewing child pornography was not extreme conduct because “sexual abuse” requires a person to “subject another person” to some form of sexual contact, and father had not himself subjected any child to any sexual contact.
The dissent viewed DHS’s extreme conduct as providing context for DHS’s actions in handling the dependency case, i.e., refusing father judicially-authorized contact with child and failing to provide him with sex offender treatment. In the dissent’s view, DHS’s actions created some of the very conditions it contended justified termination. DHS “essentially conceded” that its efforts were not reasonable, but argued that it did not have to prove that its efforts were reasonable in a termination proceeding. The dissent rejected that argument, explaining that because DHS never made efforts to assist father in resolving the reasons the child was in DHS custody, it necessarily failed to prove that the child could not be integrated within a reasonable time because father’s conduct or condition was unlikely to change. And based on that failure, DHS had not proven that father was unfit under ORS 419B.504.
Judge Sercombe also dissented, concurring with Wollheim that DHS failed to prove that father’s condition could not be treated so as to remedy any risk to child within a reasonable time, but agreeing with the majority that proof of past reasonable efforts is not necessary in every termination case under ORS 419B.504.
The mother appealed a permanency judgment that changed the permanency plan to adoption. The Court of Appeals reversed, because the juvenile court failed to include findings required under ORS 419B.476(5). See State ex rel Juv. Dept. v. J. F. B, 230 Or App 106, 115, 214 P3d 827 (2009).
The mother stipulated to a single allegation, viz, “The child has special medical needs. The mother would benefit from assistance from the Department of Human Services Child Welfare Program,” and the juvenile court asserted jurisdiction on that basis. On appeal, the mother argued that the facts to which she admitted were insufficient to establish that the child was in need of the court’s protection and so were insufficient to establish jurisdiction. The department responded that the mother had failed to preserve her claim of error and had “stipulated” to jurisdiction. The Court of Appeals held that (1) a parent may stipulate to facts but may not stipulate to jurisdiction; (2) where a parent stipulates to a factual basis for jurisdiction, the test for the court is whether the allegation was sufficient to allow the department to offer evidence that could establish jurisdiction; (3) liberally construed, the ambiguous wording “would benefit” is sufficient. The father appealed from a permanency judgment changing the plan for his child from reunification to adoption. He assigned error to the trial court's admission, pursuant to ORS 419B.325 (2), of "numerous reports regarding father's criminal, psychological, and substance abuse history." ORS 419B.325(2) provides that "reports or other material relating to the ward's mental, physical and social history and prognosis may be received by the court without regard to their competency or relevancy under the rules of evidence." The father contended that the evidence in this case was inadmissible because it related "only to father and not to the child," i.e., that the evidence did not relate to the ward’s prognosis.
The Court of Appeals concluded that "evidence relates to a ward's 'mental, physical and social * * * prognosis' if it provides information that is relevant to a forecast or prediction of how the ward will fare in the future, and it necessarily includes information about the ward's future potential caregivers." However, it noted that the statute does not allow the court to "receive any and all evidence that has a relationship, no matter how tenuous, with any of the ward's past, present, or potential future caregivers." But the court held that "the statute allows the admission of material in reports that either the court or DHS ordered for the purpose of evaluating whether, or to what extent, father can maintain his relationship" with his child.
The youth and his family became involved in a fight, and when the victim came to see what was going on, the youth and his sister punched the victim. The youth and the victim then wrestled on the ground, and the youth’s mother hit the victim in the face with a small bat. The victim suffered injuries to his elbow, nose, eye, and eyebrow that required stitches, and he testified that he experienced “enormous pain” from the bat hitting his face.
The youth appealed arguing that he could not be found directly liable for what would be third degree assault because the state failed to prove that (1) he caused the victim’s injuries, or (2) if he did cause the victim’s injuries, he was aided by another person actually present when he did so. The Court of Appeals affirmed, concluding that the youth’s conduct was so “extensively intertwined” with his mother’s “injury-causing assault with the bat” that he was directly liable for the victim’s injuries.
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