Dep't of Human Servs. v. D. L. G. (In re A. G.)
Dep't of Human Servs. v. D. L. G. (In re A. G.)
Opinion of the Court
*1032*791Mother and father appeal from permanency judgments in which the juvenile court changed the permanency plan for their child, A, from reunification to adoption. Mother and father assert that there was insufficient evidence to support a finding that no other permanent plan contemplated by the permanency statutes would have better met child's needs under the circumstances. As explained below, because the underlying premise of mother's and father's arguments has been foreclosed by the Oregon Supreme Court's recent decision in Dept. of Human Services v. S. J. M. ,
At the time of the permanency hearing, A was five years old. She first came into contact with DHS in September 2016 because of concerns that mother and father were using controlled substances and the unsanitary condition of their house. In November 2016, the juvenile court asserted jurisdiction over A on the grounds that parents had not "met the basic medical, dental and physical needs of [their] child, and need[ ] the assistance" of DHS to safely parent. In May 2017, the juvenile court asserted jurisdiction on additional grounds that mother's untreated mental health issues in combination with her traumatic brain injury impaired her ability to safely parent and that father's mental health issues without treatment impaired his ability to safely parent. At the time of removal, A, who was about four years old, was obese, had considerable tooth erosion that required surgery for cavities in 11 out of 20 existing teeth, had a significant diaper rash consistent with a yeast infection, and lacked gross motor skills such as climbing and jumping.
As a result of the dependency cases, DHS referred mother and father to various resources, including parenting classes and training, mental health services, and neuropsychological evaluations, and provided for supervised visits with coaching, modeling, and support. Ultimately, however, DHS moved to change the plan from reunification to adoption based on its assertion that mother and father had not made sufficient progress.
At the time of the permanency hearing in this case, our cases held that DHS, who initiated the change of *792plan, had the burden of proving that there were no compelling reasons to forgo the filing of a petition to terminate the parents' parental rights. See Dept. of Human Services v. J. M. T. M. ,
After briefing and argument in this case, the Oregon Supreme Court issued its decision in S. J. M. , which held that, under ORS 419B.476(5)(d),
As noted earlier, the parties briefed and argued this case before the Supreme Court issued its decision in S. J. M. Subsequently, DHS asserted in a memorandum of additional authorities that "the Supreme Court's holding in S. J. M. is dispositive of parents' 'compelling interest' argument in this appeal or, at the very least, will substantially affect this court's review of the record." Sometime later, father filed his own memorandum of additional authorities, in which he also cited S. J. M. , and asserted that the proper remedy would be for us to remand the case to the juvenile court "so that father would have the opportunity to meet his burden of proof on the question of whether compelling reasons exist to forgo changing [A's] permanency plan from reunification to adoption".
Recently in Dept. of Human Services v. S. J. K. ,
*794S. J. K. , 296 Or. App. at 420,
Finally, we have considered and reject without discussion the remaining challenges by mother and father to the juvenile court's decision. Accordingly, we conclude that the juvenile court did not err in changing the permanency plan for A from reunification to adoption under the circumstances.
Affirmed.
ORS 419B.476(5)(d) provides that, "[i]f the court determines that the permanency plan for the ward should be adoption, the court's determination of whether one of the circumstances in ORS 419B.498(2) is applicable."
ORS 419B.498(2) provides:
"The department shall file a petition to terminate the parental rights of a parent in the circumstances described in subsection (1) of this section unless:
"(a) The child or ward is being cared for by a relative and that placement is intended to be permanent;
"(b) There is a compelling reason, which is documented in the case plan, for determining that filing such a petition would not be in the best interests of the child or ward. Such compelling reasons include, but are not limited to:
"(A) The parent is successfully participating in services that will make it possible for the child or ward to safely return home within a reasonable time as provided in ORS 419B.476(5)(c) ;
"(B) Another permanent plan is better suited to meet the health and safety needs of the child or ward, including the need to preserve the child's or ward's sibling attachments and relationships; or
"(C) The court or local citizen review board in a prior hearing or review determined that while the case plan was to reunify the family the department did not make reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to make it possible for the child or ward to safely return home; or
"(c) The department has not provided to the family of the child or ward, consistent with the time period in the case plan, such services as the department deems necessary for the child or ward to safely return home, if reasonable efforts to make it possible for the child or ward to safely return home are required to be made with respect to the child or ward."
Mother has not filed a response to DHS's initial memorandum or otherwise briefed the effect of S. J. M. on our analysis or disposition.
ORS 419B.470(6) provides:
"Unless good cause otherwise is shown, the court shall also conduct a permanency hearing at any time upon the request of the department, an agency directly responsible for care or placement of the child or ward, parents whose parental rights have not been terminated, an attorney for the child or ward, a court appointed special advocate, a citizen review board, a tribal court or upon its own motion. The court shall schedule the hearing as soon as possible after receiving a request."
Case-law data current through December 31, 2025. Source: CourtListener bulk data.