247 Or App 706
January 25, 2012
DHS filed petitions against the parents in this matter alleging conditions and circumstances that "are as such to endanger the welfare of the person or of others." Specifically that the parents have a history of domestic violence, substance abuse, and housing and employment instability. Mother admitted that "on or about March 13, 2010, she took 15 or more Lorazepam tablets and was behaving erratically while the child was in her care. Mother needs the assistance of a child caring agency to provide for her child's physical, emotional and mental well-being and is willing to participate in a psychological evaluation, counseling, parenting class and drug and alcohol evaluation, if requested by DHS, and follow recommendations thereof." Father admitted "that the couple's use of alcohol and/or controlled substances as well as their 'chronic living instability, employment instability and chaotic lifestyle', interfere with their ability to parent--as well as on the following: 'Father admits to past physical disputes with mother that could present a threat of harm. Father agrees to under[go] a psychological evaluation, if requested, and follow all recommendations.'"
Both prior to the admissions and after the admissions, one of the children made disclosures that father had sexually abused her. Eventually, father's attorney requested that DHS file amended petition's to conform with the disclosures, but they did not do so. At the permanency hearing, the caseworker testified that the case planning was driven by the child abuse allegations. The parents opposed the change of plan arguing that the issue of the sex abuse was a reoccurring theme in the case, but that the allegation had not been adjudicated and thus there were no services related to that particular issue. The trial court changed the plan to adoption based on both parents drug use and the fact that the child was still having supervised visits due to the disclosures of sex abuse as well as her sexually reactive behavior.
The court extends the rationale as outlined in G.E. and N.M.S. - that the state must prove both that DHS provided reasonable efforts and the parents have not made sufficient progress for the child's safe return home. "The particular issues of parental unfitness established in the jurisdictional judgment provide the framework for the court's analysis of each question--that is, both DHS's efforts and a parent's progress are evaluated by reference to the facts that formed the bases for juvenile court jurisdiction...reliance on other facts can affect a parent's right to both notice of what conditions or circumstances the parent must remediate and a reasonable opportunity--through access to services--to remediate them." Further, if a court relies on facts that are extrinsic to those established in the jurisdictional judgment, the ruling must be reversed. The court did so here after finding that the error was not harmless.
Cited Cases and Statutes
- State ex rel Juv. Dept. v. C.D.J., 229. Or App 160 2009 Jackson County
- Dept. of Human Services v. G.E. II, 243 Or App 471 2011 Douglas County
- State ex rel Juv. Dept. v. K.D. 228 Or App 506 2009 Jackson County
- Dept. of Human Services v. N.M.S., 246 Or App 284 2011 Linn County
- State v. S.T.S., 236 Or App 646 2010 Jackson County