Dept. of Human Services v. J. F. R.

260 October 28, 2026 No. 1042 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON In the Matter of O. M. R., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. J. F. R., SR., Appellant. Coos County Circuit Court 25JU04901; A190712 (Control) In the Matter of J. F. R., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. J. F. R., SR., Appellant. Coos County Circuit Court 25JU04902; A190713 In the Matter of J. F. R., Jr., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. J. F. R., SR., Appellant. Coos County Circuit Court 25JU04906; A190714 Martin E. Stone, Judge. Nonprecedential Memo Op: 354 Or App 260 (2026) 261 Submitted September 23, 2026. Shannon Storey, Chief Defender, Juvenile Appellate Section, and Kyle Sessions Vazquez, Deputy Public Defender, filed the brief for appellant. Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and Kyleigh Gray, Assistant Attorney General, filed the brief for respondent. Before Tookey, Presiding Judge, Egan, Judge, and Jacquot, Judge. TOOKEY, P. J. Affirmed. 262 Dept. of Human Services v. J. F. R. TOOKEY, P. J. Father appeals a juvenile court judgment terminat- ing his parental rights to his three children; O, age 6, J, age 8, and J, age 9. In three assignments of error, father argues that his court-appointed counsel provided inadequate assis- tance, specifically because trial counsel “stipulate[d] that the department had proved unfitness, i.e., that father’s alleged conduct or condition was ‘seriously detrimental’ to the children, and * * * instead ma[de] a ‘reasonable efforts’ argument.” We conclude that father has not met his burden to prove inadequate assistance and, accordingly, affirm. “The rights of the parent or parents may be termi- nated as provided in ORS 419B.500 if the court finds that the parent or parents are unfit by reason of conduct or condi- tion seriously detrimental to the child or ward and integra- tion of the child or ward into the home of the parent or par- ents is improbable within a reasonable time due to conduct or conditions not likely to change.” ORS 419B.504. ORS 419B.518(1) provides for court-appointed coun- sel for financially eligible parents defending against a peti- tion to terminate parental rights. Such counsel must pro- vide adequate assistance. State ex rel Juv. Dept. v. Geist, 310 Or 176, 185, 796 P2d 1193 (1990) (concluding that “the legislature intended a statutory right to counsel to include a right to adequate counsel”). A parent’s claim of inadequate assistance of counsel may be raised for the first time on direct appeal, id. at 187, as it is here. It is the parent’s bur- den to prove “both that counsel was inadequate and that the inadequate representation prejudiced the parent,” resulting in a proceeding that was not “fundamentally fair.” Dept. of Human Services v. M. U. L., 281 Or App 120, 125-26, 380 P3d 1232 (2016). “When reviewing an inadequate-assistance claim, we look at the totality of the circumstances to deter- mine whether the claimant was denied a fair trial because of the alleged inadequacies or failures, including tactical decisions that counsel could have made or should have made better.” Dept. of Human Services v. L. T. G., 329 Or App 270, 271, 540 P3d 1142 (2023) (internal quotation marks omit- ted). In this case, we conclude that even if trial counsel was inadequate, an issue which we do not decide here, father has Nonprecedential Memo Op: 354 Or App 260 (2026) 263 not met his burden to prove that he was prejudiced such that the proceeding was fundamentally unfair. At the termination trial, the Oregon Department of Human Services (ODHS) presented evidence that father had been convicted of multiple sexual offenses, resulting in an incarceration sentence of 152 and a half years with no eli- gibility for early release. In closing argument, father’s coun- sel stated that father’s “unavailability due to his criminal sentence * * * meets the standard that he is presently unfit because he’s not available to be there for his kids.” Father’s counsel then argued that the department had not made “reasonable efforts * * * to [father] in any sense throughout the life of this nearly two-year-old case.” In father’s view, these statements constituted inadequate assistance because “it is well settled in Oregon’s appellate courts that incarcer- ation is not itself seriously detrimental to the person’s child” and because reasonable counsel would have been aware that the argument regarding reasonable efforts “had failed on the merits which [the Oregon Court of Appeals] had rejected a week before the [termination] trial in affirming the judg- ments changing the permanency plans for father’s children from reunification to adoption.” ODHS argues that father’s counsel’s statements in closing argument did not constitute inadequate assistance, and that in any case “father has not shown how counsel’s alleged failure prejudiced him,” in part because “the juvenile court’s finding of serious detriment was properly based on the impact that father’s criminal conduct had on the children, and not on an erroneous understanding that father’s incarceration alone was sufficient to meet the department’s burden as to that issue.” Having reviewed the juvenile court’s ruling and the record, we agree with ODHS that father has not demonstrated that he was prejudiced. After a hearing that included testimony from the department’s caseworker, the resource parents, and the children’s therapists, the juvenile court stated: “I am also satisfied and will find that [father’s] * * * criminal conduct is seriously detrimental to these children. They have been impacted by his incarceration, impacted by the criminal charges, impacted by these convictions. 264 Dept. of Human Services v. J. F. R. “The testimony of the therapists and the resource par- ents, the [ODHS] worker—that testimony is credible. It provided me information on what impact the father’s con- duct has had on these children. “I was particularly moved by the resource parent’s tes- timony and how she teared up when she talked about [J, age 9] and the loss of her best friend because of the stigma associated now with [father’s name] in this community. “[J, age 8], obviously, has been impacted also. He is beginning to act out * * *. He becomes violent. So, clearly, these children have had an impact * * * because of this criminal conduct. And that is a serious detriment to their wellbeing.” The record indicates that the juvenile court heard substantial testimony before making its determinations and we conclude that father has not demonstrated that he was prejudiced “such that the proceeding was fundamen- tally unfair.” See Geist, 310 Or at 191 (stating that a parent fails to meet their burden of proof to establish prejudice if the parent fails to “produce some credible evidence which demonstrates that [the] termination proceeding was not fun- damentally fair”). In the alternative, father argues that we should “vacate and remand for a hearing on the adequacy of counsel’s performance.” Given our ruling that father has not demonstrated prejudice, we need not reach this argument. Affirmed.