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

                                       436

Argued and submitted November 6, reversed and remanded December 18, 2019


                 In the Matter of M. M. R.,
                           a Child.
            DEPARTMENT OF HUMAN SERVICES,
                   Petitioner-Respondent,
                              v.
                          D. M. R.,
                          Appellant.
                 Lane County Circuit Court
                  17JU10822, 18JU08099;
                 A171340 (Control), A171341
                                   

    In this juvenile dependency case, father appeals from a judgment changing
his child’s permanency plan from reunification to adoption. At the permanency
hearing, the juvenile court ruled that the Department of Human Services (DHS)
satisfied its burden to prove that it made reasonable efforts to assist father in
ameliorating the jurisdictional basis, father’s “chaotic lifestyle and chaotic rela-
tionship with mother.” On appeal, father asserts that, although DHS provided
bus passes, a referral to parent training, and a referral to “Womenspace,” DHS
has not met its burden to prove that those services were sufficiently related to
resolving the jurisdictional basis. DHS responds that, because it referred father
to Womenspace only after it was clear that he was a victim of domestic violence,
the court can reasonably infer that Womenspace provides assistance to victims
of domestic violence, which could have assisted father in his chaotic relationship
with mother, had he chosen to utilize those services. Held: DHS failed to present
evidence from which the juvenile court could reasonably infer that the services
provided could help father ameliorate the jurisdictional basis, and, thus, did not
satisfy its burden.
    Reversed and remanded.



    Clara L. Rigmaiden, Judge.
   Tiffany Keast, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Shannon Storey,
Chief Defender, Juvenile Appellate Section, Office of Public
Defense Services.
   Nicholas Greenfield, Certified Law Student, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Jona J. Maukonen, Assistant Attorney General.
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  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
  JAMES, J.
  Reversed and remanded.
438                           Dept. of Human Services v. D. M. R.

          JAMES, J.
          In this juvenile dependency case, father appeals
from a judgment changing his child’s permanency plan from
reunification to adoption. At the permanency hearing, the
juvenile court ruled that the Department of Human Services
(DHS) satisfied its burden to prove that it made reasonable
efforts to assist father in ameliorating the jurisdictional
basis, father’s “chaotic lifestyle and chaotic relationship with
mother.”1 On appeal, father asserts that, although DHS pro-
vided bus passes, a referral to parent training, and a refer-
ral to “Womenspace,” DHS did not meet its burden to prove
that these services were sufficiently related to resolving the
jurisdictional basis. DHS responds that, because it referred
father to Womenspace only after it was clear that he was a
victim of domestic violence, the court can reasonably infer
that Womenspace provides assistance to victims of domes-
tic violence, which could have assisted father in his chaotic
relationship with mother, had he chosen to utilize the ser-
vices. We agree with father, and on this limited record, con-
clude that DHS failed to present evidence from which the
juvenile court could reasonably infer that the services pro-
vided could help father ameliorate the jurisdictional basis,
and, thus, did not meet its burden. Accordingly, we reverse
and remand.
          Neither party has requested de novo review, and this
is not the type of “exceptional” case that warrants de novo
review. As we have explained, on appeal of a permanency
judgment, “[t]he juvenile court’s determination[ ] whether
DHS’s efforts were reasonable * * * [is a] legal conclusion[ ]
that we review for errors of law.” Dept. of Human Services v.
G. N., 

, 

, rev den, 

(2014) (internal citations omitted). In conducting that review,
we are bound by the juvenile court’s explicit factual findings
if there is any evidence to support those findings. 

 To the
extent that a court does not make its findings express, we
presume that the court made implicit factual findings in a
manner consistent with its ultimate legal conclusion. 

    1
      Although the permanency judgment encompasses two cases, one case
for father and mother (17JU10822) and another case for biological father
(18JU08099), only the portion of the judgment pertaining to father is contested
on appeal.
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However, “[i]f an implicit factual finding is not necessary
to a trial court’s ultimate conclusion or is not supported by
the record, then the presumption does not apply.” Pereida-
Alba v. Coursey, 

, 

 (2015). The
issue here, whether the department made reasonable efforts
to assist father in alleviating the jurisdictional basis, is a
highly fact-specific inquiry warranting a detailed recitation
of the facts below. Dept. of Human Services v. J. E. R., 

, 

 (2018).
         M was removed from mother’s and father’s care
and placed in foster care in December 2017, due to domes-
tic violence between mother and father. Shortly thereafter,
the court asserted jurisdiction over M, as pertains to father,
based on father’s admission that his “chaotic lifestyle and
chaotic relationship with mother interferes with his ability
to safely parent.” Additionally, the court asserted jurisdic-
tion over M, as pertains to mother, based on her domestic
violence toward father, substance abuse, chaotic lifestyle,
mental health condition, and criminal behaviors. On a later
date, in a separate case, the court also asserted jurisdic-
tion based on allegations regarding M’s biological father.
As noted above, only the portion of the permanency judg-
ment pertaining to father is presented for appeal; therefore,
only the facts pertaining to his appeal are set forth below.
Because father challenges only whether DHS made reason-
able efforts, we focus on what efforts DHS made for father.
        Following the court taking jurisdiction over M,
father and mother continued their relationship. During the
period between the jurisdictional trial and the permanency
hearing, mother physically abused father “quite often.”
After one particularly violent interaction, she was incar-
cerated for assaulting him, and he obtained a restraining
order against her. When she was released, however, father
dropped the restraining order to continue assisting mother
in her addiction recovery.
        A DHS caseworker met with father and suggested
that he utilize services at various facilities, including
“Womenspace.” In the following months, however, a differ-
ent caseworker was assigned to the case. DHS did not pres-
ent testimony from the prior caseworker. The subsequent
440                     Dept. of Human Services v. D. M. R.

caseworker’s testimony revealed that, although he was
unfamiliar with Womenspace, the services it provided, or
the reason that the previous caseworker referred father
there, he knew that father attended at least one meeting
there based upon pamphlets he received from DHS.
         The caseworker also referred father to a “navigator”
to assist father in finding safe and stable housing. Mother
and father met with the navigator to coordinate housing
together, but, the navigator refused to work with mother
after her violent outburst during the meeting.
         Father sought to purchase a motorhome for him
and M to live in. DHS was unable to provide financial assis-
tance for the purchase, but DHS somewhat lessened father’s
financial burden by occasionally providing bus passes and
cell phone minutes. Because DHS was unable to assist with
the motorhome purchase, the caseworker referred father to
“St. Vinnie’s” and “The Mission” for housing. Father was
concerned, however, that “St. Vinnie’s” had provided him
with unsafe housing in the past and that mother’s friends in
“The Mission” could jeopardize her addiction recovery prog-
ress, so he did not use the services. Father testified at the
permanency hearing that he had purchased a motorhome
without assistance from DHS.
         Pursuant to court order, DHS also referred father for
a psychological evaluation and counseling. DHS coordinated
the evaluation, but it is unclear from the record whether
DHS or father coordinated father’s counseling. Father com-
pleted the evaluation, where he discussed his relationship
with mother, and, at the time of the permanency hearing, he
had been participating in counseling through the Veteran’s
Affairs (VA) office for a year.
         Also pursuant to court order, DHS referred father
to parent training. The training included more than 50 vis-
its with M. The caseworker testified that during the visits,
father had always been consistent, cooperative, and appro-
priate. The case worker reiterated that M has always known
appellant as her father and calls him dad; he is dedicated to
her well-being. During the visits they sit next to each other
and watch videos together; he checks in often with her. The
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caseworker observed that she is bonded with father; he is
bonded to her. Father specified that no one ever gave him
negative feedback about parenting time and always said “it
was fantastic.” Father emphasized his “very strong” bond
with M: “She’s as happy to see me as I am happy to see
her.”
         During the permanency hearing, DHS focused its
argument upon father’s efforts to ameliorate the jurisdic-
tional basis rather than DHS’s reasonable efforts to assist
father in that effort. DHS argued that father had not ame-
liorated the “chaos” in his relationship because he refused
to end his relationship with mother. Father’s caseworker
had informally advised father to end that relationship and
testified that father’s failure to do so presented barriers to
offering services to father. The caseworker testified:
      “Q: So for a parent that cannot leave an unsafe rela-
   tionship, is that a parent that you’re going to be looking at
   helping obtain housing or looking at any sort of in-home
   plan with?
     “A: If they were on their—if he were on his own it
   would be easier to try and make those steps.
      “As long as he maintains a relationship with [mother],
   and it’s not a criticism of her, I mean, I do know that she’s
   got some significant mental health issues that impacts [M],
   but it is a concern for myself and for others.”
          Father responded that DHS did not provide evidence
that it informed father he must end the relationship to get
his child back, or how it assisted him in accomplishing that
task. He argued that, although the caseworker had infor-
mally suggested separating from mother, no court order or
letter of expectation told him that he must end his relation-
ship with mother. Father also noted that he had completed
every court-ordered task, including procuring safe and sta-
ble housing, and he began receiving a steady income via
social security disability payments.
         Additionally, father asserted that DHS had not met
its threshold burden to prove that DHS provided reasonable
efforts to assist father. Specifically, father argued that the
only two DHS efforts that could have potentially addressed
442                     Dept. of Human Services v. D. M. R.

father’s “chaotic relationship” with mother were the refer-
rals to parent training and to Womenspace, which DHS
did not show was relevant to father’s chaotic relationship.
According to the caseworker, nearly every effort made by
DHS, although related to helping father in a general sense,
were typically provided in every case and were unrelated to
father’s chaotic relationship with mother.
          The court ruled that “the agency made reason-
able efforts for all parents,” evidenced by all services and
referrals by DHS, including but not limited to providing
father with bus passes and referring father to Womenspace.
Additionally, the court ruled that father’s efforts were insuf-
ficient to ameliorate the jurisdictional basis because he pri-
oritized his relationship with mother instead of utilizing
DHS’s suggested housing resources, and he had not provided
credible evidence that he had obtained safe and stable hous-
ing. The court continued that, “considering everything on
the record, having read the exhibits, including and empha-
sizing the psychological evaluation of the child, I do find it
is in the child’s best interest that the plan be now changed
to adoption.” The court then issued a permanency judgment
memorializing its oral ruling and changed M’s permanency
plan from reunification to adoption. Father now appeals
from that judgment.
         A child becomes a ward of the court when the court
must assert jurisdiction over the child “to protect the child’s
safety and to work with the child’s family to correct the prob-
lems that gave rise to the court’s exercise of jurisdiction.”
Dept. of Human Services v. S. M., 

, 

 (2014) (citing ORS 419B.090(2)); ORS 419B.328(1).
“While a child is a ward of the court, the court oversees the
development and implementation of a permanency plan for
the child.” Dept. of Human Services v. J. C., 

,

 (2019) (citing ORS 419B.476). “ORS chapter
419B provides that, if a ward has not been reunited with
his or her family within 12 months after the ward came into
the juvenile court’s jurisdiction, the juvenile court will hold
a ‘permanency hearing’ to determine an appropriate long-
term path for the ward. ORS 419B.476.” S. M., 

.
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         At the permanency hearing, the juvenile court
determines “whether it is appropriate for DHS to: (1) con-
tinue working towards reunification with the family;
(2) place the child for adoption and petition for termination
of parental rights; (3) refer the ward ‘for establishment of
legal guardianship’; or (4) place the ward ‘in another planned
permanent living arrangement.’ ” 

 (citing ORS 419B.476
(5)(b)).
         Before the juvenile court may change a perma-
nency plan from reunification to adoption, the court must
determine that, under ORS 419B.476(2)(a), (1) DHS made
reasonable efforts for the child to safely return home, and
(2) despite those efforts, parents have not made sufficient
progress to allow the child to safely return home. At issue
here is only the first prong.
         It is always the burden of DHS to prove by a prepon-
derance of the evidence that its efforts to assist a parent in
ameliorating the jurisdictional basis were reasonable. Dept.
of Human Services v. S. M. H., 

, 

 (2017) (internal citations omitted). “The particular
circumstances of each case dictate the type and sufficiency
of efforts that the state is required to make and whether
the types of actions it has required parents to take are rea-
sonable.” Dept. of Human Services v. T. R., 

, 

 (2012) (internal citation omitted). Whether
DHS has provided reasonable efforts should be evaluated
“in view of the nature of the parent’s problems.” Dept. of
Human Services v. D. L. H., 

, 

 (2012), rev den, 

 (2013). Thus, it is through
the lens of the jurisdictional basis that we must analyze the
reasonableness of DHS’s efforts.
         That task—to prove the reasonableness of its
efforts—becomes more challenging when DHS chooses to
allege and proceed upon a jurisdictional basis as amor-
phous and ill-defined as a “chaotic relationship.” We note
that the jurisdictional basis here, a “chaotic relationship” is
not simply an interchangeable term for domestic violence.
If the jurisdictional basis were domestic violence, we have
addressed how such a jurisdictional basis remains child
focused:
444                       Dept. of Human Services v. D. M. R.

       “As a starting point, it is unnecessary to decide the com-
   plicated question raised by father’s arguments as to what
   constitutes ‘domestic violence.’ We have never categorically
   defined domestic violence and need not do so now. See, e.g.,
   State v. S. T. S., 

, 656 n 1, 

 (2010)
   (declining to decide, in juvenile dependency case involving
   physical violence, threats, breaking objects, and verbal
   abuse, whether verbal abuse ‘standing alone’ would create
   jurisdiction). That is so because using the term ‘domestic
   violence’ to describe conduct does not change the ultimate
   inquiry in a dependency case: whether violent or aggressive
   behavior by an adult in the home endangers the child’s wel-
   fare. The focus must always be on the child.”
Dept. of Human Services v. J. J. B., 

, 

 (2018) (internal citation omitted).
         When, as here, the jurisdictional basis is a “chaotic
relationship” it is more challenging to keep the appropri-
ate child focus. The state has no authority to assert itself
into every flawed human relationship—chaotic though it
may be. Rather, the jurisdictional basis here must be inter-
preted to mean a chaotic relationship that, through actions
by father “is of a nature or severity that creates a current
threat of serious loss or injury to [the child] that is likely to
be realized.” J. J. B., 

 (footnote omitted).
Accordingly, the services offered must be targeted not just
to the chaotic relationship, but to how that specific chaotic
relationship endangers the child’s welfare.
         Reasonable efforts to reunify a child with her parent
focus on ameliorating the adjudicated bases for jurisdiction
and give “parents a reasonable opportunity to demonstrate
their ability to adjust their conduct and become minimally
adequate parents.” S. M. H., 

 (internal
citations and quotation marks omitted). In making a rea-
sonable efforts determination, a court “must consider not
only the burdens that the state would shoulder in provid-
ing those services, but also what benefit might reasonably
be expected to flow from them.” Dept. of Human Services v.
M. K., 

, 

 (2013).
         DHS is not excused from making reasonable efforts
to assist a parent because a caseworker believes that efforts
are futile. Stated differently, a parent’s prior choice not to
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use DHS services does not excuse DHS from continuing to
offer them. Dept. of Human Services v. L. L. S., 

, 

 (2018) (internal citation omitted).
         Here, although evidence in the record supports the
trial court’s finding that DHS offered a number of services
to father, the record does not support the inference that
those efforts were related to ameliorating the jurisdictional
basis. According to the caseworker, nearly every effort made
by DHS, although related to helping father in a general
sense, were typically provided in every case and were unre-
lated to father’s chaotic relationship with mother. The case-
worker testified that the only services it provided to father
that were related to the jurisdictional basis were referrals to
parent training and Womenspace.
         Specifically regarding Womenspace, although DHS
provided pamphlets to father after it became clear that he
was a domestic-violence victim, DHS provided little or no
evidence concerning precisely what programming Women-
space offered, or how that programming served to amelio-
rate father’s “chaotic relationship” or prevented that chaotic
relationship from endangering the child. From that lack of
evidence, the juvenile court could not reasonably infer that
Womenspace has the capability to provide relevant services
for father.
         Additionally, DHS asserts that, given father’s self-
selection out of services, its efforts were reasonable.
However, father’s reluctance to utilize DHS services and
instead use other services to accomplish his ordered tasks
does not provide evidence that DHS’s efforts were reason-
able. Rather, father’s decision to utilize services tailored
to his needs speaks to father’s initiative to resolve his own
issues. Regardless of father’s initiative, father’s choice not to
use DHS services does not excuse DHS from continuing to
offer them or otherwise supporting father in alleviating the
jurisdictional basis.
         In conclusion, given the jurisdictional basis, DHS
failed to show that it made reasonable efforts specifically
tailored to the jurisdictional basis for father in light of the
“nature of his problems.” D. L. H., 

. We
446                    Dept. of Human Services v. D. M. R.

acknowledge that M has been in the juvenile court’s juris-
diction since December 2017, and a timely and appropriate
long-term path for her is of utmost importance. Because the
evidence is insufficient to reasonably infer that DHS pro-
vided relevant services to father, however, we must conclude
that DHS did not meet its burden to prove that its efforts
were reasonable. Accordingly, we reverse and remand.
        Reversed and remanded.