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Oregon Appellate Ct - Jan 5, 2017

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by: Sara Werboff • January 9, 2017 • no comments

Juvenile Dependency - Insufficient Evidence that DHS Made Reasonable Efforts to Provide Services to Incarcerated Parent

The court concludes that there was insufficient evidence that DHS made reasonable efforts to make reunification possible. Mother had three children under DHS jurisdiction. After struggling with a drug addiction for a long time, and resisting DHS efforts to help with drug addiction, mother ultimately was incarcerated for drug-related offenses. Several months after mother was incarcerated, an overburdened DHS caseworker made contact with mother's prison counselor. Mother had made repeated requests for DHS assistance in setting up phone and video visits with her children, who resided with their aunt, and eventually mother used her own resources to continue the visits. While in prison, mother had engaged in substance abuse and parenting programs and had frequent contact with her children and with DHS.

The court explains that although mother was initially resistant to DHS efforts and was thereafter incarcerated, DHS is not excused from making reasonable efforts. After her incarceration, mother was demonstrably willing to engage in services but DHS did not meet her efforts in kind. Mother's conduct demonstrated that additional efforts by DHS could have materially contributed to the goal of ameliorating the bases for juvenile court jurisdiction.

DHS v. S.M.H., 283 Or App 295 (2017) (Garrett, J.)

Juvenile Dependency - Insufficient Evidence that DHS Made Reasonable Efforts to Provide Services to Incarcerated Parent

The court reverses a judgment changing the permanency plan for the child, M, from reunification to adoption. M was born with serious health issues and DHS became involved almost immediately after hospital staff expressed concerns that parents were volatile and could not properly care for M. After M was put in foster care, father did not visit M nor did he engage in any court-ordered services. Father thereafter was convicted of a crime and incarcerated. Eight months after he was incarcerated, father had contact with a caseworker who provided some information about M's medical needs but did not provide any specific information about how to meet those needs. The caseworker also determined that because of M's health issues, she would not be able to visit father in prison. At the permanency hearing, the caseworker testified that father's incarceration had been an impediment to providing services. Father testified that he was willing to learn what was necessary to care for M.

In order to change a permanency plan, DHS must establish that it made reasonable efforts to make it possible for a child to reunify with his or her parents and, as a separate inquiry, that notwithstanding those efforts, the parent's progress was insufficient to make reunification possible. Here, the court concludes that the juvenile court erred because it determined that, even if DHS had made all reasonable efforts, those efforts would not have made reunification possible. That ruling conflates the "reasonable efforts" and "sufficient progress" inquiries. Further, with respect to "reasonable efforts," the juvenile court is required to engage in a "cost-benefit" analysis when a parent points to a specific failure to provide services. The court explains that the "benefit" prong of that analysis requires the juvenile court to consider the importance of the service to the case plan and the extent to which that service was capable of ameliorating the jurisdictional bases. Here, however, the juvenile court improperly considered only whether the particular service would make reunification possible. Even if a parent is incarcerated, DHS must still make reasonable efforts. Because DHS did not do so here, the court reverses the permanency judgment.

DHS v. C.L.H., 283 Or App 313 (2017) (Garrett, J.)

Search & Seizure - No Article I, Section 9, Violation When Police Searched Defendants' Garbage

The court concludes that the trial court properly denied defendants' motion to suppress evidence derived from a search of their garbage. The court further declines defendants' invitation to distinguish or overrule the Oregon Supreme Court's decision in State v. Howard/Dawson, 342 Or 635 (2007). Police asked defendants' sanitation provider to collect defendants' garbage and provide it to them. On the day that defendants' garbage was normally collected, police observed a manager with the sanitation company drive to defendants' house in his company pickup truck, ahead of the collection truck, pick up defendant's trash cart and replace it with an empty cart. Thereafter, police met up with the manager and took possession of the garbage.

The court concludes that the facts of this case are not materially distinguishable from Howard/Dawson. Defendants did not retain a possessory interest in their garbage after it was collected by the sanitation company. Additionally, defendants did not retain a privacy interest in their garbage because it was abandoned property.

State v. Lien/Wilverding, 283 Or App 334 (2017) (Shorr, J.)