Dept. of Human Services v. C. H.

26 November 7, 2024 No. 39

IN THE SUPREME COURT OF THE

STATE OF OREGON

In the Matter of A. H.,

a Child.

DEPARTMENT OF HUMAN SERVICES,

Respondent on Review,

and

A. H.,

Respondent on Review,

v.

C. H.,

aka C. P.,

Appellant,

and

C. J.,

Petitioner on Review.

In the Matter of A. H.,

a Child.

DEPARTMENT OF HUMAN SERVICES,

Respondent on Review,

and

H.,

Respondent on Review,

v.

C. H.,

aka C. P.,

Petitioner on Review,

and

C. J.,

Appellant.

(CC 20JU00301) (CA A179463)

(SC S070430 (Control); S070454)

Cite as 373 Or 26 (2024) 27

En Banc

On review from the Court of Appeals.*

Argued and submitted March 14, 2024.

Kristen G. Williams, Williams Weyand Law, LLC,

McMinnville, argued the cause and filed the briefs for peti-

tioner on review C. J.

Sean K. Conner, Deputy Public Defender, Office of Public

Defense Services, Salem, argued the cause and filed the

briefs for petitioner on review C. H. Also on the briefs was

Shannon Storey, Chief Defender, Juvenile Appellate Section.

Stacy M. Chaffin, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on review

Department of Human Services. Also on the brief were Ellen

F. Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Christa Obold Eshleman, Youth, Rights & Justice,

Portland, argued the cause and filed the brief for respondent

on review A. H.

GARRETT, J.

The decision of the Court of Appeals and the judgment of

the juvenile court are affirmed.

______________

* Appeal from Multnomah County Circuit Court, Kathryn Villa-Smith,

Judge. 327 Or App 61, 533 P3d 1112 (2023).

28 Dept. of Human Services v. C. H.

GARRETT, J.

When a juvenile court assumes dependency juris-

diction over a child and the plan is to achieve reunification

of the child with one or both parents, the Department of

Human Services (DHS) is required to make “reasonable

efforts * * * to make it possible for the ward to safely return

home.” ORS 419B.476(2)(a). We consider the nature and

application of that requirement in the particular circum-

stances of this case.

Both mother and father have cognitive disabilities.

Their child, A, was born prematurely and had special medi-

cal needs. Because of concerns about parents’ ability to care

for her, A was placed in substitute care under the jurisdic-

tion of the juvenile court on her release from the hospital,

with the permanency plan at that time being reunification.

After providing services to parents for approximately two

years, DHS requested that the juvenile court change the

permanency plan to adoption. The court did so in August

2022. Parents appealed, and a divided panel of the Court

of Appeals affirmed the juvenile court’s judgment. Dept.

of Human Services v. C. H., 327 Or App 61, 533 P3d 1112

(2023). We allowed parents’ petitions for review1 to consider

their arguments that DHS failed, as a matter of law, to make

“reasonable efforts” to make return of the child possible and

that the juvenile court erred in concluding that there was

no compelling reason why adoption would not be in A’s best

interest.

The focus of parents’ “reasonable efforts” argu-

ment is their contention that DHS was required to tailor

its efforts to parents’ unique needs, particularly their cogni-

tive disabilities, and that the agency failed to do so. Parents,

who both are Black, also assert that the agency displayed a

level of cultural and racial insensitivity that made its efforts

unreasonable. As explained below, we agree with parents

that DHS’s handling of a dispute between parents and a

foster parent over A’s hair care was culturally and racially

inappropriate, and that DHS bears some responsibility

1

Mother and father petitioned for review separately and their cases were

consolidated. Their briefs to this court are virtually identical, and, therefore, we

do not refer separately in this opinion to mother’s and father’s arguments.

Cite as 373 Or 26 (2024) 29

for the breakdown in communications with parents in the

months leading up to the juvenile court hearing at which

the permanency plan was changed to adoption. However,

we conclude that, despite those shortcomings in DHS’s han-

dling of the case, the evidence regarding the totality of the

agency’s involvement with parents is sufficient to support

the juvenile court’s determination that the agency had made

reasonable efforts to make it possible for A to safely return

to parents’ home. We further conclude that the juvenile court

did not err in its determination that there was no compel-

ling reason why adoption would not be in A’s best interest.

The judgment of the juvenile court and the decision of the

Court of Appeals are affirmed.

I. BACKGROUND

A. Circumstances Leading to Dependency Jurisdiction

A was born prematurely in December 2019, at about

34 weeks, with special medical needs because of her small

size. She was placed in the hospital’s neonatal intensive care

unit and remained there for about two weeks. Mother was

discharged from the hospital two days after A’s birth; after

her discharge, she and father did not regularly visit A and,

when they did, it was only briefly. Based on their observa-

tions of mother and father during those two weeks, hospital

staff reported concerns to DHS that both parents appeared

to have cognitive limitations that would interfere with their

ability to care for A and ensure her safety. In addition,

mother and father had no stable housing and had been liv-

ing in a shelter when A was born. DHS also learned that,

about four months before A was born, the State of California

had terminated mother’s and father’s parental rights to

their two older children, then ages three and one.

Upon A’s discharge from the hospital, DHS placed

her in nonrelative foster care. DHS filed a petition to bring A

within the juvenile court’s jurisdiction, alleging that moth-

er’s limited cognitive abilities interfered with her ability to

safely parent A; that mother’s and father’s parental rights

to their other two children had previously been terminated

and the circumstances that led to those terminations had

not changed or been ameliorated; that A had special medical

30 Dept. of Human Services v. C. H.

needs that mother and father were unable to meet; and that

both parents needed the assistance of the court and DHS to

safely parent the child. In February 2020, father admitted

that he needed the assistance of the court and DHS to safely

parent A. The juvenile court then issued an order establish-

ing dependency jurisdiction as to father based on that alle-

gation. In that order, the court directed father to enroll in

parenting classes, obtain stable and suitable housing, main-

tain regular visitation, maintain contact with DHS, partici-

pate in services, and attend A’s medical appointments.

Mother made no admissions at that time, and the

remaining allegations in DHS’s petition, pertaining to her

specifically, were held in abeyance because DHS had moved

for the appointment of a guardian ad litem for her. The court

eventually granted that motion in September 2020, and a

guardian ad litem was appointed.

Parents’ caseworker, Udlock, referred mother for

a neuropsychological examination with Dr. Guastadisegni.

In a January 2021 report, Guastadisegni explained that

mother’s IQ scores were within the “extremely low range”

and that mother’s testing was consistent with a neurocogni-

tive disorder. He noted that mother exhibited executive func-

tioning deficits, struggled to process two or more pieces of

information at once, and was easily confused. Guastadisegni

recommended that mother be referred for developmental

disability services. He also recommended that mother be

provided social service assistance to help her find stable

housing, individual counseling to help her address her his-

tory of life instability and to help her acquire life skills, and

hands-on parenting training. Guastadisegni explained that

mother would need information to be presented to her in

a graduated manner, that she would not be able to under-

stand information and instructions without repetition, and

that she would be best served with written summaries of

information so that she could review it repeatedly.

Ultimately, Guastadisegni concluded that, at the

time of the evaluation, mother was unable to be an inde-

pendent parenting resource for A, due to a “constellation of

problems,” including her lack of appreciation of her cognitive

limitations and the lack of a support network. He observed

Cite as 373 Or 26 (2024) 31

that, because of mother’s intellectual disability, she would

always have limitations, but he expressed reluctance to con-

clude that mother’s disability would prevent her from ever

becoming an adequate parent. Nonetheless, he stated that

it would be more realistic for mother to be the “non primary

co-parent in the home with her child, with a caregiver that

is the identified responsible parent.”

Guastadisegni also stated that, if A were returned

to mother’s care, in-home services would be needed, as

mother would need “substantial support” to function, to

make appointments, and to follow through with expecta-

tions. He described several factors for measuring mother’s

progress in acquiring the ability to function independently

that would be necessary for independent parenting, includ-

ing demonstrating the ability to attend her various appoint-

ments and follow through with expectations; maintaining

a clean home and taking care of daily tasks such as gro-

cery shopping; attending all her scheduled visits with A;

displaying independent parenting skills without prompting,

guidance, and oversight; communicating with A’s caregivers

and service providers and showing that she understands A’s

challenges and what needs to be done for her; and meeting

A’s needs, including arranging appointments and following

up with service providers.

In February 2021, the juvenile court issued a

judgment establishing dependency jurisdiction as to both

parents, after mother’s guardian ad litem admitted that

mother’s cognitive disability interfered with her ability to

independently and safely parent A and to provide A with

stable and suitable housing and that mother needed assis-

tance to develop a support system necessary for her to safely

parent the child.2 The court ordered parents to, among other

things, participate in A’s appointments, maintain regular

visitation with A, enroll in hands-on parenting classes, and

obtain stable and suitable housing. In addition, mother was

2

The February 2021 jurisdiction order also was based on father’s admissions

that A was born premature with specialized medical needs, that father needs the

assistance of the court and DHS to provide support and services for him to safely

parent A, that father’s residential instability interfered with his ability to safely

parent A, and that father did not understand how mother’s cognitive limitations

affected her ability to independently and safely parent A.

32 Dept. of Human Services v. C. H.

ordered to begin individual counseling and to work with a

parent mentor. Father was ordered to undergo a psycho-

logical evaluation and to comply with the COVID-19 safety

guidelines imposed by each service provider.

Udlock referred father for an evaluation with a psy-

chologist. After father missed the first two scheduled assess-

ment dates, the psychologist refused to schedule another

appointment. DHS then arranged an appointment with a

different psychologist, Dr. Duncan, and the assessment was

eventually completed in September 2021. Duncan reported

that father’s IQ scores were, like mother’s, in the extremely

low range, which significantly interfered with his “daily

functioning and parenting capacities.” He noted that father

had difficulty remembering or understanding the need to

follow through with recommended parenting services and

that, historically, father’s engagement in those services had

been poor. Duncan also observed that father had “limited

insight” into either mother’s cognitive deficits or A’s develop-

mental needs. Duncan stated that father would need assis-

tance and support to optimize his daily functioning and his

ability to become an adequate parent. He recommended that

father be referred for developmental disability services, that

he participate in individual counseling with a counselor who

had experience treating people with intellectual disabilities,

and that he receive parent education focusing on his and A’s

special needs.

B. Services Offered to Mother and Father and Their

Participation in Those Services

1. Services provided beginning in 2020, after the juve-

nile court’s dependency jurisdiction order as to father

After the juvenile court took dependency jurisdic-

tion in February 2020 as to father, DHS began to offer father

services addressing the basis for jurisdiction that had been

identified at that point—that father was unable to meet A’s

special needs and he needed assistance to safely parent A—

and addressing the court’s order with respect to actions that

father was required to take, including, as noted, enrolling

in parenting classes, obtaining stable and suitable housing,

maintaining regular visitation, maintaining contact with

Cite as 373 Or 26 (2024) 33

DHS, participating in services, and attending A’s medical

appointments.3

Udlock encouraged both parents to attend A’s med-

ical appointments and attempted to facilitate their atten-

dance, but neither parent went to any of those appointments.

DHS also began providing regular visits with A, super-

vised by a Social Service Assistant (SSA). Initially, parents

attended the scheduled in-person visits, but after in-person

visits were suspended because of COVID-19 in March 2020,

parents did not participate in virtual visits, although DHS

staff had offered in-person assistance to set up the calls. For

several months after that, parents did not answer calls from

or initiate any contact with DHS staff, although DHS con-

tinued to reach out and leave messages for them, and they

had no contact at all with A.

Udlock also made multiple referrals for services.4

Parents insisted on participating in all services together;

therefore, all DHS referrals were made for both parents

together. For that reason, some services were not available

to them. For instance, they were ineligible for most hands-on

parenting groups.

In May 2020, Udlock referred parents to group

parenting classes through Family SkillBuilders, but par-

ents did not participate in those services. Parents also

were referred for parent training services at the Center

for Family Success. They completed the intake process for

that program, but ultimately failed to participate in the

sessions; those services were discontinued in August 2020.

Udlock considered and rejected other referrals for parent

training services, because the facilities required compliance

with COVID-19 safety guidelines and parents, particularly

father, refused to comply.

3

Because the court did not yet have jurisdiction as to mother, it could not

and did not order mother to participate in services at that time. However, mother

accompanied father on his visits with A.

4

As described by a witness at the permanency hearing, a “referral” is the way

in which the case worker connects a parent to a service; generally, the case worker

determines which services will be helpful to the parents and then calls the service

provider to explain what type of help is needed and to give the service provider the

parent’s contact information. The service provider then contacts the parents to set

up services. From there, it is up to the parent to remain in contact with the service

provider and to follow through in participating in the offered service.

34 Dept. of Human Services v. C. H.

In October 2020, parents’ in-person visits with A

through DHS resumed, supervised by an SSA. Parents

failed to attend about half the scheduled visits, giving no

advance notice that they would not appear. When they did

participate, father refused to comply with DHS’s COVID-19

safety guidelines, despite having had the reason for those

precautions explained to him repeatedly.

2. Services and assistance provided after the February

2021 dependency judgment

After the juvenile court issued the February 2021

dependency judgment, which asserted dependency jurisdic-

tion as to both mother and father and included additional

actions that mother and father were required to take to

ameliorate the bases for jurisdiction, Udlock referred par-

ents for various additional services, including developmen-

tal disability services, parent training, counselling, parent

mentoring, and assistance in finding stable housing. Parents

participated in some of those services but not in others.

a. Disability services

Udlock began efforts to obtain disability ser-

vices for parents in February 2021, as recommended by

Guastadisegni and Duncan. Eventually, he referred both par-

ents to Multnomah County Intellectual and Developmental

Disability Services (DDS). Mother was approved for that

service in the summer of 2021, and she was assigned a case

manager and later a service coordinator. The case manager

informed mother that, in order for DDS to refer mother to

funded services by paid providers who could assist her, she

would have to complete a needs assessment. Mother met

with the case manager and the service coordinator several

times to complete that assessment. At one of those meetings,

mother told her DDS service coordinator that she was will-

ing to complete the assessment, but she wanted to focus only

on obtaining affordable housing. Mother never completed

the assessment, and she did not engage in any of the funded

services offered by DDS.5 Father was approved for DDS in

the fall of 2021. He missed his first appointment. Although

5

Sometime before the permanency hearing in July 2022, mother indicated to

a DDS service coordinator that she wanted to avail herself of DDS’s short-term

rental assistance. The DDS service coordinator confirmed that mother could

Cite as 373 Or 26 (2024) 35

he attended his second appointment in October 2021, he did

not attend subsequent appointments and did not participate

in any disability services available through DDS.

b. Visitation and parent training

The SSA-supervised visits, which had resumed in

October 2020, continued throughout 2021 and into early

2022. Parents’ attendance became considerably less consis-

tent beginning in February 2022, with parents eventually

failing to respond to DHS’s attempts to schedule visits. The

SSA referral was eventually closed because of the missed

visits.

In February 2021, Udlock referred parents to The

Family Room, which offered extra visitation with hands-on

parent-training support from staff. Parents did not follow

up, and the referral was closed. Parents were referred to

The Family Room again in May and were informed that

an opening for them would become available in September.

In July, however, father physically assaulted mother in the

parking lot of the shelter where parents were living. As a

result, The Family Room would not permit both parents to

attend its program at the same time. Parents declined to

participate separately, and the referral was closed.

Parents did engage in some parent-training ser-

vices. Udlock referred parents to Family United, which

provided parenting education and coaching. In response

to Udlock’s inquiries about Family United’s ability to work

with parents given their cognitive limitations, the Family

United parenting coach stated that Family United had sub-

stantial experience working with parents with an array of

learning barriers and would strive to present information

in a way that parents understood. The Family United par-

enting coach routinely reminded parents about upcoming

visits and education sessions, and parents participated con-

sistently in the Family United program. They successfully

completed that program in May 2021.

Parents were re-referred to the program in July. At

that time, the Family United parenting facilitator, Nichole

qualify for short-term rental assistance even though she could not access the

funded services, for which a needs assessment was required.

36 Dept. of Human Services v. C. H.

Mills, reported that she had “encountered some challenges

with [father] around his own ability to understand, remem-

ber information and problem solve,” which she wanted to

work on. She also cautioned that Family United was “prob-

ably not the best fit” for helping father to understand how

mother’s cognitive limitations affected her ability to safely

parent A. At the same time, Mills stated that Family United

was open to having a DDS worker attend parent training

sessions and work with parents to help them gain the neces-

sary skills. Because neither parent ultimately engaged with

DDS, however, no disability services worker attended par-

ents’ Family United sessions. Parents completed the Family

United program again in the fall of 2021, and the visita-

tion notes from parents’ sessions described both mother and

father as loving and attentive parents.

In October 2021, Udlock again referred parents to

the Center for Family Success for more in-person parent-

ing training. Parents participated consistently in that pro-

gram as well. However, the sessions were suspended for two

months, in May and June 2022, while the person who trans-

ported A and supervised the visits, Michelle Wright, was out

on family leave. By then, a new caseworker, Jamie Ruiz, was

involved, having been assigned to parents’ case in March

2022. During May and June, Ruiz made two separate refer-

rals for SSA-supervised visits, which involved transporting

A to supervised visitation at the DHS offices. Parents did

not return the SSA’s calls. On at least one occasion, the SSA

set up a visit with A and transported her to DHS’s offices,

but parents did not attend. Eventually those SSA referrals

were closed. Parents did not see A at all during the two

months that Wright was out on family leave. When Wright

returned, the sessions with the Center for Family Success

resumed, and parents continued to participate in that pro-

gram through to the time of the July 2022 permanency

hearing. Wright consistently reported that the visits went

well and both parents were affectionate with A.

c. Counseling

Udlock referred both parents for counseling with

Wolf Pack Counseling and Therapeutic Services in May

2021, which provides, among other things, domestic violence

Cite as 373 Or 26 (2024) 37

intervention, various kinds of parenting support, and men-

tal health counseling. Mother had three in-person meetings,

which father attended as well, and one telephone conversa-

tion with a Wolf Pack counselor in December 2021. The Wolf

Pack counselor noted that parents had expressed interest

only in housing support; they did not access or inquire about

any of the other support services that Wolf Pack could offer.

The counselor also noted that, although she had repeatedly

explained to parents the purpose for their referral to Wolf

Pack and why their participation in counseling was essen-

tial if they wanted to have A returned to their care, par-

ents appeared confused and did not retain the information

that the counselor gave them. Moreover, parents’ responses

reflected an apparent lack of understanding of their own

needs or the expectations placed on them by the court for A’s

return. Mother made no further contact with the counselor,

and the referral was closed.

Father was unable to engage in counselling services

on his own behalf with Wolf Pack because he did not have

medical insurance. Wolf Pack accepted payment through the

Oregon Health Plan (OHP), and Udlock encouraged father

to apply for insurance through OHP. In a December 2021

permanency order, the juvenile court ordered father to apply

for insurance through OHP. DHS provided services to facil-

itate father’s enrollment in that plan, including providing

him with the necessary paperwork, offering assistance in

filling out the paperwork, and repeatedly reminding father

of the importance of enrolling, but father never applied for

coverage, and he never engaged in counselling services.6

d. Parent mentoring

In February 2021, Udlock referred mother to a

parent mentor with Morrison Child and Family Services

(Morrison). Mother met with the parent mentor weekly for

6

One of the DHS referrals for assistance in obtaining insurance was to

the Blackburn Center, which provides medical and mental health services. The

Wolf Pack counselor also directed father to the Blackburn Center. Father told

the counselor that he did not want to spend his day off dealing with signing up

for insurance. And he told Udlock that he did not want to apply for insurance

because he felt that he did not need it at that moment. Udlock reminded father

that having insurance was necessary to pay for counseling, which, in turn, was

an important step in ensuring that his daughter could come home. According to

Udlock, father responded that “he didn’t like people knowing his issues.”

38 Dept. of Human Services v. C. H.

six months in 2021. Mother’s parent mentor assisted her in

her search for affordable housing, transportation, and vis-

itation, among other things. In January 2022, DHS again

referred mother to a parent mentor, but that referral was

closed due to lack of contact. Father also was referred to a

parent mentor with Morrison. That mentor tried to reach

father twelve times by phone and many more times by text

during October 2021, but father rarely responded and did

not attend any of the scheduled meetings. The mentor closed

the referral in early November 2021.

e. Assistance in finding stable housing

Parents did not have consistent housing at any point

while A was in substitute care. Udlock made several refer-

rals to help parents secure consistent and stable housing,

but those efforts were unsuccessful, mainly through no fault

of parents. Mother’s parent mentor provided help and sup-

port during their six-month interaction, including helping

her to apply for a housing voucher and paying the applica-

tion fee with New Columbia, which offered low-income hous-

ing. However, that program was closed to new applicants

at that time. Father’s parent mentor could also have helped

the couple find a suitable home, but, as noted, father did not

engage with the parent mentor.7

In August 2021, mother’s Morrison parent mentor

helped parents apply for a Home Forward housing voucher

and paid mother’s $45 application fee to join the waiting

list. Mother’s mentor could not pay father’s application fee,

because he was not engaged in mentoring services with

Morrison. Father’s lawyer asked Udlock whether DHS could

pay the application fee. The Home Forward waiting list at

that time was for low-income housing that would require

parents to pay $876 a month in rent. Udlock expressed reluc-

tance to seek agency funding to pay the application fee for

father to join that waiting list unless parents could demon-

strate that they would be able to pay the rent.8

7

In the summer of 2021, Udlock referred parents to My Father’s House, a

shelter that accepted families, but that referral was closed because parents did

not meet its application conditions.

8

Ultimately, Family United paid the fee for father’s application. However,

the waiting list for the program offering one- and two-bedroom apartments was

Cite as 373 Or 26 (2024) 39

At a family decision-making meeting9 in August,

father’s lawyer asked Udlock to refer parents for a housing

voucher for Section 8 subsidized housing with the Family

Unification Project (FUP). As noted, parents are Black, and

FUP, which describes itself as a “culturally specific pro-

gram that supports Child Welfare System involved families

to secure safe and stable housing,” is specifically aimed at

helping families of color find housing. Udlock appeared to be

unaware of that program and offered to look into whether a

voucher would be available. A week later, Udlock reported

to parents that they would be sixteenth on the waiting list

if he referred them for an FUP voucher. A month later, in

September 2021, at father’s lawyer’s persistent urging,

Udlock made the referral, but it was denied because no

vouchers were available at that time.

In December 2021, Wright, with the Center for

Family Success, referred parents to Relay Resources, which

also provides affordable housing. And finally, Ruiz testified

that, about a week before the hearing, she had learned that

new FUP vouchers had become available and that she was

working on an updated application for parents. However, she

testified, she could not complete the referral process without

parents’ assistance and parents had not been returning her

phone calls.

C. Relationship Between Parents and DHS Caseworkers

and the Resource Parent; Communications Breakdown

Shortly after mother started hands-on parent train-

ing through the Family United program in February 2021,

she noticed that A’s hair was dry and rough. In March,

mother began bringing hair products and tools to visits and

closed and Home Forward would not take additional applications until the wait-

ing list reopened.

9

Family decision-making meetings are used in cases in which a child is in

substitute care for more than 30 days. ORS 417.368. The term “family decision-

making meeting” is defined as “a family-focused intervention facilitated by pro-

fessional staff that is designed to build and strengthen the natural caregiving

system for the child,” and the purpose of such meetings is to “establish a plan

that provides for the safety, attachment and permanency needs of the child.”

ORS 417.365. The family decision-making meetings in this case were generally

attended by the caseworker, the court-appointed special advocate, the parents,

the parents’ lawyers, the child’s lawyer, and the case managers and services coor-

dinators for the various services that the parents were participating in.

40 Dept. of Human Services v. C. H.

began moisturizing A’s hair and braiding it during each

visit. Over time, the condition of A’s hair improved, and the

hair care routine helped mother and A to bond.10 However,

A’s foster mother at that time, who was White, believed that

A was bothered by the braids, because she rubbed her head

and pulled at the braids from time to time, and the foster

mother removed the braids after each visit. Later in March

2021, the Family United parenting facilitator, Mills, sent a

letter to Udlock, the parents’ lawyers, and mother’s guardian

ad litem, explaining that the foster mother had requested

that mother no longer braid A’s hair during the visits, because

A did not like the braids and it was taking the foster mother

about 40 minutes to remove them. Mills noted that hair can

be “a sensitive subject for folks as it concerns ethnicity and

cultural differences” and that she wanted to acknowledge

the foster mother’s concerns “while not also stripping these

biological parents of part of their identity and the oppor-

tunity for them to share in some of these cultural values

with their daughter.” Mills also noted that “hair care time”

during the visits was a good experience for parents and A

and a good opportunity for bonding. Mills suggested that

parents attend to A’s hair once a week, which would mean

that the foster mother would have less hair maintenance to

do if she were to leave the braids in, and she offered to rec-

ommend videos and literature for the foster mother to learn

more about hair care for Black children.

In May 2021, the foster mother asked Udlock to

have DHS arrange and pay for a hair consultation for A,

which would educate the foster mother on hair care. Udlock

indicated that he had started that process, but the consulta-

tion did not take place until August 2021.11 Meanwhile, the

foster mother continued to remove the braids after visits.

10

Family United session notes stated that the family “uses hair combing the

braiding of [A’s] hair as an intimate bonding opportunity between the three of

them. Upkeep and ongoing hair care are important to them.”

11

The hair consultant specialized in “maintaining and styling textured eth-

nic hair.” She assessed the products that the foster mother used to maintain A’s

hair and concluded that the foster mother had the right products and had been

taking good care of A’s hair. The consultant showed the foster mother how to

shampoo, condition, moisturize, detangle, and style A’s hair. She also noted that

the foster mother had taken various hair care classes to learn to take care of

A’s hair. However, she never observed mother styling A’s hair, nor did she see A

Cite as 373 Or 26 (2024) 41

By July, parents were extremely frustrated with the

foster mother for repeatedly removing the braids and with

Udlock for failing to do anything about it. The record sug-

gests that Udlock did not speak to the foster mother about

parents’ views and feelings about A’s hair until August 2021,

when the matter was raised at a family decision-making

meeting. However, by that time, parents felt that Udlock’s

and the foster mother’s disregard of their wishes regard-

ing A’s hair had been disrespectful. At the August family

decision-making meeting, father stated that he did not want

anyone other than mother doing A’s hair. Two weeks later,

the foster mother agreed to leave A’s hair in braids between

visits.

Shortly thereafter, in September 2021, father’s law-

yer wrote a letter to DHS on father’s behalf, requesting the

assignment of a new case worker because, in father’s view,

the relationship between Udlock and father had broken

down and their poor relationship was undermining his and

mother’s progress toward reunification. According to the

lawyer, there were four principal sources of conflict between

father and Udlock. One was father’s sense that Udlock had

not done enough to assist parents in attaining affordable

housing, particularly in failing to arrange for DHS fund-

ing to pay the $45 application fee to join the Home Forward

waiting list and in failing earlier to attempt a referral for an

FUP voucher. The second was that Udlock delayed in refer-

ring parents for parenting coaching specifically focused on

parents with intellectual disabilities. Third, father felt that

Udlock was not as helpful as he could have been in facilitat-

ing a meeting between parents and their two older children,

after the children’s adoptive parents had temporarily relo-

cated to Oregon. The fourth and most important issue was

Udlock’s failure to resolve the conflict about A’s hair when

it arose in March 2021. Father’s lawyer stated that those

incidents had led father to believe that DHS did not wish to

see him reunited with his daughter. In addition, the lawyer

reported that father felt that Udlock’s attitude toward him

had been condescending and disrespectful and that the rela-

tionship was irretrievably damaged. He therefore requested

after mother had styled her hair, which might have permitted her to evaluate the

validity of the foster mother’s concern about the child’s discomfort.

42 Dept. of Human Services v. C. H.

that DHS replace Udlock with a “culturally specific case-

worker for this family.”

In an October 2021 letter, DHS denied that request,

stating that “it would not be in the best interest of the case”

to replace Udlock, because of “where the case is in the time-

line.” That is, the letter stated, DHS had requested a change

in the permanency plan from reunification to adoption,

and, “if this goes to trial, [Udlock] would be a key witness.”

Instead, DHS proposed coaching Udlock “into being more

effective in his communications with [father].” The letter

also pointed out that, in DHS’s view, the issues that father’s

lawyer had identified as the sources of conflict had been

rectified.

In March 2022, four months before the permanency

hearing, DHS did replace Udlock as the family’s caseworker

with Ruiz.12 Ruiz never established a relationship with either

parent. She had not met either parent in person before the

permanency hearing in July, and she had talked to mother

on the phone only once. She had called and left messages for

both mother and father several times in March, when she

was first assigned to the case, but neither parent answered

or returned her calls. After the first month, Ruiz called par-

ents about twice a month, sometimes multiple times in one

day, and left both voice and text messages, but neither par-

ent returned those calls or responded to the messages. Ruiz

made no effort to contact parents in writing or visit parents

where they were living, and she did not ask either of par-

ents’ lawyers or mother’s guardian ad litem for help getting

in contact with parents. Ruiz did not speak to any of the ser-

vice providers that Udlock had arranged to work with par-

ents other than Wright, from the Center for Family Success.

And, other than the referrals for SSA-supervised visits pre-

viously mentioned, Ruiz did not make any new referrals for

services for parents during that period.

D. The Child’s Condition

By the time of the permanency hearing in July

2022, A had been in substitute care for over two and a half

12

The record does not reflect whether DHS’s decision to replace Udlock with

Ruiz was related to father’s request.

Cite as 373 Or 26 (2024) 43

years. As noted, the couple who had adopted A’s older sib-

lings relocated to Oregon in 2021. After they did so, they

took the steps necessary to become certified as a placement

option for A. By March 2022, that process was complete, and

DHS moved A into their home to live with her siblings.13

The couple also indicated that they were interested in adopt-

ing A. At the time of the hearing, A was doing very well;

she was happy and healthy and attached to her siblings and

their adoptive parents. In addition, DHS had identified an

aunt in California who also was interested in adopting A,

and it had completed its assessment of her as an adoptive

resource. The Family Report provided to the juvenile court

before the permanency hearing stated that, if the court were

to change the permanency plan to adoption, DHS would

present both the aunt and the family who had adopted A’s

siblings as potential adoptive resources.

E. The Permanency Hearing and the Juvenile Court’s

Ruling

The juvenile court conducted a permanency hearing

in July 2022, at which DHS requested that the court change

the permanency plan for A from reunification to adoption.

DHS called only Ruiz to testify. Neither mother nor father

testified or called any witnesses. Ruiz described DHS’s efforts

to assist parents in ameliorating the bases for jurisdiction,

parents’ failure to obtain stable housing or participate in

many of the services offered, and parents’ failure to adjust

their circumstances to make possible the safe return of A to

their care. Parents’ cross-examination focused on Ruiz’s own

lack of effort to make contact with parents during the four

months preceding the hearing, on establishing that parents

were loving and attentive during supervised visitation and

that A had an emotional bond with them, and on DHS’s fail-

ure to resolve the conflict over A’s hair.

At the conclusion of the hearing, the juvenile court

took the matter under advisement. In August, the court

issued an order changing the permanency plan to adoption.

13

Ruiz testified at the permanency hearing that DHS made the decision to

move A from the first foster mother’s home because she was becoming very attached

to the foster mother and DHS understood that that would not be a permanent

placement, whereas the family who had adopted A’s siblings potentially would be.

44 Dept. of Human Services v. C. H.

In its findings of fact, the court observed that parents had

regularly attended supervised visits with A and that those

visits had gone well, but that parents had not advanced to

unsupervised visits or demonstrated that they could care

for A independently. According to the court, “the most sig-

nificant barrier has been parents’ lack of follow through

and unwillingness to attend services.” The court mentioned

that several referrals for services had been closed because

of parents’ failure to follow through or participate. Finally,

the court noted that both parents’ psychological evalua-

tions raised concerns about parents’ ability to parent inde-

pendently, and that parents had made very little progress

despite the services offered and “still ha[d] no understand-

ing of how their intellectual disability interferes with daily

functioning and parenting capacity.”

In addition, the court determined that DHS had

made reasonable efforts to reunify the family; that, despite

those efforts, A could not be safely returned to parents’ care;

and that further DHS efforts would not make it possible

for A to return home within a reasonable time. The court

concluded that the current plan of reunification was not in

A’s best interest and that termination of parents’ parental

rights was in the child’s best interest. On that point, the

court also ruled that parents had not established that there

was a compelling reason not to change the permanency plan

from reunification to adoption, reasoning that parents were

not participating in services that would make it possible for

A to safely return home within a reasonable time, no other

permanent plan would be better suited to meet A’s needs,

and DHS had made reasonable efforts to make it possible for

the child to return home safely.

F. Parents’ Appeal

Parents appealed the juvenile court’s ruling, chal-

lenging the juvenile court’s determination that DHS had

made reasonable efforts to reunify the family, its determi-

nation that parents had made insufficient progress in ame-

liorating the bases for jurisdiction, the court’s ruling that

there was no compelling reason not to change the perma-

nency plan to adoption, and its decision to change the per-

manency plan to adoption. The Court of Appeals affirmed

Cite as 373 Or 26 (2024) 45

in a written decision. Although the Court of Appeals was

critical both of DHS’s insensitivity in handling the conflict

between parents and the foster mother over A’s hair and of

the lack of effort by Ruiz in the four months preceding the

permanency hearing, the court ultimately concluded that,

considering the totality of DHS’s efforts over the entire

course of the case, DHS’s efforts had been reasonable. The

court also rejected parents’ remaining arguments, conclud-

ing that the juvenile court did not err in ruling that par-

ents had not made sufficient progress in ameliorating the

bases for jurisdiction and that the juvenile court correctly

concluded that parents had failed to prove that there was

a compelling reason that adoption would not be in A’s best

interest or that a different plan would be more appropriate.

Judge Jacquot dissented. In her view, DHS’s efforts

had been insufficient because the agency failed to respond

in a more timely and culturally sensitive way to the conflict

about A’s hair or to take action to repair the damage done to

parents’ relationship with DHS.

II. DISCUSSION

On review, parents raise two arguments: They con-

tend that the juvenile court erred in determining that DHS’s

efforts to reunify the family were reasonable, and they

contend that the juvenile court erred in determining that

parents had failed to establish that there was a compelling

reason to conclude that adoption would not be in the child’s

best interest. Parents do not pursue their arguments, made

before the Court of Appeals, that (1) the juvenile court erred

in concluding that parents had not made sufficient progress

to enable A to return safely home within a reasonable time,

and (2) a different permanency plan short of adoption would

be more appropriate.

A. The Reasonable-Efforts Determination

1. Standard of review

As we recently explained in Dept. of Human Services

v. Y. B., 372 Or 133, 145, 546 P3d 255 (2024), ORS 419B.476

governs the conduct of permanency hearings and changes to

permanency plans. In this case, at the time of the hearing,

46 Dept. of Human Services v. C. H.

the permanency plan for A was reunification. In such cases,

the juvenile court is directed to “determine whether [DHS]

has made reasonable efforts * * * to make it possible for the

ward to safely return home and whether the parent has

made sufficient progress to make it possible for the ward

to safely return home.” ORS 419B.476(2)(a). ORS 419B.476

also provides that, in making that determination, “the court

shall consider the ward’s health and safety the paramount

concerns.” Id. If the court concludes that DHS has made rea-

sonable efforts to reunify the family and that the parents

have not made sufficient progress to permit the safe return

of the child, then the court may change the permanency

plan to something other than reunification, such as, in this

case, adoption. See ORS 419B.476(5)(b)(B)-(E).14

DHS bears the burden of proof at a permanency

hearing, and it must prove the facts supporting a change

in the permanency plan by a preponderance of the evi-

dence. ORS 419B.476(1) (requiring the permanency hear-

ing to be conducted in accordance with ORS 419B.310);

ORS 419B.310(3)(a)(A) (requiring that “the facts alleged in

the petition showing the child to be within the jurisdiction

of the court * * * must be established,” as pertinent here,

“[b]y a preponderance of competent evidence”); Y. B., 372 Or

at 135-36 (so stating).

A preliminary question presented by this case is

the standard of review that applies to our analysis of the

juvenile court’s determination that DHS made reasonable

efforts for purposes of ORS 419B.476(2)(a). In a dependency

case in which we do not review de novo,15 we are bound by

the juvenile court’s factual findings if there is any evidence

in the record to support them. Y. B., 372 Or at 136. We review

14

In addition, ORS 419B.476(4)(c) gives the juvenile court discretion to con-

tinue the current plan of reunification if it determines that further efforts may

make possible the child’s safe return “within a reasonable time” and, if it so deter-

mines, to order the parents to “participate in specific services for a specific period

of time and make specific progress within that period of time[.]” In this case, the

juvenile court determined that further efforts would not make possible the child’s

safe return to parent’s care, and parents do not challenge that decision here.

15

No party requested de novo review in this case under ORS 19.415(3)(b)

(giving the court discretion to conduct de novo review in equitable actions or

proceedings other than termination of parental rights proceedings), either in the

Court of Appeals or in this court. We also elect not to hear the matter de novo.

Cite as 373 Or 26 (2024) 47

the juvenile court’s legal conclusions for errors of law, and,

in so doing, we consider the evidence in the light most favor-

able to the juvenile court’s disposition to determine whether

it supports that court’s legal conclusions. Id.

We have not previously addressed whether a juve-

nile court’s determination that DHS made “reasonable

efforts” is a factual finding or a legal conclusion. We recently

considered a similar question, however, in Y. B., which con-

cerned a juvenile court’s determination that a parent had

not made “sufficient progress” under the same statute to

enable a child’s safe return. 372 Or at 148. In that context,

we concluded:

“The nature of the competing interests at stake, as well as

text and context calling for the application of a legal stan-

dard, persuade us that the juvenile court’s ‘determination’

of sufficient progress is a legal conclusion that this court

reviews for errors of law.”

Id. at 149. At the same time, we recognized that “the

sufficient-progress determination, although ultimately a

legal conclusion, is heavily fact-driven.” Id. The court

approved of the analysis that the Court of Appeals had

employed in a similar context—specifically, a juvenile court’s

determination under ORS 419B.100(1)(c) that a child’s con-

dition or circumstance is such as to “endanger” the child’s

welfare. Id. at 150-51. The Court of Appeals had explained

that, in that situation,

“we view the evidence, as supplemented and buttressed by

permissible derivative inferences, in the light most favor-

able to the trial court’s disposition and assess whether,

when so viewed, the record was legally sufficient to per-

mit that outcome. Specifically, with respect to a juve-

nile court’s determination under ORS 419B.100(1)(c), we:

(1) assume the correctness of the juvenile court’s explicit

findings of historical fact if these findings are supported

by any evidence in the record; (2) further assume that, if

the juvenile court did not explicitly resolve a disputed issue

of material fact and it could have reached the disposition

that it reached only if it resolved that issue in one way,

the court implicitly resolved the issue consistently with

that disposition; and (3) assess whether the combination of

(1) and (2), along with nonspeculative inferences, was

48 Dept. of Human Services v. C. H.

legally sufficient to permit the trial court to determine that

ORS 419B.100(1)(c) was satisfied. * * * [O]ur function is lim-

ited to determining whether the evidence was sufficient to

permit the challenged determination.”

Dept. of Human Services v. N. P., 257 Or App 633, 639-40, 307

P3d 444 (2013). In part because this court viewed the deter-

mination under ORS 419B.100(1)(c) as comparable to the

sufficient-progress determination under ORS 419B.476(2)(a),

we adopted the Court of Appeals’ approach in N. P. for

reviewing the similarly fact-driven legal sufficient-progress

determination, explaining that we would apply the follow-

ing analytical paradigm to such review:

“[A]ppellate courts are bound by the juvenile court’s factual

findings as to what efforts DHS has made and what actions

the parent has taken, so long as there is any evidence in the

record to support them, and we assume that the juvenile

court found all facts necessary to its ruling, even if it did

not do so explicitly. But the juvenile court’s determination

that a parent has or has not made ‘sufficient progress’ to

allow the child to return home safely is a legal conclusion

that appellate courts review for errors of law, and they do

that by examining whether the facts explicitly and implic-

itly found by the juvenile court, together with all inferences

reasonably drawn from those facts, were legally sufficient

to support the juvenile court’s determination.”

Y. B., 372 Or at 151.

Y. B. dealt with the juvenile court’s determination

of a parent’s “sufficient progress” under ORS 419B.476(2)(a),

but our reasoning applies with equal force to the review of

a juvenile court’s determination under the same provision

concerning whether DHS has made “reasonable efforts” to

make the child’s safe return home possible. First, as Y. B.

explained, under ORS 419B.476, both “reasonable efforts”

and “sufficient progress” describe the legal standard that

must be met to justify the juvenile court’s decision to main-

tain or change the permanency plan of a ward of the court.

372 Or at 149. Second, the nature of the reasonable-efforts

determination and the competing interests at stake are iden-

tical to those implicated by the sufficient-progress determi-

nation. Therefore, as with the sufficient-progress determi-

nation, we conclude that the juvenile court’s determination

Cite as 373 Or 26 (2024) 49

of reasonable efforts also is a legal conclusion that this court

reviews for errors of law. And, because the reasonable-efforts

determination, like a sufficient-progress determination, is

heavily fact-driven and statutorily prescribed, we conclude

that it is appropriate to use the analytical paradigm that we

adopted in Y. B. to review that determination.

2. The meaning of the phrase “reasonable efforts”

The phrase “reasonable efforts” is not defined in

the statute, and this court has not previously addressed the

meaning of that phrase. We are thus presented with a ques-

tion of statutory interpretation, which we resolve in accor-

dance with State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042

(2009) (court determines legislative intent by considering

text in context, together with any helpful legislative history).

“Reasonable” modifies “efforts” in ORS 419B.476

(2)(a) and thus describes the degree of effort that must be

expended. As pertinent here, Black’s Law Dictionary defines

“reasonable” as “fair and proper under the circumstances”

and “within sensible or rational limits; not excessive; mod-

erate.” Black’s Law Dictionary 1520 (12th ed 2024); see also

Webster’s Third New Int’l Dictionary 1892 (unabridged ed

2002) (similarly defining “reasonable” as “being or remain-

ing within the bounds of reason : not extreme : not exces-

sive”). Black’s also defines the phrase “reasonable efforts” as

“[o]ne or more actions rationally calculated to achieve a usu.

stated objective, but not necessarily with the expectation

that all possibilities are to be exhausted.” Black’s at 1520.

Finally, we note that the policy statement that the legisla-

ture included in the statutes governing the juvenile courts

provides, among other things, that it is the policy of this

state “to offer appropriate reunification services” to parents

to provide them with the opportunity to adjust their circum-

stance to make it possible for the child to safely return home.

ORS 419B.090(5). Based on the dictionary definitions and

that policy statement, we understand “reasonable efforts” as

used in ORS 419B.476(2)(a) to require the court to take into

account what is appropriate under the circumstances of the

case.

50 Dept. of Human Services v. C. H.

Moreover, the obligation that DHS make “reason-

able efforts” coexists with the requirement that parents

make “sufficient progress” to make it possible for the ward

to safely return home. ORS 419B.476(2)(a). It follows that

the agency’s “efforts” must be those reasonably calculated

to assist parents in meeting that goal.16 In other words, the

reasonableness of DHS’s efforts must be evaluated in light

of the bases for jurisdiction identified in the juvenile court’s

judgment. Efforts are reasonable when the agency has taken

appropriate steps under the circumstances to give parents a

full and fair opportunity to remediate the bases for jurisdic-

tion to become at least minimally adequate parents (and, for

purposes of a permanency hearing, to show that they have

made sufficient progress to make it possible for the child to

safely return to their care).

Both DHS and parents take the view that, when

evaluating the reasonableness of DHS’s efforts to make

possible a child’s safe return home, we must consider the

totality of the circumstances. Although this court has never

said as much in so many words, we agree. Such an approach

is consistent with how we have construed the word “rea-

sonable” in other contexts, including in the juvenile code.

For instance, in State v. Iseli, 366 Or 151, 165, 458 P3d

653 (2020), the court used that approach in the context of

determining, under OEC 804(1)(e), whether a witness was

“unavailable” because the proponent was unable to procure

the witness’s attendance “by process or other reasonable

means.” Iseli, in turn, cited State ex rel Juv. Dept. v. Smith,

316 Or 646, 853 P2d 282 (1993), which used the totality-of-

the-circumstances approach in the juvenile context, for that

proposition. In Smith, the court held that, to establish juve-

nile court jurisdiction over a child under former ORS 419.476

(1991), repealed by Or Laws 1993, ch 33, § 373, the juvenile

court must “consider the totality of the circumstances pre-

sented in the case” to determine whether “a reasonable like-

lihood of harm” to the child exists. 316 Or at 652-53.

16

Legislative history suggests that the legislature chose the phrase “rea-

sonable efforts” to ensure that DHS’s efforts were evaluated based on the unique

circumstances of each case. Tape Recording, Senate Committee on Crime and

Corrections, SB 689, Apr 2, 1997, Tape 55, Side B (testimony of Nancy Miller,

Chair of the Citizens Review Board, explaining that “reasonable efforts” is diffi-

cult to define and must be determined on a case-by-case basis).

Cite as 373 Or 26 (2024) 51

We also view the totality-of-the-circumstances

approach as appropriate given the nature of dependency

cases. The goal of DHS’s efforts is to assist parents to adjust

their circumstances so that their parenting is not “seriously

detrimental” to the child and thus, to make the child’s safe

return home possible. See ORS 419B.504 (parental rights

may be terminated if court finds that a parent is unfit by

reason of conduct or condition seriously detrimental to the

child); ORS 419B.476(2)(a) (directing DHS’s efforts toward

making possible the child’s safe return home); State ex rel

Dept. of Human Services v. Simmons, 342 Or 76, 78, 149 P3d

1124 (2006) (issue presented was whether state has shown

that, at time of termination proceeding, mother was unfit

and unable to be a “minimally adequate” parent to her

daughter). Therefore, when the plan is reunification, par-

ents must be given a genuine and fair opportunity to adjust

their conduct and become at least minimally adequate par-

ents. And assessing the reasonableness of DHS’s efforts to

assist parents in that endeavor is most fairly accomplished

by inquiring into DHS’s efforts over the course of the agen-

cy’s involvement with the family. For those reasons, we con-

clude that, in assessing the reasonableness of DHS’s efforts

to make possible the safe return of a child to the parent’s

care, the court must consider the totality of the circum-

stances related to that issue.

In addition, parents argue that “reasonable efforts”

under ORS 419B.476 are efforts that are specifically tailored

to the needs of the family at issue—and that those efforts

must account, when necessary, for the needs of parents with

disabilities. Parents cite ORS 419B.090(5), which provides

that it is the policy of this state

“to offer appropriate reunification services to parents * * * to

allow them the opportunity to adjust their circumstances,

conduct or conditions to make it possible for the child to

safely return home within a reasonable time. The state

shall provide to parents and guardians with disabilities

opportunities to benefit from or participate in reunification

services that are equal to those extended to individuals

without disabilities. The state shall provide aids, benefits

and services different from those provided to parents and

guardians without disabilities, when necessary to ensure

52 Dept. of Human Services v. C. H.

that parents and guardians with disabilities are provided

with an equal opportunity under this subsection.”

Parents argue that that text and the legislative history of

that statute demonstrate that, by requiring “appropriate”

services, the legislature intended to require DHS to ensure

that disabled parents have an equal opportunity to reunite

with their children as do nondisabled parents. According to

parents, that means that reunification efforts under ORS

419B.476(2)(a) are “reasonable” only if DHS tailors those

efforts to the needs of the particular family.

DHS does not dispute that point, and we agree.

In referring to “appropriate reunification services” and an

“equal opportunity” for parents with disabilities to adjust

their circumstances to make it possible for their children

to return home safely, the text of ORS 419B.090(5) requires

services to be tailored so that all parents, including those

with disabilities, have the opportunity to benefit from those

services. Doing so may entail specific efforts to address

barriers to accessing those services that people with dis-

abilities uniquely face. Moreover, the legislative history of

ORS 419B.090(5) demonstrates that the wording in that

subsection pertaining specifically to parents with disabil-

ities was modeled on requirements from the Americans

with Disabilities Act (ADA) and other civil rights laws.

Testimony, Senate Committee on Human Services, SB

492, Feb 12, 2019 (statement of Bob Joondeph, Executive

Director of Disability Rights Oregon). During a meeting of

the Joint Subcommittee on Human Services, Laurie Byerly,

with the Legislative Fiscal Office, stated that Senate Bill

(SB) 492 “clarifies state policy” that “families with parents

who experience disabilities will be treated commensurate

with families who don’t have disabilities.” Video Recording,

Joint Committee on Ways and Means Subcommittee on

Human Services, SB 492, May 29, 2019, at 16:26 (state-

ment of Laurie Byerly), https://olis.oregonlegislature.gov/liz/

mediaplayer/?clientID=4879615486&eventID=2019051209

(accessed Nov 4, 2024). The legislative history also clarifies

that the special requirements for disabled parents do not

lower the minimum standards required to parent a child,

but they do require that, if a parent with a disability “needs

a different method of instruction to learn the techniques”

Cite as 373 Or 26 (2024) 53

than DHS would normally teach parents, then the parent

must be provided instruction by a method “appropriately

tailored to be useful to the individual.” Exhibit 12, Senate

Committee on Human Services, SB 492, Feb 12, 2019 (report

accompanying the statement of Bob Joondeph).

3. The record in this case supports the juvenile court’s

conclusion that DHS made reasonable efforts.

Parents contend that the juvenile court erred as a

matter of law in determining that DHS’s efforts to reunify

the family were reasonable. As already explained, we are

bound by the juvenile court’s factual findings as to the efforts

DHS made and the actions parents took or failed to take, so

long as there is any evidence in the record to support those

findings, and we assume that the juvenile court found all

facts necessary to its ruling, even if it did not do so explicitly.

Here, as detailed more thoroughly above, the juvenile court

found that DHS’s efforts, either directly or through referrals

or financial support, included (1) arranging DHS-supervised

visitation with an SSA; (2) referring parents multiple times

to Family United, the Center for Family Success, and The

Family Room for extra visits and hands-on training and

support; (3) referring both parents to Multnomah County

Developmental Disability Services and connecting mother

to a case manager there; (4) referring mother to Wolf Pack

for counselling services; (5) referring both parents multiple

times to the Morrison Center for a parent mentor; (6) refer-

ring father to the Blackburn Center and a parent mentor

for help in enrolling in the Oregon Health Plan; (7) provid-

ing a psychological evaluation for both parents; (8) assisting

parents in trying to find stable housing; and (9) contacting

parents repeatedly to encourage them to participate in rec-

ommended services and remind them of the importance of

doing so. The juvenile court found that “the most significant

barrier” to parents’ progress in becoming capable of inde-

pendent parenting was their “lack of follow through and

unwillingness to attend services.” As detailed above, the

record readily supports those factual findings.

The focus of parents’ argument on appeal is their

contention that DHS’s efforts were not “reasonable” because

they were not tailored to accommodate parents’ particular

54 Dept. of Human Services v. C. H.

circumstances—particularly their intellectual disabilities

and their racial and cultural traditions—by providing assis-

tance in a manner that was accessible to parents and accom-

modated their circumstances. In parents’ view, because

DHS did not tailor its services in those ways, it did not pro-

vide parents with a bona fide opportunity to ameliorate the

deficits that caused the juvenile court to take jurisdiction.

Specifically, parents argue that DHS knew that

parents’ disabilities interfered with their capacity to follow

through and access services but, nonetheless,

“[DHS’s] reunification efforts consisted of simply ‘referring’

parents to outside service providers. * * * And without any

cause to believe that parents would be able to do so, [DHS]

expected these parents with cognitive disabilities to, with-

out assistance, arrange for and consistently engage in the

services those organizations provide.”

As examples, parents point to DHS’s supposed failure to

help father keep track of all his service appointments, its

failure to help mother understand the connection between

engagement in services and reunification, and its failure to

help parents connect with DDS and maintain services there.

Parents also argue that DHS’s failure to quickly

intervene when the foster mother insisted on removing A’s

braids, despite parent’s repeated pleas for their wishes to

be honored, showed racial and cultural insensitivity and

undermined parents’ relationship with DHS and the foster

mother. They contend that DHS’s subsequent rejection of

father’s request for a new caseworker, after being told that

father felt that his relationship with Udlock was irreparably

damaged, caused parents to question whether reunification

was possible or even desired by the agency.

In addition, parents criticize DHS for failing to pur-

sue A’s placement with father’s mother, based on a depart-

ment policy prohibiting relatives from serving as foster

placements for children if the relative is also providing

housing support for the parents.

Finally, parents argue that DHS essentially aban-

doned parents once it decided to change the parenting plan

to adoption. They claim that DHS’s efforts were perfunctory

Cite as 373 Or 26 (2024) 55

at best before Ruiz was assigned to their case, and in the

four months that Ruiz managed the case, DHS completely

failed to communicate with parents.

As we will explain, certain of parents’ contentions

find support in the record, while others do not.

First, if parents’ contention that DHS did little

more than provide parents with a list of service providers

were correct, we might agree that DHS had not made rea-

sonable efforts. But the extensive record in this case shows

that DHS did much more than that. It consistently and

repeatedly contacted a multitude of service providers in an

effort to connect parents to services aimed at ameliorating

the bases for jurisdiction and helping them to become min-

imally adequate parents. In addition, the DHS caseworker

and the service providers continually reached out to parents

to remind them of the crucial link between engagement in

services and return of their daughter; to encourage them to

participate in the various services offered; to remind par-

ents of appointments and of the importance of attending

them; and to offer them assistance with paperwork, among

other things.

Nor does the record support parents’ assertion that

DHS failed to offer services that were tailored to parents’

disabilities. DHS referred both parents for psychological

assessments, which led to recommendations for specific ser-

vices that parents would need to ameliorate the jurisdic-

tional bases for A’s wardship. Then, over a period of more

than two years, DHS offered parents a wide variety of ser-

vices to assist them to become minimally adequate parents.

As the Court of Appeals observed,

“the record shows that DHS referred parents to resources

that were specifically designed to build a support network

for parents and that were tailored to their cognitive lim-

itations. A parent mentor or developmental disability ser-

vices caseworker could have helped develop support plans

and provide referrals to other providers[.] * * * DHS worked

to ensure that Family United, which engaged in hands-on

parenting coaching with parents, knew that mother had

intellectual limitations so that they could provide informa-

tion to mother in a way that she could understand. Family

56 Dept. of Human Services v. C. H.

United was also willing to have an additional developmen-

tal disability support worker come to visits to help par-

ents[.] * * * Those services, along with the many others * * *,

were designed to remedy the barriers that parents had to

parenting A by providing parents with a support system

that was tailored to the way in which parents needed to

receive information and assistance.”

C. H., 327 Or App at 75-76. The record also shows that DHS

made multiple attempts to help parents find stable housing.

Parents’ argument is also contrary to the juvenile

court’s specific findings. The implicit premise of parents’

argument is that their intellectual disabilities are what pre-

vented them from completing services, and that DHS should

have done more to help them. The juvenile court, however,

acknowledged those disabilities but specifically found that

the “most significant barrier” to parents’ progress was their

“lack of follow through and unwillingness to attend ser-

vices.” That factual finding is supported by the record.

In addition, the record does not support parents’ con-

tention that DHS was somehow negligent in rigidly enforc-

ing a policy against placing children with relatives who are

providing housing to their parents. The juvenile court did

not make specific findings about DHS’s efforts to place A

with father’s mother, but the record permits the inference

that that policy was not the only reason DHS did not con-

sider father’s mother as a placement resource. The record

demonstrates that father’s mother did not have a relation-

ship with A: she attended only one supervised visitation

with the child, and she never attended a hearing in the case

or any of the family decision-making meetings. Moreover,

Ruiz testified that, although at one point father’s mother

agreed to be considered as a placement resource, she later

withdrew herself from consideration.

As for parents’ assertion that DHS wholly “aban-

doned” them for the ten months preceding the perma-

nency hearing, parents appear to acknowledge that, even

after DHS informed parents, in October 2021, that it had

decided to pursue adoption, the agency continued to provide

services to parents, at least through March 2022. Udlock

continued to refer parents to the Center for Family Success

Cite as 373 Or 26 (2024) 57

for in-person parenting training; he referred mother to a

parent mentor; and, for the entire time he was assigned

to parents’ case, Udlock continued to attempt to arrange

DHS supervised visitation. In addition, other service pro-

viders to which parents had been referred continued to con-

tact parents to encourage them to engage in the services.

In December 2021, the Center for Family Success referred

parents for housing assistance, the parent mentor assigned

to father made multiple efforts to contact father before even-

tually closing the referral, and a Wolf Pack counselor contin-

ued to try to reach mother through December 2021.

We agree with parents that DHS’s efforts fell off

beginning in March 2022, about four months before the

permanency hearing, when Ruiz was assigned as their new

caseworker. Ruiz initially made multiple attempts to con-

tact parents by phone and text message, but most of those

attempts were unsuccessful. From then on, she attempted—

unsuccessfully—to contact parents about twice a month, but

she never explored other means of reaching them. Given the

animosity that had developed between parents and Udlock,

Ruiz could reasonably have been expected to make more of

an effort to repair the damaged relationship between par-

ents and DHS. But we cannot ignore parents’ own share

of the responsibility for the lack of communication during

that period, during which they failed to return any calls or

messages, despite having been ordered by the court to stay

in contact with DHS and having been counseled by Wright,

their Center for Family Success parenting coach, about the

importance of communicating with DHS.

We also acknowledge the validity of parents’ argu-

ment that DHS poorly handled the conflict with the first

foster mother over the braiding of A’s hair. DHS allowed

the foster mother to disparage parents’ attempts to care for

A’s hair for several months, apparently without pushback.

As discussed, parents, and especially father, took Udlock’s

insensitivity personally; father perceived a lack of respect

for mother and him as Black parents and felt that it showed

that DHS was not committed to reunification. There is no

indication that DHS took any specific steps to disabuse par-

ents of that perception, as it should have.

58 Dept. of Human Services v. C. H.

Although DHS fell short in its handling of that

conflict, and although we agree that Ruiz should have done

more in the four months preceding the permanency hearing,

the reasonableness of DHS’s efforts under ORS 419B.476

(2)(a) must be evaluated over the life of the case. We conclude,

as did the Court of Appeals, that the record of DHS’s efforts

during more than two years of involvement with the fam-

ily, together with the record of parents’ responses to those

efforts, permitted the juvenile court to conclude that the

agency had made reasonable efforts to make reunification

possible. The crux of parents’ argument is that their failure

to complete required services is attributable to DHS’s insen-

sitivity to their specific needs and circumstances, which led

to an irreparable breakdown in their relationship with the

agency. But the record permits a contrary inference. The

juvenile court made specific findings that, despite the ser-

vices offered to parents, they “have not been able to advance

to unsupervised visits or to demonstrate they are able to

care for A independently”; that the “most significant barrier

[to parents’ progress in adjusting their circumstances] has

been [their] lack of follow through and [their] unwillingness

to attend services”; that they had made “very little prog-

ress” in their ability to independently care for A, despite the

services that DHS had provided to them (including services

chosen to support them in light of their intellectual disabili-

ties); and that they “still have no understanding of how their

intellectual disability interferes with daily functioning and

parenting capacity.” The record supports those findings.

The totality of the circumstances includes parents’

failure to participate in services, return phone calls, or show

up for appointments. Although, in general, the reasonable-

efforts inquiry is primarily directed toward DHS’s conduct

and not the parent’s, a parent’s failure to cooperate can obvi-

ously hamper DHS’s efforts. For that reason, in determining

whether DHS made reasonable efforts, a parent’s coopera-

tion is relevant. Here, the record allowed the juvenile court

to determine that parents’ failure to participate in the many

opportunities that DHS made available to them was a more

significant barrier to their becoming minimally adequate

parents than any failure of effort on DHS’s part.

Cite as 373 Or 26 (2024) 59

For all of those reasons, we conclude that the juve-

nile court did not err in determining that DHS made “rea-

sonable efforts * * * to make it possible for the ward to safely

return home” as required by ORS 419B.476(2)(a).

B. The No-Compelling-Reason Determination

To understand parents’ second challenge to the

juvenile court’s determination—their argument that the

juvenile court and the Court of Appeals erred in determin-

ing that parents had failed to establish that there was a

compelling reason to conclude that adoption would not be in

the child’s best interest—a brief explanation of the statutory

context for that argument is helpful.

Under ORS 419B.498, which governs the termina-

tion of parental rights, DHS is required to file a petition

to terminate parental rights when a child has been in sub-

stitute care for 15 of the most recent 22 months, unless an

exception applies. ORS 419B.498(1)(a). Exceptions include,

among other things, that “[t]here 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.” ORS 419B.498(2)(b). For purposes of that

statute, “compelling reasons” include, among other things,

that “[a]nother 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.” ORS 419B.498(2)(b)(B). Under ORS

419B.498, the decision whether to invoke an exception to the

strict 15-month timeline for filing a termination petition—

as set out in ORS 419B.498(1)—thereby delaying the filing

of the termination petition, lies with DHS. And, as the court

stated in Dept. of Human Services v. S. J. M., 364 Or 37,

53, 430 P3d 1021 (2018), if DHS invokes an exception under

ORS 419B.498(2)(b), then DHS bears the burden of “docu-

menting in the case plan” that the compelling reason exists.

Termination of parental rights also is required when

the juvenile court determines at a permanency hearing that

a permanency plan should be changed to adoption, because

adoption cannot take place until the parents’ rights are ter-

minated. See ORS 419B.476(5)(b)(B) (if the juvenile court

60 Dept. of Human Services v. C. H.

determines that the plan should be changed to adoption, the

order must include when the ward will be placed for adoption

and when a petition for termination of parental rights will

be filed). Additionally, in the permanency hearing context,

when the juvenile court changes a permanency plan to adop-

tion, the juvenile court is required to determine “whether

one of the circumstances in ORS 419B.498(2) is applicable.”

ORS 419B.476(5)(d). This court explained in S. J. M. that, in

that situation, the decisionmaker is different than in cases

arising under ORS 419B.498, but the inquiry is the same.

364 Or at 53. That is, in the permanency hearing context,

“the juvenile court, rather than DHS, must make the deter-

mination under ORS 419B.476(5)(d),” but, in both scenarios,

the party who wishes to show that one of the exceptions in

ORS 419B.498(2)(b) applies bears the burden of proof. Id.

In this case, parents are the parties seeking to show

that one of the exceptions applies, and, as parents acknowl-

edge, it therefore was their burden to show a compelling

reason that terminating their parental rights would not be

in A’s best interest, including, if appropriate, proving that

a permanency plan other than adoption is better suited to

meet A’s needs. ORS 419B.498(2)(b)(B). At the permanency

hearing, parents cited the existence of a bond between them

and A and made only a general argument that some other

unspecified permanency plan would be better suited to A’s

needs. The juvenile court determined that parents had not

met their burden of proof and, therefore, that no compelling

reason existed to conclude that termination would not be in

the child’s best interest. In this court, parents repeat the

arguments they made before the juvenile court.

The juvenile court’s determination that a compel-

ling reason does or does not exist is a legal conclusion, which

we review for errors of law. S. J. M., 364 Or at 56. However,

as the court explained in S. J. M., our review of the com-

pelling-reason determination is similar to our review of

the court’s reasonable-efforts determination and its suffi-

cient-progress determination:

“Whether a ‘compelling reason’ exists is a legal question,

but one dependent on factual findings. Thus, the question

before us on review is more properly understood as whether

Cite as 373 Or 26 (2024) 61

there was evidence in the record to support the juvenile

court’s findings of fact upon which its conclusion * * * that

there was not a ‘compelling reason’ was based.”

Id. at 56-57.

The juvenile court did not explicitly make factual

findings to support its no-compelling-reason determina-

tion. But, as we stated in the context of our review of the

reasonable-efforts determination, we assume that the juve-

nile court found all facts necessary to its ruling, even if it did

not do so explicitly. We then examine whether the facts explic-

itly and implicitly found by the juvenile court, together with

all inferences reasonably drawn from those facts, were legally

sufficient to support the juvenile court’s determination.

Parents reprise their general argument that some

other permanent plan would be better suited than adoption

to meet A’s health and safety needs, but, as noted, they have

not suggested that another viable permanent plan exists.

The juvenile court determined that parents had not made

sufficient progress to allow them to be reunited with their

children and that further efforts on the part of DHS would

not make the child’s safe return home possible within a

reasonable time.17 It follows that parents cannot be paren-

tal resources for A. Parents have suggested that guardian-

ship would be better suited to A’s needs, but they have not

explained why guardianship would be preferable to adoption.

As we have stated, in making a permanency deci-

sion, the child’s welfare is the court’s “paramount concern.”

A has spent her entire life in substitute care. Even acknowl-

edging parents’ bond with A, we cannot say that the juvenile

court erred as a matter of law in concluding that it is not in

A’s best interest to force her to remain in substitute care for

an indeterminate additional period while DHS searches for

a suitable guardian.

III. CONCLUSION

Considering the totality of the circumstances sur-

rounding DHS’s efforts to make it possible for A to safely

return home, which included the wide variety of services

17

As noted, parents have not challenged those determinations.

62 Dept. of Human Services v. C. H.

offered to parents and the fact that those services were tai-

lored to meet parents’ needs, and taking into consideration

the effect of the breakdown in the relationship between par-

ents and DHS arising out of DHS’s insensitivity to the con-

flict between them and the first foster mother over A’s hair,

we conclude that the juvenile court did not err as a matter

of law in determining that DHS’s efforts were reasonable

under ORS 419B.476. In addition, we conclude that the juve-

nile court did not err as a matter of law in determining that

there was no compelling reason not to change the perma-

nency plan to adoption.

The decision of the Court of Appeals and the judg-

ment of the juvenile court are affirmed.