176 April 5, 2023 No. 164

164 325 Or App Dept. of Human Services v. L. B. 2023 April 5, 2023

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

In the Matter of R. M. S., 

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

v.

L. B.,

Appellant.

Columbia County Circuit Court

20JU02052; A178633 (Control)

In the Matter of A. G. S., 

a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

v.

L. B.,

Appellant.

Columbia County Circuit Court

20JU02053; A178634

Michael T. Clarke, Judge.

Submitted January 17, 2023.

Shannon Storey, Chief Defender, Juvenile Appellate 

Section, and Sean Connor, Deputy Public Defender, Office of 

Public Defense Services filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Kirsten M. Naito, Assistant Attorney 

General, filed the brief for respondent.

Before Shorr, Presiding Judge, and Mooney, Judge, and 

Pagán, Judge.

MOONEY, J.

Affirmed.
Cite as 325 Or App 176 (2023) 177
178 Dept. of Human Services v. L. B.

MOONEY, J.

This is a juvenile dependency proceeding that concerns mother’s children, R and A, both of whom are Indian 

children within the meaning of the Oregon Indian Child 

Welfare Act (ORICWA) and the federal Indian Child Welfare 

Act (ICWA). See ORS 419B.600 - 419B.665; Indian Child 

Welfare Act of 1978, 25 USC §§ 1901 - 1963. Mother appeals 

from a permanency judgment that changed the permanency 

plan for R and A from reunification to guardianship. R was 

10 years old and A was 11 years old at the time of the permanency hearing. Mother asserts four assignments of error, 

two for each child, each of which mirrors the assignments 

for the other child: that the juvenile court erred in ruling 

that the Department of Human Services’ (DHS) efforts to 

reunify mother and her children qualified as “active,” and in 

changing R’s and A’s permanency plans from reunification 

to guardianship. We conclude that the juvenile court’s active 

efforts findings were supported by the record and that it did 

not err when it changed the permanency plan for each child. 

We affirm.

“[W]e review the juvenile court’s legal conclusions 

for errors of law and are bound by its findings of historical 

fact if there is any evidence in the record to support them.” 

Dept. of Human Services v. J. G., 260 Or App 500, 504, 317 

P3d 936 (2014).

Given that this is an ORICWA case, and because 

the permanency plan at the time of the permanency hearing 

was reunification, the juvenile court was required to determine whether DHS had made “active efforts” to reunite R 

and A with their mother. ORS 419B.476(2)(a). It was not 

authorized to change the plan away from reunification 

unless it could find that DHS had “provid[ed] active efforts 

to make it possible for [R and A] to safely return home[.]” 

ORS 419B.476(7)(b).

“Active efforts” are efforts that are “affirmative, 

active, thorough, timely and intended to maintain or 

reunite an Indian child with the Indian child’s family.” 

ORS 419B.645(1). “Active efforts require a higher standard of conduct than reasonable efforts.” ORS 419B.645(3). 

That “standard is understood to impose on the agency an 
Cite as 325 Or App 176 (2023) 179

obligation greater than simply creating a reunification plan 

and requiring the client to execute it independently.” State 

ex rel Juv. Dept. v. T. N., 226 Or App 121, 124, 203 P3d 262, 

rev den, 346 Or 257 (2009). Instead, DHS must “assist the 

client through the steps of a reunification.” Id. “The type 

and sufficiency of effort that DHS is required to make 

depends on the particular circumstances of the case.” Dept. 

of Human Services v. D. L. H., 251 Or App 787, 799, 284 P3d 

1233, aff’d on recons, 253 Or App 600, 292 P3d 565 (2012), 

rev den, 353 Or 445 (2013). To determine whether efforts 

were active, a juvenile court will consider “whether a parent 

is likely to benefit from a service.” Dept. of Human Services 

v. M. K., 257 Or App 409, 416, 306 P3d 763 (2013).

On appeal, mother argues that the juvenile court 

erred by concluding that DHS’s efforts qualified as active 

because DHS failed to provide her with a second neuropsychological examination and other services that had been 

suggested by mother’s counselor, and in changing the plan 

for the children to guardianship. Those rulings occurred in 

the context of a regularly scheduled annual permanency 

hearing under ORS 419B.470(7). DHS had not requested 

a change in plan; however, at the beginning of the hearing, R’s attorney informed the court and the parties that R 

wanted to change the plan to adoption. The court acknowledged “that information” and proceeded with the hearing. 

Both DHS and mother were prepared with witnesses who 

testified about the efforts made by DHS and the progress 

made by mother, and then mother testified. At the close of 

evidence, the court took up the question of whether the plan 

could be changed that day. The court appointed special advocate (CASA) ultimately made an oral motion during that 

hearing to change the plan for both children from reunification to guardianship. DHS informed the juvenile court that 

it was not prepared to request a change in plan at that time 

because it had not yet followed its own internal process to 

obtain approval from the agency’s guardianship committee, 

but that it did not object to the CASA’s motion to change the 

plan. The tribal representative provided the tribe’s support 

for a change in plan from reunification to guardianship. R’s 

counsel clarified that, while R preferred adoption, she would 

not object to a change of plan to guardianship.
180 Dept. of Human Services v. L. B.

Ultimately, the juvenile court determined that DHS 

had used active efforts to reunify R and A with their mother, 

but that, despite those efforts, mother had not made sufficient progress to allow her children to return safely home. 

The juvenile court then changed the plan to guardianship. 

There was discussion that the focus of the case would change 

to support the new plan of guardianship given the change in 

permanency plan. The court nevertheless directed DHS to 

continue working with mother and to move forward in trying 

to provide her with a second neuropsychological evaluation. 

The juvenile court’s findings and permanency judgment met 

the requirements of ORS 419B.476(5)(k), which places the 

onus on the court to determine, by clear and convincing evidence, that active efforts were provided; that, despite those 

efforts, continued removal is necessary to prevent serious 

damage to the child; that the parent has not made sufficient 

progress to allow the child to safely return home; and that 

the new permanency plan complies with the placement preferences outlined in ORS 419B.654.

The permanency hearing in question occurred 25 

months after R and A were removed from mother’s care and 

21 months after jurisdiction was established. The permanency judgment included, among other things, the juvenile 

court’s findings regarding the reunification services that 

DHS had arranged for mother and for R and A. The court 

found that DHS had developed a safety plan for the family and had arranged for and facilitated contact between 

mother and the children, in-person and remotely, using professional supervisors and parent trainers. The court found 

that mother had visited with A 58 times and with R 54 

times at that point in the case. DHS had arranged for alcohol and drug evaluation and treatment, psychological evaluation and treatment, mental health counseling, housing 

assistance, transportation assistance, and other in-home 

safety and reunification services. The court also adopted 

and included in its active efforts findings the description of 

DHS efforts reflected in (1) a letter from mother’s specialized parent coach from Wise Choice Educational Solutions 

describing six parent coaching sessions and other “consultations,” (2) the DHS Family Report prepared for the permanency hearing, and (3) the CASA’s most recent findings 
Cite as 325 Or App 176 (2023) 181

and recommendations contained in her report, detailing the 

efforts mentioned already as well as significant efforts used 

to actively involve the children’s tribe in family reunification 

work, all of which were offered and received by the court as 

evidence.

Having reviewed the record, we conclude that the 

juvenile court did not err in making an active efforts determination and it did not err when it changed the permanency 

plan to guardianship. DHS actively worked with mother, 

her children, and the tribe toward reunification through 

services that were specific to the circumstances that led to 

jurisdiction in the first place.1 Mother acknowledges that 

DHS was unable to immediately provide her with a second 

neuropsychological evaluation because its policy is to provide one evaluation every two years. She also acknowledges 

certain contractual limitations with respect to DHS’s ability to provide further specialized parent coaching through 

Wise Choice. But mother contends that DHS nevertheless 

fell short of its active efforts obligation despite those policy and contractual limitations. She argues that the juvenile court’s analysis was flawed in assessing DHS’s failure 

to arrange for a second neuropsychological evaluation and 

other specific therapies given DHS’s legal obligation to use 

active, and not merely reasonable, efforts.

In mother’s view, the court failed to do the proper 

“cost-benefit analysis” when it evaluated whether DHS’s 

efforts “gave mother an opportunity to ameliorate the jurisdictional bases” specifically by balancing its burden in providing those services with the benefit that mother might 

reasonably get from them. In the absence of any evidence 

from DHS that it was “unable []as opposed to unwilling[]” 

to provide mother with certain services, she argues, the 

court should not have made an active efforts finding. See 

Dept. of Human Services v. K. G. T., 306 Or App 368, 473 P3d 

131 (2020) (concluding that, because DHS failed to explore 

alternate service options while father was incarcerated, 

1 In asserting jurisdiction, the juvenile court relied on mother’s admissions 

that she had mental health issues that interfered with her ability to safely parent 

R and A and also that she needs the assistance of DHS to meet R’s and A’s physical and emotional needs.
182 Dept. of Human Services v. L. B.

the court was required to conduct a “cost-benefit analysis” 

to determine whether DHS could have provided other services within reason, and a failure to conduct that analysis 

required reversal).

Mother’s argument misses the point. The juvenile 

court made its active efforts determination giving proper 

consideration to the services that mother had been offered 

in conjunction with its consideration of evidence concerning 

mother’s progress given those services. The court stated:

“[I]t sure does not look to me that [mother] will, despite 

any other reunification efforts, will be able to get to a point 

[of minimal adequacy]. * ** I have specifically ordered 

[mother] a number of times not to do certain things.

“*** I just don’t believe that she is ever going to get to a 

point [of minimal adequacy]. Now, I don’t think that * ** 

ODHS should stop providing services and doing everything 

that they can to help her ** *.”

The juvenile court made clear findings that mother was 

offered several services but had still not made progress 

toward minimal adequacy. There is no indication in this 

record that mother would benefit from additional services 

that were not explored due to a “cost-benefit analysis” or 

because of an unwillingness by DHS to provide a service 

that could have been helpful to mother.

We acknowledge that an internal DHS policy is not, 

on its own, a sufficient reason to not provide a necessary 

service to a parent, especially in a case requiring active 

efforts. However, given the entirety of this record, we do 

not find that DHS’s failure to request a policy exception or 

to otherwise arrange for a second evaluation prior to the 

permanency hearing shows a lack of active efforts on its 

part. Rather, the court concluded that mother was unlikely 

to benefit from any service DHS might offer in light of her 

lack of progress up to the point of the hearing. The fact that 

mother might benefit from specific therapies according to her 

counselor does not mean that DHS was required to provide 

those services, particularly given mother’s lack of progress 

despite the extensive efforts DHS had already made. The 

record supports the juvenile court’s active efforts finding. 
Cite as 325 Or App 176 (2023) 183

It follows that the court did not err in changing the plan to 

guardianship.

Affirmed.