Dept. of Human Services v. D.A.N.

Parent who fails to meet obligations under an action agreement due to brevity of incarceration allows a court to conclude that parent has not made sufficient progress under ORS 419B.476(2) when reunification would not occur for a minimum of nine months.

Father appealed a judgment that changed his daughter’s permanency plan from reunification to adoption. After daughter’s birth, Father began serving a 23-month prison term. Father entered into an action agreement whereby he agreed to engage in any remedial services available while incarcerated. Father participated in Narcotics Anonymous, but was not able to participate in parenting or drug treatment programs because of the brevity of his remaining prison term. At hearing, the court, in addressing whether Father made sufficient progress under ORS 419B.476(2), stated that it believed Father had intention to fulfill his obligations under the action agreement, but was limited in his ability to meet those obligations, as he did not have access to parenting classes or drug treatment. Daughter would be in foster care for a minimum of 21 months before reunification, and, in the court’s view, that was too long. Thus, the court concluded that Father had not made sufficient progress to allow reunification. Father argues that trial court erred in ruling he failed to make sufficient progress and that DHS did not show daughter could not be returned to him within a reasonable time. The Court held that the lower court did not err because the findings implicitly included a determination that a minimum of nine months was not a reasonable time, which was supported by sufficient evidence. Affirmed.