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In re K.-M.R.

Court of Appeals of Oregon

August 14, 2013

In the Matter of K.-M.R., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
J. L. H., Appellant.

Argued and submitted on May 06, 2013.

Marion County Circuit Court J100681, Petition Number 102910KAL1, Albin W. Norblad, Judge.

Holly E. Telerant, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Laura S. Anderson, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.

SCHUMAN, P. J.

The question in this termination of parental rights appeal is whether the record establishes, beyond a reasonable doubt, that mother's parental rights to her two-year-old son KM should be terminated for unfitness by reason of conduct and conditions seriously detrimental to KM that would not be resolved within a reasonable time.[1] ORS 419B.504.[2] KM is currently placed for adoption with a relative who has already adopted KM's siblings. KM is a member of the Alaska Native Village of St. Michael, and this case is therefore subject to the Indian Child Welfare Act (ICWA), 25 USC § 1901. In such cases, the factual bases for terminating parental rights must be established beyond a reasonable doubt. ORS 419B.521(4).[3] On de novo review, ORS 19.415(2), we affirm.

Mother, who was 22 years old at the time of the termination trial, moved out of her parents' family home at age 14 and moved in with father. At that time, she began smoking marijuana on a daily basis, and she also began dealing in the drug. At ages 16 and 17, she had her two daughters who have already been adopted by a relative. During and between her pregnancies, mother used prescription medications for back pain and also abused narcotics. She has been diagnosed with depression and anxiety.

Mother described father as having a violent temper, threatening throughout their relationship to harm her. She first came into contact with DHS in 2008, when, based on domestic violence and drug use, DHS removed the two daughters from the home. Mother, who at that time was essentially homeless, voluntarily relinquished her parental rights to the two daughters in 2009, agreeing that she was not stable enough to take care of them.

KM, who was 23 months at the time of trial, was placed in custody at his birth on October 27, 2010, and has been in DHS custody since that time. He was removed from mother's custody at birth because he tested positive for marijuana and, one month later, mother admitted two allegations of the jurisdictional petition:

"A. The conditions and circumstances of the child are such as to endanger the child by reason of the following facts: The child's mother has a chemical abuse problem involving controlled substances, including marijuana and prescription drugs, that left untreated disrupts her ability and availability to adequately and appropriately parent, compromises her mental health, endangers her liberty and sobriety to appropriately parent, and makes her a danger to the child.
"B. The conditions and circumstances are such as to endanger the welfare of the child by reason of the following facts: The child's mother has mental health difficulties that left untreated compromise her ability to adequately and appropriately parent."

Mother has a history of unhealthy relationships with men. As noted, she moved in with father at the age of 14 and had her two older children at 16 and 17. In the 2008 dependency proceeding involving the two girls, mother agreed not to have contact with father. She then briefly separated from him, but they reunited after she relinquished her parental rights to the girls. Shortly thereafter, she became pregnant with KM. After KM was born, mother continued to have contact with father throughout his incarceration for coercion and felony assault charges. While father was in prison, mother expressed intense fear of him to her counselor. But when father was released from prison in January 2012, mother violated her in-home safety plan by allowing father to visit her. Throughout this period, mother consistently told her service providers that she was no longer seeing father; at trial, she admitted that those assurances were lies because she continued to have contact with him. She testified at trial that she is not in love with him, but will always love him because he is the father of her children. She denies that her relationship with father is romantic or that she wishes to reunite with him.

While father was in prison, mother began a relationship with, and married, Zach Sarbu in September 2011. She temporarily separated from Sarbu in August 2012, when she learned that he was abusing prescription drugs and forging prescriptions, and she told DHS personnel that she had discontinued her relationship with him. However, those assurances were, like the ...


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