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In re F. J. S.

Court of Appeals of Oregon

November 27, 2013

In the Matter of F. J. S., Jr., a Child.
F. J. S., aka F. J. S., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

Argued and submitted on July 16, 2013.

Clackamas County Circuit Court 090925J Petition Number 090925J05 Jeffrey S. Jones, Judge.

Megan L. Jacquot argued the cause and filed the brief for appellant.

Tiffany Keast, 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 Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.


Father appeals a judgment terminating his parental rights to F on grounds of unfitness. ORS 419B.504. When F was one month old, the Department of Human Services (DHS) placed him and his half-siblings, P and H (mother's children from a previous relationship) in protective custody. At the time, mother stipulated that her mental health problems, lack of stable housing, and use of marijuana created a risk of harm to all three children.[1] Father stipulated that he had a history of substance abuse and domestic violence against mother and that he lacked safe and stable housing, all of which impaired his ability to competently parent F. Several months later, after both parents had engaged in services, DHS returned P and H to mother's care and F to father's care. Mother, P, and H moved in with father and F a few months later, but after an incident in which father became angry and struck P, DHS removed all three children from the home. From that point until the termination trial, father engaged in additional services, but failed to complete his anger management class and continued to exhibit an inability to control his anger.

DHS petitioned for the termination of father's parental rights in January 2012, and the case was tried over several days in July and August of that year. The court terminated father's parental rights, concluding that his anger and impulsiveness rendered him unfit as a parent and that F could not be reintegrated into his home within a reasonable time. On de novo review, we agree that, at the time of trial, father continued to exhibit volatility and problems controlling his anger, that those conditions were seriously detrimental to F, and that, given the persistence of those problems and F's need for permanency, F could not be reintegrated into father's home within a reasonable time. Accordingly, we affirm.


We find the following facts on de novo review. ORS 19.415(3)(a). We include facts that relate to mother and to F's half-siblings, P and H, to the extent that those facts are relevant to the issues on appeal in this case.

A. Background and initial DHS involvement; father's engagement in services.

Father had a chaotic upbringing. He suffered physical abuse at the hands of his father (grandfather), who also abused alcohol. Father estimated that he had been in "400 to 600" fights as a youth, had engaged in cruelty to animals, and had frequent police contact as a juvenile, including arrests for drug possession, trespassing, and burglary. As a result of those arrests, he spent time on probation and underwent substance abuse treatment. Father was expelled from school in the tenth grade for fighting and possession of a knife, and was later kicked out of the military for underage drinking and driving under the influence of alcohol. Father also reported that he was charged with assault in 2004 for "physical aggression" against his domestic partner, but that his conviction was "diverted" after he agreed to participate in a batterer intervention program; he completed that program in 2005. Father acknowledged a history of physical aggression towards female domestic partners, as well as several incidents of verbally abusing mother, including one incident, in the spring of 2009, in which he pushed her.

Father and mother met in October 2008. Mother had two children, P and H, with her husband D, who was then incarcerated, but she and father became a couple and moved into father's parents' home in February 2009. Mother gave birth to F the following August while she was still married to D; father's paternity was established a few months later.

About two weeks after F's birth, DHS conducted a safety assessment because mother, who is bipolar, had stopped taking her medications and had expressed worry that she would harm her children and herself. DHS put a "safety plan" in place that allowed the children to stay in the home, with the grandparents acting as "safety service provider" and the "eyes and ears" of DHS. However, mother soon left the grandparents' house because she did not feel safe around father, and moved into a hotel with P and H. Almost immediately, she contacted DHS and admitted to the agency that she could not care for the children and that they should be placed outside of her care while she received mental health treatment. DHS took P and H into protective custody and placed them in a foster home.

DHS then met with father, who still had F in his care. DHS agreed with father that F would be left at the grandparents' house if mother and father signed over guardianship of F to grandparents. Shortly thereafter, however, father called DHS because he had concerns that F might be at risk at the grandparents' house because of grandfather's alcohol abuse. Father also admitted that he abused alcohol and marijuana, struggled with anger management, and had committed acts of domestic violence, all of which prevented him from being an appropriate parenting resource. Father was very open and willing to engage in services to address those problems. DHS then took protective custody of F and placed him in a foster home.

The juvenile court took jurisdiction over the children and established a wardship in October 2009. In particular, the court took jurisdiction as to father based on his stipulation that he had a history of domestic violence with mother, that he lacked safe and stable housing, and that he had a history of substance abuse that impaired his ability to safely parent F. DHS referred father for an addiction recovery screening and conditioned F's return to father on father's ability to find safe and stable housing, address his substance abuse problems, and understand how his anger and aggression affected F. In addition, the juvenile court ordered father, among other things, to participate in a drug and alcohol evaluation, drug and alcohol treatment if recommended, a batterer intervention program, and parent education classes.

Parents were involved in an incident of domestic violence that same month. A police officer received a radio call to respond to a Portland club because father had threatened mother with physical violence. At the club, mother explained to the officer that earlier that evening father had been drinking and "talking negatively to her about their relationship." Father pushed mother and mother pushed him back. The couple proceeded to the club and continued to drink. Father again spoke negatively about their relationship, and, when he asked mother a question and mother simply nodded her head, father retorted, "Don't nod your head or I'll break your neck." Mother left the club and somebody called the police. The officer took a report and transported mother to a DHS facility.

There was an additional report of domestic violence between mother and father a couple of months later. Mother filed a complaint with the police that father had threatened harm to her in a grocery store parking lot on a day when they both had been drinking. However, mother was later charged with filing a false police report after she told police that she had "made up the report."

Beginning in November 2009, father engaged in intensive outpatient drug and alcohol treatment with Lifeworks NW. During the program's intake assessment, father reported that he had had problems with alcohol and drug use, as well as domestic violence and anger management problems. Father participated in group sessions three times per week and an individualized counseling session weekly. Urinalyses (UAs) were required throughout treatment, and after father initially tested positive for marijuana, all of his subsequent UAs were negative. Father generally did well in treatment--he cooperated with counselors, challenged himself, and demonstrated motivation to regain custody of F. He did, however, struggle to regulate his emotions at times when he was overwhelmed by the requirements placed on him by DHS. In addition, he reported to DHS and his counselor that he drank alcohol in February 2010, shortly before he was scheduled to complete treatment. Father successfully graduated from treatment in March 2010.

Meanwhile, in January 2010, father began an anger management program at Men's Resource Center. Between mid-January and mid-March, father attended seven of eight classes, but his participation was described as "openly resentful." He showed a great deal of hostility towards "the system" and little interest in changing his thinking in that regard. His counselor also explained that "[h]e has a great deal of victim-stance and blaming which so far, is a block for him making real progress. At this point I would say the likeliness of him benefiting from the class seems low." Father missed five of the next seven classes, and, when he did attend, he continued to sit quietly "looking very angry/defiant" and continued to show hostility towards "the system." Father stopped attending classes and was terminated from the program.

During this time period (late 2009 to June 2010) father also completed a parenting training program at Parrott Creek Child & Family Services. Father showed progress during the course.

B. The children's return to parents; father's assault on P; and father's engagement in additional services.

In April 2010, DHS returned P and H to mother and F to father. Father lived in the grandparents' home with F. By September 2010, mother, along with P and H, had moved into the grandparents' home. Mother struggled with mental health issues, and she began leaving all the children with father for prolonged periods. One day in September 2010, father, who reported that he was experiencing high levels of stress, struck P in the face after discovering that P and H had "destroyed a room." Father later reported that his "brain snapped" and, although he did not remember exactly what had happened, he had been extremely angry with the children. Father's blow left ...

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