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In re J. M.

Court of Appeals of Oregon

December 26, 2013

In the Matter of J. M., a Child.
v.
J. M., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, In the Matter of S. M., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
J. M., Appellant.

Argued and submitted on September 18, 2013.

Clackamas County Circuit Court 110851J, 110852J, Petition Number 110851J01, 110852J01. Douglas V. Van Dyk, Judge.

Kimberlee Petrie Volm, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Cecil A. Reniche-Smith, 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.

Father appeals from a judgment of the juvenile court after a permanency hearing, assigning error to the court's denial of his motion to dismiss the jurisdictional petition and to the court's change in the permanency plan for his two young children, J and S, from reunification to adoption. We reverse.

The historical facts are undisputed. J was born on November 6, 2008, and S was born on August 5, 2011. The Department of Human Services (DHS) has been involved with the family and has provided services at least since 2008, when the agency began making assessments of mother based on reports of neglect of J.[1] At the time of the permanency hearing, the children had been in substitute care for 18 months.

On August 15, 2011, police responded to a report of child abuse at father's home. Father admitted to police officers that he had disciplined J several times by hitting him on the legs with one-quarter-inch diameter rubber tubing. He explained that he did so because he was impatient and J was "out of control." Father further explained that he used rubber tubing because it did not leave marks and because he was concerned that using his hand might cause injury. He told police that physical discipline is supported by biblical scripture. Father was charged with assault in the third degree and criminal mistreatment in the first degree, and taken into custody. At that time, the children were placed in protective custody because of concerns that mother, who is developmentally disabled, was not able to care for them.

In November 2011, the juvenile court assumed jurisdiction of J and S, based on allegations that (1) father had used inappropriate discipline on J; (2) as a result, both children were at risk of harm; (3) father needed help to learn appropriate discipline techniques; and (4) mother was unable to protect the children from father's actions.[2]

After assuming jurisdiction, DHS provided father with a parenting trainer, who assisted him in reevaluating his views regarding physical discipline. Father regularly attended visits with the children and completed a parenting-education class with a grade of 105.3 percent. Despite that high level of participation, DHS noted that, during visits, father did not discipline J, instead allowing DHS staff or the foster parent to intervene and manage J's behavior.

In early 2012, father met with Dr. Miller for a psychological evaluation. Miller reported that father, who was then age 60, lacked insight into the effects of physical punishment on his children. He noted that father deflected personal responsibility for any abuse by stating that he now "understands the law." In Miller's view, father is "likely to comply on the surface with rules and regulations as long as he is being watched but will regress to former patterns of behavior as soon as the spot light is turned off." Miller stated that "father is not likely to provide a safe * * * environment for his children. Old patterns of behavior will continue as soon as authorities leave." Miller testified that father lacked the emotional capacity to meet his children's needs and that it was likely that he would revert to inappropriate corporal punishment when the children are no longer subject to the wardship.

Thus, Miller was largely pessimistic about father's ability to safely parent. He nonetheless opined that,

"if there is a chance that [father] could step into a healthy parent role, he would need to commit himself to a comprehensive and rigorous Dialectic Behavior Therapy Program [(DBT)] and graduate with a good recommendation. * * * Otherwise, [father] should allow his children to be raised by someone who ...

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