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In re I.M.K.

Court of Appeals of Oregon

March 25, 2015

In the Matter of I. M. K., a Child.
C. M. K., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, In the Matter of K. J. K., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
C. M. K., Appellant. In the Matter of I. M. K., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
A. M. G., Appellant. In the Matter of K. J. K., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
A. M. G., Appellant

Argued and Submitted December 19, 2014.

Lane County Circuit Court 09629J, 10220J, 09629J. Petition Number 09629J05, Petition Number 10220J04, Petition Number 09629J04, Petition Number 10220J03. Ilisa Rooke-Ley, Judge.

George W. Kelly argued the cause and filed the brief for appellant C. M. K.

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

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

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.


Page 1255

[270 Or.App. 4] ORTEGA, P. J.

In this consolidated appeal, parents separately appeal judgments terminating their parental rights to their children, I and K, both four years old at the time of trial (though 10 months apart in age). The juvenile court determined that parents were unfit under ORS 419B.504 because they were unable to provide minimally adequate parenting at the time of trial and would not be able to do so within a time that was reasonable for I and K due to conduct or conditions that were not likely to change. On appeal, both parents contend that the court erred in concluding that the Department of Human Services (DHS) proved that (1) they were unfit at the time of trial, (2) the children could not be returned to their care within a reasonable amount of time, and (3) it was in the children's best interests to terminate parental rights. See ORS 419B.504 (establishing grounds for terminating parental rights for unfitness).

Page 1256

On appeal, father admits that he has a " mixed history as a parent" because of his recurring problems with drug addiction, but he asserts that he is a minimally adequate parent when sober. Further, he contends that the evidence at trial showed that he had been sober for many months, had completed drug and alcohol treatment, had engaged in parenting and domestic violence classes, and had established that, with the help of his extended family, he could be ready to have the children returned to him within a reasonable time. Mother's general argument on appeal is that DHS failed to prove that her risk of relapse rendered her unfit or presented a serious detriment to the children at the time of trial, and that it is not in the best interests of the children to terminate her parental rights.

DHS counters that it proved unfitness through evidence of parents' personality disorders and drug addiction that have resulted in a consistent and long-standing pattern of drug use, domestic violence, and neglect of the children. Further, DHS asserts that reintegration of the children within a reasonable time is unlikely because, despite the provision of extensive services over a period of several years, mother and father have been unable to sustain sobriety and complete the required treatments and services and have [270 Or.App. 5] failed to establish a safe home for the children. We agree with DHS, and affirm the juvenile court's judgments.


We find the following facts on de novo review. ORS 19.415(3)(a) (appeals in termination of parental rights cases are reviewed de novo ). We begin with a chronological review of DHS's involvement with the family and the services provided up to the time of trial. Separately, we examine the facts related to parents' mental health. Finally, we discuss the circumstances of mother, father, K, and I at the time of trial.

A. Mother's Involvement with DHS from 2003 to 2006

Mother had a child, C, with Bennett in 2002. DHS placed C in substitute care in 2004 because of Bennett's abuse of mother and concerns that Bennett and mother were abusing drugs. Mother quickly engaged in services. Initially, she completed substance abuse treatment and participated in domestic violence counseling, parent training, and individual and group mental health counseling. Nevertheless, she continued to have contact with Bennett and continued to use drugs. In late 2004, mother served time in jail for violating her probation related to earlier convictions for unlawful possession of a controlled substance. DHS filed a petition to terminate her parental rights to C. When she was released from jail, mother completed substance abuse treatment and other services. DHS eventually dismissed the termination petition and returned C to mother's care after mother ended her relationship with Bennett. Mother and C moved to Florida to be closer to mother's sister.

Mother and C returned to Oregon a few months later and it appears that mother remained sober for a period of three years. However, she relapsed when C was about five years old. At that point, mother arranged for Bennett's parents to take custody of C without DHS's involvement. Eventually, Bennett's parents became C's legal guardians, and they later adopted C with mother's consent.

B. DHS Involvement May 2009 to March 2011

Mother and father began a relationship in 2007. Mother gave birth to I in May 2009, and DHS soon received [270 Or.App. 6] a community referral based on mother's substance abuse and her history with C. DHS investigated and determined that there were no safety threats to the child.

In September 2009, DHS received a referral from an anonymous source alleging that mother and father were using drugs and that mother had assaulted father's mother. I was then four months old. DHS investigated and determined that the family's housing situation was unsafe for I because the family was living with a person who had an open DHS case, as well as with people who were known drug users. At that time, father submitted a urinalysis (UA) that tested positive for marijuana,

Page 1257

but mother's UA was clean. Initially, parents refused to cooperate with DHS, and, in October 2009, DHS petitioned for juvenile court jurisdiction over I. DHS removed I from the home and placed her in shelter care. Thereafter, DHS referred parents to two housing programs and eventually paid for them to move to appropriate housing. Parents began cooperating with DHS on a voluntary basis and I was returned to their care. At DHS's request, the court dismissed the jurisdictional petition in December 2009.

In March 2010, mother gave birth to K, who tested positive for methamphetamine in the hospital. Although K did not exhibit withdrawal symptoms immediately after birth, her pediatrician observed some symptoms that were consistent with methamphetamine withdrawal a few weeks later. Mother admitted that she had used methamphetamine shortly before K was born. DHS sought, and was granted, temporary custody over I and K. In May 2010, the juvenile court took jurisdiction over the two children, and DHS placed them in nonrelative foster care. DHS and parents entered into action agreements that required parents to complete drug and alcohol treatment, demonstrate a drug-free lifestyle, submit to UAs, participate in individual and family counseling, and comply with a visitation plan.

DHS referred parents to enhanced visitation through Catholic Charities and a baby bonding group. DHS also referred father to a parenting program and mother to Emergence for intensive drug and alcohol outpatient and aftercare. By September 2010, father had made significant [270 Or.App. 7] progress after completing the referred services and substance abuse treatment and aftercare. DHS, with court approval, returned the children to father's care, but first required mother to move out of the family home and into a recovery house because of ongoing concerns about her drug use. In November 2010, DHS allowed mother to return to the home, and eventually DHS asked the juvenile court to close the case. In March 2011, the juvenile court dismissed jurisdiction and terminated the wardship over K and I. The children were then one and two years old.

C. DHS Involvement July 2012 to April 2014

DHS received an anonymous referral a year later, on July 31, 2012, and made contact with parents at their home two days later. That contact confirmed that parents were using methamphetamine again, that the household conditions had fallen below minimum community standards, and that parents were being evicted from their home and had no place to live other than their car. DHS took physical custody of the girls on that day, and placed them in shelter care with the foster parents.[1] DHS filed a petition for jurisdiction alleging that parents' " use of alcohol and/or controlled substances" and " living instability, employment instability and chaotic lifestyle" interfered with their ability to safely parent the children. A few weeks later, mother petitioned for and obtained a Family Abuse Prevention Act (FAPA) restraining order that prohibited father from contacting mother. The FAPA order was based on allegations of three instances of physical abuse.[2] Mother later admitted that one of the incidents occurred well before the children were born. As for the other incidents, father ...

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