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In re R. D. K.

Court of Appeals of Oregon

May 13, 2015

In the Matter of R. D. K., Jr., a Child.
v.
R. K., Sr., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, Marion County Circuit Court J140090; A157281 (Control) In the Matter of X. J. L. B.-M. F., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
X. Z. F., Appellant. In the Matter of R. D. K., Jr., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
A. J. B.-K., aka A. J. B., aka A. B.-M., Appellant. In the Matter of X. J. L. B.-M. F., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
A. J. B.-K., aka, A. J. B, aka A. B.-M., Appellant.

Submitted March 5, 2015

Marion County Circuit Court J140092; A157386 Marion County Circuit Court J140089; A157472. Tracy A. Prall, Judge.

Peter Gartlan, Chief Defender, and Sarah Peterson, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant R. K., Sr.

Megan L. Jacquot fled the brief for appellant X. Z. F.

Laura S. Anderson and Laura S. Anderson, LLC, fled the brief for appellant A. J. B.-K.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Andrew M. Lavin, Senior Assistant Attorney General, fled the briefs for respondent.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

In this consolidated termination of parental rights case involving two boys, X and R, and their three parents-the mother of X and R (mother); the father of X (XZF); and the father of R (RK)-the three parents appeal from judgments terminating their parental rights. The parents assert that the trial court erred in terminating their parental rights. Held: The trial court did not err in terminating the parental rights of mother and RK, but did err in terminating the parental rights of XZF. First, based on mother's history of drug abuse, domestic violence, and past resistance to help, it was unlikely that mother's conduct and conditions would change in the foreseeable future. Further, clear and convincing evidence supported the determination that termination of mother's parental rights was in the best interests of the children. Second, the state demonstrated that, despite RK's recent progress and his testimony concerning his commitment to changing his conduct and lifestyle, as of the date of trial, RK remained unfit, and the conditions causing his unfitness were seriously detrimental to R. Additionally, it was improbable that R could be returned to RK's care within a reasonable time, and termination of RK's parental rights was in R's best interests. Finally, evidence of XZF's incarceration was insufficient to establish that his conduct was seriously detrimental to X, so as to justify termination of his parental rights.

DUNCAN, P. J.

This is a termination of parental rights case involving two boys, X and R, ages six and two, respectively, at the time of trial, and their three parents: the mother of X and R (mother); the father of X (XZF); and the father of R (RK). The three parents have filed separate appeals from judgments terminating their parental rights, based on unfitness by reason of conduct or condition seriously detrimental to the child. ORS 419B.504.[1] The appeals have been consolidated. On de novo review, ORS 19.415(3)(a), we conclude that the trial court did not err in terminating the parental rights of mother and RK, but we reverse the judgment as to XZF.

X was born to mother and XZF on October 12, 2007, when mother was 17 years old and XZF was 16 years old. Mother and XZF did not maintain a romantic relationship, but XZF regularly looked after X until XZF was arrested in May 2010 on charges of first-degree robbery and unlawful use of a weapon, arising out of an incident in which he and two others took an ounce of marijuana at gun point. XZF was convicted after a guilty plea and sentenced to a 90-month prison term.

Mother and RK met in high school and married in September 2011. X lived with mother and RK, and R was born in June 2012.

Mother and RK have criminal records. In 2010, RK was convicted of carrying a concealed weapon and theft; in 2011, he was convicted of possession of less than an ounce of marijuana within 1000 feet of a school; and, in 2013, he was convicted of interfering with a police officer and resisting arrest, arising out of a domestic disturbance in December 2012. Mother has a conviction for interfering with a police officer arising out of that same incident. The record shows that, in 2012, RK and mother had no fewer than six contacts with police arising out of domestic violence, under circumstances in which the children were present. During these dependency proceedings, both RK and mother have spent time in jail.

In January 2013, the children, then ages five (X) and six months (R), were removed from mother's and RK's care after police responded to a welfare check call regarding domestic violence and drug abuse, including the presence of drug paraphernalia in the home. At that time, mother was arrested and charged with possession of methamphetamine and two counts of child endangerment, for which she was ultimately convicted. RK was arrested the next day, and he later pleaded guilty to felony fourth-degree assault and received a sentence of probation.

In February 2013, the juvenile court took jurisdiction of the children, and, in June 2014, the juvenile court entered the termination judgments now on appeal. We first address the judgment terminating mother's parental rights to both children. The court terminated mother's parental rights to both boys pursuant to ORS 419B.504, based on the determination that there was clear and convincing evidence of unfitness as a result of mother's criminal conduct, drug and alcohol abuse, exposure of the children to domestic violence, lack of effort or failure to maintain a suitable or stable living situation for the ...


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