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In re N.M. P.

Court of Appeals of Oregon

May 10, 2017

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

          Submitted April 26, 2016

         Josephine County Circuit Court 100118J, 110064 J Petition Number 100118J04, 110064J04, Michael Newman, Judge.

          Shannon Storey, Chief Defender, Juvenile Appellate Section, and Holly Telerant, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Judy C. Lucas, Assistant Attorney General, fled the brief for respondent.

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

         Case Summary:

         Father appeals from a juvenile court judgment terminating his parental rights to his daughter and son. Father asserts that the juvenile court erred in excluding, as irrelevant, evidence that father offered regarding the children's paternal grandfather's availability and suitability as a guardian. Father also asserts that the juvenile court erred in concluding that the Department of Human Services (DHS) established, as required for termination of father's parental rights, that, with respect to each child, (1) father was unfit, (2) the child could not be reintegrated into father's home within a reasonable period of time, and (3) termination of father's parental rights was in the child's best interest. Held: The juvenile court erred in excluding the evidence. Evidence regarding the importance of maintaining a legal connection to the parent and whether there are ways that that can be achieved is relevant to the juvenile court's best interest determination. However, on de novo review, DHS proved, by clear and convincing evidence, that the requirements for termination of father's parental rights had been met.

         Affirmed.

          DUNCAN, P. J.

         In this termination of parental rights case, father appeals the juvenile court's judgment terminating his parental rights to his daughter and son. Father asserts that the juvenile court erred in excluding, as irrelevant, evidence father offered to establish the children's paternal grandfather's availability and suitability as a guardian. Father also asserts that the juvenile court erred in concluding that the Department of Human Services (DHS) established, as required for termination of father's parental rights, that, with respect to each child, (1) father was unfit, (2) the child could not be reintegrated into father's home within a reasonable period of time, and (3) termination of father's parental rights was in the child's best interest. We conclude that the juvenile court erred in excluding the evidence. However, on de novo review, ORS l9.4l5(3)(a), after considering all of the evidence in the record-including the evidence father submitted as an offer of proof regarding grandfather's availability and suitability as a guardian-we conclude that DHS proved that the requirements for termination of father's parental rights had been met. Therefore, we affirm.

         The juvenile court has asserted dependency jurisdiction over the children multiple times since daughter was nine months old, in 2010, and since son was a few weeks old, in 2011. Most recently, the court asserted jurisdiction over the children in August 2012, based on parents' substance abuse and domestic violence, father's criminal activity, and mother's mental health. DHS placed the children in non-relative foster care. In September 2013, the children were placed with mother at a residential treatment center, but after a domestic violence incident between the parents in November 2013, DHS removed the children from mother's care and placed them back into foster care with the foster parents who had cared for them previously. In March 2014, father was imprisoned for a probation violation related to that domestic violence incident.

         At the time of the termination trial in August 2015, daughter was five years old and son was four years old. Both children had significant behavioral issues, which required counseling, and daughter also had attachment problems, which weekly therapy did not appear to be helping. Father was incarcerated and expected to be released in January 2016, to a 90-day transitional housing program.

         Because father's challenge to the juvenile court's exclusion of evidence relates to arguments raised and evidence presented at earlier proceedings, we also recount the relevant procedural facts.

         In September 2014, the juvenile court held a permanency hearing where father argued that the children's permanent plans should be changed to guardianship, with grandfather as guardian. DHS argued against guardianship and sought to change the plans to adoption. The court changed the children's plans to adoption on September 24, 2014. Father appealed the permanency judgments, and we affirmed without opinion. Dept. of Human Services v. C. P.. 271 Or.App. 590, 354 P.3d 774, rev den, 358 Or 145 (2015).

         Five days after the permanency hearing, on September 29, 2014, DHS filed petitions to terminate father's parental rights to the children pursuant to ORS 419B.504, which provides for termination of a parent's rights if the parent is "unfit by reason of conduct or condition seriously detrimental to the child or ward and integration of the child or ward into the home of the parent * * * is improbable within a reasonable time due to conduct or conditions not likely to change."[1]

         In February 2015, father moved to dismiss jurisdiction, asserting that grandfather's availability to care for the children eliminated the bases for jurisdiction because, in grandfather's care, the children would not be exposed to a current threat of serious loss or injury. At a hearing on the motion to dismiss in July 2015, father presented the testimony of a mental health therapist who had assessed grandfather's potential parenting capacity in 2013, as well as the report that the therapist had prepared in conjunction with that assessment. In particular, the therapist testified that, in 2013, grandfather had presented as an adequate caregiver, and that, although he was not concerned that grandfather would pose a risk to the children's welfare, he was concerned "about [grandfather's] capacity to maintain boundaries strong enough to keep his own children out of the grand children's lives without appropriate supervision and appropriate *** safety processes in place." In addition to the therapist, grandfather testified at the hearing. Grandfather stated that he had taken a foster care class and parenting classes, and he described his mental, physical, and financial abilities to care for the children. Father also offered, as exhibits, DHS case notes from supervised visits that father and grandfather had had with the children between December 2012 and April 2015, and forms through which father ...


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