Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re R. D. D.-G.

Court of Appeals of Oregon

May 31, 2018

In the Matter of R. D. D.-G., a Child.
v.
T. M. D., Respondent. DEPARTMENT OF HUMAN SERVICES, Petitioner-Appellant,

          Argued and submitted May 30, 2017

          Resubmitted en banc March 19, 2018.

          Josephine County Circuit Court 16JU02919; En Banc Michael Newman, Judge.

          Cecil A. Reniche-Smith, Assistant Attorney General, argued the cause for appellant. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Tiffany Keast argued the cause and fled the brief for respondent.

          Before Egan, Chief Judge, and Armstrong, Ortega, Hadlock, DeVore, Lagesen, Tookey, Garrett, DeHoog, Shorr, James, Aoyagi, and Powers, Judges.

         Reversed and remanded.

         Case Summary:

         In this juvenile dependency case, the Department of Human Services (DHS) appeals a judgment dismissing its petition to terminate mother's parental rights under ORS 419B.500 to 419B.524. The juvenile court found mother to be unfit due to conduct or conditions seriously detrimental to child. The court further found integration of child into mother's home unlikely to occur within a reasonable time, because the conduct or conditions were not likely to change. The court concluded, however, that DHS had not established by clear and convincing evidence that it would be in child's best interests to terminate [292 Or.App. 120] mother's parental rights. Held: On de novo review, DHS has established by clear and convincing evidence that there are grounds to terminate mother's parental rights and that it is in child's best interests to do so.

         Reversed and remanded.

         [292 Or.App. 121] DEHOOG, J.

         In this juvenile dependency case, the Department of Human Services (DHS) appeals a judgment dismissing its petition to terminate mother's parental rights under ORS 419B.500 to 419B.524. Following a three-day termination trial, the juvenile court found mother to be unfit due to conduct or conditions seriously detrimental to her then four-year-old son, R (child). The court further found integration of child into mother's home unlikely to occur within a reasonable time, because the conduct or conditions were not likely to change. In deciding whether to terminate mother's parental rights, however, the court concluded that DHS had not established by clear and convincing evidence that it would be in child's best interests to be freed for adoption.

         DHS argues on appeal that, in the absence of evidence that termination of mother's parental rights would result in serious emotional or psychological harm to child or that termination would deprive him of a benefit that he would otherwise enjoy, the juvenile court could only conclude that adoption was in child's best interests. In DHS's view, once the court found that DHS had established that mother was unfit and that integration into her home within a reasonable time was improbable, termination of mother's parental rights became the default outcome. Mother responds that no law creates the presumption that DHS advances and that DHS's reliance on Supreme Court dictum from the Supreme Court's decision in State ex rel Juv. Dept. v. Geist, 310 Or. 176, 796 P.2d 1193 (1990), for that proposition is misguided. Mother further argues that the evidence fails to establish that termination-rather than a less permanent option, such as a guardianship-is in child's best interests.

         For the reasons that follow, we conclude on de novo review that DHS has established by clear and convincing evidence that there are grounds to terminate mother's parental rights and that it is in child's best interests to do so. In light of that conclusion, we reverse and remand. Because we decide this case on that basis, we do not consider whether, as DHS contends, the juvenile court was required to terminate mother's parental rights under the circumstances of this case.

         [292 Or.App. 122] I. LEGAL STANDARDS

         We have recently described the standards that apply to termination of parental rights cases as follows:

"In order to terminate a parent's rights on the basis of unfitness, a court must find that (1) the parent has engaged in conduct or is characterized by a condition that is seriously detrimental to the child; (2) integration of the child into the parent's care is improbable within a reasonable time due to conduct or conditions not likely to change; and (3) termination is in the best interests of the child. ORS 419B.500; ORS 419B.504; State ex rel SOSCF v. Stillman, 333 Or. 135, 145-46, 36 P.3d 490 (2001).
"The state must establish the statutory grounds for termination by clear and convincing evidence. ORS 419B.521(1). Evidence is clear and convincing when it makes the existence of a fact 'highly probable' or when it is of 'extraordinary persuasiveness.' State ex rel Dept. of Human Services v. Smith, 338 Or. 58, 79, 106 P.3d 627 (2005); State v. Simon, 180 Or.App. 255, 263, 42 P.3d 374 (2002)."

Dept. of Human Services v. R. K., 271 Or.App. 83, 88, 351 P.3d 68, rev den, 357 Or. 640 (2015).

         On appeal "from a judgment in a proceeding for the termination of parental rights, " we "try the cause anew upon the record." ORS 19.415(3)(a). That is, we review de novo. We have further explained that,

"[i]n reviewing de novo a judgment terminating parental rights, an appellate court determines anew whether to terminate a parent's parental rights, giving 'considerable weight to the findings of the trial judge who had the opportunity to observe the witnesses and their demeanor in evaluating the credibility of their testimony'"

R. K., 271 Or.App. at 89 (quoting Geist, 310 Or at 194). We proceed to consider DHS's appeal with those standards in mind.

         II. BACKGROUND AND PROCEDURAL HISTORY

         The record in this case is extensive. However, mother does not dispute that DHS has established by clear and convincing evidence the first two predicates for termination of [292 Or.App. 123] her parental rights-that mother is presently unfit due to conduct or conditions seriously detrimental to child and that child's integration into mother's home is unlikely to occur within a reasonable time, because those circumstances are unlikely to change. Accordingly, we provide only so much detail regarding the factual and procedural history of this case as is necessary to give context to the contested issue, which is whether termination of mother's parental rights is in child's best interests.

         A. Dependency Petition

         Child was born June 27, 2012. In September 2014, DHS filed a petition alleging child to be within the juvenile court's jurisdiction. On November 17, 2014, based on admissions by mother and father, the court found child to be within its jurisdiction and placed him in DHS custody. As bases for its jurisdiction, the court found that mother's substance abuse interfered with her ability to safely parent child; that she had exposed child to people who possessed drugs and engaged in criminal activity; and that she had failed to maintain a safe environment for child, in that controlled substances and/or drug paraphernalia were found within his reach. The court separately found the same jurisdictional bases as to father.[1] The court ordered mother and father to engage in substance-abuse assessments and complete the recommended treatment, to submit to drug testing, and to obtain psychological evaluations and participate in any recommended services. The court also ordered both parents to abide by the terms of their probation, to develop an in-home safety plan, and to maintain safe and stable housing.

         B. Permanency Proceedings

         The juvenile court held a permanency hearing on February 23 and 24, 2016. At the conclusion of that hearing, the juvenile court issued a detailed letter ruling in support of its decision to change child's plan from reunification to [292 Or.App. 124] adoption. The court found that, despite DHS's reasonable efforts, neither mother nor father had made sufficient progress toward meeting the expectations previously ordered and that child could not safely be returned to either parent's care.[2] See ORS 419B.476(2)(a) (requiring, at permanency hearing, that the court determine whether DHS has made reasonable efforts to make it possible for child to safely return home and whether parent has made sufficient progress toward that objective).

         In rejecting mother's request for more time in which to complete services, the court acknowledged that mother had started and even completed some of her required services. The court noted, however, that mother had taken nearly a year to engage in her drug and alcohol assessment, apparently because she had not become serious about following through with expectations until DHS began to consider changing child's plan. The court acknowledged that mother had ultimately obtained the required evaluation and had, for the most part, appropriately engaged in treatment, but found it significant that mother had recently been indicted for possession of heroin, leading her treatment provider to recommend that her program be extended indefinitely. The court also noted that mother had provided only four urinalysis samples during the pendency of her juvenile court case, all of which revealed the presence of "drugs in her system including opiates, morphine, codeine and cannabis."[3] Regarding mother's ongoing drug use, the court relied in part on a psychological assessment completed by Dr. Morrell between September 29, 2015 and January 26, 2016. Among other significant concerns, Morrell diagnosed mother with Somatic Symptom Disorder, Opioid Related Disorder, and Cannabis Related Disorder, and found that mother had been engaging in deceptive, drug-seeking behavior with various treatment providers. Morrell's assessment was that mother's various [292 Or.App. 125] diagnoses would require at least a year-and more likely two to three years-to treat sufficiently to allow child to safely return to mother's care.

         In concluding that a change of plan was warranted, the juvenile court found it particularly significant that mother had failed to provide a safe home for child. The court noted that one basis for jurisdiction had been that controlled substances and/or drug paraphernalia had been found in the home within child's reach, yet DHS had been thwarted in its efforts to enter the home to determine whether that concern had been ameliorated. Moreover, at the time of the permanency hearing, father, who was actively addicted and continued to use heroin, also continued to live in the same household as mother. Although many other people, including Morrell, child's grandmother, mother's drug counselor, and DHS workers, had discussed with mother the risk that father's active addiction presented to child, father had not moved out, because he had not been ordered to do so by the court.[4]

         Even after recognizing mother's recent successes- including her "very satisfactory" engagement in drug treatment, her active participation in a church-based 12-step program, her improved attendance at parenting-time visits, and her completion of a parenting program that her probation officer had ordered-the juvenile court concluded that, taking child's health and safety as the paramount concerns, it was time to change child's plan to adoption. See id. (prioritizing the child's health and safety in permanency decisions). In finding that child could not safely return home, the court cited the foregoing evidence and expressly noted Morrell's recommendation against reunification at that time. The court also noted that child had been in substitute care "for 17 months, a good portion of his life, " and that best practices required that children be given permanency. Finally, the court found that DHS could not, by itself, make it possible for child to return home within a reasonable period of time.

         [292 Or.App. 126] Significantly, the juvenile court stated that it was

"emphasiz[ing] that this case is not over. DHS has stated that they will continue to work with the parents with the hope that they will be able to complete services and become viable resources for their child. In the event that this does not happen, then the agency will be on its way to complete the plan of adoption and provide the child with the necessary permanency."

         C. Termination Trial

         On April 8, 2016, DHS filed a petition to terminate mother's parental rights to child. Following a three-day trial held September 27 to 29, 2016, the juvenile court dismissed DHS's petition.[5] As noted, the court found by clear and convincing evidence that

"mother is unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into the mother's home is improbable within a reasonable time due to conduct or conditions ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.