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In re C. J. P.

Court of Appeals of Oregon

September 26, 2018

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

          Argued and submitted May 23, 2018; resubmitted en banc August 16, 2018.

          Lane County Circuit Court 14490J; Petition Number 14490J01; Josephine H. Mooney, Judge.

          Shannon Storey, Chief Defender, Juvenile Appellate Section, argued the cause for appellant. Also on the brief was Amelia Anderson, Deputy Public Defender, Office of Public Defense Services.

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

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

         Case Summary: Father appeals from a judgment in which the juvenile court changed the permanency plan for his child from reunification to adoption. Father challenges the court's determination that there was no compelling reason to [294 Or.App. 209] determine that fling of a petition to terminate parental rights would not be in the best interests of the child. Father contends that a compelling reason exists and that another permanent plan-guardianship-is better suited to meet the needs of the child. He prefers a guardianship while he is in prison. DHS argues that guardianship is not a compelling reason to forgo a termination petition due to concerns about the suitability of the guardian father suggests. DHS also urges that adoption is the most stable option, notes that the child has been a ward of the court for four years, and stresses that the child, with adjustment disorder, needs to form a bond with a long-term caregiver. Held: The trial court did not err. The record provided sufficient evidence to support the court's conclusion that there was not a "compelling reason" to determine that a termination petition was not in child's best interests.

         Affirmed.

         En Banc

         [294 Or.App. 210] DEVORE, J.

         Father appeals from a judgment in which the juvenile court changed the permanency plan for C, his son, from reunification to adoption. Father challenges the court's determination that there was no compelling reason to determine that filing of a petition to terminate parental rights would not be in the best interests of the child. Father contends that a compelling reason exists. He contends that another permanent plan-guardianship-is better suited to meet the needs of the child. DHS contends that guardianship is not a compelling reason to forgo a termination petition due to concerns about the suitability of the guardian father suggests. Because we conclude that there was sufficient evidence to support the trial court's determination, we affirm.

         We view the evidence in the light most favorable to the juvenile court's disposition; we view the evidence as supplemented by permissible derivative inferences; and we assess whether, when so viewed, the record was legally sufficient to permit that outcome.[1] Dept. of Human Services v. N. P., 257 Or.App. 633, 639, 307 P.3d 444 (2013).

         In September 2014, C was four years old when DHS took him into protective custody after a man was stabbed in mother's home in a dispute over illegal drugs. Police found signs of methamphetamine use and clutter well below community standards.[2] In November 2014, the juvenile court took jurisdiction because father was then incarcerated and unavailable to parent due to his violent and impulsive behavior, because mother's substance abuse interfered with her ability to parent safely, and because mother exposed C to an unsafe living environment where he had access to illicit drugs and paraphernalia, and he had exposure to criminal activities and unsafe persons. When the court held its most recent permanency hearing in December 2017, C had been [294 Or.App. 211] in substitute care for 15 of the most recent 22 months.[3] At that time, C was eight years old and had been a ward of the court for four years.

         At school, C is significantly behind his peers academically. He is on an individualized education plan for speech, reading, and behavior. His problem is not cognitive delays but behavioral issues. He is described as "a child that is angry and often views the world as a negative place." When told "no," his tantrums include yelling, crying, and hitting or kicking. C is engaged in weekly counseling. In a mental health assessment, concerns about C include his irritability, inability to concentrate, hyperactivity, and bed-wetting. C was diagnosed with adjustment disorder, as evidenced by emotional and behavioral symptoms. Continued assessment for posttraumatic stress disorder and attention deficit/hyperactivity disorder was recommended. In its report to the court at the most recent permanency hearing, DHS summarized that C needs permanency. DHS reported, "He needs to be able to bond and form healthy attachments to his long-term caregivers given the unavailability of his parents."

         In September 2014, when C was removed from his home, he was placed in relative foster care with DG, his maternal grandmother.[4] In its Child Welfare Case Plan, DHS reported that the grandmother "has an unrealistic negative view of [C]." DHS elaborated:

"Of considerable concern, is maternal grandmother's overall negative view of [C]. It would appear he was targeted when he lived in the home while his older sister is the favored child. Maternal grandmother has not responded in an appropriate manner to [C's] behaviors such as urinating in his bedroom. Maternal grandmother, admittedly forced him to sleep on the laundry room floor for several nights as punishment. She does not have good insight into trauma responses and believes [C] did this on purpose and does not [294 Or.App. 212] see this as the trauma response that it is. [C] has made concerning disclosures regarding his maternal grandmother's discipline techniques such as cold showers and spankings, none of which are within certification standards."

         In 2016, the grandmother told a mental health examiner that she was convinced that, when C does not get his way, he deliberately wets himself or urinates on the floor. At trial, the grandmother testified that putting C in the laundry room "was his punishment" for urinating in his bedroom, and it was only one night. The grandmother said that C does get in a lot of trouble and does do a lot of things wrong at school. The grandmother said that she told him that there is nothing worse than a liar, because he is "always lying." The grandmother testified that, despite the report that she treats C unfairly or contributes to his low self-esteem, she treats C with love. C remained in grandmother's care for over two years. During that time, DHS noted that C "suffered abuse/trauma by his grandmother who has an overly negative view of [C] and his functioning."[5]

         In December 2016, DHS placed C in father's care for a "trial reunification." Also in December 2016, the court entered a permanency judgment that contemplated that further efforts would make it possible for C to safely return to father's care. An earlier psychological evaluation of father had diagnosed him with antisocial personality disorder, methamphetamine use disorder in remission, and alcohol use disorder in remission. The examiner's primary concerns were father's "limited problem-solving ability and his impulsive and irresponsible behavior that has led to incarcerations." After his release from prison, father participated in services including drug and alcohol treatment, parenting classes, and working with a parent mentor. C did "well with his father," who was consistent in taking C to school; and father was responsive to the recommendations of the school and therapists. C had fewer behavioral problems and stopped wetting the bed.

         In June 2017, father relapsed and was arrested. Father was accused of driving while under the influence of [294 Or.App. 213] intoxicants (DUII), discharging a gun while driving, and being a felon in possession of a firearm. He was convicted of DUII and two counts of felon in possession. He was incarcerated again, now 350 miles from C, and his earliest release date is in July 2022. In the Child Specific Case Plan, DHS observed that father's "incarceration has been challenging for [C] as he is very much bonded and attached to his father."

         As a result of father's inability to provide a home, C was placed with KG, a maternal cousin, in June 2017. C was in KG's care about six months before the hearing and most recent permanency judgment. In that time, C developed a "significant bond" with KG. DHS instructed KG that, given the grandmother's "inappropriate discipline practices and negative view of [C]," the grandmother should never be unsupervised with him. That concern became the issue of the recent permanency hearing.

         At the hearing, DHS recommended a change of plan from reunification to adoption. DHS observed that, after four years, the case had been open a significant amount of time and that the recommendation for adoption was actually the second time that adoption was proposed. DHS reported that mother had not participated in services needed to make progress to ameliorate the threats of harm to C and that father was unavailable to parent because he would be incarcerated until about July 2022. DHS recognized that father loves his son and wants to be a part of his son's life, but that C has significant behavioral problems and needs a placement that can meet his needs consistently throughout his life. DHS recommended a change of plan to adoption because adoption "is the most permanent, most stable plan that this child can have." Adoption would assure C "the stability and permanency that he needs in order to grow and thrive, which has been a problem." DHS assured the court that C was adoptable. In its report to the court, DHS noted that KG was willing to adopt, but that DHS was also conducting a diligent relative search to identify potential additional relative adoptive resources.

         At the hearing, C's attorney took no position on adoption and noted that C is very attached to his father, but also noted that C was starting to comprehend that reunification [294 Or.App. 214] was not going to be an option for a very long time because his father's earliest release date is in 2022.

         At the hearing, father opposed the change of plan to adoption. Because he will be incarcerated some time into 2022, father's "primary preference" is a plan of guardianship. Father recommended KG as the appropriate caretaker for C while father is ...


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