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In re K. C. P.

Court of Appeals of Oregon

October 24, 2018

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

          Submitted April 5, 2018

          Lane County Circuit Court 16JU09109 Maurice K. Merten, Judge.

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

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, fled the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         Mother appeals a judgment terminating her parental rights to her two-year-old daughter, K. In eight assignments of error, mother contends that the juvenile court erred in determining that she was unfit to parent K due to conduct or conditions seriously detrimental to K, and in concluding that it would be in K's best interests to terminate mother's parental rights. Held: On de novo review, the Court of Appeals concluded that the evidence was clear and convincing that mother was unfit to parent K and that reintegration into mother's care within a reasonable time was improbable because the conduct or conditions that cause her to be unfit are unlikely to change. Further, termination of mother's parental rights was in K's best interests.

         Affirmed.

         [294 Or.App. 515] DEHOOG, J.

         Mother appeals a judgment terminating her parental rights to her two-year-old daughter, K, the youngest of mother's nine minor children, none of whom were in her care at the time of the termination trial.[1] In eight assignments of error, mother contends that the juvenile court erred in determining that she was unfit to parent K due to conduct or conditions seriously detrimental to K, and in concluding that it would be in K's best interests to terminate mother's parental rights. On de novo review, we conclude that the evidence is clear and convincing that mother is not fit to parent K and that reintegration into mother's care within a reasonable time is improbable because the conduct or conditions that cause her to be unfit are unlikely to change. We further conclude that the Department of Human Services (DHS) has established that termination of mother's parental rights is in K's best interests. Accordingly, we affirm.

         LEGAL STANDARDS

         Under ORS 419B.500 to 419B.504, a juvenile court may not terminate a parent's rights to a child on the basis of unfitness unless it determines, by clear and convincing evidence, that the parent has engaged in conduct or is characterized by a condition seriously detrimental to the child and that reintegration into the parent's care within a reasonable time is improbable because the harmful conduct or condition is unlikely to change. State ex rel SOSCF v. Stillman, 333 Or. 135, 145-46, 36 P.3d 490 (2001). Further, even if DHS satisfies its burden of proving those statutory grounds, the court may not terminate a parent's rights unless clear and convincing evidence also establishes that termination is in the child's best interests. ORS 419B.500; Stillman, 333 Or [294 Or.App. 516] at 144. "Evidence is clear and convincing when it makes the existence of a fact highly probable or when it is of extraordinary persuasiveness." Dept. of Human Services v. R. K., 271 Or.App. 83, 88, 351 P.3d 68, rev den, 357 Or. 640 (2015) (internal quotation marks omitted).

         We review a judgment terminating parental rights de novo. ORS l9.4l5(3)(a) (requiring the Court of Appeals to "try the cause anew upon the record"). As we have explained, however, "[i]n reviewing de novo a judgment terminating parental rights," we give "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 (internal quotation marks omitted). We proceed with those standards in mind.

         FACTUAL AND PROCEDURAL HISTORY

         DHS's involvement with K dates back to just after her birth on October 7, 2015. Mother's history with DHS, on the other hand, is far more extensive and lengthy, dating back to at least 2003, less than a year after the birth of mother's second child, J.[2] Mother's relationships with the three men who fathered her first eight children were characterized by domestic violence, and her response to that conduct-together with her response to domestic violence perpetrated against her by K's father, RP-are at the center of DHS's efforts to terminate her parental rights. Notably, as to each of the first three fathers-JV, TB, and SR-D- mother found it necessary on one or more occasions to obtain restraining orders to protect herself and her children. Yet, despite mother's evident awareness of the threats that those individuals presented-and, in some instances, despite directives from the juvenile court and DHS to avoid contact with them-mother continued to allow them to have contact with her and with her children, often with harmful consequences.

         Mother's struggle with that cycle of violence persisted when K was born. At that time, six of mother's children were [294 Or.App. 517] under the jurisdiction of the juvenile court, and only the youngest, TB's child H, was returned to her care following K's birth. DHS had previously removed all four of TB's children-L, M, T, and H-from mother's home in early 2014.[3] After taking jurisdiction based on mother's admission that she had chronically failed to maintain a safe environment for her children by allowing them to reside in an unsafe and unsanitary home, [4] the juvenile court ordered mother to participate in various services and returned all four children to her care. The court ordered mother to complete a psychological evaluation and any recommended services, to participate in parenting training, and to maintain safe and stable housing, all as approved by DHS. Finally, the court ordered that TB only be allowed contact with his children as authorized or supervised by DHS.

         Although mother participated in some services, her efforts were ultimately insufficient and, by March 2015, the children remaining in her care-TB's four children-had all once again been removed from her home. DHS filed new petitions as to those four, this time alleging, among other things, that mother lacked the skills to safely parent her children and was unable or unwilling to meet their behavioral and psychological needs. DHS further alleged that TB had exhibited a "pattern of violence and/or domestic violence" that represented a threat to his children. In May 2015, the juvenile court again asserted jurisdiction over each of the children, based on their parents' admissions to those and other allegations.

         This time, however, the juvenile court did not immediately return any children to mother's care. Concurrently [294 Or.App. 518] with its assertion of jurisdiction under the new petitions, the court made permanency findings with regard to the earlier petitions. It found that, although mother had participated in some services, she had "not demonstrated any meaningful change or ability to implement skills and knowledge imparted during her participation in services." The court found that mother tended to focus on her own needs to the detriment of her children, and that she lacked "insight as to how her conduct and care of [each] child impacted the child's development and is related to the child's current behavior." In light of those findings, and even though the juvenile court remained optimistic that reunification could be possible within a reasonable time, it ordered that L, M, T, and H be temporarily placed in nonrelative foster care.

         Thus, K was born into a family under the jurisdiction of the juvenile court, to a mother who had borne multiple children with each of three abusive partners, and to a father, RP, who had his own pending dependency matters in which he had admitted "engag[ing] in volatile, erratic behavior that causes [his other children] fear." As a result, shortly after K was born, DHS filed the dependency petition in this case, alleging, among other things, (4A) "mother has a pattern of engaging in abusive relationships that pose a threat of harm to her child" and "[d]espite prior services her circumstances have not been ameliorated"; (4B) "mother has other children out of her care that she is not parenting, [and] her circumstances and behaviors have not changed"; (4C) "mother's mental health interferes with her ability to safely parent the child"; (4D) "father's substance abuse interferes with his ability to safely parent the child"; and (4E) "father's violent and erratic behaviors pose a threat of harm to the child."

         At the ensuing jurisdictional hearing, mother admitted to allegations 4A and 4C, while father admitted to allegations 4D and 4E. K, whom DHS had not removed from mother's care, was formally placed at home with her. As before, the court ordered mother to participate in services, including parent-child therapy, ISRS[5] services with a [294 Or.App. 519] demonstration of skills learned, and domestic violence counseling with a DHS-approved provider and the demonstration of a violence-free "lifestyle." And, as with TB, and due to RP's own history of violence and related allegations in his other dependency cases, the court ordered that he not have contact with K except as authorized or supervised by DHS.

         For several months after K was born, K was the only child in mother's care. In a permanency hearing regarding the other children held shortly before K's birth, the juvenile court recognized that mother had participated in additional services, including a parenting class she initially had been reluctant to attend. Both DHS and the court were concerned, however, about mother's relatively new relationship with RP and its "recent volatility." The court also observed that mother's comments at the time reflected a "continuing lack of insight into the circumstances and conditions" that had caused her children to come under the juvenile court's jurisdiction. In a hearing following K's birth, however, the court acknowledged mother's progress and her apparently appropriate in-home care for K. Thus, even though the court did not consider it possible at that time for any of the other children to return home, H was ultimately returned to mother's care for a trial reunification in late February 2016, when K was approximately five months old.

         That trial reunification-as well as K's entire time in mother's care-was ultimately short lived, again largely due to domestic violence. In March 2016, police responded to a 9-1-1 call from mother. Upon arriving, they spoke with mother, who was "covered in blood." Although the primary officer on the scene quickly determined that it was not mother's blood and that no one had been assaulted, he testified that it "looked like a murder scene," with "blood all over [mother], all the walls, the floor. There was almost not a surface not covered." Mother explained that RP had come over uninvited and that, after she had refused to allow him in, he had broken a window and forced himself in, cutting himself in the process. According to the officer, H and K were in a bedroom when he arrived, and there was no blood on them or in that room. H, however, "appeared quite traumatized. She was wrapped up in a blanket on a bed, you know, hiding, cowering. You know, appeared scared." Mother testified [294 Or.App. 520] that H and K had been asleep the whole time that RP was in the house, but also said that she had locked herself in the bedroom with them and barricaded the door with a bed until he left, at which point H woke up.[6]

         Substantially due to that incident, DHS determined that an in-home placement was no longer safe for H or K. Notably, even though mother denied having ongoing contact with RP at the time of the March 2016 incident, RP told a DHS supervisor that "he had been continually staying there on occasion, but leaving during the day, because he knew he wasn't supposed to be there [.]" Moreover, mother acknowledged at trial that, even though DHS had told her in late 2014 that RP was not safe, she still allowed him to have contact with her and her children. That contact continued despite mother's participation in domestic violence services through a program called "Womenspace," and despite an incident in December 2015, during which RP charged up to mother as she was pushing K in a stroller and tried to pull the stroller away[7] The contact also continued even though a restraining order issued following the stroller incident prohibiting RP from contacting mother; in fact, mother had regular contact with RP even while he was in jail as a result of the March 2016 incident.

         The ultimate factor in DHS's decision to remove H and K from mother's care was her inability to formulate an in-home safety plan for her children. Pending RP's release from jail, DHS had helped mother get into a safe house through Womenspace. However, when that program terminated mother's services because she was not actively participating, DHS confronted her with her ongoing relationship with RP, and informed her that, to keep her children in her [294 Or.App. 521] home, she would need to help DHS come up with a sustainable plan. As DHS later explained at the termination trial, mother had participated in a number of parenting classes, yet, even though she could at times articulate some of the skills she had been taught, she evidently remained either unwilling or incapable of "actually parent[ing]." Accordingly, in April 2016, DHS removed both children from mother's care-K for the first time, and H for the third; both have resided in foster care since that time.

         Between the March 2016 incident and the April 2016 removal of H and K, the juvenile court held a permanency hearing regarding mother's other children. At that time, the court noted the recent incident involving RP, [8] and expressed its concern that mother appeared to be incapable of safely parenting more than the two children then in her care. Because, however, DHS had asked the court for additional time to allow mother "to participate in services and to further evaluate safety issues related to the incident with the break in," the juvenile court did not change the plan for any child at that hearing. In addition to continuing with her previously ordered services, the court ordered mother to obtain an updated psychological examination, to participate in and complete the "Circle of Security" program, [9] and to participate in both individual therapy and therapeutic services recommended for her children.

         As noted, DHS subsequently removed H and K from mother's care in April 2016, and, in August 2016, the juvenile court held a permanency hearing regarding K. The court determined that, despite DHS's reasonable efforts within the relevant time frame to reunify the family, mother had [294 Or.App. 522] not made sufficient progress toward ameliorating the bases of jurisdiction and K could not safely be returned to mother's care. The court further concluded that further efforts would not make it possible for K to return home within a reasonable period of time, and that none of the circumstances ...


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