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In re B. J. M.

Court of Appeals of Oregon

November 7, 2018

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

          Submitted September 17, 2018

          Lane County Circuit Court 17JU02703; Maurice K. Merten, Judge.

          G. Aron Perez-Selsky filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Cecil A. Reniche-Smith, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and James, Judge, and Sercombe, Senior Judge.

         Case Summary:

         Mother appeals a juvenile court judgment terminating her parental rights to her son, B, over the opposition of mother and B. Mother's rights were terminated on the grounds that she is unfit to parent B and that it is otherwise in B's best interest that mother's rights are terminated. On appeal, mother contests the determination that termination of her rights is in B's best interest. She argues that the Department of Human Services has not demonstrated that termination is in B's best interest in view of the strong attachment B has to mother and sister, and the absence of evidence showing that termination is a necessary step toward achieving a stable home for B.

         Held:

         On mandatory de novo review, the Court of Appeals was not persuaded that there was clear and convincing evidence in the record to show that termination of mother's parental rights is in B's best interest.

         Reversed and remanded.

         [294 Or.App. 750] LAGESEN, P. J.

         Mother appeals a juvenile court judgment terminating her parental rights to her seven-year-old son, B. Over the opposition of both mother and B, the juvenile court terminated mother's parental rights on the grounds that she is unfit to parent B, ORS 419B.504, and that it is otherwise in B's best interest that mother's rights be terminated, ORS 419B.500. On appeal, mother does not contest the juvenile court's determination regarding her fitness to parent B. Instead, she contests only the determination that termination of her parental rights is in B's best interest. Mother urges us to find that the Department of Human Services (DHS) has not demonstrated persuasively that termination is in B's best interest, in view of his strong attachments to both mother and his sister, and the absence of evidence that terminating mother's parental rights is a necessary step toward achieving a stable home for B. We reverse and remand.

         The question before us is whether termination of mother's parental rights is in B's best interest. ORS 419B.500. Our review of that question is de novo. ORS 419A.200(6); ORS 19.415(3). That standard requires us to examine the record with fresh eyes to determine whether the evidence developed below persuades us that termination is in B's best interest. Because the applicable standard of proof is the clear-and-convincing-evidence standard, to sustain the juvenile court's judgment we must be persuaded by the evidence that it is highly probable that termination of mother's parental rights is in B's best interest. Dept. of Human Services v. M. P.P., 272 Or.App. 502, 503, 356 P.3d 1135 (2015). Thus, our role in resolving the question of B's best interest is, for the most part, [1] identical to that of the juvenile court.

         The evidence in this record does not persuade us that termination of mother's parental rights is in B's best [294 Or.App. 751] interest. Although it is readily apparent that B needs a permanent, stable home with clearly identified primary caregivers as soon as possible, what is not easily discernible is whether terminating mother's parental rights ...


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