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In re H. N. F.

Court of Appeals of Oregon

April 24, 2019

In the Matter of H. N. F., a Child.
v.
H. R. E., aka H. R. F., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

          Submitted January 29, 2019

          Curry County Circuit Court 17JU06801 Jesse C. Margolis, Judge.

          Kenneth A. Kreuscher 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 juvenile court judgment terminating her parental rights to her four-year-old daughter. Over mother's opposition, the court terminated her parental rights on grounds of unfitness, ORS 419B.504, and neglect, ORS 419B.506. On appeal, mother asserts that the juvenile court erred in determining that she is unfit to parent child and that she had neglected child. Held: On de novo review, the Court of Appeals was not persuaded, by clear and convincing evidence, that mother's conduct or condition at the time of the termination trial was seriously detrimental to child and, accordingly, it was error to terminate mother's parental rights based on unfitness. Furthermore, the Department of Human Services did not prove, by clear and convincing evidence, that mother had failed or neglected without reasonable and lawful cause to provide for the needs of child under ORS 419B.506.

         Reversed and remanded.

         [297 Or.App 248] DEHOOG, J.

         Mother appeals a juvenile court judgment terminating her parental rights to her four-year-old daughter.[1]Over mother's opposition, the juvenile court terminated her parental rights on grounds of unfitness, ORS 419B.504, and neglect, ORS 419B.506. On appeal, mother raises three assignments of error. In particular, mother asserts that the juvenile court erred in determining that she is unfit to parent child and that she had neglected child. As a result, mother contends, the court erred in terminating her parental rights.[2] As we explain below, we conclude, on de novo review, [3] that the juvenile court erred in terminating mother's parental rights; accordingly, we reverse and remand.

         The juvenile court took jurisdiction over child in 2016, when she was two years old. The Department of Human Services (DHS) had removed child from mother's care after police stopped a car driven by father and found methamphetamine and syringes inside. Mother and child were passengers in the car. At that time, child was dirty, behind on her vaccinations, and needed dental care. Mother and father both displayed physical signs associated with methamphetamine use, which included a dirty appearance, tooth decay, and "pick" marks on their faces. DHS placed child in relative foster care with father's adult son, child's half-brother. Child has since remained in that placement, where she has done well. She is bonded with her caregivers and has no special needs or concerning behavioral or health problems.

         [297 Or.App 249] Before removing child in this case, DHS was involved with mother in relation to her now-adult children. Specifically, in 2010, as a result of mother's use of methamphetamine, her children were removed and placed in substitute care with family members. Those children returned to live with mother upon reaching adulthood; two of the older children currently live with mother and she has frequent contact with the third.

         After child was removed from her care, mother sought out and engaged in substance abuse treatment through the Karuk Tribe. Mother has also undergone urine testing in connection with her treatment and employment at various times over the life of the case; none of those tests have been positive for the use of methamphetamine or other illegal drugs. However, two "hair follicle" tests conducted in the months leading up to the termination trial detected low levels of methamphetamine. Also, despite mother's assertion that she very rarely drank, two of her urine samples tested positive for alcohol use, leading DHS to suspect that she drank more than she claimed.

         In addition to obtaining substance abuse treatment, mother has also attended numerous parenting classes, and her family members have attended classes to help them recognize the signs of relapse in people addicted to drugs. Mother's adult daughter testified that she had seen "remarkable changes" in her mother over the past couple of years. Mother no longer exhibits the moods and behaviors that she did during her time of habitual drug use. We could credit the testimony that she seems happier, is more involved with the family, and looks healthier.

         Throughout child's placement in substitute care, mother has participated in weekly telephone visits. Mother has also attended weekly, in-person visits with child, each time driving hundreds of miles to Oregon from California, where mother has been living with her parents. Indeed, since 2016, mother has cumulatively driven many thousands of miles to attend her weekly visits with child. Mother has interacted appropriately with child during her visits, playing and laughing with child and otherwise remaining actively engaged.

         [297 Or.App 250] Approximately six months before the termination trial, mother obtained full-time employment, and she remains employed in a supervisory position in a casino. As part of her responsibilities, mother handles large sums of money. Her position requires that mother be licensed by the State of California, and her employer subjects her to random drug testing.

         At the time of trial, mother continued to live in her parents' home, together with her parents and two of her adult children. After a home study conducted in the course of these dependency proceedings, that home was approved as a placement for child, provided that mother not live there.[4] In other words, the home itself was determined to be safe and appropriate for child.[5] Mother intended to continue living with her parents in that home.

         As noted, although mother's urine tests were negative for methamphetamine and she denies having used methamphetamine at any time during child's placement in substitute care, two "hair follicle" tests conducted approximately three to four months and a week or two before trial indicated the presence of that drug. A "positive" result for methamphetamine indicates the detection of at least 500 picograms per milligram of tested hair.[6] In this case, one test detected just over that minimum confirmation level, showing 532 picograms of methamphetamine per milligram. The other, earlier test detected ...


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