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In re R. D. D.-G.

Supreme Court of Oregon

June 13, 2019

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

          Argued and submitted January 18, 2019

          On appeal from the Court of Appeals CC 16JU02919, CA A163883. [*]

          Tiffany Keast, Deputy Public Defender, Offce of Public Defense Services, Salem, argued the cause and fled the briefs for petitioner on review. A lso on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section.

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

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Linder, Senior Justice pro tempore. [**]

         [365 Or. 144] Case Summary: Following a permanency hearing in which child's plan was changed to adoption, the Department of Human Services (department) fled a petition to terminate mother's parental rights, alleging that mother was unfit, that it was improbable that child could be returned to her care within a reasonable period of time, and that it was in child's best interest that mother's parental rights be terminated. The juvenile court determined that the department had established mother's unfitness and that it was improbable that child could be returned to her care; however, the court determined that it was not in child's best interest to terminate mother's parental rights. The department appealed and argued that, when a parent is unfit and return of the child to that parent's care is improbable, there is a presumption that termination of parental rights is in the child's best interest. The Court of Appeals did not address that issue, but it nonetheless reversed the judgment of the juvenile court after determining that it was in child's best interest to terminate mother's parental rights. Held: The best-interest inquiry is not weighted with a presumption or preference for termination, and termination of mother's parental rights is not in child's best interest, given child's need to maintain his maternal familial relationships and that his need for permanency could be satisfied through a permanent guardianship with his maternal uncle and aunt.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

         [365 Or. 145] WALTERS, C. J.

         In this proceeding to terminate mother's parental rights, the juvenile court determined that mother was unfit and that it was improbable that child could be returned to mother's care within a reasonable period of time, satisfying the requirements of ORS 419B.504. However, the court determined, the Department of Human Services (department) had not established, as ORS 419B.500 requires, that termination of mother's parental rights was in child's best interest. The court acknowledged that the department had proved that child had a need for permanency that could be met by terminating mother's parental rights and permitting child's foster parents, his maternal uncle and aunt, to adopt him. However, the court also found that child had an interest in maintaining his bond with his mother and her parents. The court suggested that child's need for permanency could be satisfied by permitting his foster parents to serve as his permanent guardians and concluded that it was not in his best interest to terminate mother's rights. Accordingly, the court dismissed the petition. The department appealed, and, as directed by ORS 19.415(3)(a), [1] the Court of Appeals reviewed the record de novo. Dept. of Human Services v. T. M. D., 292 Or.App. 119, 121, 423 P.3d 88 (2018).

         Although the Court of Appeals relied on the same facts as did the juvenile court, it reached a contrary conclusion from those facts. In an en banc, split decision, the Court of Appeals determined that child's pressing need for permanency could be satisfied in relatively short order if he were "freed for adoption" and that, although naming child's foster parents as his guardians might mitigate the effects of past disruptions, "leaving open the possibility of a return to mother creates its own instability" and was a "less-permanent" option that was not in child's best interest. T. M. D., 292 Or.App. at 138.

         [365 Or. 146] As the division in the Court of Appeals indicates, this is a close case. But, on de novo review in this court, [2] we conclude that child has both a need for permanency and an interest in maintaining his maternal family relationships. Although we do not adopt the reasoning of the juvenile court in its entirety, we agree with its conclusion that, given the particular facts presented here, it is in child's best interest that his mother's parental rights not be terminated. We therefore reverse the decision of the Court of Appeals and affirm the judgment of the juvenile court.


         We take the facts from the record before the trial court and that court's findings. See State ex rel Dept. of Human Services v. Smith, 338 Or. 58, 62, 106 P.3d 627 (2005) (finding facts based on de novo review of the record). Our recitation of the facts is consistent with that recounted by the Court of Appeals. See T. M. D., 292 Or.App. at 122-130 (discussing facts in record). Child was born in June 2012. In September 2014, the department filed a petition in the juvenile court asking the court to assert jurisdiction over child. The juvenile court did so in November 2014 after determining that (1) mother's substance abuse interferes with her ability to safely parent child; (2) mother failed to maintain a safe environment for child, given the fact that controlled substances and drug paraphernalia were found within child's reach; and (3) mother exposed child to persons who possessed drugs and engaged in criminal activities, such as father.[3] The court placed child in foster care with his maternal uncle and aunt and ordered mother to participate in various services, including a psychological and substance abuse evaluation.

         [365 Or. 147] Not until almost one year later, in August 2015, did mother, then age 24, undergo the required substance abuse assessment. At that time, she disclosed that she had been using heroin since age 13 and that her heaviest use had been during the preceding year and a half, in an attempt to relieve pain she suffered due to degenerative disc disease, scoliosis of the spine, and other medical issues. Mother admitted that she may have used heroin three days before the assessment but stated that she was currently engaged in a 12-step program through her church and previously had completed a treatment program. The counselor who performed mother's assessment found that mother was in the "preparation" stage of change, in which she acknowledged the need to change her drug-related behavior, and was beginning to undertake that change.

         Prior to mother's permanency hearing, scheduled for February 2016, however, she had not submitted all required urine samples and had tested positive for controlled substances, including marijuana, heroin, and prescription opiates. Two weeks before the hearing, she was arrested for possession of heroin, and she would later be convicted of that charge, marking her second conviction for heroin possession in a little more than a year.

         At the February 2016 permanency hearing, mother asked for more time to finish her services, but the juvenile court rejected her request. The court highlighted mother's substance abuse issues, [4] noting that she had been indicted for theft and heroin possession, and also explained that she had missed many scheduled visits with child. The juvenile court found it particularly significant that mother continued to let father live in her home, even though she had been ordered to not knowingly associate with persons using or possessing controlled substances illegally, and that she had not [365 Or. 148] allowed the department into her home to inspect it. The juvenile court acknowledged mother's successes-which included completing some of her treatment, engaging in services, and improving her attendance at scheduled visits with child- and it "commend[ed] Mother on the efforts that she has made in this case." Notwithstanding those successes, however, the juvenile court determined that a change in child's plan was warranted. The court found that mother had not made enough progress toward meeting the previous orders of the juvenile court and that child could not safely be returned to either parent's care. The juvenile court further observed that child had been in substitute care "for 17 months, a good portion of his life," and that best practices required that child be given permanency. The juvenile court changed child's plan from reunification to adoption and ordered that a petition to terminate parental rights be filed. Yet, the court "emphasize [d]" that the case was "not over" and noted that the department would continue to work with mother.

         In accordance with the court's order, the department filed a petition to terminate mother's parental rights, alleging grounds for termination under ORS 419B.504 and 419B.500. The department alleged that (1) mother was "unfit by reason of conduct or condition seriously detrimental" to child; (2) integration of child into the home of mother "is improbable within a reasonable time due to conduct or conditions not likely to change"; and (3) termination was in child's best interest.

         In preparation for the termination hearing, child underwent a psychological assessment with Dr. MacPhail, who recorded her findings in a report introduced as evidence at the termination hearing. In that report, MacPhail explained that she had diagnosed child with language disorder and adjustment disorder with mixed disturbance of emotions and conduct. Symptoms of the latter, she wrote, "likely [are] at least in part related to the numerous changes and stressors in [child's] life and are affecting his overall social-emotional functioning." MacPhail further stated that permanency was child's greatest need. She reported that child had experienced a great deal of disruption in his life and would benefit from "regular routines" and "secure attachments." MacPhail recommended that a permanent [365 Or. 149] placement be secured as soon as possible, as child appeared to be forming a positive bond with his current foster parents and the transition to their care would be "relatively smooth" if he were placed with them permanently. Should child be placed with another caregiver, MacPhail explained, that transition could be experienced as a loss.

         MacPhail reiterated her findings and opinions at the termination hearing. She testified that having child wait in foster care another year, for example, until mother was fit to parent and then removing him from his foster parents would be "more distressing," and that remaining in "this state of limbo" can cause anxiety in itself, as "the child doesn't know with whom they're going to live." When the department asked whether adoption was the best plan for child, MacPhail stated that she could not answer that question. She could say only that "he does need to be in a permanent living situation" and that "being unsure of who the caregiver is" can "cause more distress for him." MacPhail testified that it was not in her "purview" to make a recommendation about guardianship or open adoption; she could say that, if child were not going to be returned to his biological parents but were to have ongoing contact with them, "it would need to be with the assurance that his parents would be able to provide him with the ability to meet his needs and to be supportive of him." MacPhail also agreed, however, that "it is a benefit to a child to have not only his or her caregivers, but loving active involvement by grandparents, aunts, uncles [and] cousins."

         Child's caseworker, Blackwood, also testified at the termination hearing. She explained that mother and child's interaction since the time of the permanency hearing had been positive. Mother's attendance was very good, and she had missed only three of the 19 scheduled visits. Blackwood further testified that mother is "loving and affectionate" with child, playing with him during their one-hour visits. Blackwood testified that child was very comfortable with his foster parents and was engaging in activities, including going to his grandparents' home and the library. Child was improving in gross motor skills, adaptive skills, social skills, cognitive abilities, and communication. The foster parents, Blackwood testified, noted that child took probably a day [365 Or. 150] and a half after visitations to get "where he has less fits and is not quite as whiney," but that he "is developing."

         Blackwood observed that child is adoptable and that both his foster parents (his maternal uncle and aunt) and his grandparents (mother's parents) were willing to adopt child. In response to a question from the department, Blackwood agreed that adoption, as opposed to another plan, is what child needs, because,

"[w]ith an adoption, it's permanent. He will know where he lives. He won't have to question where he will go to bed at night, who will take him to the school or to any activities. He will have that permanency knowledge. But when we're looking at both relatives, they can maintain contact with the parent."

         Blackwood did not view guardianship as equally appropriate because, in her view, "there is a possibility a parent could come back and disrupt that [placement] in the near future or long future and it's not as concrete and permanent as an adoption could be." Blackwood testified that a guardianship was not in child's best interest because he is young, he is adoptable, and "[w]e need to look at the most permanent plan possible for him." Blackwood explained that child "needs permanency" and that his foster parents could satisfy that need: they had cared for him for at least half his life, and he "easily goes to them for affection, for comfort, for validation, for security."

         Blackwood concluded by explaining that child's transition to a permanent caretaker needs to happen as soon as possible because child needs it "for his own growth and development." When asked to explain why she viewed adoption, instead of another option, as the only way to meet child's need for permanency, Blackwood answered that statutes "indicate that we need to go for the most permanent plan" available and that "when we can't rule out adoption, we need to go for it."

         The juvenile court considered the above-outlined evidence, along with other evidence presented at the termination and permanency hearings, including testimony from mother and child's maternal grandparents, in issuing its written opinion. The juvenile court first determined that the [365 Or. 151] department had established grounds for termination under ORS 419B.504-that mother was unfit and that reintegration within a reasonable period of time was not probable. The juvenile court then considered whether the department had established that it was in child's best interest to be freed for adoption, a necessary finding under ORS 419B.500.

         In reaching its best-interest determination, the juvenile court began by briefly discussing two Court of Appeals decisions, one in which the Court of Appeals had determined it was in a child's best interest not to be freed for adoption given the child's bond with his mother, see Dept. of Human Services v. M. P.P., 272 Or.App. 502, 504, 356 P.3d 1135 (2015), and another in which the court had determined that a child should be freed for adoption given the child's need for permanency and desire to live permanently with the proposed adoptive parents (the child's grandparents), see Dept. of Human Services v. K. M. M., 260 Or.App. 34, 48, 316 P.3d 379 (2013), rev den, 354 Or. 837 (2014). The juvenile court then addressed the circumstances of this case, beginning with evidence from MacPhail bearing on child's psychological development and well-being:

"[MacPhail] noted that child has below average social skills and his verbal development is only in the second percentile. She diagnosed him with adjustment disorder with mixed disturbance of emotions and conduct as well as a language disorder. She explained that these are likely the product of neglect and can be overcome with behavioral and language therapy. She testified that Child has a higher level of need than the average child, so permanency is especially urgent. In her opinion, asking Child to wait while Mother completes six months of inpatient treatment followed by six months of settling into a residence and getting stable is too long. Dr. MacPhail acknowledged that Child's behavior and development issues could be genetic in origin, but she discounted the likelihood of this because Child is improving in foster care. She did not favor adoption specifically as being in Child's best interest. Instead, her focus was on early permanency in any form-open adoption or guardianship could very well be appropriate."

         From there, the juvenile court discussed the evidence about child's relationship with mother and mother's relatives:

[365 Or. 152] "Mother and Child do have a bond, despite the limited time they have together and despite the fact that Child has lived with his uncle and aunt for half of his four years. Maternal grandmother * * * has been able to see Child as part of Mother's visits. [Grandmother] observed that Child is excited to see Mother, and the two of them play together, color, talk, read books. She sees that Child has trouble separating from Mother at the end of the visit. [Grandmother] and her husband *** also have a close bond with Child. [Grandmother] testified to an ongoing close relationship between the grandparents and Child prior to Child being placed with his uncle and aunt. They had spent much time together, including visits to the library and to the YMCA. [Grandmother] testified that the grandparents, Mother, and the uncle and aunt ([Grandmother] is uncle's mother) are all working together for Child. [Grandmother] explained that family is very important to them and that a family does not give up. [Grandfather] also testified to the close relationship. At the September hearing he submitted into evidence several photos taken at five or six family gatherings occurring earlier this year. He noted that Child typically takes a position next to Mother and they hold hands. He said that Child does this spontaneously"[5]

         The court noted mother's testimony that she had been "seeing Child more regularly and is able to apply parenting lessons that she has learned." The court further explained that mother, if "successful in treating her pain with herbal extracts and medical marijuana, *** may be able to focus on being a parent." The court acknowledged that mother's "prognosis is poor, given Dr. Morrell's evaluation" and that that is aggravated by the fact that mother "still loves Father and cannot 'throw his stuff out on the street.'" However, the court agreed with mother that termination "is for hopeless cases." The court reasoned that "it does appear that [child] has a good albeit very limited [365 Or. 153] relationship with Mother" and that it is in "Child's best interest to maintain the family relationships." Doing so, the court stated, "may be an incentive to Mother." Accordingly, the court determined that it was not in child's best interest to sever mother's parental rights, and it suggested that child's need for permanency could be satisfied by a permanent guardianship.

         The department appealed the juvenile court's judgment, taking issue with the juvenile court's determination that severing mother's parental rights was not in child's best interest. In the department's view, once the juvenile court determined that the two requirements of ORS 419B.504 were met-i.e., (1) mother was unfit, and (2) it was improbable that child could be integrated into her home within a reasonable time-the requirement of ORS 419B.500 should be presumed-that termination is in child's best interest. Mother disagreed, arguing that such a presumption is not supported by law and would impermissibly shift the burden of proof on an element of the department's case to mother.

         On de novo review, the Court of Appeals issued a divided decision. Writing for the court, the majority declined to address the department's presumption argument because it determined that the record "contains clear and convincing evidence that it is in child's best interests to terminate mother's parental rights." T. M. D., 292 Or.App. at 131. The court was persuaded that termination was warranted because child's "pressing need for permanency and the harm that appears likely if permanency is further delayed" calls for child "to be freed for adoption now, rather than waiting indefinitely to see whether mother can eventually become a safe parent for child." Id. at 131-32.

         In reaching that conclusion, the court stated that "the juvenile court's approach, however well intended, is not appropriately child centered." Id. at 134. The court began its discussion by noting how "the exact circumstances that endangered child's welfare and so brought child under the jurisdiction of the juvenile court in November 2014 remained essentially unchanged at the time of the termination trial nearly two years later." Id. at 132. The court explained that, despite mother's involvement and participation in the court-ordered services during that time, "she had made [365 Or. 154] no meaningful progress toward ameliorating the bases for the juvenile court's involvement." Id. The court understood the juvenile court's "desire to give mother an incentive to succeed" by not ...

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