Department of Human Services v. A.M.C.

260 P.3d 821, 245 Or. App. 81, 2011 Ore. App. LEXIS 1149
CourtCourt of Appeals of Oregon
DecidedAugust 17, 2011
Docket0900121; Petition Number 10JU126TPR; A147480
StatusPublished
Cited by7 cases

This text of 260 P.3d 821 (Department of Human Services v. A.M.C.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Human Services v. A.M.C., 260 P.3d 821, 245 Or. App. 81, 2011 Ore. App. LEXIS 1149 (Or. Ct. App. 2011).

Opinion

SCHUMAN, P. J.

Mother appeals from a judgment terminating her parental rights to her daughter, H. We agree with the juvenile court that, at the time of the termination trial, mother was not fit to assume the responsibilities involved in parenting H; mother as much as concedes that fact. However, we also conclude that DHS did not adduce clear and convincing evidence that mother’s unfitness is or would be seriously detrimental to H, that it would persist so as to make integration into mother’s home within a reasonable period of time improbable, or that termination is in H’s best interest. We therefore reverse.

The facts are not in dispute. DHS argues, and mother concedes, that, until the time of her most recent incarceration, mother abused drugs, committed crimes, and failed every attempt to reform. Twenty-five years old at the time of the hearing, she began using drugs at age nine. She has used marijuana, heroin, alcohol, cocaine, methamphetamine, LSD, hallucinogenic mushrooms, and “ecstasy.” Most recently, her drugs of choice were prescription opiates, marijuana, and methamphetamine. She has been involved with DHS at least since 2004, when she tested positive for drug usage during her pregnancy with S, her first child. In 2006, after DHS filed a petition for custody of S, mother relinquished her parental rights to her, and she was adopted by mother’s parents.

Mother’s second child, H, who is the child involved in this termination proceeding, was born in 2007 and was removed from mother’s care in March 2009 after mother’s third child, I, was born prematurely in February 2009 with drugs in his system. At that time, mother admitted that she was addicted to Percocet and Vicodin. All three of the children are now living -with mother’s parents, who have expressed an interest in adopting H should mother’s parental rights be terminated.

Mother has a history of failing in drug treatment programs. She began an inpatient treatment program in March 2009, but was ejected when she was found with a syringe and opiates in her possession. After that, she entered [84]*84an outpatient treatment program pending another residential placement. She continued to use drugs, however, and to commit crimes to support her habit. She was taken into custody in April 2009 after pleading guilty to multiple theft offenses and held in Douglas County until May 26, 2009, when she was released to an inpatient treatment facility. Mother completed treatment there with “satisfactory progress” and a good prognosis, but remained drug-free for only three months. In January 2010, she entered yet another residential treatment program, where she stayed only a short time. After mother admitted to drug use, the court revoked her probation on earlier charges and sentenced her to six months in the custody of Douglas County Corrections.

After a temporary release to have kidney stone surgery, mother returned to jail in Douglas County and began participating in “drug court.” She was released from custody on July 16, 2010, but continued her participation in drug court. After being evicted from a shelter for missing a scheduled chore, mother (with the approval of her probation officer) found housing with her Narcotics Anonymous and Alcoholics Anonymous sponsor. At the time of the termination trial, mother was still living with her sponsor. She had been drug free since her incarceration and for the six weeks thereafter.

Mother has had two psychological evaluations by Dr. Ewell, a clinical psychologist. In 2005, Ewell diagnosed her as having a personality disorder, “not otherwise specified,” with borderline and antisocial features; major depressive disorder; post-traumatic stress disorder; and poly-substance dependence in remission by self-report. The psychologist noted that mother would be a “dual diagnosis” client and that the existence of the personality disorder coupled with drug use greatly complicated treatment. He concluded that mother’s prognosis was “poor.”

In 2009, after the birth of I, mother was again examined by Ewell, who made similar diagnoses. He observed that mother expressed some limited insight into the needs of her children, but he expressed the opinion that it would take a minimum of 12 months for her to complete all of the programs needed for successful interventions so that she could [85]*85parent. Ewell agreed that if mother was abusing drugs at the time of his evaluations, the diagnoses could have been a reflection of the drug use and not an underlying psychological problem.

Between the start of her participation in drug court and the time of trial, mother had taken 14 random drug and alcohol tests, all of which were negative. She was voluntarily attending at least twice as many Narcotics Anonymous meetings as are required. She continued to be an active participant in drug court, recognizing her addiction, becoming more accountable for her actions, and taking responsibility. Mother’s drug addiction counselor testified at the hearing that she did not currently see signs of depression or the personality disorders identified by Ewell, and expressed the view that those diagnoses might have reflected the effects of the drug addiction. In light of the positive changes in mother’s behavior since she began participation in drug court, the counselor was optimistic for mother’s recovery. Her probation officer testified that, since mother’s release from custody, she has been an “outstanding” and motivated participant in drug court. DHS acknowledges her progress.

Mother concedes that she has had a long history of drug abuse, addiction, relapse, and crime to support her drug habits. She testified, however, that since her recent incarceration and participation in drug court, she has made a 180-degree turn-around in her life. She has become involved with the recovery community and is looking into returning to school and finding grants for school and housing. She visits regularly with her children. She acknowledges that she is at risk of relapse and intends to keep attending NA and AA meetings. She also acknowledges that, at the time of trial, she was not prepared to be the custodial parent for H; rather, she testified that in three or four months it would be time to evaluate whether she is able to care for H and that, in the meantime, she wants to take parenting classes, obtain housing, and go back to school or find work before having custody of the children. Ideally, she would prefer a year of sobriety before resuming custody.

The juvenile court wrote a thoughtful and complete opinion explaining its decision to terminate mother’s parental [86]*86rights to H. The court did not make any determination of credibility, but it is clear that, in light of mother’s long history of abuse, failed treatments, and relapses, the court was skeptical of mother’s ability to maintain her recovery. The court also was concerned about the mental health issues that had been identified by Ewell in his evaluations of 2005 and 2009. The court determined that mother’s drug usage and criminal conduct made it reasonable to conclude that she could not adequately care for herself or the children and that there had been serious detriment to the children. The court further determined that integration of H into mother’s home was improbable within a reasonable time because of conduct or conditions that are not likely to change:

“As of the first day of trial, Mother had been clean and sober for 46 days, discounting any time that she was in a restricted environment, and while her progress should be acknowledged, it is only a small fraction of the 16 years that she abused drugs. Dr.

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Bluebook (online)
260 P.3d 821, 245 Or. App. 81, 2011 Ore. App. LEXIS 1149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-amc-orctapp-2011.