Department of Human Services v. B. J. J.

387 P.3d 450, 282 Or. App. 488
CourtCourt of Appeals of Oregon
DecidedNovember 30, 2016
Docket15JU00076; A161222 (Control); 15JU00077; A161223; 15JU00079; A161225
StatusPublished
Cited by6 cases

This text of 387 P.3d 450 (Department of Human Services v. B. J. J.) 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. B. J. J., 387 P.3d 450, 282 Or. App. 488 (Or. Ct. App. 2016).

Opinion

DUNCAN, P. J.

Father appeals judgments terminating his parental rights with respect to his three sons, EM, EJ, and X. The trial court ruled that father’s rights should be terminated on the basis of unfitness, particularly because of father’s personality disorder, anger management problems, housing instability, and failure to make a lasting adjustment to those conditions and circumstances. On de novo review, ORS 19.415(3)(a), we find that the Department of Human Services (DHS) has failed to prove by clear and convincing evidence that father’s conduct or conditions are seriously detrimental to his children; accordingly, we reverse the trial court’s judgments.1

I. BACKGROUND

A. Procedural History

The parties generally agree on the chronology of events leading to the termination proceedings. Father and mother have three children together: twins EM and E J, who were born in December 2011, and X, who was born in May 2013. Mother also has three other children from another relationship: twins EB and A, born in April 2004, and G, born in July 2007. Before the state’s most recent involvement with the family, all six children were living with mother and father.

DHS became involved with the family in May 2013, when X was born with methadone and marijuana in his system. The children, including X, remained with mother and father at that time, but DHS continued to monitor the case. Then, in July 2013, mother and father separated. The three youngest children, EM, EJ, and X, continued to live with mother, but the three oldest children went to stay with their paternal grandparents because mother was struggling to care for all six children and find suitable housing.

The following month, on August 9, 2013, X was rushed to the emergency room by his babysitter. X was [491]*491wheezing, his body was cold, and he appeared to be having a seizure. He was admitted at the hospital for failure to thrive and a saline imbalance, which produced the seizures.2 On August 12, 2013, DHS filed a petition to take jurisdiction over X on the grounds that mother had a substance abuse problem that, left untreated, interferes with her ability to parent; that X was diagnosed with nutritional neglect and that mother needs the state’s help to learn the skills necessary to adequately care for X; and that father lacks suitable housing for X and needs the state’s assistance to obtain suitable housing.

Shortly thereafter, all six children were taken into protective custody after medical examinations of the younger twins, EM and EJ, revealed fractures believed to be indicative of child abuse. In its petition to take jurisdiction over EM and EJ, DHS alleged, in addition to allegations regarding mother’s substance abuse and father’s housing, that the children had “suffered injuries including an untreated diaper rash, bruising and a metaphyseal fracture that is indicative of child abuse.”

It was subsequently determined that the “fractures” on EM and EJ were actually birth defects, not the result of child abuse. However, in November 2013, mother and father admitted other bases for jurisdiction: Mother admitted that she had a substance abuse problem that, left untreated, interferes with her parenting, and father admitted that he lacked suitable housing for the family. Thus, in November 2013, the court entered jurisdictional judgments with regard to all three of mother and father’s biological children. Meanwhile, the three oldest children, EB, A, and G, were returned to their biological father and, later, foster care.3

Mother and father separated again in June 2014, and, by July 2014, father’s visits had been canceled because he missed three in a row. On July 30, 2014, DHS filed new [492]*492petitions for EM, E J, and X that alleged additional bases for jurisdiction with regard to father. The petitions alleged that each child is “in need of specialized medical treatment and oversight that the father cannot or is otherwise unwilling to provide”; that, “[d] espite having been offered services to address the father’s parenting problems that interfere with his ability to safely parent the child, he has been unable to remedy the problem”; and that “[fjather has an anger control problem and mental health issues that, left unremedi-ated, interferes with his ability to safely parent the child.” In October 2014, father did not appear for the jurisdictional hearing, and the court entered jurisdictional judgments on those petitions.

In December 2014, the court changed the permanency plan from reunification to adoption for EM, E J, and X. Father, after being absent for a period of time, showed up for that hearing and requested reinstatement of visits. Father resumed visits with EM, EJ, and X in late January 2015.

By the time that his visits resumed, DHS had filed a petition to terminate his parental rights to his three children. The petitions alleged as follows:

“The parental rights of the father to the above-named child should be terminated under ORS 419B.504 on the grounds that the father is unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into the father’s home is improbable within a reasonable time due to conduct or conditions not likely to change, including, but not limited to the following:
“(a) Exposure of the child to domestic violence.
“(b) Lack of effort or failure to obtain and maintain a suitable or stable living situation for the child so that return of the child to the parent is possible.
“(c) Failure to present a viable plan for the return of the child to the parent’s care and custody.
“(d) Failure to learn or assume parenting skills sufficient to provide a safe and stable home for the raising of the child.
“(e) An emotional illness, mental illness, or mental deficiency of such nature and duration as to render the [493]*493parent incapable of providing care for extended periods of time.
“(f) Physical and emotional neglect of child.
“(g) Lack of effort to adjust the parent’s circumstances, conduct or conditions to make return of the child to the parent possible.
“(h) Failure to effect a lasting adjustment after reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected.”

B. Termination Proceedings

The termination trial began on June 10, 2015, and, after two days of testimony, was continued until September 28, 2015. At the trial, the parties presented the following evidence, much of which focused on DHS’s theme that father was angry and potentially abusive, including toward DHS, which hampered the state’s efforts to help father attain the parenting skills and stability necessary for reunification.

1. Father’s mental health, anger issues, and use of discipline

a. Disclosures of “excessive discipline”

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Bluebook (online)
387 P.3d 450, 282 Or. App. 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-b-j-j-orctapp-2016.