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

260 P.3d 654, 244 Or. App. 221, 2011 Ore. App. LEXIS 981
CourtCourt of Appeals of Oregon
DecidedJuly 13, 2011
Docket00383354; Petition Number 09JV0172; A147224; 00373851; Petition Number 09JV0171; A147225
StatusPublished
Cited by7 cases

This text of 260 P.3d 654 (Department of Human Services v. C. M. P.) 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. C. M. P., 260 P.3d 654, 244 Or. App. 221, 2011 Ore. App. LEXIS 981 (Or. Ct. App. 2011).

Opinion

ORTEGA, P. J.

Mother appeals judgments terminating her parental rights to her two young daughters, HL and CP, entered two years after she, at the age of 19, killed the children’s father during a domestic dispute. The Department of Human Services (DHS) took custody of HL shortly after the incident and of CP shortly after her birth several months later. Mother ultimately pleaded guilty to criminally negligent homicide and was sentenced to 60 months’ imprisonment. The children were initially placed in the care of mother’s sister (DP), but after 13 months DHS elected to move them to live with their paternal grandmother in Washington State. The juvenile court terminated mother’s parental rights on the grounds that she was unfit due to alcohol abuse, domestic violence, and her continued incarceration. On de novo review, ORS 19.415(3)(a), we conclude that the record lacks clear and convincing evidence that mother’s past alcohol abuse and the domestic violence that characterized her relationship with father renders her presently unfit. We also conclude that mother’s continued incarceration does not provide a basis for termination under the circumstances presented here. Accordingly, we reverse.

We begin by reviewing the pertinent facts as we find them, addressing first mother’s relationship with father and the incident that led to her incarceration. We then address mother’s background and the evidence regarding whether she is presently unfit. Finally, we address the evidence regarding the children.

Mother met father in the summer of 2006 when she was 16 years old. They quickly became a couple, and she gave birth to HL the following spring. The relationship between mother and father was volatile from the beginning. The arguments between mother and father frequently turned violent, and father physically assaulted mother on several occasions.

Although mother estimated that father struck her about 10 times over the course of their relationship, we recount only the specific incidents about which mother testified about at trial. Mother secured a restraining order in September 2007 after an incident in which father threatened [225]*225her with a baseball bat, broke down a locked door with the bat, and then, after dropping the bat, struck mother in the eye. Mother, however, maintained contact with father while the restraining order was in place, and during that period father and mother again were involved in an argument that turned violent. During the course of that argument, father slapped mother and grabbed HL so that mother would not leave. When mother attempted to leave, father chased her down the street while holding HL and slapped mother repeatedly. A few weeks later, when father indicated to mother that he was going to turn himself in to authorities because of an outstanding warrant, she agreed to drop the restraining order so that she could visit him in jail. She voluntarily dismissed the restraining order in January 2008.

Several months later, father struck mother while she was cooking and began to choke her. Mother scratched bn'm and grabbed the knife she was using to cook with. Father “backed off’ and told her to put the knife down, but stopped coming after her. Mother was surprised that the knife scared father.

On the night of father’s death in July 2008, mother and father argued about putting HL, then 14 months old, to sleep. Mother had been drinking that night and was trying to wean HL in any event, so she did not want to breastfeed HL to soothe her to sleep. Father insisted that mother do so. During the argument, father struck mother and knocked her mobile phone out of her hand. When mother walked towards HL, father pushed mother down, and mother told father that he “wouldn’t be acting so bad if I had a knife in my hand.” Father urged her to get a knife, and mother proceeded to pick up HL and grab a kitchen knife.1 At some point, father was holding the knife, and father’s uncle was standing between them trying to calm them down. Father stated, “Here, take the knife,” and gave it to mother. She “swung it over [father’s] uncle’s shoulder,” and it entered father’s chest. Mother called 9-1-1, then called DP, and then called 9-1-1 again when father stopped breathing. Father died from the stab wound [226]*226and mother was taken into custody. DP took HL home with her that night, and she remained in DP’s care for 13 months.

Mother was indicted on charges of first-degree manslaughter, ORS 163.118, and incarcerated in Jefferson County Jail while awaiting trial. She learned shortly after her indictment that she was pregnant with father’s child. She gave birth to CP at the county jail in February 2009, and DHS immediately took custody of CP and placed her in the care of DP. The juvenile court took jurisdiction over HL in September 2008 and CP in June 2009.

In early 2009, a DHS adoption committee approved the children’s paternal grandmother as their adoptive resource, although DP had also sought to adopt them. Both children stayed with DP until August 2009, when DHS changed the permanency plan to adoption, identified grandmother as the adoptive resource, and placed the children with her in Washington State.

Mother pleaded guilty to, and was convicted of, criminally negligent homicide in February 2010. She was sentenced to 60 months’ imprisonment with credit for time served, and three years of post-prison supervision. Mother was prohibited from receiving any good time credits, early release, or alternative incarceration programs. She was transferred to Coffee Creek Correctional Facility in March 2010 and is eligible for release in July 2013.

We proceed to address mother’s background and the evidence regarding present unfitness. Mother was exposed to domestic violence in the home in which she grew up. She testified that her father physically and verbally abused her and her mother, and that he was incarcerated during her teenage years for stabbing her mother’s boyfriend. When mother’s father went to prison for that attack, mother dropped out of high school to avoid the embarrassment of facing her peers, and she obtained her general equivalency diploma.

In November 2008, while in the county jail, mother participated in a comprehensive mental health assessment. She admitted to using alcohol on a regular basis starting when she was 13 years old until she became pregnant with HL. She also admitted to using methamphetamine heavily at [227]*227the age of 15 and cocaine and marijuana on a few occasions before the pregnancy. However, alcohol was her “drug of choice.” She admitted to drinking to the point of intoxication three times in the two weeks before her fatal confrontation with father. During the assessment, mother indicated that she did not believe that she needed mental health or substance abuse treatment. However, she acknowledged suffering from anxiety and depression, which she attributed to her incarceration and the circumstances leading up to it. The evaluator tentatively diagnosed her with depressive disorder, generalized anxiety, alcohol dependence, cannabis abuse, cocaine abuse, and methamphetamine dependence, and opined that mother would benefit from treatment and therapy. However, no services were available to mother at the Jefferson County Jail, and DHS was relieved of making reasonable efforts in December 2009.

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Cite This Page — Counsel Stack

Bluebook (online)
260 P.3d 654, 244 Or. App. 221, 2011 Ore. App. LEXIS 981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-c-m-p-orctapp-2011.