Department of Human Services v. E. N.

359 P.3d 381, 273 Or. App. 134, 2015 Ore. App. LEXIS 984
CourtCourt of Appeals of Oregon
DecidedAugust 19, 2015
Docket14JU00085; A157913
StatusPublished
Cited by2 cases

This text of 359 P.3d 381 (Department of Human Services v. E. N.) 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. E. N., 359 P.3d 381, 273 Or. App. 134, 2015 Ore. App. LEXIS 984 (Or. Ct. App. 2015).

Opinion

EGAN, J.

In this termination of parental rights case, the juvenile court denied the Department of Human Services’s (DHS) petition to terminate mother’s parental rights to A, who was five and one-half years old at the time of the termination hearing. Both DHS and A appeal the resulting judgment, arguing that mother’s rights should be terminated because she is “unfit by reason of conduct or condition seriously detrimental to [A],” ORS 419B.504, and termination is in A’s best interests, ORS 419B.500. On de novo review, ORS 19.415(3)(a), we agree with DHS and A; accordingly, we reverse.

To terminate mother’s parental rights, the state must prove the statutory grounds for termination by clear and convincing evidence. ORS 419B.521(1). Evidence is clear and convincing if it makes the existence of a fact “highly probable” or if it is of “extraordinary persuasiveness.” State ex rel Dept. of Human Services v. Hinds, 191 Or App 78, 84, 81 P3d 99 (2003). With that standard in mind, we summarize the pertinent facts as we find them below.1

I. FACTS

A. Mother’s circumstances prior to A’s removal by DHS in 2010

A was born on September 27, 2008, when mother was 23 years old. A’s father largely has not been part of A’s life, and was not a party to the proceedings below. Except for a few brief periods, mother has lived with her own mother [137]*137(grandmother) since becoming pregnant with A. Mother has been unemployed during that time.

Prior to As birth, mother had several problems related to substance abuse, mental health problems, impulsive conduct, and assaultive behavior. When mother was a teenager, she was diagnosed with attention deficit hyperactivity disorder (ADHD), and, at age 14, she lived in a girls’ home for two years because of fighting, including assaulting grandmother. Mother began using marijuana frequently at the age of 18 and began using methamphetamine at the age of 21. Mother admitted to a suicide attempt when she was 18, and records show that mother attempted suicide again when she was 21. After her second suicide attempt, mother was provisionally diagnosed with adjustment disorder with depression and anxiety, marijuana abuse, polysubstance abuse (rule out), and a personality disorder not otherwise specified (NOS).

Mother continued to use methamphetamine, and in October 2007, was admitted to the emergency room for an overdose. Mother also assaulted grandmother that night, which resulted in her conviction for assault and a 21-day jail term. After her release, mother returned to living with grandmother. Mother became pregnant with A about two months later, but did not seek any prenatal care until she was 32 weeks into her pregnancy. Mother did not use methamphetamine while she was pregnant with A, but continued to frequently smoke marijuana, despite being warned of its dangers to her fetus. In March 2008, while pregnant, mother was involved in another assault against a friend’s boyfriend perpetrated by mother and A’s father, resulting in another assault conviction.

DHS first contacted mother regarding A at the hospital when mother tested positive for marijuana after A’s birth. DHS contacted mother based on its prior history with mother’s family and awareness of the circumstances of mother’s 2007 assault conviction against grandmother. Mother admitted to her marijuana use, but assured DHS that she had not used methamphetamine since October 2007. Mother was cooperative, and A was born healthy, so DHS determined that its concerns were unfounded at that [138]*138time. Mother was referred for services to Healthy Family Support Systems, which is an agency focused on preventing child neglect.

DHS’s second contact with mother occurred in April 2009, when mother’s family support worker from Healthy Family Support Systems contacted DHS to report that A was not gaining weight and that mother was not taking A to the doctor. DHS had mother sign a contract that she would follow up and take A to a doctor. Mother, however, did not do so. The first time mother took A to see a doctor was when A was about nine months old, because A had cut herself on a piece of glass.

Mother’s family support worker had additional concerns about A’s safety because of mother’s continued marijuana use, her leaving A unattended on the couch, resulting in A rolling off of the couch on at least three occasions when she was an infant, and an unusual “giant scab” observed on A’s leg that looked like the scabs sometimes seen on mother. Beginning around May 2010, mother presented as particularly stressed, scattered, and distracted, and, in September, her family support worker lost contact with mother.

B. Mother’s circumstances and engagement in services from November 2010 to December 2013

DHS removed A from mother’s care on November 10, 2010, when A was two years old, after receiving a report that mother was using methamphetamine in A’s presence. Mother was erratic and hard to track during a conversation; she also had “pick marks” on her skin. She eventually admitted to using methamphetamine two days earlier. At some point during her treatment, mother admitted that her methamphetamine use had begun again when A was seven months old. DHS offered mother services, which she refused, resulting in A being removed that day and placed in non-relative foster care. DHS then filed a dependency petition to make A a ward of the court, alleging that mother’s substance abuse and mental health problems interfered with her ability to care for A.

On November 15, 2010, mother entered into a treatment plan for marijuana dependence and methamphetamine [139]*139abuse with OnTrack, which offers addiction recovery services, and lived in OnTrack crisis housing. Throughout her treatment with OnTrack, mother was assessed a high risk for relapse, and she exhibited little insight about her drug use. At the end of December 2010, A was returned to mother’s care, subject to an action agreement that, among other things, required mother to continue to engage in substance abuse treatment and obtain mental health services. While mother was still at OnTrack, the juvenile court took jurisdiction of A based on mother’s admission that her substance abuse problems interfered with her ability to care for A, but dismissed the allegation regarding mother’s mental health, subject to mother’s agreement to engage in mental health services.

Mother continued living in OnTrack housing until March 2011, when she relocated to Hope House. She was asked to leave Hope House a month later after she was caught trying to falsify a urinalysis (UA) by using A’s urine from her potty chair and, subsequently, admitted to recent marijuana use at grandmother’s house. Mother and A then moved back to grandmother’s house. DHS again removed A from mother’s care in May 2011, after mother tested positive for both marijuana and methamphetamine. Except for a one-month placement with her aunt, A has remained in nonrelative foster care since May 2011, with supervised visits with mother.

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Related

Dept. of Human Services v. R. C.
329 Or. App. 328 (Court of Appeals of Oregon, 2023)
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388 P.3d 1226 (Court of Appeals of Oregon, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
359 P.3d 381, 273 Or. App. 134, 2015 Ore. App. LEXIS 984, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-e-n-orctapp-2015.