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

348 P.3d 1157, 270 Or. App. 464, 2015 Ore. App. LEXIS 467
CourtCourt of Appeals of Oregon
DecidedApril 22, 2015
DocketJ120433; Petition Number D2J120433; A156874
StatusPublished

This text of 348 P.3d 1157 (Department of Human Services v. J. A. M.) 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. J. A. M., 348 P.3d 1157, 270 Or. App. 464, 2015 Ore. App. LEXIS 467 (Or. Ct. App. 2015).

Opinion

ORTEGA, P. J.

Father appeals a judgment terminating his parental rights to his daughter, H, who was five years old at the time of trial. The juvenile court determined that father was unfit under ORS 419B.504 because, among other reasons, father’s drug abuse and addiction and his drug-seeking behavior were seriously detrimental to H and that, because his conduct and conditions were not likely to change, integration into his home was improbable within a reasonable time. Father challenges the juvenile court’s findings that (1) he was unfit at the time of trial, (2) H could not safely be returned to his care within a reasonable time, and (3) it was in H’s best interests to terminate father’s parental rights.

On appeal, father assigns error to a number of the juvenile court’s determinations but devotes most of his attention to the issue of his substance abuse. He argues that DHS failed to prove that his addiction to heroin continued, because, at the time of trial, he was no longer using heroin and because his use of other drugs in the months before trial did not constitute substance abuse. He additionally contends that DHS failed to prove that his drug use was seriously detrimental to H and that the evidence did not support a conclusion that future relapse was likely. Moreover, he argues that his circumstances at the time of trial indicate that he was fit and able to safely parent H within a reasonable time.

DHS responds that father’s treatment for drug addiction was unsuccessful; he denies that he has an addiction to drugs, despite considerable evidence to the contrary. Further, DHS argues that father failed to participate in counseling to address his grief over the suicide of H’s mother which, according to father, precipitated his heroin abuse and could trigger future relapse. DHS also challenges father’s characterization of his ability to financially provide for H.

On de novo review, we agree with DHS that, at the time of trial, father had not successfully treated his drug addiction, which was seriously detrimental to H. He had failed to admit the extent of his addiction or to recognize how the addiction was harmful to H and, given the severity of the addiction, H’s need for stability, and father’s inability [467]*467to care for H, the child could not be reintegrated into father’s home within a reasonable time. Accordingly, we affirm.

I. FACTS

We review the facts de novo, ORS 19.415(3)(a), but give weight to the juvenile court’s demeanor-based credibility findings. State ex rel Juv. Dept. v. Geist, 310 Or 176, 194, 796 P2d 1193 (1990); see also Walker v. Roberds, 182 Or App 121, 128, 47 P3d 911 (2002) (“We are not in a position to second-guess a trial court’s evaluation of the demeanor of witnesses. Although our review is de novo, the trial court’s findings based on the credibility of witnesses are entitled to great weight.”). We begin with the circumstances that led to DHS’s involvement with father and H. We next turn to father’s drug addiction treatment and his progress in addressing his drug addiction. Finally, we discuss the circumstances of father and H at the time of trial.

A. Circumstances leading to DHS involvement

On October 9, 2012, father and H, who had recently turned four, lived with father’s parents (grandparents), having moved there soon after H’s mother killed herself on H’s second birthday. Over the two years since H’s mother’s death, father was overcome with grief and became a “basket-case.” Father’s brother-in-law, a mandatory reporter, informed DHS of concerns about father’s drug use and H’s living conditions. He had observed urine, blood, and vomit on the bed sheets and rug of the bedroom shared by father and H, along with “needles everywhere” and “little rocks of white and brown substances” that looked like illicit drugs. H had also reported to her uncle that she had seen father injecting himself in his toe. Bettis, a DHS worker, responded to the report and, accompanied by Deputy Donahue, investigated H’s living conditions. Bettis observed track marks and bruising on father’s arm, indicating intravenous drug use, but when he asked about them, father denied current use.

Donahue investigated father’s bedroom, and observed trash, dirty laundry, empty food containers, and syringes “strewn” about the room. Donahue counted 84 used syringes. Some were on a television stand low enough to be within H’s reach; he found makeup that she had been playing with on [468]*468the same stand. A number of the syringes were specially marked by father to indicate that they had been used by others known to father to have Hepatitis C. Donahue also discovered a residue amount of heroin in one of the syringes and a spoon, and 3.9 grams of heroin embedded in a cotton ball.

Donahue arrested father for heroin possession, endangering the welfare of a minor, and reckless endangerment. H’s grandmother expressed doubts about grandparents’ ability to safely care for H because of grandfather’s health concerns and other issues. Bettis shared grandparents’ concerns that they could not adequately protect H, believing that they were not “acting in a protective manner.” Bettis placed H in protective custody and then drove her to the hospital for a urinalysis (UA) to determine if she had been exposed to illicit drugs. The test was negative, and Bettis described H at the time of removal as a “healthy average child.”

At trial, father characterized the state of the room when H was removed as “extremely unusual.” He explained that the needles were only out because he was counting them for a needle exchange. According to father, no drugs were found. When asked whether H was unsafe in the home, he replied that she was “never in any harm.” He also stated that he cleaned the room “all the time.” Father’s assertions were contradicted by grandmother’s description of the room in the months leading up to DHS’s intervention. Grandmother, on more than one occasion, observed and took pictures of syringes and drug paraphernalia in the room. She stated that needles were sitting out “probably daily.” Grandmother confronted father about the danger of leaving needles lying about in the room, but he would tell her that H “wouldn’t get hurt because she was told to leave them alone.” She described the room’s condition as deplorable, and noted that she feared for H’s safety.

Before DHS’s intervention, grandmother assumed responsibility for almost all of H’s care. She fixed meals for H, took her shopping and paid for her clothes, and took her to the doctor. Father did not contribute rent or money for utilities or household expenses, even though grandparents [469]*469were facing financial difficulties. Father was not employed, but received Social Security benefits and also had money that he had received from an accident insurance settlement. Before the death of H’s mother, father had never lived by himself, and the longest he had lived away from grandparents’ home was for the three years when he lived with H’s mother. Unemployed at the time of DHS’s removal of H, father’s employment history was limited to owning a store that sold paraphernalia for marijuana, growing marijuana for medical marijuana card holders, working for six months at a car wash, and some sporadic construction remodeling work.

B.

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Related

State Ex Rel. Juvenile Department v. Geist
796 P.2d 1193 (Oregon Supreme Court, 1990)
Department of Human Services v. C. Z.
236 P.3d 791 (Court of Appeals of Oregon, 2010)
Walker v. Roberds
47 P.3d 911 (Court of Appeals of Oregon, 2002)
State Ex Rel. Department of Human Services v. A. M. P.
157 P.3d 283 (Court of Appeals of Oregon, 2007)
State ex rel. Department of Human Services v. Simmons
149 P.3d 1124 (Oregon Supreme Court, 2006)
State ex rel. Department of Human Services v. Hinds
81 P.3d 99 (Court of Appeals of Oregon, 2003)
Department of Human Services v. C. J. T.
308 P.3d 307 (Court of Appeals of Oregon, 2013)

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Bluebook (online)
348 P.3d 1157, 270 Or. App. 464, 2015 Ore. App. LEXIS 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-j-a-m-orctapp-2015.