Department of Human Services v. R. K.

351 P.3d 68, 271 Or. App. 83
CourtCourt of Appeals of Oregon
DecidedMay 13, 2015
DocketJ140090; A157281; J140092; A157386; J140089; A157472; J140091; A157474
StatusPublished
Cited by16 cases

This text of 351 P.3d 68 (Department of Human Services v. R. K.) 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. R. K., 351 P.3d 68, 271 Or. App. 83 (Or. Ct. App. 2015).

Opinion

DUNCAN, P. J.

This is a termination of parental rights case involving two boys, X and R, ages six and two, respectively, at the time of trial, and their three parents: the mother of X and R (mother); the father of X (XZF); and the father of R (RK). The three parents have filed separate appeals from judgments terminating their parental rights based on unfitness by reason of conduct or condition seriously detrimental to the child. ORS 419B.504.1 The appeals have been consolidated. On de novo review, ORS 19.415(3)(a), we conclude that the trial court did not err in terminating the parental rights of mother and RK, but we reverse the judgment as to XZF.

X was born to mother and XZF on October 12, 2007, when mother was 17 years old and XZF was 16 years old. Mother and XZF did not maintain a romantic relationship, but XZF regularly looked after X until XZF was arrested in May 2010 on charges of first-degree robbery and unlawful use of a weapon, arising out of an incident in which he and two others took an ounce of marijuana at gun point. XZF was convicted after a guilty plea and sentenced to a 90-month prison term.

Mother and RK met in high school and married in September 2011. X lived with mother and RK, and R was born in June 2012.

Mother and RK have criminal records. In 2010, RK was convicted of carrying a concealed weapon and theft; in 2011, he was convicted of possession of less than an ounce of marijuana within 1000 feet of a school; and, in 2013, he was convicted of interfering with a police officer and resisting arrest, arising out of a domestic disturbance in December 2012. Mother has a conviction for interfering with a police officer arising out of that same incident. The record shows that, in 2012, RK and mother had no fewer than six contacts [87]*87with police arising out of domestic violence, under circumstances in which the children were present. During these dependency proceedings, both RK and mother have spent time in jail.

In January 2013, the children, then ages five (X) and six months (R), were removed from mother’s and RK’s care after police responded to a welfare check call regarding domestic violence and drug abuse, including the presence of drug paraphernalia in the home. At that time, mother was arrested and charged with possession of methamphetamine and two counts of child endangerment, for which she was ultimately convicted. RK was arrested the next day, and he later pleaded guilty to felony fourth-degree assault and received a sentence of probation.

In February 2013, the juvenile court took jurisdiction of the children, and, in June 2014, the juvenile court entered the termination judgments now on appeal. We first address the judgment terminating mother’s parental rights to both children. The court terminated mother’s parental rights to both boys pursuant to ORS 419B.504, based on the determination that there was clear and convincing evidence of unfitness as a result of mother’s criminal conduct, drug and alcohol abuse, exposure of the children to domestic violence, lack of effort or failure to maintain a suitable or stable living situation for the children, emotional or mental illness, and lack of effort to adjust circumstances or conditions to make return of the children possible within a reasonable time.

Mother, who has a long history of drug and alcohol abuse, beginning as a pre-teenager with the use of alcohol, marijuana, and methamphetamine, acknowledges that, at the time of the hearing, she was addicted to methamphetamine, suffered from mental health issues, and was essentially homeless. Mother has been diagnosed with post-traumatic stress disorder, major depressive disorder in partial remission, and narcissistic and anti-social personality traits.

Mother contends on appeal that the Department of Human Services (DHS) has not made sufficient efforts to assist her, and that, with proper assistance, she will be able [88]*88to care for the children in a reasonable time. Specifically, she asserts that, with proactive assistance in securing residential drug and alcohol treatment, she will be able to resolve her drug addiction and mental health issues, as well as her homelessness. She requests at least six months to demonstrate her sobriety in treatment. She contends that that amount of time is reasonable in light of evidence that the children are doing well in their current foster placement and have no developmental or behavioral issues that demand immediate placement for adoption.

In order to terminate a parent’s rights on the basis of unfitness, a court must find that (1) the parent has engaged in conduct or is characterized by a condition that is seriously detrimental to the child; (2) integration of the child into the parent’s care is improbable within a reasonable time due to conduct or conditions not likely to change; and (3) termination is in the best interests of the child. ORS 419B.500; ORS 419B.504; State ex rel SOSCF v. Stillman, 333 Or 135, 145-46, 36 P3d 490 (2001).

The state must establish the statutory grounds for termination by clear and convincing evidence. ORS 419B.521(1). Evidence is clear and convincing when it makes the existence of a fact “highly probable” or when it is of “extraordinary persuasiveness.” State ex rel Dept. of Human Services v. Smith, 338 Or 58, 79, 106 P3d 627 (2005); State v. Simon, 180 Or App 255, 263, 42 P3d 374 (2002).

In addressing the question of “serious detriment,” the court focuses on the detrimental effect of the parent’s conduct or condition on the child, “not just the seriousness of the parent’s conduct or condition in the abstract.” Stillman, 333 Or at 146. A condition or conduct can be “seriously detrimental” based on the potential for harm. State ex rel DHS v. Payne, 192 Or App 470, 483, 86 P3d 87, rev den, 337 Or 160 (2004); Caldwell v. Lucas, 170 Or App 587, 600, 13 P3d 560 (2000), rev den, 332 Or 56 (2001) (“The law does not require a child to remain in a dangerous environment until the state can show harm to the child[.]”). The “serious detriment” inquiry is “child-specific,” and calls for testimony regarding the needs of the particular child. State ex rel Dept. of Human Services v. Huston, 203 Or App 640, 657, 126 P3d [89]*89710 (2006). Clear and convincing evidence of unfitness must exist at the time of the termination hearing; past unfitness is insufficient. Id. at 656. But a child’s apparent wellness at the time of trial, after removal from the parent’s care, does not preclude a determination of serious detriment. Dept. of Human Services v. F. J. S., 259 Or App 565, 584, 315 P3d 433 (2013), rev den, 354 Or 840 (2014).

In reviewing de novo

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Cite This Page — Counsel Stack

Bluebook (online)
351 P.3d 68, 271 Or. App. 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-r-k-orctapp-2015.