Dep't of Human Servs. v. T. M. D. (In re R. D. D.-G.)

442 P.3d 1100, 365 Or. 143
CourtOregon Supreme Court
DecidedJune 13, 2019
DocketCC 16JU02919 (SC S066066)
StatusPublished
Cited by46 cases

This text of 442 P.3d 1100 (Dep't of Human Servs. v. T. M. D. (In re R. D. D.-G.)) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dep't of Human Servs. v. T. M. D. (In re R. D. D.-G.), 442 P.3d 1100, 365 Or. 143 (Or. 2019).

Opinions

In the court's view, notwithstanding the juvenile court's "passing references to child, it is evident that the court's focus was on mother and its desire to see her succeed, *1107rather than the effects that delaying permanency would have on him." Id. at 134-35, 423 P.3d 88. Based mostly on the testimony and report of MacPhail, the court then determined that termination was in child's best interest. The court noted MacPhail's opinion that stability, permanency, and consistent care-giving are child's greatest needs and reasoned that child had been improving under the care of his uncle and aunt and that the transition to their care was "already well underway." Id. at 135-36, 423 P.3d 88.

Yet, the court determined, a permanent guardianship with child's foster parents was not an adequate means to establish the permanency that child needs. Id. at 136, 423 P.3d 88. According to the majority, the juvenile court had considered the permanent guardianship as a potentially temporary arrangement that would be inadequate to address MacPhail's concerns:

"[M]any of the concerns that MacPhail expressed would not be alleviated by making child's foster parents his guardians. That is, the various concerns regarding the stress of uncertainty and the consequences of delaying child's attachment to his permanent caregiver would still be present, but the delay would be in the transition back to mother, rather than to his guardians. MacPhail opined that, in the approximately two years that child had been in the care of his uncle and aunt, he had 'developed a very secure bond, particularly with his [uncle].' MacPhail explained that once that happens, a subsequent move to another caregiver can be extremely disruptive and stressful, and that the child's reaction to being separated from the foster parent can be quite traumatic. We recognize that there is likely some risk of that phenomenon occurring every time that a child rejoins his or her parents following a temporary placement;
**155the question here, however, is whether, given child's already lengthy removal from his mother's care-together with the likelihood of an equal amount of future delay-it is in his best interests to leave open the possibility of a return to mother. We conclude that it is not."

Id. at 137, 423 P.3d 88 (internal footnote omitted).

Finally, the court reasoned, "the juvenile code expresses a legislative preference that children be placed in the most permanent setting suitable to their needs." Id. at 138, 423 P.3d 88. Accordingly, the court concluded that a permanent guardianship, although providing "some degree of permanency to child and potentially address[ing] a number of the concerns raised by MacPhail and others, * * * is not the most permanent placement suitable to child's circumstances." Id. at 138, 423 P.3d 88. The most permanent placement "suitable to child," the court said, was adoption by child's foster parents. Id. Placement with them, the court explained, "would alleviate all of the uncertainties attendant to any temporary placement, no matter how durable that placement may appear." Id. (emphasis in original).

Judge Ortega authored the dissent, and four other judges joined her. The dissent was not persuaded by the majority's assertion that it was not applying a presumption in favor of adoption; in the dissent's view, the majority had effectively done so by "concentrating its analysis entirely on the evidence that established mother's unfitness *** and in assuming that termination of mother's parental rights was the only way to address child's need for permanency." Id. at 144, 423 P.3d 88. The dissent recognized that mother is "not able to serve as a custodial resource," but, for the dissent, that did not mean that termination was necessary: "mother and child have a positive attachment," and "child is in a stable placement with his uncle and aunt." Id . Establishing a permanent guardianship with those foster parents, the dissent explained, citing ORS 419B.365

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Cite This Page — Counsel Stack

Bluebook (online)
442 P.3d 1100, 365 Or. 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dept-of-human-servs-v-t-m-d-in-re-r-d-d-g-or-2019.