State ex rel. Department of Human Services v. B. S. I.

182 P.3d 230, 219 Or. App. 158, 2008 Ore. App. LEXIS 427
CourtCourt of Appeals of Oregon
DecidedApril 2, 2008
Docket05C14191; 040105IMP1 A136337; 05C14192; 040105HAR1 A136338
StatusPublished
Cited by2 cases

This text of 182 P.3d 230 (State ex rel. Department of Human Services v. B. S. I.) 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
State ex rel. Department of Human Services v. B. S. I., 182 P.3d 230, 219 Or. App. 158, 2008 Ore. App. LEXIS 427 (Or. Ct. App. 2008).

Opinion

DEITS, J. pro tempore

The state appeals from a judgment denying its petitions to terminate mother’s parental rights to her children, TI and TH. The state argues that the trial court erred in failing to terminate mother’s rights under ORS 419B.504 on the ground of unfitness. On de novo review, ORS 419A.200(6)(b), we reverse.

The trial in this termination case began in October 2005. For reasons that we will explain, the trial was continued twice, and the final judgment denying the petitions to terminate was not issued until April 2007. Mother was 25 years old at the time that the trial began. TI was four years old and TH was one year old at that time.

Mother was the victim of both sexual and physical abuse as a child. She lived with her mother, who had a history of drug abuse, but moved out of her mother’s home at age 15. She then lived with a number ofboyfriends, at least one of whom was abusive to her. Mother’s life during this time period was very unstable. She moved from job to job and drank heavily to the point of blacking out. Mother married TI’s father in 1999 and eventually became pregnant with TI. TI was born in January 2001. Mother admitted that, during her pregnancy, she used marijuana and that she began to use methamphetamine eight months after TI’s birth.

Mother was evaluated for vocational rehabilitation purposes in May 2002 by a clinical psychologist, Dr. Shellman. He diagnosed her with Axis I dysthymic disorder; post-traumatic stress disorder; alcohol abuse, episodic; and Axis II mixed personality disorder with borderline, dependent, and passive aggressive features. Shellman believed that mother needed ongoing treatment. She was subsequently admitted to a drug treatment program at Bridgeway. Mother attended many of the education programs, but was discharged from treatment in January 2003 for her failure to comply with “nonnegotiable” house rules. Mother continued outpatient treatment until February 2003.

In September 2003, TI was removed to foster care. Mother had been found in a Salem park doing “naked yoga” [162]*162and appeared to be under the influence of drugs. TI had been in the care of mother’s mother and step-father. However, the Department of Human Services (DHS) did not find this arrangement acceptable because of mother’s parents’ drug use. DHS was concerned about mother’s mental health, her drug use, and her relationship with unsafe persons. Of particular concern to DHS was her relationship with Hart, who had a history of sexual abuse of children and substance abuse problems. Mother did not seem to understand the risk that Hart posed to her child. She also was not concerned about his drug use. It was her view that Hart’s use of methamphetamine in her home would not interfere with her own maintenance of sobriety. After TI was moved to foster care, mother had a number of positive drug tests and failed to show up for a number of drug tests.

In November 2003, mother entered into a service agreement with DHS. Under the agreement, she was to participate in drug and alcohol evaluation and treatment, random urinalysis, psychological evaluation, parent training, and mental health therapy. Mother began parenting classes, but was discharged due to positive tests for drugs in December 2003. She was also assessed for drug treatment at Bridgeway, but was terminated from the program in December 2003 for lack of attendance.

In December 2003, mother underwent her first evaluation by Dr. Sweet, a licensed psychologist. He diagnosed mother with Axis I bipolar disorder with psychotic features, post-traumatic stress disorder, chronic polysubstance dependence, and Axis II personality disorder not otherwise specified (NOS) with characteristics of borderline and dependent personality disorders. Mother told Sweet that she used drugs to medicate herself for her emotional and psychological problems. She said that she did not believe that the use of these drugs affected her ability to parent. Sweet stated that he did not believe that mother was capable of parenting at that time. The following month, mother twice tested positive for methamphetamine.

In March 2004, mother completed a residential drug treatment program at Genesis Recovery Center. She was then referred to outpatient treatment at New Step. At that [163]*163time, she was pregnant with TH. She completed the New Step program just before the birth of TH in September 2004. It was reported in mother’s discharge from the treatment program that she had completed all of the treatment goals and that her progress was significant. However, mother later admitted that she had used methamphetamine while she was at the New Step program and when she was pregnant with TH. When asked if she was concerned about the effects of her drug use on TH, her response was that she was trusting the Lord and the Lord heals.

Mother also admitted that she continued to use methamphetamine after TH was born and that she continued to be involved with Hart. She said that she was not concerned about any risk he might pose to her children because she had a “sixth sense” that allowed her to determine if a person was a threat to her children. She also said that Hart was not a danger to her baby because, as an infant, the child would “not be a turn-on” to him because she had “smaller vaginal parts.”

Based on mother’s continued drug use and her continued relationship with Hart, TH was found by the juvenile court to be within its jurisdiction immediately after her birth and placed in foster care. During this time period, TI remained in the foster care home where she had been living since being removed from mother’s care in September 2003. TI’s foster parent reported that TI was having some behavioral problems; she was hitting others, biting, and was delayed in social, adaptive, and motor development. Mother continued to visit TI in the foster home and, except for “terrible temper tantrums” afterward, the visits seemed to go fairly well and there seemed to be a bond between mother and child.

Mother was receiving psychiatric treatment, counseling, and drug and alcohol treatment during this time period. She seemed to be making progress and was in compliance with her service plan. The juvenile court wanted to return TH to mother’s care because of her progress. Because of mother’s continuing mental health issues, DHS was concerned about returning TH to mother without significant support. Mother’s psychiatrist recommended 24-hour per day [164]*164in-home support for mother because of the concern about her mental health issues and her parenting skills. DHS agreed to pay for and provide exceptional services to mother to allow her to make progress with her deficiencies.

The court approved a parent mentor, Coburn, to work closely with mother and assist her in preparing to have TH returned to her. Cobum worked with mother from October to December 2004 and spent about 120 hours with her. Cobum spent a good part of many days in mother’s home assisting her with parenting. TH was often present during the visits. Coburn said that she had many goals for mother that they worked on together.

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Related

Department of Human Services v. B. J. J.
387 P.3d 450 (Court of Appeals of Oregon, 2016)
State Ex Rel. Dhs v. Bsi
182 P.3d 230 (Court of Appeals of Oregon, 2008)

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Bluebook (online)
182 P.3d 230, 219 Or. App. 158, 2008 Ore. App. LEXIS 427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-department-of-human-services-v-b-s-i-orctapp-2008.