State ex rel. Department of Human Services v. Huston

126 P.3d 710, 203 Or. App. 640, 2006 Ore. App. LEXIS 41
CourtCourt of Appeals of Oregon
DecidedJanuary 18, 2006
Docket022628J2; A124733
StatusPublished
Cited by23 cases

This text of 126 P.3d 710 (State ex rel. Department of Human Services v. Huston) 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. Huston, 126 P.3d 710, 203 Or. App. 640, 2006 Ore. App. LEXIS 41 (Or. Ct. App. 2006).

Opinions

EDMONDS, P. J.

Mother appeals a judgment terminating her parental rights to her daughter, K, on the ground that mother is an unfit parent under ORS 419B.504 by reason of emotional illness, mental illness, and mental deficiency.1 On de novo review, ORS 419A.200(6)(b), we conclude that the state failed to prove by clear and convincing evidence that mother’s conditions rendered her unfit as of the time of the termination hearing. We therefore conclude that mother should have the opportunity to demonstrate her post-treatment parenting skills, particularly in light of the fact that mother’s most recent treatment providers uniformly agree that she possesses adequate parenting skills. Accordingly, we reverse the trial court’s termination of mother’s parental rights.

K, who was born in 1996, was removed from mother’s home, along with D, mother’s teenage son, and J, her infant son, by the Department of Human Services (DHS) following a police raid in June 2002. At the time of the raid, which was based on probable cause that drug activities were occurring on the property, there were a number of conditions in mother’s home that made it unsuitable for children. Police found drugs and drug paraphernalia, including needles; the house was filthy and cluttered; and “transients” who were known drug users were in the home and an attached dwelling.

Following the removal of the children from mother’s home, mother and DHS agreed to a plan to protect her children from the hazards posed by her lifestyle and to allow for a return of the children to her home. Under the terms of the plan, mother was to become drug and alcohol free and to develop assertiveness in order to impose healthy boundaries that would protect her children from dangerous people and environments. The agreement provided that, if mother complied with the plan, her children would be returned to her custody.

[643]*643In August 2002, mother underwent an assessment by the Lincoln County Health and Human Services Department. During the assessment, she admitted to using methamphetamine in July, but denied that she had a substance abuse problem. The assessment included random urinalyses for drug use. As a result of the assessment, mother was referred for drug and alcohol counseling. In September 2002, mother was diagnosed by psychologist James Ewell with methamphetamine dependence, polysubstance dependence, generalized anxiety disorder, post-traumatic stress disorder, and a personality disorder with borderline and antisocial features. Mother tested positive for methamphetamine use on September 30 and October 4. On October 21, Lincoln County terminated services to mother after she failed to contact its addiction/drug counselor. On December 5, 2002, mother again tested positive for methamphetamine use.

In January 2003, approximately six months after K was removed from mother’s custody, the state filed the petition in this case to terminate mother’s parental rights to K. By that time, mother had embarked on a treatment program with psychologist Katherine Andrews. In February 2003, psychologist Rory Richardson conducted another psychological evaluation of mother. He diagnosed her as having a poly-substance dependency in remission, an adjustment disorder with elements of paranoia and depression, and an obsessive-compulsive personality disorder with narcissistic and histrionic elements.

The termination hearing in this matter began in October 2003 and continued for three days before it was postponed. The hearing was then completed on March 3, 2004. After the hearing, the trial court made the following findings of fact and conclusions in April 2004:

“Mother has demonstrated a long history of substance abuse in which she has experimented with a wide range of substances since the age of 14. Criminal probation and loss of her children have provided her with the impetus to achieve sobriety. Mother’s sobriety is externally confirmed and is largely consistent. The evidence supports mother has a sincere interest in effecting a change regarding her drug use.
[644]*644“Sobriety, in turn, has given her the clarity of thinking required to obtain employment. She is now able to maintain her household. These changes are certainly supportive of the return home of [K] who appears normal and has no special needs per Dr. Ewell.
“Mother has been less successful in addressing her propensity to allow others access to her household. Her present boyfriend came into her home after the initiation of dependency proceedings. He has a felony conviction for drug possession (methamphetamine) and a misdemeanor conviction for carrying a concealed weapon. He was on probation at the time of the termination trial. * * * He is currently coping with his own recovery. He has a number of children and does not appear to be intimately involved in their lives.
“During the course of her use, Mother allowed an unfiltered array of dangerous individuals to enter her home. Ideally, this deficiency of judgment would disappear when sobriety had been achieved. But the facts are not entirely supportive of that ideal. The injection of [mother’s present boyfriend] into the equation needlessly creates another set of variables pertaining to his sobriety, his behavior, his associations and his ability to parent. While the number of individuals ha[s] been reduced, mother has demonstrated an inability or unwillingness to prudently screen her acquaintances.
* * * ❖
“The evidence has also demonstrated a tendency of Mother to minimize or rationalize even after effecting sobriety. * * *
“Coupled with this are the odd circumstances surrounding the hair plucking. Mother first sought medical treatment suggesting to her physician a fungal or parasitic cause for the hair loss, even though the cause of the loss should have been clearly known to [m] other. * * *
“On the second examination by Dr. Richardson, Mother stated that she was intermittently using large amounts of very strong crystal methamphetamine. * * * The problems [with the hair] were worse during sex and methamphetamine use. * * * The symptom descriptions [by Mother] have a delusional quality.
“Dr. Ewell and Dr. Richardson diagnosed psychological problems. Both opined that mother was a dual diagnosis [645]*645patient. It is evident that sobriety, while a truly commendable first step, is not the cure-all. Presently, Mother demonstrates a significant tendency towards minimization and lack of responsibility. She has significant durable psychological problems which will require extended treatment. This treatment has not been successfully effected. Mother continues to make inappropriate relationship choices. Mother is not presently a viable safe parenting choice. Father has abandoned the child. His parental rights should be terminated.
“The parental rights of mother should be terminated based upon the following aspects of unfitness; emotional illness, mental illness and mental deficiency have been demonstrated.”

(Emphasis added.)

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Bluebook (online)
126 P.3d 710, 203 Or. App. 640, 2006 Ore. App. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-department-of-human-services-v-huston-orctapp-2006.