State ex rel. Department of Human Services v. Simmons

149 P.3d 1124, 342 Or. 76, 2006 Ore. LEXIS 1245
CourtOregon Supreme Court
DecidedDecember 14, 2006
DocketCC 4769J; CA A124081; SC S53149
StatusPublished
Cited by46 cases

This text of 149 P.3d 1124 (State ex rel. Department of Human Services v. Simmons) 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
State ex rel. Department of Human Services v. Simmons, 149 P.3d 1124, 342 Or. 76, 2006 Ore. LEXIS 1245 (Or. 2006).

Opinion

GILLETTE, J.

In this termination of parental rights proceeding, the issue is whether the state has shown, by clear and convincing evidence, that, at the time of the termination proceeding, mother was unfit and unable to be a minimally adequate parent to her daughter. On de novo review, the Court of Appeals concluded that mother was unfit because she has a mental illness and an addiction to controlled substances that, together, are seriously detrimental to her child. The Court of Appeals therefore affirmed the trial court’s order terminating mother’s parental rights. State ex rel Dept. of Human Services v. Simmons, 203 Or App 279, 125 P3d 66 (2005) (Simmons III).1 For the reasons that follow, we reverse the decision of the Court of Appeals.

In reviewing a decision of the Court of Appeals in a parental rights termination case, this court may review de novo or it may limit its review to issues of law. ORS 19.415(4); State ex rel SOSCF v. Stillman, 333 Or 135, 138, 36 P3d 490 (2001). Because we conclude that neither the trial court nor the Court of Appeals correctly considered the evidence in the record concerning mother’s condition and its effect on child at the time of the termination trial, we elect to view the record de novo.

At the time of the trial in this case, mother was 38 years old. Since the age of nine, mother has suffered from a chronic, painful, autoimmune disease. In addition, in adulthood, mother suffered other debilitating illnesses, including pancreatitis, hepatitis C, and sleep apnea. Because of her health conditions, mother had not worked and had been receiving disability benefits since 1992. Over the years, various doctors prescribed pain management medications for [79]*79mother, including the opiate OxyContin, which is an oral, time-release form of the drug Oxycodone.

In around 1985, mother became involved with Keith Woodman, child’s father. Woodman was addicted to heroin and physically abused mother. In 1995, mother gave birth to child. Four months later, she left Woodman. Woodman never paid child support and has had little contact with child.2

Because of mother’s health problems, she required the assistance of a caregiver after leaving Woodman. Mother and child moved in with mother’s sister, Cynthia Barton, in Everett, Washington, so that Barton could help mother with her daily needs. By June 2000, Barton no longer was able to care for mother, and mother and child moved to an apartment in Baker City, Oregon, near the home of mother’s other sister, Crystal Dahlem. Dahlem then became mother’s paid caregiver. She provided daily assistance, dispensing mother’s medications and cooking and cleaning for her. Mother’s and Dahlem’s relationship quickly began to deteriorate, however, and they argued loudly and frequently, often in front of child. It also became apparent during that time that mother was abusing her pain medications.

Soon thereafter, mother and child moved into the home of another woman whom mother paid to help her with her daily household needs. In December 2000, that person called the police to report mother’s drug use. Police responded and found evidence that mother had been crushing OxyContin tablets to defeat the time-release mechanism, then “cooking” the resulting powder to a liquid, loading it into a syringe, and then injecting herself with it. Mother also appeared to be using OxyContin at a rate far exceeding the prescribed dosage. The police called DHS and DHS temporarily placed child with Dahlem.

Mother then entered an inpatient drug treatment program, taking child with her. Mother was unsuccessful in that program. Among other things, mother would not admit that she had a drug problem; on her intake assessment form, mother reported that she had last abused OxyContin four years earlier. In addition, counselors observed that mother [80]*80inappropriately relied on child, then six years old, to assume the role of caretaker. After three weeks, mother was discharged from the program for noncompliance with program requirements, for denying her addiction, and for engaging in drug-seeking behaviors.

Mother and child returned home to mother’s apartment and mother hired yet another paid caregiver, Lorrie Moss, to assist her. Moss dispensed mother’s medications, cleaned her house, did the laundry, did the grocery shopping, and took mother to appointments. She worked for mother eight hours a day, five to seven days per week. During that time, mother was extremely sleepy and occasionally felt too unwell even to get out of bed. On those days, Moss picked child up from school. From time to time, mother failed to pick child up from school without making other arrangements and Moss would receive an urgent call from the school.

In June 2001, Moss found syringes wrapped in paper towels in a drawer, although mother had not been prescribed any medicines that required mother to use syringes. Moss disposed of them in a dumpster outside mother’s house, but the next day they were back in the bathroom; mother had retrieved them from the garbage. Mother then repeatedly lied, to Moss and others, about how she came to possess the needles. Around that time, child, who then was six years old, saw mother inject herself with drugs and, on more than one occasion, found mother asleep on the sofa and was unable to rouse her. Child became frightened that mother would die. She began to sleep over at a neighbor’s house. Moss called DHS to report mother’s drug abuse. Moss also reported that she had witnessed volatile arguments between mother and Dahlem over money and care of child. DHS removed child at the end of June 2001, placing her in a neutral foster home in Baker City.

Mother then began another outpatient drug treatment program, again with little success. Mother continued to deny her addiction and missed appointments and group meetings. She still was abusing OxyContin during the months after child was removed from mother’s home and, [81]*81during that time, mother was arrested for possessing a small bindle of methamphetamine.3

In August 2001, mother met with Dr. David Sweet, a psychologist whom the state had hired to evaluate her. During the interview, mother was trembling and had difficulty focusing on and answering Sweet’s questions. Mother minimized her abuse of OxyContin and denied any other drug use or abuse. Sweet administered various tests, which mother took an extraordinarily long time to complete. The results of mother’s personality test were of dubious validity but did show mother to be extremely defensive and obsessive, and desirous of presenting herself in a positive light. Mother admitted to Sweet that she was depressed. According to Sweet, mother’s pattern of moving from place to place and changing caregivers showed her inability to provide stability for herself or child. Mother appeared to Sweet to be overwhelmed by her problems and to lack insight into them, making it likely that she would continue to make poor choices. Sweet diagnosed mother with polysubstance dependence and major depression, and made what he called a “rule-out” diagnosis of borderline or dependent personality disorder.4 Sweet recommended that child remain in foster care until mother could show for an extended period of time that she could provide stability for child and address her substance abuse problem.

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Bluebook (online)
149 P.3d 1124, 342 Or. 76, 2006 Ore. LEXIS 1245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-department-of-human-services-v-simmons-or-2006.