T. H. v. M. P. B.

175 P.3d 1017, 217 Or. App. 430, 2008 Ore. App. LEXIS 64
CourtCourt of Appeals of Oregon
DecidedJanuary 23, 2008
DocketJ040072, J040073, J040074; Petition Numbers 04028J, 04029J, 04030J; A135791
StatusPublished
Cited by1 cases

This text of 175 P.3d 1017 (T. H. v. M. P. B.) 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
T. H. v. M. P. B., 175 P.3d 1017, 217 Or. App. 430, 2008 Ore. App. LEXIS 64 (Or. Ct. App. 2008).

Opinion

BREWER, C. J.

In this guardianship proceeding, M. P. B., S. D. B., and S. J. B. (the children) appeal from a second supplemental judgment that modified their parenting time with their mother. They assign error to the requirement in that judgment that they have visits with mother that last longer than four hours at a time.1 On de novo review, ORS 419A.200(6)(b), we modify the second supplemental judgment to eliminate its provision for overnight visits but retain daytime visits at the level that the judgment requires.

We begin with the procedural history of the case and then turn to the evidence adduced at the hearing on the children’s motion to reduce their required parenting time. On February 6, 2004, while the children were living with her, mother was taken to the hospital with an apparent methamphetamine overdose. After that incident, the Department of Human Services (DHS) placed the children with their maternal grandmother, with whom they previously had often lived and with whom they have remained ever since. On February 9, DHS filed petitions asserting that the children were within the jurisdiction of the juvenile court because of circumstances that endangered their welfare. In support, the petitions relied both on mother’s drug use and on her mental illness. At the same time, DHS filed an affidavit that described mother’s apparent methamphetamine overdose on February 6, 2004, and previous DHS contacts with mother and that asserted that mother’s home was unsanitary and not fit to be the children’s residence.

On April 9, 2004, the juvenile court found that the children were within its jurisdiction, after determining that mother had suffered a drug overdose and that her mental illness interfered with her ability to parent the children. The court did not rule on the allegation that mother’s drug problems interfered with her ability to parent. The court also found that the children’s father was not available to care for them. On April 21, 2005, the court entered a judgment [433]*433appointing grandmother as the children’s guardian. In doing so, it noted that DHS, mother, and father all supported the guardianship.

In the judgment creating the guardianship, the court established parenting time of a minimum of two contacts per parent each month, totaling four hours per parent, and required that DHS supervise the visits for at least the first 90 days.2 The court stated that its goal was to work toward unsupervised parenting time. On November 1, 2005, the court entered a supplemental judgment in which it expanded parenting time for both parents. For father, the court specified parenting time of one weekend per month beginning in October 2005, together with one overnight visit during the Thanksgiving holiday, two overnight visits during the Christmas holiday, and 10 uninterrupted days each summer. The court established the same schedule for mother, except that the weekend overnight visits would not begin until January 2006. Before then, she was to have visits of four hours in October, eight hours in November, and 12 hours in December. The court conditioned mother’s parenting time on maintaining a safe and stable home, continuing mental health counseling, taking recommended medications, and not delegating child care to unsafe persons. There have been no changes to father’s parenting time since that supplemental judgment was entered and that arrangement is not before us on appeal.

On March 10, 2006, the children filed a motion to modify the supplemental judgment, in which they sought to reduce their parenting time with mother to two four-hour supervised visits a month. In support of the motion, their attorney filed an affidavit reporting the children’s allegations of a number of problems with mother’s conduct and with her home. The court set a hearing on the motion for July 5, 2006. On June 30, mother moved to continue the hearing, agreeing as part of that motion to end overnight visits and otherwise to limit visitation as the children had requested until the court ruled on the motion to modify. After some further delays, on [434]*434May 7, 2007, the court held a hearing on the motion to modify. The children testified in camera, without the parents and witnesses present; grandmother, mother, and D. G., mother’s friend, testified in open court.

At the conclusion of the hearing, the court retained overnight visitation for mother with conditions in addition to those set out in the first supplemental judgment. The additional conditions included that D. G. or another suitable adult, acceptable to both mother and grandmother, be present and that the children not be exposed to anyone who was involved in criminal activity, drug use, or who was on parole or probation. The court did not require supervision between 9:00 a.m. and 5:00 p.m. The court also addressed other matters that the parties raised by establishing rules concerning the children’s telephone contact with their parents and with grandmother, and the court prohibited grandmother and mother from making disparaging comments about each other when the children were present. Those provisions are not in issue on appeal.

On May 22, 2007, the court entered a second supplemental judgment that embodied its decision on the motion to modify. The children filed a notice of appeal from that judgment on May 29.

On de novo review, we find that the evidence at the May 7 hearing established the following facts. At the time of the hearing, the children were 14, 13, and 8 years old. Since 1999, they have lived most of the time with grandmother, including the period before February 9, 2004, when DHS formally placed them with her. During that period, mother, who is presently in her late forties, has experienced serious difficulties that include mental illness and the use of methamphetamine and possibly other illegal drugs. At the time of the hearing, mother’s income consisted of a small disability payment, supplemented by a rent subsidy and food stamps. A corporate payee receives mother’s income, pays her bills, and gives her a small weekly allowance; mother is satisfied with that arrangement, which has provided financial stability that she did not previously have. She also receives occasional assistance from her oldest son, who is in his late twenties and [435]*435is the child of a previous marriage. Mother’s oldest child, a daughter who was also a child of that marriage, died in 2003.

In part because of her limited resources, mother has lived in a series of apartments near the downtown area of Albany. The children describe those apartments as being in poor physical condition. In addition, mother failed to keep the apartments minimally clean, leaving them full of dirty dishes and moldy food, with items of various sorts piled on the floor and furniture.3 The children describe mother’s acquaintances, who were frequent visitors to the apartments where she lived, as including “creepy” people who “twitch [ed] a lot” and looked like “druggies.” At times, when the children arrived at mother’s apartment for a visit, they had to empty the sofa to find a place to sit and had to create a path through the living room to reach the bathroom, kitchen, and bedroom. Mother did not always provide adequate food for the children, even for overnight visits, although she had sufficient resources to do so. At least once, all they had to eat was a bag of chips.

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Related

Th v. Mpb
175 P.3d 1017 (Court of Appeals of Oregon, 2008)

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Bluebook (online)
175 P.3d 1017, 217 Or. App. 430, 2008 Ore. App. LEXIS 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/t-h-v-m-p-b-orctapp-2008.