Dep't of Human Servs. v. T. M. D. (In re R. D. D.-G.)
Dep't of Human Servs. v. T. M. D. (In re R. D. D.-G.)
Dissenting Opinion
Dissenting Opinion
As the majority recognizes, this appeal does not involve a challenge to the juvenile court's findings that mother is unfit due to conduct or conditions seriously detrimental to her son and that integration of child into her home is unlikely to occur within a reasonable time because the conduct or conditions are not likely to change. Rather, the sole point of challenge here is the court's finding that DHS had not established by clear and convincing evidence that it would be in child's best interests to be freed for adoption. DHS asserts that it is entitled to the benefit of a presumption that adoption is in the child's best interests under these circumstances-and though the majority declines to decide the question of whether such a presumption exists, it effectively applies such a presumption by conflating the best interests inquiry with the inquiry regarding unfitness and integration within a reasonable time.
State intervention with a troubled family is justified by an overriding concern for the welfare of children and, consistent with that focus, the inquiry regarding a child's best interests must be separate from the inquiry regarding the parent's conduct or conditions and the likelihood of reunification. Indeed, as we have recognized previously, there are cases in which termination of the parental rights of an unfit parent is not in the child's best interests. Reviewing de novo the question of best interests in this case, I would conclude that no presumption applies and that, here, DHS failed to prove by clear and convincing evidence that termination is in child's best interests. Consequently, because *99I would affirm (though for reasons different than the juvenile court), I dissent. *140The interventions provided for in the juvenile dependency code, including mandatory reports and investigations of suspected child abuse, are undertaken "for the purpose of facilitating the use of protective social services to prevent further abuse, safeguard and enhance the welfare of abused children, and preserve family life when consistent with the protection of the child by stabilizing the family and improving parental capacity." ORS 419B.007. Court intervention is driven by a further concern regarding the welfare of children:
"* * * * *
"(2)(a) It is the policy of the State of Oregon to recognize that children are individuals who have legal rights. Among those rights are the right to:
"(A) Permanency with a safe family;
"(B) Freedom from physical, sexual or emotional abuse or exploitation; and
"(C) Freedom from substantial neglect of basic needs.
"* * * * *
"(3) It is the policy of the State of Oregon to safeguard and promote each child's right to safety, stability and well-being and to safeguard and promote each child's relationships with parents, siblings, grandparents, other relatives and adults with whom a child develops healthy emotional attachments.
"* * * * *
"(5) * * * Although there is a strong preference that children live in their own homes with their own families, the state recognizes that it is not always possible or in the best interests of the child or the public for children who have been abused or neglected to be reunited with their parents or guardians. In those cases, the State of Oregon has an obligation to create or provide an alternative, safe and permanent home for the child."
ORS 419B.090.
In general, parental rights may be terminated "only upon a petition filed by the state or the [child] for the purpose of freeing the [child] for adoption if the court finds it is in the best interest of the [child]." ORS 419B.500. In this *141case, DHS sought to terminate mother's parental rights due to unfitness pursuant to ORS 419B.504 and, as the majority acknowledges, three findings are necessary to a termination based on unfitness: (1) that the parent is "unfit" (i.e. , the parent "has engaged in conduct or is characterized by a condition that is seriously detrimental to the child"); (2) that "integration of the child into the parent's care is improbable within a reasonable time due to conduct or conditions not likely to change"; and (3) that termination of parental rights is in the child's best interest. Dept. of Human Services v. B. J. J.,
Each of those elements must be proved by clear and convincing evidence. ORS 419B.521(1) (providing that "[t]he facts on the basis of which the rights of the parents are terminated * * * must be established by clear and convincing evidence"). To meet that standard, evidence must make the existence of a fact "highly probable," or be of "extraordinary persuasiveness." Dept. of Human Services v. M. P.-P. ,
The state, relying on dictum in the Supreme Court's opinion in State ex rel. Juv. Dept. v. Geist ,
*100in Geist : where rupture of the bond with a parent will "severely traumatize" the child or where the loss of financial support outweighs the benefits of termination. See M. P.-P. ,
The state's position is inconsistent with the statute and reads too much into the Supreme Court's opinion in Geist , which did not concern the substantive law of termination of parental rights, but rather addressed whether a parent appealing a termination judgment could bring a claim of inadequate assistance of counsel on direct appeal. While our published cases frequently find that termination is in a child's best interests after the parent is found to be unfit and where we find that reuniting the family is unlikely to be possible within a reasonable time, it is not correct to assume that we apply a presumption to that effect-and indeed, doing so would have the effect of shifting the burden of proof from the state to the parent on an element of the state's case. The state bears the burden of proving the elements of a case for termination of parental rights, including whether termination is in the best interests of a child. See generally ORS 419B.521(1) ; State ex rel SOSCF v. Lehtonen ,
Moreover, reliance on an explicit or implicit presumption that termination is in a child's best interests whenever the parent is unfit and unlikely to be ready to reunite with the child within a reasonable time would be contrary to the child-centered analysis required by the juvenile code. See, e.g. , Dept. of Human Services v. M. H. ,
The question before us is whether it is in this child's best interests to terminate his legal relationship with mother, who is not able to serve as a custodial resource. This child is in a stable placement with his uncle and aunt and, at his young age, is not even aware of the relative impermanence of his current placement. This case does not involve abuse, and mother and child have a positive attachment. Witnesses for the state testified that child absolutely seems important to mother and that she loves and demonstrates affection for and attachment to child. In supervised visits, he reacts positively to her, and during community visits with mother's family, child goes to her before anyone else. Child is happy when he is with mother and has difficulty separating from her. Dr. MacPhail, the psychologist who evaluated child, recommended permanency for child, but refused to opine on whether adoption was preferable to another permanent option like permanent guardianship.
Contrary to the view expressed by the state, dismissing the petition and establishing a permanent guardianship for child would accomplish permanency that cannot be disrupted by mother. See ORS 419B.365 (procedures and standards for permanent guardianship). ORS 419B.368(7) explicitly states that a parent cannot move to vacate or modify a permanent guardianship established under ORS 419B.365. The majority's concern about the stability of a permanent guardianship, 292 Or. App. at ----, 422 P.3d at ----, is therefore unfounded.
*102Under these circumstances, I cannot conclude that the state has established by clear and convincing evidence that severing the legal relationship between mother and child is in this child's best interests. Accordingly, because I would affirm the judgment dismissing the state's petition, I dissent.
Egan, C. J., and Lagesen, James, and Aoyagi, JJ., join in this dissent.
See generally Harold D. Grotevant et al ., Contact between Adoptive and Birth Families: Perspectives from the Minnesota Texas Adoption Research Project , Child Dev. Perspective (2013), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3743089/ (accessed April 12, 2018) (longitudinal examination of the consequences of variations in contact arrangements for birth mothers, adoptive parents, and adopted children, reporting greater satisfaction in relationships involving more contact and better support for identity development in adopted children); DH Siegel, Open adoption: adoptive parents' reactions two decades later , Soc. Work (2013), https://www.ncbi.nlm.nih.gov/pubmed/23409339 (accessed April 12, 2018) (reporting that adoptive parents recognize that openness serves the child's best interests); Deborah H. Siegel, Ph.D., & Susan Livingston Smith, LCSW, Openness in Adoption: From Secrecy and Stigma to Knowledge and Connections , Evan B. Donaldson Adoption Inst. (2012), https://www.adoptioninstitute.org/publications/openness-in-adoption-from-secrecy-and-stigma-to-knowledge-and-connections/ (accessed April 12, 2018) (addressing the trend toward openness in private adoptions in recognition of the negative impacts of secrecy and the benefits to adopted children of ongoing contact, and advocating support for birth and adoptive parents to improve the practice of open adoption); Dustin Freund, Open Adoption versus Closed Adoption-Top 5 Benefits of Open Adoption , Ezine Articles (2010), http://EzineArticles.com/expert/Dustin_Freund/864663 (accessed April 12, 2018) (addressing the benefits of open adoption to adopted children).
The majority misunderstands the purpose of our reference to the factual context and research findings which increasingly suggest that some degree of openness serves the best interests of many children. See , 292 Or. App. at ----, 422 P.3d at ----. The parent is not charged with the burden of proving what is in the child's best interests; rather, in a termination proceeding, the state has the burden of proving by clear and convincing evidence that termination is in the child's best interests-and here, as in other cases, it offers broad generalizations about what is best for children, not evidence specific to this particular child. Those broad generalizations are contradicted by mounting evidence in the world of private adoption, and that suggests an additional reason why we should view those broad generalizations with skepticism, and a further reason why those generalizations do not meet the state's burden of proof as to what is in the best interests of this child. We do not discharge our review function well when we allow the state (or any party) to characterize something as obvious (here, that closed adoptions are best for children) when there is significant reason to conclude otherwise.
MacPhail's opinion that, if a child were to have ongoing contact with a parent, that parent should be able "to meet his needs and to be supportive of him" does not add much to the required showing, by clear and convincing evidence, that severing this child's legal relationship with mother is in his best interests. Contrary to the majority's suggestion, 292 Or. App. at 137, 422 P.3d at 97, mother was not tasked with making a showing in that regard.
The majority bases that concern in part on the juvenile court's expressed belief that termination is only for "hopeless cases" and that a guardianship would "leav[e] a door open" as an "incentive to [m]other." On de novo review, we need not accept the juvenile court's reasoning in order to conclude that DHS did not establish that termination was in child's best interests. Perhaps the juvenile court's comments were intended to communicate something about the value of continuing contact rather than the permanence of a guardianship under ORS 419B.368(7) ; if it did assume that mother could vacate or modify a permanent guardianship under that statute, however, such an assumption is incorrect.
Opinion of the Court
*121In this juvenile dependency case, the Department of Human Services (DHS) appeals a judgment dismissing its petition to terminate mother's parental rights under ORS 419B.500 to 419B.524. Following a three-day termination trial, the juvenile court found mother to be unfit due to conduct or conditions seriously detrimental to her then four-year-old son, R (child). The court further found integration of child into mother's home unlikely to occur within a reasonable time, because the conduct or conditions were not likely to change. In deciding whether to terminate mother's parental rights, however, the court concluded that DHS had not established by clear and convincing evidence that *89it would be in child's best interests to be freed for adoption.
DHS argues on appeal that, in the absence of evidence that termination of mother's parental rights would result in serious emotional or psychological harm to child or that termination would deprive him of a benefit that he would otherwise enjoy, the juvenile court could only conclude that adoption was in child's best interests. In DHS's view, once the court found that DHS had established that mother was unfit and that integration into her home within a reasonable time was improbable, termination of mother's parental rights became the default outcome. Mother responds that no law creates the presumption that DHS advances and that DHS's reliance on Supreme Court dictum from the Supreme Court's decision in State ex rel. Juv. Dept. v. Geist ,
For the reasons that follow, we conclude on de novo review that DHS has established by clear and convincing evidence that there are grounds to terminate mother's parental rights and that it is in child's best interests to do so. In light of that conclusion, we reverse and remand. Because we decide this case on that basis, we do not consider whether, as DHS contends, the juvenile court was required to terminate mother's parental rights under the circumstances of this case.
*122I. LEGAL STANDARDS
We have recently described the standards that apply to termination of parental rights cases as follows:
"In order to terminate a parent's rights on the basis of unfitness, a court must find that (1) the parent has engaged in conduct or is characterized by a condition that is seriously detrimental to the child; (2) integration of the child into the parent's care is improbable within a reasonable time due to conduct or conditions not likely to change; and (3) termination is in the best interests of the child. ORS 419B.500 ; ORS 419B.504 ; State ex rel. SOSCF v. Stillman ,333 Or. 135 , 145-46,36 P.3d 490 (2001).
"The state must establish the statutory grounds for termination by clear and convincing evidence. ORS 419B.521(1). Evidence is clear and convincing when it makes the existence of a fact 'highly probable' or when it is of 'extraordinary persuasiveness.' State ex rel Dept. of Human Services v. Smith ,338 Or. 58 , 79,106 P.3d 627 (2005) ; State v. M.S. ,180 Or. App. 255 , 263,42 P.3d 374 (2002)."
Dept. of Human Services v. R. K. ,
On appeal "from a judgment in a proceeding for the termination of parental rights," we "try the cause anew upon the record." ORS 19.415(3)(a). That is, we review de novo . We have further explained that,
"[i]n reviewing de novo a judgment terminating parental rights, an appellate court determines anew whether to terminate a parent's parental rights, giving 'considerable weight to the findings of the trial judge who had the opportunity to observe the witnesses and their demeanor in evaluating the credibility of their testimony.' "
R. K. ,
II. BACKGROUND AND PROCEDURAL HISTORY
The record in this case is extensive. However, mother does not dispute that DHS has established by clear and convincing evidence the first two predicates for termination of *123her parental rights-that mother is presently unfit due to conduct or conditions seriously detrimental to child and that child's integration into mother's home is unlikely to occur within a reasonable time, because those circumstances are unlikely to change. Accordingly, we provide only so much detail regarding the factual and procedural history of this case as is necessary to give context to the contested issue, which is whether termination of mother's parental rights is in child's best interests. *90A. Dependency Petition
Child was born June 27, 2012. In September 2014, DHS filed a petition alleging child to be within the juvenile court's jurisdiction. On November 17, 2014, based on admissions by mother and father, the court found child to be within its jurisdiction and placed him in DHS custody. As bases for its jurisdiction, the court found that mother's substance abuse interfered with her ability to safely parent child; that she had exposed child to people who possessed drugs and engaged in criminal activity; and that she had failed to maintain a safe environment for child, in that controlled substances and/or drug paraphernalia were found within his reach. The court separately found the same jurisdictional bases as to father.
B. Permanency Proceedings
The juvenile court held a permanency hearing on February 23 and 24, 2016. At the conclusion of that hearing, the juvenile court issued a detailed letter ruling in support of its decision to change child's plan from reunification to *124adoption. The court found that, despite DHS's reasonable efforts, neither mother nor father had made sufficient progress toward meeting the expectations previously ordered and that child could not safely be returned to either parent's care.
In rejecting mother's request for more time in which to complete services, the court acknowledged that mother had started and even completed some of her required services. The court noted, however, that mother had taken nearly a year to engage in her drug and alcohol assessment, apparently because she had not become serious about following through with expectations until DHS began to consider changing child's plan. The court acknowledged that mother had ultimately obtained the required evaluation and had, for the most part, appropriately engaged in treatment, but found it significant that mother had recently been indicted for possession of heroin, leading her treatment provider to recommend that her program be extended indefinitely. The court also noted that mother had provided only four urinalysis samples during the pendency of her juvenile court case, all of which revealed the presence of "drugs in her system including opiates, morphine, codeine and cannabis."
In concluding that a change of plan was warranted, the juvenile court found it particularly *91significant that mother had failed to provide a safe home for child. The court noted that one basis for jurisdiction had been that controlled substances and/or drug paraphernalia had been found in the home within child's reach, yet DHS had been thwarted in its efforts to enter the home to determine whether that concern had been ameliorated. Moreover, at the time of the permanency hearing, father, who was actively addicted and continued to use heroin, also continued to live in the same household as mother. Although many other people, including Morrell, child's grandmother, mother's drug counselor, and DHS workers, had discussed with mother the risk that father's active addiction presented to child, father had not moved out, because he had not been ordered to do so by the court.
Even after recognizing mother's recent successes-including her "very satisfactory" engagement in drug treatment, her active participation in a church-based 12-step program, her improved attendance at parenting-time visits, and her completion of a parenting program that her probation officer had ordered-the juvenile court concluded that, taking child's health and safety as the paramount concerns, it was time to change child's plan to adoption. See id . (prioritizing the child's health and safety in permanency decisions). In finding that child could not safely return home, the court cited the foregoing evidence and expressly noted Morrell's recommendation against reunification at that time. The court also noted that child had been in substitute care "for 17 months, a good portion of his life," and that best practices required that children be given permanency. Finally, the court found that DHS could not, by itself, make it possible for child to return home within a reasonable period of time.
*126Significantly, the juvenile court stated that it was
"emphasiz[ing] that this case is not over. DHS has stated that they will continue to work with the parents with the hope that they will be able to complete services and become viable resources for their child. In the event that this does not happen, then the agency will be on its way to complete the plan of adoption and provide the child with the necessary permanency."
C. Termination Trial
On April 8, 2016, DHS filed a petition to terminate mother's parental rights to child. Following a three-day trial held September 27 to 29, 2016, the juvenile court dismissed DHS's petition.
"mother is unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into the mother's home is improbable within a reasonable time due to conduct or conditions not likely to change, including the following:
"a) Addictive or habitual use of intoxicating liquors or controlled substances to the extent that parental ability has been substantially impaired.
"b) Lack of effort or failure to obtain and maintain a suitable or stable living situation for the child so that return of the child to the parent is possible.
"c) Failure to present a viable plan for the return of the child to the parent's care and custody.
"d) An emotional illness, mental illness, or mental deficiency of such nature and duration as to render the parent incapable of providing care for extended periods of time.
"e) Lack of effort to adjust the parent's circumstances, conduct or conditions to make return of the child to the parent possible.
*92*127"f) Failure to effect a lasting adjustment after reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected."
Notwithstanding those findings, the juvenile court did not terminate mother's parental rights. Instead, the court dismissed DHS's petition because it concluded that DHS had not established by clear and convincing evidence that it was in child's best interests to be freed for adoption. In its own, thorough opinion, the court explained its findings and conclusions.
Of central importance to the juvenile court was mother's longtime struggle with substance abuse. Mother, who was 25 years old at the time of the termination trial, first used heroin when she was 13. In a drug assessment in August 2015, mother stated that her heroin use was to manage pain due to serious back problems and other medical issues, and that her use had been heaviest in the preceding year and a half. Although she subsequently engaged in substance-abuse treatment and, according to the director of her drug program, "appeared to be responding well to treatment overall" as of the February 2016 permanency hearing, her recent arrest for possession of heroin and her ongoing close relationship with father were cause for concern at that time.
After the permanency hearing, mother progressed poorly with drug treatment. In April 2016, her counselor threatened to terminate her participation due to her positive urinalysis results, her inconsistent attendance, and her apparent lack of improvement. The program director agreed to give her a "last chance" contract with very specific conditions, including that she attend all groups-including a chronic pain group-that she submit to drug testing on request, and that she cease all use of opioid painkillers. Despite that last opportunity, mother tested positive for heroin in May 2016. Although mother admitted that she was again using heroin, she explained that her use was to treat withdrawal pains she suffered when she tried to comply with the requirement that she not use opioid painkillers.
The juvenile court stated that it had no reason to disbelieve that mother suffered from chronic pain. However, *128the court explained, mother's drug use both predated the apparent onset of her back problems and had developed into ongoing substance-abuse issues that mother admitted prevented her from being able to safely parent child. Moreover, mother lacked an appropriate support group, her urinalysis results belied her attempts to justify her drug use, and, after a year of treatment, she still was in the "denial" stage of recovery. Thus, the court concluded:
"Clearly, Mother's substance abuse problem is intractable. Treatment is not working. She continues to endanger Child's welfare. She has been arrested and convicted twice, and there is no indication that she has stopped using heroin. Her explanation for her February 2016 arrest, which she testified to at the September hearing, is classic denial.[6 ] She continues to be unable to recognize that associating with heroin addicts, even if the addict is Child's father, gets her into trouble. Mother is willing to do inpatient treatment, but conditioned on Child being placed with her either while in treatment or upon her completion of the inpatient program."
Relatedly, the juvenile court noted mother's apparent unwillingness to separate herself and child from father, her lack of progress in addressing her substance-abuse issues on her own terms, and her failure to recognize and address the psychological or "somatoform" sources of her pain, as Morrell recommended. Individually or together, those circumstances rendered her incapable of caring for child. Moreover, mother had made little or no progress in that regard in the two years that child had been in substitute care. Finally, mother's continued association with father showed a lack of effort to adjust her circumstances to make child's return possible, while her failure to make a lasting adjustment despite DHS's *93reasonable efforts (with mother, instead, blaming DHS for working against her) made it appear "reasonable that no lasting adjustment can be effected no matter how long the DHS works with Mother." *129Having found that mother was unfit and that integration into mother's home was improbable within a reasonable time due to conduct or conditions not likely to change, the juvenile court turned to whether DHS had established, by clear and convincing evidence, that termination of mother's parental rights was in the best interests of child. ORS 419B.500. Ultimately, the court concluded that, although DHS had established an urgent need for the security of a permanent home , it had not shown that it was in child's best interests to be freed for adoption. Accordingly, the court concluded that DHS "should consider establishing a permanent guardianship as provided for in ORS 419B.635."
In reaching that conclusion, the juvenile court acknowledged the report and testimony of Dr. MacPhail, whom the court recognized as "an experienced clinical psychologist who specializes in children," and who had evaluated child the month before the termination trial. As the court summarized, MacPhail
"noted that Child has below average social skills and his verbal development is only in the second percentile. She diagnosed him with adjustment disorder with mixed disturbance of emotions and conduct as well as a language disorder. She explained that these are likely the product of neglect and can be overcome with behavioral and language therapy. She testified that Child has a higher level of need than the average child, so permanency is especially urgent. In her opinion, asking Child to wait while Mother completes six months of inpatient treatment followed by six months of settling into a residence and getting stable is too long. Dr. MacPhail acknowledged that Child's behavior and development issues could be genetic in origin, but she discounted the likelihood of this because Child is improving in foster care."
The juvenile court observed, however, that MacPhail had not expressly favored adoption as a means of achieving *130permanency, and that, in MacPhail's view, a guardianship could very well be appropriate.
The court further found that mother and child "have a bond, despite the limited time they have together and despite the fact that Child has lived with his uncle and aunt for half of his four years."
Thus, even though the juvenile court considered it critical that mother overcome her substance-abuse issues, and found the prognosis for doing so "poor, given Dr. Morrell's evaluation" (as well as mother's ongoing relationship with father), the court concluded that it was in child's best interests to maintain the parent-child relationship. In the court's view, "leaving a door open may be an incentive to Mother." And, because termination, the court reasoned, is for "hopeless cases," it was not appropriate to terminate mother's parental rights while any hope for reunification remained.
III. ANALYSIS
As a preliminary matter, we again note that mother does not contest the juvenile court's determinations that she is presently unfit and that the conduct or conditions that place child at serious risk are unlikely to change. Moreover, having reviewed the record *94in its entirety, we now make the same determinations, together with the underlying findings of historical fact described in our discussion of the juvenile court's permanency and termination rulings. Having addressed those matters, we turn to the issue disputed on appeal: Whether termination of mother's parental rights is in child's best interests. For the reasons that follow, we conclude on de novo review that it is in child's best interests to terminate mother's parental rights so that child will be freed for adoption. *131As framed by the parties, the resolution of their dispute turns on whether, under Geist , the finding of the first two predicates for termination gives rise to a presumption that termination is in a child's best interests. DHS points to the Supreme Court's statement in Geist that, "[w]here a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time * * * the best interests of the child(ren) generally will require termination of that parent's parental rights."
We conclude that it is not necessary to resolve the issue that the parties identify, because the record contains clear and convincing evidence that it is in child's best interests to terminate mother's parental rights. That is, even assuming that Geist left intact DHS's distinct obligation to establish that termination is in a child's best interests, DHS has satisfied that obligation here. See Dept. of Human Services v. M. P.-P. ,
In concluding that terminating mother's parental rights is in child's best interests, we begin by noting that the exact circumstances that endangered child's welfare and so brought child under the jurisdiction of the juvenile court in November 2014 remained essentially unchanged at the time of the termination trial nearly two years later. That is, even though mother had, in the intervening time, obtained a substance-abuse assessment and initiated treatment, joined a 12-step group, completed a parenting program, and obtained a comprehensive psychological evaluation that explored and proposed ways to address many of the root causes of her drug addiction, she had made no meaningful progress toward ameliorating the bases for the juvenile court's involvement. Specifically, mother admitted at the outset of the case that her substance abuse interfered with her ability to safely parent child, that she had exposed child to people who possessed drugs and engaged in criminal activity, and that she had failed to maintain a safe environment for child. And, at the termination trial, DHS established that mother continued to use heroin and other opioids, that she had not made any effort to separate herself from father (who continued to actively use drugs), and that DHS had not been permitted to inspect her home to ensure that it had been made safe. As a result, the juvenile court found-and mother does not dispute-that she remained *95unfit to parent child due to conduct or conditions that were unlikely to change.
In the same vein, Morrell observed that mother gave "heartfelt descriptions suggesting [a] desire for reunification," but suggested that her slow follow-through with services flew "in the face of her heartfelt claims of wanting her child back as soon as possible." Similarly, Morrell noted that her extreme delay in completing her evaluation with him was "even greater evidence that she's in no hurry to have her child back."
In addition to that direct evidence that mother was not sufficiently motivated to address the jurisdictional bases, there also was evidence that she simply could not be successful until she addressed the mental health issues that, at least in part, drove her drug addiction. Morrell, who is himself an expert in chronic pain, deemed mother's complaints of pain to be "highly psychological" rather than medical, as mother insisted. (Emphasis in original.) As a result, he reported that mother required extensive mental health therapy that would help her "recognize the somatoform nature of her symptoms and the need to address psychological symptoms directly rather than attempting to characterize them as medical conditions." And, indeed, following the *134termination trial, the juvenile court expressly acknowledged that circumstance and that mother would require at least a year and a half to two years of therapy before she could safely care for child-and that would be after she achieved the insight that she continued to resist at the time of trial.
In concluding that it was not in child's best interests to terminate mother's parental rights, the juvenile court remained optimistic that mother could succeed. That optimism, however, was not rooted in any evidence that suggested that mother would follow Morrell's recommendations and address the mental health component of her addiction. Instead, the court evidently believed that mother might be "successful in treating her pain with herbal extracts and medical marijuana, [so that] she may be able to focus on being a parent."
More significantly, the juvenile court's approach, however well intended, is not appropriately child centered. Cf. Dept. of Human Services v. C. L. ,
Turning our focus to child's needs, MacPhail diagnosed him with an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct, based in part on his reported symptoms of emotional reactivity, physical aggression, and temper tantrums. In MacPhail's opinion, those symptoms were "likely at least in part related to the numerous changes and stressors in [child's] life and [were] affecting his overall social-emotional functioning."
"[child's] greatest need is probably for stability, permanency and consistent care-giving. [Child] has experienced a great deal of disruption in his life, and he needs a stable home and parent. [Child] would benefit from a parent who is able to offer a high level of consistency, stability, and routine."
MacPhail further opined:
"[Child] has a high need for stability and permanency. We know from research that children are often better able to form secure attachments with new caregivers when a change in placement occurs as early as possible in *136development. Thus, it would be recommended that a permanent placement be secured as soon as possible[.] * * * Allowing [child] to form a relationship with a permanent caregiver sooner would increase his chances of being able to form a secure, healthy attachment with that caregiver."
(Emphasis added.)
We recognize that, in this case, the proposed guardians were child's uncle and aunt, who already had served as his foster parents for nearly two years at the time of the termination trial and under whose care child continued to improve. That fact evidently informed the juvenile court's decision to encourage DHS to pursue a "permanent" guardianship under ORS 419B.635. Furthermore, *97because the transition to their care was already well underway, it may have appeared to the court that the urgency of establishing a permanent relationship with them would be less than it might be in other cases, where the relationship with a foster family is only transitory. And, indeed, that appears to be the dissent's rationale as well. See 292 Or. App. at 144, 422 P.3d at 101 (Ortega, J., dissenting) (stating that "child is in a stable placement with his uncle and aunt and, at his young age, is not even aware of the relative impermanence of his current placement").
Respectfully, however, that view-and its implicit conclusion that, on this record, a permanent guardianship is shown to be in child's best interests-is misguided.
*137Second, the dissent's view reads too much into MacPhail's "refus[al] to opine on whether adoption was preferable to another permanent option like permanent guardianship." Id . at 144, 422 P.3d at 101 (Ortega, J., dissenting). For one thing, MacPhail did not refuse to state an opinion because she did not have one; she declined to offer one because she felt it was "not [her] purview to make that type of recommendation." For another thing, MacPhail emphasized that, if child were to have ongoing contact with a parent, that parent would need to be able "to meet his needs and to be supportive of him." And, as of the termination trial, mother was nowhere near able to do so.
Third, because it is apparent to us that the juvenile court viewed the "permanent" guardianship as a potentially temporary arrangement-one that could be set aside if mother were sufficiently motivated-many 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.
Finally, while we leave for another day the question whether, in the absence of evidence that termination will *138adversely affect a child, the juvenile court must free the child for adoption, we observe that our conclusion that termination of mother's parental rights is in child's best interests appears to be consistent with legislative intent. That is, the *98juvenile code expresses a legislative preference that children be placed in the most permanent setting suitable to their needs. See Dept. of Human Services v. S. J. M. ,
To summarize, as to the only disputed issue on appeal, DHS has shown by clear and convincing evidence that termination of mother's parental rights is in child's best interests. Specifically, child has a pressing need for permanency that, to all appearances, would be satisfied in relatively short order if he were to be freed for adoption. MacPhail's testimony established a nexus between the disruptions in child's life to date and the emotional and developmental issues he is now experiencing. We recognize that naming child's foster parents as his guardians may to some extent mitigate the effects of those past disruptions. We consider it more significant, however, that leaving open the possibility of a return to mother creates its own instability, and that the less-permanent option of guardianship that mother urges us to adopt exposes child to an unjustifiable risk of future turmoil and disruption in the event that mother someday seeks reunification.
IV. CONCLUSION
In light of the foregoing and our review of the record, we make the same findings of fact that the juvenile *139court made, and likewise conclude that mother is unfit to parent child due to conduct or conditions seriously detrimental to child. We further agree that integration of child into mother's home is unlikely to occur within a reasonable time, because the conduct or conditions are not likely to change. Unlike the juvenile court, however, we conclude that termination of mother's parental rights so that child is freed for adoption is in the best interests of child.
Reversed and remanded.
Father has voluntarily relinquished his parental rights to child and is not a party to this appeal. However, his circumstances and role in mother's and child's lives throughout the relevant time frame were significant to the juvenile court's rulings following the permanency hearing and the termination trial.
Father did not contest the proposed change of plan to adoption.
The record disclosed that mother gave varying accounts and explanations regarding her use of heroin and related substances, including her reliance on heroin to address back pain resulting from a back injury she had suffered at age 16. Among other things, the juvenile court noted that the evidence included mother's self-report that she had first used heroin at age 13, before her back injury.
There was also testimony from treatment providers that having an active drug user in the household placed mother at risk for relapse, as the other person's use could trigger mother's own addiction.
The parties stipulated that the record of the permanency hearing would be made part of the record for the termination trial. The judge hearing the termination trial, who was not the judge who held the permanency hearing, agreed to listen to the permanency proceedings before issuing a decision, but indicated that he would not rely on the letter opinion issued by the first judge in his own ruling.
Mother's explanation for her heroin arrest had been that she had hurriedly borrowed father's backpack, which, unknown to both of them, contained father's heroin. Father backed mother's explanation that the heroin leading to her conviction belonged to him.
The juvenile court observed that a parent cannot overturn a "permanent" guardianship, citing ORS 419B.368(7). Given the court's other observations, however, it is apparent to us that the court contemplated that, if a "permanent" guardianship were to be established, an authorized party would at some point initiate a return to mother should she eventually be able to safely parent child. See ORS 419B.368 (authorizing juvenile court to vacate a guardianship established under ORS 419B.365 either on its own motion or on the motion of a party other than a parent).
Following the establishment of juvenile court jurisdiction, DHS placed child in relative foster care with mother's half-brother and sister-in-law.
The dissent acknowledges that we have properly identified the task before us-to determine, on de novo review, whether DHS has satisfied its burden of proving, by clear and convincing evidence, that it is in child's best interests to terminate mother's parental rights. 292 Or. App. at ----, 422 P.3d at ---- (Ortega, J., dissenting). The dissent argues, however, that, although we conclude that it is unnecessary to decide whether the Supreme Court's decision in Geist gives rise to a presumption in this case, we effectively apply one here "by conflating the best interests inquiry with the inquiry regarding unfitness and integration within a reasonable time." Id. at 139-40, 422 P.3d at 98 (Ortega, J., dissenting); id. at 144, 422 P.3d at 101 (Ortega, J., dissenting) (stating that the majority opinion "concentrat[es] its analysis entirely on the evidence that established mother's unfitness"). We respectfully disagree. While we do summarize many details related to mother's circumstances and the likelihood that they could change, we do so primarily for their relevance to the question whether leaving open the possibility of an eventual return to mother's care-as mother clearly hoped for and the juvenile court appears to have envisioned-is an appropriate reason for us to conclude that termination is not in child's best interests. In our view, it is not.
Mother and various treatment providers testified throughout the proceedings regarding mother's efforts to address her pain, in part, through the use of various herbal extracts and medical marijuana. Although some extracts could potentially result in false positives in drug and alcohol screenings, mother's providers did not, as a general matter, view her use of the extracts to treat her pain as problematic, so long as her use was sanctioned by her doctor. The same was true as to medical marijuana.
Because the juvenile court rejected termination in favor of urging DHS to pursue a permanent guardianship, the court may not have viewed its decision as causing any further delay in permanency. We address that potential rationale below.
Child also exhibited "a significant delay in his acquisition of language skills, particularly in expressive language, which impairs his functioning in a number of areas, including communication, social participation, and academic achievement." According to MacPhail, those symptoms meet the criteria for a language disorder.
We characterize that conclusion as merely implicit because, even though the dissent concludes that termination is not in child's best interests, it steers clear of concluding that a guardianship is in child's best interests and simply suggests that a guardianship under ORS 419.365 could provide a satisfactory degree of permanency for child. 292 Or. App. at ----, 422 P.3d at ---- (Ortega, J., dissenting).
We note that, as of the termination trial, DHS also viewed child's maternal grandparents as a potential adoptive resource. Nothing about that possibility of yet another transition for child would tend to alleviate those concerns.
Reference
- Full Case Name
- In the Matter of R. D. D.-G., a Child. DEPARTMENT OF HUMAN SERVICES v. T. M. D.
- Cited By
- 4 cases
- Status
- Published