State ex rel. Department of Human Services v. Huston , 203 Or. App. 640 ( 2006 )

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.

In 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.

“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 patient. 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.)

Before engaging in a more thorough review of the record, we pause to identify the legal framework in which the evidence in this case must be viewed. The governing statute is ORS 419B.504, which provides, in part:

“The rights of the parent or parents may be terminated as provided in ORS 419B.500 if the court finds that the parent or parents are unfit by reason of conduct or condition seriously detrimental to the child or ward and integration of the child or ward into the home of the parent or parents is improbable within a reasonable time due to conduct or conditions not likely to change. In determining such conduct and conditions, the court shall consider but is not limited to the following:

“(1) Emotional illness, mental illness or mental deficiency of the parent of such nature and duration as to render the parent incapable of providing proper care for the child or ward for extended periods of time.”

ORS 419B.52K1) defines the state’s burden of proof regarding its allegations under ORS 419B.504. It states, in part, “The facts on the basis of which the rights of the parents are terminated, unless admitted, must be established by clear and convincing evidence * * *.” The “clear and convincing” standard of proof imposed by ORS 419B.521(1) is required by the due process clause of the Fourteenth Amendment, State ex rel Juv. Dept. v. Habas, 299 Or 177, 180 n 1, 700 P2d 225 (1985), and is generally understood to refer to evidence that makes an asserted fact highly probable, see, e.g., State ex rel Juv. Dept. v. Johnson, 165 Or App 147, 156, 997 P2d 231 (2000).

When applying the standard of clear and convincing evidence to the facts of this case, it is important to identify what is at issue, i.e., what the state must prove by clear and convincing evidence. The trial court terminated mother’s parental rights solely on the ground that mother was unfit by reason of emotional illness, mental illness, and mental deficiency.² Accordingly, we must determine whether the state proved that, at the time of the completion of the termination hearing in March 2004, it was highly probable that mother’s mental and emotional disorders rendered her incapable of providing care for K for extended periods of time and that mother’s condition was unlikely to change within a reasonable time. The state does not carry this burden simply by demonstrating that mother suffers from mental or emotional disorders. Rather, the overriding issue is whether, at the time of the completion of the termination hearing, there was clear and convincing evidence that mother’s disorders, to the extent that they existed, caused her condition to be so seriously detrimental to K’s welfare so as to warrant a finding of unfitness.

With those standards in mind, we return to the evidence in the record. Because the trial court’s decision to terminate and the state’s argument on appeal rely heavily on the diagnoses by Ewell and Richardson, we begin by focusing on their diagnoses and testimony. Ewell and Richardson were the only expert witnesses at the hearing who supported termination. Significantly, neither Ewell nor Richardson ever evaluated mother after she successfully completed her drug treatment program. Stripped of its drug-related diagnoses, Ewell’s diagnosis essentially involved the following three components: (1) a “Generalized Anxiety Disorder”; (2) “Post-Traumatic Stress Disorder” (PTSD); and (3) “Personality Disorder, with Borderline and Anti-Social Features.”³ According to Ewell, a generalized anxiety disorder is “a condition wherein an individual reports * * * that most days they experience a level of stress that is upsetting to them, if not overwhelming, and they have a great deal of difficulty overcoming this * * * level of anxiety.” A diagnosis of PTSD, Ewell reported, was appropriate because mother had “some flashbacks of her oldest child’s father beating her. If she encounters similar situations, or is reminded of this relationship, she also ‘over-reacts.’ ” Ewell’s diagnosis of a personality disorder was offered, according to his report, because mother’s psychological test results suggested “moodiness and difficulty controlling frustration.” Ewell was asked, “What determines that someone has a personality disorder that’s untreatable?” Ewell answered, “[I]n most cases, treatment is tried and despite that attempt, it’s clear that a person is not making any progress. I don’t know of any ways to determine ahead of time that it’s going to be possible * * When Ewell was asked whether people with mother’s diagnoses (anxiety disorder, PTSD, and personality disorder) are able to parent adequately, he answered, “Some of them can. Some — of them cannot.” Also, counsel asked Ewell at the termination hearing, “So you had no opinion as to her mental status as of today. Correct?” Ewell answered, “Yeah, I could not say as of today, no.” He conceded, however, that abstinence from the use of drugs and evidence that a person was in a “positive, supportive, functional relationship for a year * * * would be seen as a good sign” that the person’s disorder had been treated or was now in remission.

Dr. Richardson’s examination, conducted five months after Ewell’s evaluation, yielded results that were somewhat different from Ewell’s diagnoses. Richardson’s report indicated that “[t]here does not appear to be any indicators suggestive of post-traumatic stress.” He did, however, find that mother suffered from an obsessive-compulsive personality disorder with narcissistic and histrionic elements. At the termination hearing, he explained,

“Obsessive-compulsive personality disorder is a personality pattern that is developed over a long period of time. Personality patterns are ones that tend to be more entrenched. Low resistance to change, tend to be linked in with the person’s survival system, maintain their ego strength, et cet-era. And ties into psycho dynamic elements throughout the childhood, adulthood, and things like that. The narcissistic elements — a person thinks that they are too good for certain things or, you know, has an elevated perception. The narcissistic trait is not necessarily a pathology per se. It is a — it is common in individuals that have specific types of high ranking positions and professions. And individuals that have a — maybe have underlying low self-esteem. * * * The histrionic [element] is a reactive element. It’s kind of like a person tends to panic in certain situations.”

Richardson also wrote in his February 2003 report:

“Based on this evaluation, it does not appear that there [are] any specific indicators supporting neurological impairment. There [do] appear to be indications suggesting that she is in the early phase of recovery and that she is gaining from recovery at this time. Continuing treatment and complying with treatment goals is suggested; there [are] some issues relating to issues of control within chemical dependency which are slowly being addressed based on the evaluation and certain values of that testing. The report of exposure to toxins specifically associated with her scalp and with what appears to be relatively compulsive patterns suggest [s] that there would be value in addressing obsessive-compulsive personality patterns, as well [as] gaining a referral to and consultation from an endocrinologist expert in toxic response. There is also indication that she is utilizing the 12-step program in addressing some of the emotional issues that she has concerning her situation with [DHS] and involvement of them in her life, noting that documentation from [DHS was] available for review and this evaluation is not intended to be used to determine fitness for parenting. Additional assessment would be necessary to determine if this were appropriate. * * * The one issue that does appear to be pertinent, is that she does appear to be making specific changes and gains in her recovery. It is this writer’s feelings that it is important that [mother] address issues of compulsivity and that she make attempts to change some of the reactive patterns. * * * [I]t would appear in the material presented and the testing completed would support that she remains relatively intact with relatively average cognition and processing. Addressing some of the issues of hypervigilance and paranoia in the course of her alcohol and drug treatment is recommended.”

In addition, Richardson recommended that mother “obtain and maintain some form of gainful employment at the earliest opportunity so that issues of self-esteem and emotional stability can be linked to productive functioning.”⁴ At the termination hearing, Richardson also testified that personality disorders like mother’s could make her more rigid and reactive than would be healthy and that anxiety would become part of a family lifestyle.⁵ But Richardson also was asked how mother’s personality disorders could affect her parenting of the children living with her and her level of functioning. He opined, “[B]ased on what she was reporting, she was doing quite well.”

The record also contains the testimony of two treatment providers who provided therapy to mother after Ewell’s and Richardson’s evaluations, and the testimony of a third person, a DHS employee who supervised mother’s visitation with K over a period of months. Mother’s treatment providers were Katherine Andrews and Rebecca Carroll. Andrews, who holds a Ph.D. in clinical psychology, began treating mother in November 2002, and her course of treatment for mother included more than 200 hours of therapy. Andrews testified that, although Discovery Counseling does not provide mental health counseling, ‘because of my background and training, I was monitoring the mental health side of things.” Andrews explained that she is “trained as a psychologist first and foremost,” but that Discovery Counseling was not licensed for mental health services at the time. In fact, Andrews had spent most of eight years working in the field of child psychology, doing parent training, and treating families with chronic mental illnesses. Also, her research and dissertation work involved behavioral observations of “severely disordered children and families.”⁶

Mother initially had contact with Andrews three times a week, contact that eventually changed to once a week. As indicated above, mother’s entire course of treatment with Andrews consisted of more than 200 hours of therapy. At trial, Andrews was unwavering in her positive descriptions of mother’s progress in therapy. She described mother as “one of those people that was ready to make significant [and] sincere change,” “very committed,” achieving remarkable growth, and experiencing a “real profound kind of change.” Andrews also had an opportunity to work with mother’s boyfriend, Daniel Walsh. Both mother and Walsh participated in Andrews’s recovery groups. Andrews testified that she had no concern about either mother’s or Walsh’s abilities to remain clean and sober. She explained that, because both had the same level of commitment to sobriety and drug abstinence, there was a “synergistic effect in each of their treatments because they were committed to recovery first, and then to their relationship as recovering people. * * * That’s good insurance for a relationship.” Based on her observations and work with mother, Andrews testified that there was nothing that concerned her as far as mother’s ability to parent.⁷ At the conclusion of her testimony, Andrews was asked:

“Q. Dr. Andrews, a lot has been bandied around about advocating. If you felt that [mother] was not truly addressing recovery and treatment issues, was lying about any aspect of her recovery, would you continue to advocate [for the return of K to mother]?

“A. No, I wouldn’t.”

In February 2003, mother began individual mental health sessions with Carroll. Carroll is a clinical counselor with Lincoln County Health and Human Services and contracts with DHS to provide services for that agency. Mother participated in 24 mental health sessions with Carroll, working on the issues identified in her mental health evaluations. Carroll also visited mother’s home on three or four occasions and found the conditions of her home “adequate.” Mother finished her therapy with Carroll in August 2003, approximately two months before the termination hearing commenced. During the time of her treatment with Carroll, mother obtained a sponsor in her 12-step program and attended a Narcotics Anonymous retreat. By April 2003, mother had graduated from her alcohol and drug treatment program and had obtained part-time employment. By August 2003, mother had obtained full-time employment, which she held at the time of the hearing.

Carroll was also asked about what were characterized as mother’s “thinking errors.” According to the testimony, “thinking errors are things that people do that basically are not in one’s best interest.” Carroll observed that “all people have some thinking errors.” According to Carroll, one of mother’s problems was not establishing boundaries when people wanted something from her. Carroll observed that mother was prone to resolve those kinds of circumstances by saying, “ Yes, I’ll take you here in my car,’ * * * Yes, I’ll let you spend the night here.’ ” Carroll helped mother devise a system “for managing when people came towards her and asked for things * * Carroll acknowledged that “codependency’ was a “piece” of mother’s anxiety disorder behavior pattern and that mother told her “that she felt better about herself when she was * * * able to help people * * * who had less than she did.” Carroll testified that mother was receptive to techniques for dealing with her response tendencies, including a way by which she could “buy more time” to think about requests from others and a “breathing technique” for “symptoms of anxiety.” On redirect examination, the state’s attorney asked, ‘You talked about [mother] making progress. My question is, did she get there?” Carroll answered, “I say she got three-quarters of the way there.”⁸

Part of mother’s treatment with Carroll also involved parental coaching. In those treatments sessions, Carroll observed mother interacting with K and with J, her younger son. Carroll described mother’s parenting abilities during those observations:

“During the visits that I observed with [mother] and her children, [mother] was surprisingly aware of their psychological needs and able to shift back and forth between one child and the other, and meet with them at their developmental level in an activity or issue that came forth, like say, [K] having tearfulness about something in a — during a visit.”

Carroll was asked whether she found mother “supportive and interactive” during those visits and testified that there was never anything in the visits that gave her any concern about mother’s fitness to parent.

In addition to the evidence from Andrews and Carroll about mother’s mental health status at the time of the termination hearing, mother participated in parenting classes and weekly visits with K and J. Tamera Kniskern, a DHS-trained employee with four years’ experience, supervised mother’s visits with her children after their removal from mother’s custody until March 2004. Kniskern’s initial contact with mother was in July 2002, and her last contact with mother and her children occurred on March 1, 2004. Beginning in January 2003, mother’s visitations became consistent and continued throughout the dates of the hearing. Kniskern testified that mother and K are bonded, that mother did “really well” with her children, and that the children were eager to see their mother. In response to the question whether she had observed anything in those visits that gave her concern about mother’s parenting abilities, Kniskern replied, “I’d say no. She handles her children very well during visits.” In fact, Kniskern testified that she was “impressed with that — what I see during the visits.”

The dissent minimizes the success of mother’s treatment with Carroll and Andrews, reasoning that, before February 2003, mother had rejected or not followed through with county mental health services. 203 Or App at 671 (Deits, J. pro tempore, dissenting). However, mother’s refusal to embrace those earlier offers came at times in which she had denied that she even had a drug problem. By February 2003, mother was receiving drug and alcohol counseling with Andrews, mental health counseling with Carroll, and parenting training with Kniskern, and she reported her compliance with the mental health requirements of the plan for her reunification with K to Janine Buel, the person in charge of her plan. Moreover, Sven Johnson, the Lincoln County caseworker assigned to mother’s case between October 2002 and June 2003, was well aware of the mental health treatment that mother was receiving from Carroll and Andrews. In March 2003, Johnson sent a letter to Carroll describing Andrews’s work with mother over the previous four to five months in an “In House Mental Health Capacity.” Then, in May 2003, Johnson sent an e-mail indicating that “temporary placement was the plan with a possible return home” if mother was “fully engaged [in services] over the next five to six months.”

Johnson testified that, at that time, DHS was evaluating and reevaluating the appropriateness of the plan to return K to mother, but that it made sense to proceed with termination. Significantly, there is no evidence that, between February 2003 and the commencement of the termination hearing, mother was ever informed by anyone that the mental health counseling she was receiving through county health services was inadequate, or that she was told that she needed additional services if she were to be reunited with K. Finally, there is no evidence that she was offered and refused any additional mental health services during that time period. In sum, although mother initially rejected mental health services before February 2003, she subsequently obtained the county’s services and fully complied with the requirements for those services with the understanding that she could be reunited with K in the future. In our view, the above course of conduct substantially undercuts the dissent’s assertion that mother never sought or obtained the mental health therapy that Ewell and Richardson recommended.

Indeed, we find that the testimony of mother’s treatment providers and the DHS representative about mother’s progress in the months preceding the hearing constitutes credible evidence and is the more probative evidence regarding mother’s mental status at the time of the termination hearing. Since December 2002, and until the beginning of the hearing in October 2003, mother was tested more than 50 times for drug use, and each test was negative for the use of drugs. Mother was involved in a daily 12-step program for a lengthy period of time before the hearing was completed, and Andrews testified that mother is “as stable as anyone’s going to be[.]” What mother’s conduct after December 2002 demonstrates is that she is able to make changes despite her personality disorders. Months after Richardson and Ewell conducted their evaluations, Andrews and Carroll found, based on their more current and frequent contacts with mother, that those changes that Richardson and Ewell said needed to occur had and were occurring.⁹

By contrast, Ewell and Richardson did not have contact with mother in the months following their evaluations and did not observe what progress, if any, mother had made during that time. As a result, they were unable to provide testimony on the key issue: whether they believed that mother’s personality disorders rendered her incapable of caring for K at the time of the hearing.

Significantly, the dissent fails to grapple meaningfully with the conflict that its own logic has created in terms of the state’s burden of proof: Although it concedes that mother made “commendable” progress in overcoming her drug and alcohol dependence, thereby demonstrating that mother’s personality disorders are not so severe as to prevent her from overcoming her addictions, 203 Or App at 670-71 (Deits, J. pro tempore, dissenting), the dissent nonetheless ultimately concludes that mother’s personality disorders render her incapable of making changes in her life. In reaching that conclusion, the dissent relies on mother’s defensiveness at the termination hearing and the fact that certain individuals continued to reside at her home near the time of the hearing. Ultimately, the dissent concludes that mother “fails to see the consequences of her behavior and how that behavior can have a negative effect on herself and others.” 203 Or App at 674 (Deits, J. pro tempore, dissenting). But the dissent’s evaluation of the evidence fails to recount and consider all of mother’s testimony on those subjects.

Although mother offered what the dissent considers to be rationalizations of the factual circumstances of her drug use and her prior choices, she also acknowledged at the same time that her drug use and her choices placed her children at risk of harm. The dissent correctly recounts mother’s trial testimony that, “ ‘[a]s far as the way that we lived, I think that my children were always well taken care of as far as food, clothing. They had a place to sleep.’ ” 203 Or App at 674 (Deits, J. pro tempore, dissenting). Mother’s statement was in response to the question, “Do you believe your children suffered any damage, emotional or otherwise, as a result of your lifestyle in June of 2002?” But, as part of that very same answer, mother testified, “And I do believe that my choices have — have created harm to all of us, to even the community. But I have chosen to correct those choices.”¹⁰ Later, mother explained:

“The poor choices were, for one, using at all. And I actually have made poor choices, in my — my past relationships, and I’ve made poor choices in — definitely the people that I allowed to come into my home and be around my children.”¹¹

If the dissent’s selective portions of mother’s trial testimony were the only evidence regarding mother’s “thinking,” the dissent’s assertion that it is highly probable that her personality disorders affect her current ability to parent would be more persuasive. But Andrews’s, Carroll’s, and Kniskern’s credible testimony, along with mother’s entire testimony, conflict with any inference arising from selective portions of mother’s testimony and Ewell’s and Richardson’s testimony. By focusing only on selective portions of the record rather than the entire record, the dissent fails to acknowledge the mandate of the statutory language or heed the Supreme Court’s instructions in State ex rel SOSCF v. Stillman, 333 Or 135, 36 P3d 490 (2001), and State ex rel Dept. of Human Services v. Smith, 338 Or 58, 106 P3d 627 (2005).

Last year, the Supreme Court in Smith addressed the circumstance where, as in this case, there is an absence of evidence establishing a nexus between a parent’s mental disorders and the parent’s capacity to parent at the time of the termination hearing. In Smith, the court admonished, “[A court adjudicating the termination of parental rights] first must identify the parent’s conduct or condition, and then measure the degree to which that conduct or condition has had a seriously detrimental effect on the child.” 338 Or at 81. Under Smith, the state must prove more than the fact that mother’s condition was seriously detrimental to K’s welfare at some point in the past. Rather, the state must prove that her condition was seriously detrimental to K’s welfare at the time of the hearing. Id. at 83; see also Habas, 299 Or at 186 (holding that the evidence was insufficient to terminate mother’s parental rights where she suffered from periodic bouts of manic-depressive psychosis requiring medication and hospitalization because she “was never given the opportunity to ‘effect a lasting adjustment after reasonable efforts by available social agencies’ ”). As Smith makes clear, “perfection in parenting” is not required. 338 Or at 87. There is no evidence that mother’s rigidity or reactivity at the time of the hearing would have a serious impact on K’s welfare or would, in the Smith court’s words, be “worse than those of thousands of Oregonians who ultimately succeed, without state intervention, in raising their children safely.” Id.

Also, as the Supreme Court emphasized in Stillman, 333 Or at 146, the statutory requirements are meant to be “child-specific,” calling for “testimony in psychological and developmental terms regarding the particular child’s requirements.” Although the issue in Stillman involved the interpretation of the phrase “within a reasonable time,” the opinion directs courts to make a child-specific inquiry at all levels of analysis. The court therefore emphasized:

“[T]he focus of both parts of the test for termination under ORS 419B.504 is on the detrimental effect of the parent’s conduct or condition on the child, not just the seriousness of the parent’s conduct or condition in the abstract. Thus, the court first must identify the parent’s conduct or condition, and then measure the degree to which that conduct or condition has had a seriously detrimental effect on the child.”

Id. (emphasis added). Accordingly, the effect that mother’s mental disorders may have on K must be evaluated at the time of trial in light of K’s particular circumstances. Unlike many children exposed to drug environments, K is remarkably unscathed by mother’s prior home environment. There is no evidence that K has special needs that would present any challenges for mother beyond those ordinarily inherent in parenting. By all accounts, K is greatly bonded to mother and has consistently expressed her wish to return to mother’s custody. The photographic exhibits in the record of mother and K show family activities and birthday events with K participating in age-appropriate activities. Thus, there is little evidence that mother’s past conduct has had a seriously detrimental effect on K.

In summary, the record simply does not contain clear and convincing evidence that mother’s mental and emotional disorders, when separated from her drug abuse, have ever or will ever have a seriously detrimental effect on K. Indeed, mother is like thousands of parents in Oregon who are “in process” — parents who may initially fail to reckon with the potential consequences of their behavior on their children but are seeking to change their behavior to become better parents. The treatment providers and the DHS representative who had the most recent contact with mother uniformly believed that she possesses the required motivation to change and that she had demonstrated her ability to change based on her conduct and behavior from January 2003 to March 2004. On this record, there is, at a minimum, a competing inference that mother was able to adequately care for K in March 2004. That competing inference precludes a conclusion that it is highly probable that mother was an unfit parent as of March 2004 and that integration of K into mother’s home is improbable within a reasonable time. Accordingly, we reverse the trial court’s judgment terminating mother’s parental rights to K.¹²

Termination of mother’s parental rights reversed and remanded; otherwise affirmed.

1 The Department of Human Services also sought termination of father’s parental rights. He did not appear at trial or on appeal, and the judgment as to his parental rights is not at issue on appeal.

2 As will be discussed in more detail below, mother’s emotional illness consists of personality disorders, as contrasted to illnesses like psychosis, schizophrenia, or bipolar disorders.

3 Although the dissent emphasizes that mother’s report of pulling out her hair could be indicative of a condition called “trichotillomania,” neither Ewell nor Richardson conclusively diagnosed mother with that condition. Rather, Richardson made a “provisional diagnosis” in 1999 when he first saw her that “other factors needed to be eliminated first.” Ewell thought that there was an “issue involving this sort of behavior with — with her hair.” In any event, there is no evidence in the record that mother’s condition relating to her hair had any impact on her ability to parent K.

4 As discussed below, that is exactly what mother did thereafter.

5 There is no evidence that mother’s intellectual ability had any impact on mother’s ability to parent K. In fact, Ewell found that mother “presented as an individual of low average intellectual ability. * * * She should be capable of meeting the basic cognitive demands associated with parenting.” As described above, Richardson also found mother to be “relatively intact with relatively average cognition and processing.”

6 A letter from mother’s caseworker in March 2003 indicates that, “ [b] ecause of [Andrews’] mental health background, she was asked to see [mother] to help her stabilize as she is considered a dual-diagnosis counselor, and [mother] was having a lot of anxiety and difficulty stabilizing.” The letter further states that Andrews was working with mother “in what [Andrews] describes as an In House Mental Health Capacity * * *.”

7 Further, while Andrews never saw mother interact with K, she did observe mother interact with other children.

8 Mother’s “thinking errors,” as expressed in some of her trial testimony, appear to drive the dissent’s conclusion that she is an unfit parent. 203 Or App at 671-73 (Deits, J. pro tempore, dissenting). The dissent is correct that portions of her trial testimony, when referring mostly to past events, tended to minimize the risk that those past events created for K. The dissent infers from mother’s defensiveness at trial that mother is unable to understand the risks to which her behavior exposed her children. 203 Or App at 671-72 (Deits, J. pro tempore, dissenting). As discussed below, mother does acknowledge that she put K at risk. Moreover, Carroll was questioned extensively by the state’s attorney regarding mother’s thinking errors. Carroll never claimed that mother’s thinking errors had ended. But in the process of working with mother, Carroll said that mother came to the point of taking responsibility for the conditions that led to removal of K. Carroll opined, “I think that thinking errors are something that are challenged slowly, and I think [mother] made — began a process of changing her thinking.” According to the available diagnoses, mother suffers from a personality behavior pattern that is stress induced, causing her to panic and become defensive. It is equally inferrable that the examination of mother on the witness stand induced the defensiveness and minimization relied on by the dissent. Regardless, it simply does not reasonably follow from Carroll’s testimony that it is highly probable that mother will resume her prior behavior when mother has made significant progress in understanding her responsibility for her past actions.

9 The dissent seeks to divorce mother’s successful completion of her treatment for drug addiction from her personality disorders, claiming that the latter were left untreated. With respect, it belies common sense to believe that mother could perform as well as she did over an extended period of time after December 2002 in her therapy sessions, acquire full-time employment, and continue to visit her children in the manner described by Kniskem if her personality disorders render her as dysfunctional as the dissent asserts.

10 It also should be noted that, other than K’s comments that there were people at the house who ate all the food, there is no evidence that mother had failed to provide adequate food for K. During visits from DHS, and even during the raid, the refrigerator was stocked.

11 The dissent also relies heavily on the fact that, at the time of the termination hearing, Stevens, a known drug user with a criminal history, 203 Or App at 663 (Deits, J. pro tempore, dissenting), was living at mother’s home, 203 Or App at 670 (Deits, J. protempore, dissenting). Stevens was not living in mother’s “home” but in a separate cottage on the property owned by mother’s father. There is absolutely no evidence that Stevens ever posed a risk to K. Moreover, although he had a criminal record, the evidence indicated that his most recent conviction was in 1993.

12 Because of the passage of time between the termination hearing and the issuance of this opinion, there may be a need for the juvenile court to monitor the reintegration of K into mother’s home. We remand for that purpose.