Dept. of Human Services v. K. T. ( 2024 )

No. 520 July 31, 2024 55
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of K. M.-W. V.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
K. T.,
Appellant.
Marion County Circuit Court
22JU04732; A182578
Courtland Geyer, Judge.
Argued and submitted March 18, 2024.
George W. Kelly argued the cause and filed the brief for
appellant.
Jona J. Maukonen, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General; and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
56 Dept. of Human Services v. K. T.
ORTEGA, P. J.
Mother appeals from a judgment terminating her
parental rights to her daughter based on unfitness, ORS
419B.504.1 On appeal, mother argues that the Department
of Human Services (DHS) failed to establish that she is
unfit because it did not prove that child’s reintegration into
mother’s home was improbable within a reasonable time,
ORS 419B.504, and failed to prove that termination of her
parental rights is in child’s best interest, ORS 419B.500. On
de novo review, ORS 419A.200(6), ORS 19.415(3)(a), we con-
clude that there is a sufficient record to support both find-
ings and affirm the judgment terminating mother’s paren-
tal rights.
We recount the evidence as necessary to explain our
decision. The termination trial was in August 2023. Child
was born in November 2020 and has been in substitute
care with the same resource mother since shortly after her
birth. Since child’s birth, mother has lived with her partner,
Vergara, who is not child’s father.
Child was born with significant medical needs.
Mother took her home after her birth but had to return to
the hospital within a few days, and child was diagnosed
with failure to thrive. Mother did not understand the seri-
ousness of the diagnosis and what it meant and, prior to
the DHS’s involvement, was attempting to discharge child
from the hospital. While in the hospital, neither mother
nor Vergara could complete child’s feedings, but the nurses
could. Mother also refused DHS’s offer of in-home parenting
services, insisting that she did not need help. In mid-De-
cember, DHS placed child in substitute care with resource
mother, who is a nurse, and child began gaining weight.
Child has been diagnosed with several conditions,
including cerebral palsy, seizures, hip dysplasia, feeding
and acid reflux issues, hearing loss requiring hearing aids,
global developmental delay, autism, and legal blindness. She
underwent surgery on her eyes to replace the lenses and, at
the time of trial, was expected to have bi-lateral hip surgery
and surgery to receive a gastronomy tube for her ongoing
1
Child has no legal father.
Cite as 334 Or App 55 (2024) 57
feeding issues. Child takes three daily medications in liq-
uid form that address her reflux, constipation, and allergies,
and also requires daily eye drops.
Three months shy of her third birthday at the time
of trial, child’s neurodevelopment was around the age of
nine months. She interacts differently than other children;
she has five to ten words and has difficulty pointing, her
communication and eye contact are limited, she rarely cries,
and she does not cue for hunger. Although child does not
require a nurse caretaker, she does require a caretaker who
is very attentive because she is somewhat mobile and exhib-
its self-harm behaviors like head-banging, and she is at risk
for choking because she does not chew or swallow correctly.
Child’s limited communication means that she requires a
caretaker who can understand her subtle cues so that they
know when something is wrong. For example, child indicates
pain by balling up her fists and stimming, but she hardly
ever cries.
Child has five to eight medical appointments each
month, usually in Portland, and receives five different
in-home therapies at her home in Keizer through Willamette
ESD. The in-home therapies include speech therapy to
address her swallowing difficulties, occupational therapy for
day-to-day activities, physical therapy for gross motor skills
and movement, and hearing and vision therapy. Those ther-
apies range from once-a-week to twice-a-month and involve
hands-on coaching with child and her caregiver. To be effec-
tive, the caregiver must continue working with child outside
of therapy sessions. Without the therapies, child could stall
in her development, and she may need therapy long-term.
Mother is developmentally disabled, has a learning
disability, and receives monthly disability assistance. Past
testing assessed her as having a full-scale IQ of 63 and a
verbal score of 75. In April 2021, mother underwent a psy-
chological exam with Dr. Cook, during which she was unable
to perform simple math calculations and exhibited signs of
entirely concrete thinking and a deficient working memory.
Cook opined that she possesses intellectual impairments
of moderate severity and has symptoms consistent with
PTSD and depression. In Cook’s view, mother’s diagnoses
58 Dept. of Human Services v. K. T.
and personality features would make it difficult for her
to be a consistent parent, and she would need assistance
with child’s medications and appointments and with under-
standing instructions for her care. At trial, after observ-
ing mother’s testimony, Cook opined that mother, with her
long-standing cognitive and mental health issues, was not
understanding at a detailed level child’s significant needs
and how to address them.
Rodewald, who was mother’s caseworker from
February 2021 to October 2022, testified that she would try
to break up information for mother so that it was easier to
understand and would look up videos or websites that could
help explain child’s diagnoses and would provide mother
with those links. Rodewald also created a simplified list for
mother of all of child’s diagnoses and the services she was
receiving, including the therapies from Willamette ESD,
and informed mother of all of child’s medical appointments.
From July 2021 to January 2022, Rodewald arranged meet-
ings for mother, her attorney, and child’s various therapists
so that mother could learn more, but stopped those meetings
because mother found them overwhelming. At trial, mother
could not remember any of the information she obtained
from those meetings. Keating, mother’s caseworker from
October 2022 to August 2023, also notified mother of all of
child’s medical appointments, and arranged for mother to
meet with a clinical social worker to help her understand
child’s medical needs.
Mother has attended many of child’s medical
appointments and remotely attended child’s assessment
results with Willamette ESD. She has missed some appoint-
ments due to misunderstandings or other things going on in
her life. Mother testified that it is helpful to attend child’s
appointments because she can ask questions, though both
Keating and resource mother testified that mother rarely
asked questions at appointments. They both also expressed
concern that mother did not understand child’s medical con-
ditions because mother would say things indicating that
she thought child was developing normally and was more
focused on child’s clothes and hair than on learning about
child’s health. Mother has not been invited to attend child’s
Cite as 334 Or App 55 (2024) 59
in-home therapies with Willamette ESD, because resource
mother does not want mother in her home.
At trial, mother could not demonstrate an under-
standing of child’s needs. She did not know what medica-
tions child was taking and was not sure what kind of ser-
vices she needs. Mother testified that she needs to learn
more to parent child, such as learning about all of child’s
medical issues, but also testified that she was ready for child
to return home to her. She also described child as “very inde-
pendent.” Keating testified that mother has never acknowl-
edged child’s high needs or medical fragility.
Mother has consistently attended three weekly
supervised visits with child, for a total of four hours per
week. Vergara also attends those visits. For six months,
beginning in August 2021, mother received hands-on par-
enting training twice a week for about an hour during visits
with child. Initially, both mother and Vergara were misread-
ing child’s cues and mother would become frustrated with
child’s age-appropriate behavior. The goals of the training
included redirecting child, reading cues, child milestones,
stress strategies, parent-child attachment, encouragement
of feeding child, and floor time with child. Mother testified
that the training went “[v]ery well” and that she learned
how to redirect child, though she said she did not learn any-
thing else. The trainer testified that mother had made some
improvements in redirecting child, but would also ignore the
trainer’s suggestions during visits and remained inconsis-
tent, needing constant reminders to practice learned skills.
Vergara showed more improvement but did not take initia-
tive to interact with child. Due to mother’s limited progress,
DHS did not extend the service, which is typically only a
three-month service, beyond the six months. Mother refused
parenting services from Keating because mother considers
herself a good parent to child.
Visit supervisors testified that mother interacts
with child at visits, that the visits are pretty predictable,
and that there is a bond between mother and child. They
also testified that, over the course of the visits, mother’s par-
enting abilities stayed about the same. Mother also would
get upset and yell if visits began even a few minutes late
60 Dept. of Human Services v. K. T.
or if something changed, such as the person supervising
the visit. On one occasion, mother became upset with her
caseworker at the end of the visit and began yelling in front
of child, who became upset and was still upset when she
arrived back at resource mother’s home.
Mother was also referred to a parent mentor, but was
at times hostile toward the mentor and did not understand
the concept of a mentor, despite her caseworker explaining
it to her several times. After four months the service was
stopped given that mother did not want to continue.
State-provided services were also available to child
and mother through a direct support professional (DSP).
Mother qualifies for only 24 hours of support per month from a
DSP, which she can use for regular day-to-day support needs,
but not for help with childcare. Mother has a developmental
disability agent, who has referred her for a DSP, but mother
does not have one yet. At trial, mother did not understand
what a DSP could help her with and was not aware of other
disability services. Child qualifies for 24 hours per month of
DSP assistance for skill building, not to include childcare.
Mother testified that she has people in her life to
help her with child, including her mother, her sister, and
her cousins. However, the only thing she could identify that
those people could do is take her and child to doctor’s appoint-
ments. Vergara would also help her to take care of and par-
ent child. At the time of trial, mother and Vergara had been
living in a shared sober house for two years. Mother did not
have substance abuse issues, but said it was “the only place
I could go to get out of my mom’s house.” She testified that
she was ready for child to live with her, and that she just
needed to get her a bed. When Keating saw mother’s room, it
was very cluttered, and she did not see where child could be
cared for safely. She also never got information from mother
about her roommates, so that Keating could check whether
they were safe to be around child.
Resource mother testified that she and her husband
are interested in adopting child and that child is already
well-integrated into their family, which includes four
adopted children with high needs. DHS views her as the
Cite as 334 Or App 55 (2024) 61
potential adoptive parent and does not anticipate any prob-
lems in designating her as the adoptive placement. Resource
mother testified that the idea of a permanent guardianship
was raised with her, but she was not interested in a guard-
ianship because mother becomes frustrated very easily over
miscommunications, which could result in an altercation in
front of child. Resource mother testified that she has con-
cerns about mother’s ability to manage her frustrations;
mother will either yell or become aggressive or will refuse to
talk about what happened and leave. Child becomes upset
when mother yells in front of her, and resource mother
did not think it was in child’s best interest to expose her
to that. Resource mother testified that she was willing to
mediate an agreement with mother for visitation with child
post-adoption and recognized the importance of maintain-
ing that contact for child.
Dr. Towell, who conducted a psychological evalua-
tion of child, testified that child has an extraordinarily high
level of needs in both day-to-day care and in coordination
of her many appointments. Towell opined that children
with similarly high needs are vulnerable to challenges with
attachments and to having unhealthy attachments, and
that child has a higher need for permanency and for limiting
transitions than other children. He further stated that child
has a primary attachment to resource mother and that it is
important to limit any further transitions. With regard to
mother, Towell opined that “the research would not support
the existence of a primary attachment relationship [with
mother], but that certainly doesn’t negate the possibility of
a different type of relationship existing.”
The juvenile court terminated mother’s parental
rights. It determined that mother is unfit and that inte-
gration of child into mother’s home is improbable within a
reasonable time based on mother’s failure to make a last-
ing adjustment, to present a viable plan for child’s return,
and to learn the parenting skills needed to provide a safe
and stable home for child. The court emphasized that its
determination was not based solely on mother’s disability,
and also determined that termination was in child’s best
interest.
62 Dept. of Human Services v. K. T.
To terminate parental rights, the juvenile court
must find, by clear and convincing evidence, that the par-
ent is “unfit by reason of conduct or condition seriously
detrimental to the child” and that “integration of the child
* * * into the home of the parent * * * is improbable within
a reasonable time due to conduct or conditions not likely to
change.” ORS 419B.504. If the court finds that the parent is
unfit, it must also find by clear and convincing evidence that
freeing the child for adoption is in the child’s best interests.
ORS 419B.500. Here, mother challenges both findings of the
juvenile court. Because we review the record in proceedings
for termination of parental rights de novo, ORS 19.415(3)(a),
we must examine the record with fresh eyes to determine
whether the evidence developed below persuades us that it
is highly probable mother is unfit and that termination is in
child’s best interests. Dept. of Human Services v. L. M. B.,
321 Or App 50, 52, 515 P3d 927 (2022).
In her first assignment of error, mother argues that
DHS failed to prove that integration of child into her home
is not probable within a reasonable time. Mother asserts
that DHS failed to do two critical things to assist mother:
(1) it did not allow mother to participate in child’s in-home
therapies, and (2) it has not helped mother obtain develop-
mental disabilities services for her and child.
We are not persuaded. The record demonstrates
that, despite efforts to raise mother’s awareness about child’s
significant medical needs and assist her in developing skills
to parent child, mother continued to be unable to under-
stand child’s needs in any detail and failed to consistently
respond to child’s cues without prompting. Although mother
was not included in the in-home therapies, she was given
the opportunity to participate in regular meetings about
child’s needs, including meetings with child’s therapists, but
was unable to continue with those meetings because she felt
overwhelmed. At trial, mother could not remember any of
the information conveyed during those meetings, and she
could not identify child’s current services or medications.
In addition, at visitation, mother received six months of
hands-on parenting training, but still required constant
reminders throughout the training to use the skills she had
Cite as 334 Or App 55 (2024) 63
been taught. At trial, mother could only name redirection
as a skill that she learned after six months. Visit super-
visors also testified that her parenting skills stayed about
the same. Given mother’s history and minimal progress in
other services, we conclude that including mother in child’s
in-home therapies would not have appreciably improved
mother’s ability to integrate child into her home within a
reasonable time.
We similarly find that developmental disabilities
services would not make it likely that child could be inte-
grated into mother’s home within a reasonable time. The
record shows that mother qualified for 24 hours per month
of DSP assistance with her own day-to-day support needs,
not to include childcare, and that child qualifies for 24 hours
per month of DSP assistance for skill building, not to include
childcare. That level of assistance would not be sufficient to
address child’s significant daily care needs. The record also
indicates that it was unknown when a DSP or other disabil-
ity services provider could be available to mother or child,
and that mother did not know how a DSP could assist her.
On de novo review, we are persuaded that the evi-
dence is clear and convincing that mother is unfit to parent
child.
In her second assignment of error, mother argues
that DHS failed to prove by clear and convincing evi-
dence that terminating her parental rights is in child’s
best interests. She argues that she and child have a bond
and that resource mother could continue to care for child
as a guardian, while leaving her status as child’s mother
intact. Mother asserts that the juvenile court deferred to the
resource mother’s preference for adoption instead of making
the required best interests finding. Mother also challenges
DHS’s suggestion that, because a guardianship ends at age
21 and child will likely need care into adulthood, adoption is
in child’s best interests.
We first address DHS’s preservation challenge to
mother’s assertion that a guardianship is more appropriate
than adoption for child. Asserting on appeal that a specific
type of guardianship is the appropriate permanency option
64 Dept. of Human Services v. K. T.
for a child is an argument that should be preserved below
to develop a full record on this issue. See Dept. of Human
Services v. J. M.-A., 333 Or App 334, 335-36, ___ P3d __
(2024) (providing that the father’s references in the juvenile
court to a “guardianship” and his stated expectation that he
would have custody of the child did not preserve the argu-
ment that a permanent guardianship was in the child’s best
interest). We agree with DHS that mother did not preserve
her arguments on appeal that a guardianship was in child’s
best interests. Nonetheless, in addressing on de novo review
whether DHS established that termination is in child’s best
interests, we reiterate that “[c]ases where a parent is unfit
to be a custodial resource do not present us with a binary
choice between terminating the parent’s rights or returning
the child to that parent’s care, nor is adoption the only per-
manent option available to a child whose parent is unfit.”
Dept. of Human Services v. D. M. P., 317 Or App 529, 530,
504 P3d 1221 (2022). Rather, on de novo review, we must
examine the record ourselves and determine whether we are
persuaded that termination of mother’s parental rights is in
child’s best interests. L. M. B., 321 Or App at 52. With that
in mind, we do consider the issue of guardianship, to the
extent it was developed in the record, in our determination.
We ultimately are persuaded that termination of
mother’s parental rights is in child’s best interests.2 The
record establishes that child has developed a primary attach-
ment to resource mother, who wishes to adopt her. Although
mother and child have some type of bond, Towell opined that
it is not a primary attachment, and that opinion is supported
by other testimony in the record about child’s demeanor
with mother and others. Resource mother has adopted other
high-needs children and knows how to care for child and
access services for her. Resource mother is willing to nego-
tiate an agreement for ongoing contact between mother and
2
We reject DHS’s argument that adoption is superior to guardianship based
on the idea that a guardianship ends when a child turns 21 and this child likely
will need continued support as an adult. As we recently explained, although
adults with disabilities may rely on caregivers to advocate on their behalf, “there
is no clear legal requirement that imposes parental obligation to do so when a
severely compromised child reaches adulthood. Accordingly, the end of a ward-
ship when [a] child turns 21 does not establish that adoption is necessary to [a]
child’s best interests[.]” J. M.-A., 333 Or App at 340-41.
Cite as 334 Or App 55 (2024) 65
child and understands the importance of such contact for
children. The record establishes that mother becomes frus-
trated very easily over miscommunications and unexpected
changes, which causes mother to respond aggressively or to
disengage altogether, responses that would be harmful to
child and potentially disruptive in the context of a guard-
ianship for child. Towell also explained the importance of
minimizing any transitions for child and preserving child’s
primary attachment. On de novo review, given the circum-
stances of this child, on this record, we are persuaded by
clear and convincing evidence that termination of mother’s
parental rights is in child’s best interests, leaving child’s
adoptive parents to accommodate whatever continuing con-
tact with mother is in accordance with child’s best interests.
Affirmed.