Dept. of Human Services v. A. L. B. ( 2024 )

No. 298 May 8, 2024 467
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of A. D. F. D.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
A. L. B.,
Appellant.
Jackson County Circuit Court
23JU00082; A182137 (Control)
In the Matter of Y. L. M. D.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
A. L. B.,
Appellant.
Jackson County Circuit Court
23JU00084; A182138
In the Matter of N. Z. E. D.
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
A. L. B.,
Appellant.
Jackson County Circuit Court
23JU00085; A182140
Benjamin M. Bloom, Judge.
Submitted February 5, 2024.
G. Aron Perez-Selsky and Michael J. Wallace filed the
brief for appellant.
468 Dept. of Human Services v. A. L. B.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
Cite as 332 Or App 467 (2024) 469
ORTEGA, P. J.
Mother appeals from judgments terminating her
parental rights to each of her three children, A, Y, and N,
based on unfitness, ORS 419B.504.1 On appeal, mother does
not challenge the juvenile court’s determination that she is
unfit, but argues that the evidence is not sufficient to support
the court’s determination that termination of her parental
rights is in A’s, Y’s, and N’s best interest as required by ORS
419B.500. On de novo review, ORS 19.415(3)(a), we conclude
that termination is in the children’s best interests given
mother’s conduct and mental health conditions, their ongo-
ing effects on the children, the insecurity of their attach-
ment to her, and the reasons for concern regarding moth-
er’s capacity to cooperate with a permanent guardianship.
Accordingly, we affirm.
Our de novo standard of review for termination
cases “requires us to examine the record with fresh eyes
to determine whether the evidence developed below per-
suades us that termination is in [the children’s] best inter-
est,” which the Department of Human Services (DHS) must
establish by clear and convincing evidence. Dept. of Human
Services v. T. L. M. H., 294 Or App 749, 750, 432 P3d 1186
(2018), rev den, 365 Or 556 (2019).
Based on that standard, we briefly recount the rele-
vant facts, beginning with some background facts. Mother’s
family’s history with DHS began in 2016 when DHS removed A,
then mother’s only child, from parents’ care when A was
about seven months old, based on allegations of failure to
thrive. Shortly after A’s return to mother’s care in 2017,
DHS again removed A, along with a second child, Y, then
six months old, based on allegations which included that
parents had exposed the children to domestic violence. Both
removals resulted in the juvenile court exercising jurisdic-
tion over the children. A and Y returned to parents’ care in
December 2018, after 20 months in substitute care.
Prior to A’s and Y’s return, mother was diagnosed
with bipolar II disorder. The evaluator observed, among
1
Father is not a party in this appeal. Prior to the termination trial, he relin-
quished his parental rights to all three children.
470 Dept. of Human Services v. A. L. B.
other things, that mother easily lost her temper and strug-
gled with parenting skills. Mother engaged in services,
including parenting classes and dialectic behavioral therapy.
The dependency case was closed based on DHS’s request,
and mother decided to relocate to Ohio with the children
to be close to her relatives, including her sister, who helped
mother with the children in Ohio and who is the prospective
adoptive parent in this case.
Mother’s family eventually moved back to Oregon
and, in 2020, DHS removed A for a third time, along with
Y and N, mother’s youngest child, based on allegations that
mother physically abused the children. Mother admitted to
police that she bit A on the buttocks and occasionally bit
the other children’s fingers, and ultimately pled no contest
to fourth-degree assault.2 The juvenile court took jurisdic-
tion over the children, placed them in nonrelative substitute
care, and set up a plan for reunification with a concurrent
adoption plan. After a contested permanency hearing held
in 2022, about two years after that third removal, the court
changed the reunification plan to adoption. The children,
who had been in multiple and separate placements, were
living together in a stable placement with mother’s sister for
about a year and a half by the time of the termination trial.
She wishes to adopt them.
During the course of the proceedings, mother and
the children participated in individual psychological evalua-
tions and received various services, including mental health
counseling. Though mother denied abusing the children,
she admitted that they experienced trauma in her home
and asserted that she “take[s] some responsibility” for that
trauma. In her view, “at least 60” percent of the children’s
mental health issues “come[ ] from their dad” and “30/40”
percent come from her actions “dealing with their dad.”
Mother has been diagnosed with several mental
health conditions, including bipolar II disorder, as stated
above, and other personality disorder with paranoid, narcis-
sistic, and borderline traits. Those conditions have impacted
2
Although mother denied abusing the children at trial, the juvenile court
found credible the investigating officer’s testimony regarding mother’s admis-
sions to biting all three children. We defer to that credibility finding.
Cite as 332 Or App 467 (2024) 471
mother’s capacity to control her behaviors and take account-
ability for how her conduct led to removal of the children.
Although mother was prescribed medication for bipolar II
disorder, she denies that she suffers from that disorder and
stopped taking the prescribed medication. Mother’s evalua-
tors, psychologists Daniel Munoz and Claudia Lake, testi-
fied regarding the ways that mother’s mental health condi-
tions interfere with her ability to prioritize the needs of her
children and expressed concern that, despite treatment, her
conditions have not improved over time.
Moreover, evaluators, including Munoz, Lake, and
two other psychologists who evaluated the children, as
well as mother’s sister, testified to the ongoing impacts of
trauma on all three children. A needed counseling to pro-
cess trauma connected to mother’s assault. When he first
moved into mother’s sister’s home, he was very destructive
after visits with mother, would be up very late, was very
emotional and crying, and would destroy things in his room.
Y also experienced trauma from her experiences of neglect
and exposure to domestic violence and struggled with poor
boundaries, becoming overly familiar with strangers. N was
struggling with language development and the impacts of
physical abuse. Those evaluators agreed that all three chil-
dren needed permanency.
The children express reluctance to visit mother.
A demonstrates anxiety before visits and Y is very emo-
tional and has a hard time falling asleep after visits. A has
expressed that he wants to live with mother’s sister and,
when asked about mother, Y often changes the topic; she has
indicated that she would like parents to stop hitting each
other.
Mother’s sister expressed a preference for adoption
over a permanent guardianship because of difficulties in her
relationship with mother, who she describes as “very hostile”
and “constantly harassing.” Mother has frequently objected
to activities that mother’s sister has planned for the chil-
dren, including trips to visit relatives in Ohio over spring
break and Christmas break, both of which were approved
by the juvenile court. Regarding the Christmas trip, mother
informed DHS that she intended to “report the children as
472 Dept. of Human Services v. A. L. B.
missing” and “have charges filed” if they were not back by
a date that she specified, which was a day earlier than the
court had approved. The history of conflicts led mother’s sis-
ter to expect that there would be “[no] peace” with a guard-
ianship, though she acknowledged that contact with mother
could be possible post-adoption if the children wanted it and
if mother could engage them in a healthy way.
On appeal, mother concedes that she is unfit but
contends that termination is not in the children’s best inter-
est, urging that a permanent guardianship would better
provide for the children’s need for permanency. She main-
tains that she caused injury to A when she was under stress
that would not be present if the children remained in a
guardianship with her sister, notes that she engaged consis-
tently and safely in visitation with the children, argues that
concerns about her disrupting a guardianship are specula-
tive despite her contentious relationship with her sister, and
expresses concern that her sister might sever contact with
the children post-adoption for reasons inconsistent with the
children’s best interests.
After reviewing the record de novo, we are per-
suaded that DHS proved by clear and convincing evidence
that termination is in the children’s best interest. The evi-
dence establishes that mother’s conduct toward A was abu-
sive, and that A and Y continue to suffer trauma connected
to mother’s conduct and conditions and evince distress after
visits. Further, the children’s attachment to mother appears
to be insecure, and mother’s history of conflicts with her sis-
ter over decisions related to the children, along with mother’s
lack of progress in addressing her mental health conditions,
support valid concerns about her capacity to abide by bound-
aries set in her contact with the children. Circumstances
where, as in this case, a parent is making excuses for the
conduct that supports the finding of unfitness and demon-
strates a poor capacity to cooperate with the terms of a per-
manent guardianship counsel against a finding that a per-
manent guardianship serves the best interest of children.
We conclude that termination of mother’s parental rights is
in the children’s best interest on this record.
Affirmed.