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

No. 722 October 9, 2024 443
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of L. C., aka L. C.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
L. C. B.,
aka L. C. B., aka L. B., aka L. C. B., aka L. C.,
Appellant.
Multnomah County Circuit Court
22JU04537;
Petition Number T2022096;
A183675
Xiomara Y. Torres, Judge.
Argued and submitted August 14, 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 Tookey, Presiding Judge, Egan, Judge, and
Kamins, Judge.
KAMINS, J.
Reversed.
444 Dept. of Human Services v. L. C. B.
KAMINS, J.
Father appeals a judgment terminating his paren-
tal rights to his three-year-old child, L. On appeal, father
does not challenge the juvenile court’s determination that
he is unfit to parent L, ORS 419B.504; rather, he challenges
the juvenile court’s determination that terminating his
parental rights is in L’s best interests. The juvenile court
determined that termination, rather than a permanent
guardianship,1 would be in L’s best interests, because the
adoptive parents were not willing to parent L as permanent
guardians. On appeal, all parties appear to agree that that
finding was not supported by the record.
As explained below, evidentiary deficits prevent us
from concluding that DHS met its burden to demonstrate
that it is highly probable that terminating L’s legal rela-
tionship with father is in L’s best interest. Consequently, we
reverse.2
A parent’s rights can be terminated only if the
court finds that termination is in the child’s best interests.
ORS 419B.500(1). We do not presume that adoption is the
best outcome for every child who lacks fit parents; rather,
we must consider the needs and circumstances of the indi-
vidual child. Dept. of Human Services v. T. M. D., 365 Or
143, 161-63, 166, 442 P3d 1100 (2019). Termination is appro-
priate only if the court determines that “the benefits to the
child of ending the child’s legal relationship with a parent
outweigh the risk of harm posed to the child by severing
that legal relationship.” Dept. of Human Services v. L. M. B.,
321 Or App 50, 53, 515 P3d 927 (2022).
We review the record de novo, a standard that
“requires us to examine the record with fresh eyes” to deter-
mine whether the evidence developed below persuades us
1
A permanent guardianship would permanently prevent father from taking
custody of L and deprive father of any mechanism to change that status, but would
preserve the legal relationship between father and L. Dept. of Human Services v.
T. M. D., 365 Or 143, 164-65, 442 P3d 1100 (2019) (citing ORS 419B.365; ORS
419B.368(7)).
2
The juvenile court also terminated mother’s parental rights to L. In a sepa-
rate case decided today, Dept. of Human Services v. L. B., 335 Or App 452 ___ P3d
___ (Oct 9, 2024), in which mother challenged the termination of her parental
rights, we vacated and remanded for reconsideration.
Nonprecedential Memo Op: 335 Or App 443 (2024) 445
that “it is ‘highly probable’ that severing the legal relation-
ship” is in the child’s best interest. Id. at 52 (quoting Dept. of
Human Services v. T. L. M. H., 294 Or App 749, 750, 432 P3d
1186 (2018), rev den, 365 Or 556 (2019)).
We consider several factors to determine whether
termination of parental rights is in the child’s best interests
over a permanent guardianship: “(1) the strength of the bond
between the parent and child; (2) whether severing that bond
will help or harm the child; (3) the benefits to the child of ter-
minating parental rights; and (4) the risk of harm to the child
posed by termination.” Id. at 53. As to the first factor—the
strength of the bond between father and L—father engages
in weekly two-hour visits with L and there is no dispute that
the visits are positive; father is engaged at those visits, and
L looks forward to seeing father. DHS does not dispute that
a positive bond exists between father and child but contends
that that factor does not weigh in favor of father, because
the bond is not of “primary attachment.” It is true that L’s
primary attachment is to the resource parents with whom
he has lived his entire life. That a child’s bond is not of pri-
mary attachment, however, is not the decisive factor. T. M.
D., 365 Or at 165 (observing that bond between child and
mother weighed against termination even when child “has a
good albeit very limited relationship with [m]other” (internal
quotation marks omitted)). That L is bonded to father weighs
against terminating the legal relationship, albeit to a lesser
extent than if father was L’s “primary attachment.”
Factor two—whether severing that bond would help
or hurt the child—weighs in favor of father. The perma-
nency evaluator, Dr. Sage, testified that severing the bond
would cause L confusion and emotional distress. Cf. Dept.
of Human Services v. A. L. B. , 332 Or App 467, 472, 549
P3d 39, rev den, 372 Or 720 (2024) (termination in child’s
best interests when children “continue to suffer trauma con-
nected to mother’s conduct and conditions and evince dis-
tress after visits”); Dept. of Human Services v. J. S. E. S.,
315 Or App 242, 243, 501 P3d 556 (2021), rev den, 369 Or
209 (2022) (termination in child’s best interests when child
“becomes emotionally dysregulated and cries inconsolably
in nearly every visit [with parent]”).
446 Dept. of Human Services v. L. C. B.
Third, we consider the benefits to the child in sev-
ering the relationship. DHS asserts two benefits for L: (1) L
needs the type of permanency that adoption provides and (2)
it will benefit L to have the same status as his three siblings,
who also live in the resource parents’ home as adoptees. As
DHS acknowledged at oral argument, there is no evidence in
the record to demonstrate L’s need for permanency; rather L
shares the same need for permanency as all children. That
is not sufficient evidence to justify termination; rather DHS
must adduce evidence of a need specific to L. T. L. M. H.,
294 Or App at 752-53 (“[T]he juvenile code does not permit
decisions to terminate parental rights to hinge on abstract
notions of permanency. Rather, the juvenile code demands
a persuasive factual showing that termination of parental
rights to a particular child is in that child’s best interest,
in view of the particular needs and circumstances of the
child.”).
As to DHS’s second reason—that severing the bond
is in L’s best interests because it allows L to have the same
status as his three siblings living in the resource home—
Sage testified that maintaining the same status would be
beneficial to L. However, those siblings (who, unlike L, had
lived with their biological parents) already have significant
differences in parenting status from L, including a medi-
ated plan that did not, at the time of the termination trial,
authorize any visits with parents. Additionally, L has a half-
sibling who lives in the house who, at the time of trial, had a
permanency plan of reunification, not adoption. While pre-
serving the similarities in relationships that are inherently
different may offer some benefit to L, the extent and signif-
icance of those benefits is hypothetical; testimony establish-
ing that terminating the bond between father and L would
be detrimental to L is concrete. See, e.g., Dept. of Human
Services v. D. F. R. M., 313 Or App 740, 746, 497 P3d 802,
rev den, 368 Or 702 (2021) (finding that “the record does not
establish by clear and convincing evidence that child’s need
for permanency demands that he have the same legal status
that his siblings have”).
In light of our recent case law, we find that there
are evidentiary deficits in this record that prevent us from
Nonprecedential Memo Op: 335 Or App 443 (2024) 447
concluding that DHS met its burden to demonstrate that
it is highly probable that terminating L’s legal relationship
with father is in L’s best interest. See, e.g., L. M. B., 321
Or App at 52 (“[T]he record simply is not complete enough
for us to make the call that it is ‘highly probable’ that the
benefits to [child] of severing her legal ties with mother out-
weigh the risks to her posed by severance.”); T. L. M. H., 294
Or App at 751-52 (concluding that the evidence in the record
did not persuade us that termination was in the child’s best
interest, where child was bonded to parent and DHS did not
adduce child-specific evidence as to why termination was
superior to permanent guardianship). Because of those evi-
dentiary deficits, we reverse.
Reversed.