Dept. of Human Services v. A. D. G. , 314 Or. App. 290 ( 2021 )

290
Argued and submitted July 7, affirmed September 9, 2021
In the Matter of M. J. G.-P., Jr.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
A. D. G.,
Appellant.
Lincoln County Circuit Court
19JU06932; A175430
499 P3d 139
Mother appeals a judgment terminating her parental rights to her now three-
year-old son, M. M was born prematurely and had been affected by mother’s
drug use while pregnant. The Department of Human Services (DHS) removed
M from his mother’s care and initially placed him with his mother’s sister after
the sister was granted certification for a temporary and emergency placement.
Initially, mother’s sister showed interest for full certification, but later rescinded
her willingness to participate. Since then, M has had a history of transitions
from caregiver to caregiver. A termination hearing took place and the juvenile
court terminated mother’s parental rights. On review, mother does not dispute
that M could not be returned to mother’s care. Rather, she argues that “reunifi-
cation” is understood broadly to include the reunification of a child with a parent
who, because of personal deficits, opts to rely on family members to provide care.
Held: On de novo review, the Court of Appeals affirmed the juvenile court’s ter-
mination decision. That court’s conclusion was also influenced by DHS’s rep-
resentation at oral argument before the Court of Appeals that mother’s sister,
though not eligible to be approved as guardian, could be considered as an adop-
tive placement.
Affirmed.
Sheryl Bachart, Judge.
George W. Kelly argued the cause and filed the brief for
appellant.
Jeff J. Payne, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
Cite as 314 Or App 290 (2021) 291
LAGESEN, P. J.
Affirmed.
292 Dept. of Human Services v. A. D. G.
LAGESEN, P. J.
Mother appeals a judgment terminating her paren-
tal rights to her now three-year-old son, M. On de novo
review, ORS 419A.200(6); ORS 19.415(3)(a), we affirm.
The Department of Human Services (DHS) removed
M from mother’s care shortly after his birth. M was born
prematurely and had been affected by mother’s drug use
while she was pregnant. Mother wanted M to be with her
sister, and, initially, DHS placed M with mother’s sister
after it was able to grant her sister temporary, emergency
certification. After DHS requested background checks—for
the purpose of full certification—on two people with whom
mother’s sister lived, mother’s sister withdrew her request
for certification and returned M to DHS. M was placed
with another foster family. Mother’s sister later reapplied
for certification, but DHS was not able to grant certification
because of “collateral information that we had * * * about a
history of domestic violence and current domestic violence.”
DHS also was not able to certify mother’s sister as a poten-
tial guardian for M.
At the time of the termination hearing, which took
place over several months, it was undisputed that M could
not be returned to mother’s care. M was thriving in his fos-
ter placement, and attached to his foster parents, but they
were not available as a permanent placement for him, so
DHS was—or would be—in the position of seeking a per-
manent placement for M. Dr. Towell, who evaluated M,
opined that, in light of M’s history of multiple placement
transitions from caregiver to caregiver, the fact that M
was facing a transition from the care of his current foster
parents to whom he was attached, and M’s developmental
stage, it was critical for M’s next transition to be into a per-
manent placement so that he could form long-term attach-
ments with his caregivers. Towell explained, among other
things, that “[t]he risks for a child who does not have the
opportunity to build a secure attachment are very high,
and we hope to have a child in one consistent home so that
they have the opportunity to build such an attachment as
soon as possible.” Towell also explained that, given M’s
particular needs, which included the need for some early
Cite as 314 Or App 290 (2021) 293
intervention services, he required a “skilled and consistent
caregiver.”
Although mother acknowledged that she, herself,
could not care for M, she urged the juvenile court not to ter-
minate her parental rights. She contended that terminating
her rights would result in M’s ties to his family being sev-
ered and that the court should decline to terminate to allow
mother more time to explore how to ensure that M be placed
with her sister. Following the hearing, the court took the
matter under advisement and later issued a letter opinion
ruling that mother’s rights be terminated.
On appeal, mother challenges the juvenile court’s
termination decision. Relying on Dept. of Human Services
v. L. L. S., 290 Or App 132, 413 P3d 1005 (2018), mother
argues that the concept of “reunification” is understood
broadly to include the reunification of a child with a par-
ent who, because of personal deficits, opts to rely on family
members to provide care. Thus, she contends that we, on
de novo review for clear and convincing evidence, should not
be persuaded that reunification is improbable. For similar
reasons, mother argues that we should not be persuaded
that termination is in M’s best interests because of the risk
that termination will mean that M’s contact with his family
will be severed.
As noted, our review is de novo. “That standard
requires us to examine the record with fresh eyes to deter-
mine whether the evidence developed below” persuades us
that it is highly probable that the disputed elements of DHS’s
termination case are present. Dept. of Human Services v.
T. L. M. H., 294 Or App 749, 750, 432 P3d 1186 (2018),
rev den, 365 Or 556 (2019). In other words, our role is more
or less the same as the juvenile court’s in an appeal of a
termination decision. Id. at 750 & n 1 (discussing how, on
de novo review, our role is the same as the juvenile court’s
role, and how it differs).
This case involves a termination of mother’s rights
for unfitness under ORS 419B.504. To terminate parental
rights under that statute, a juvenile court must find, by
clear and convincing evidence, ORS 419B.521(1), that (1) the
294 Dept. of Human Services v. A. D. G.
parent is “unfit by reason of conduct or condition seriously
detrimental to the child or ward,” ORS 419B.504; (2) inte-
gration of the child into the home of the parent or parents is
improbable within a reasonable amount of time due to con-
duct or conditions not likely to change, ORS 419B.504; and
(3) termination is in the child’s best interest, ORS 419B.500.
On appeal, mother does not contest the juvenile court’s
determination that she is not fit. Instead, she challenges the
latter two determinations: that M’s reintegration into her
home is improbable within a reasonable amount of time and
that it is in M’s best interest that mother’s rights be termi-
nated. Both of mother’s arguments hinge on her desire for M
to be placed with her sister.
We are persuaded that M cannot be reintegrated
into mother’s home within a reasonable amount of time,
even viewing reintegration broadly to include any private
arrangements mother might make to have her sister care
for M. Mother expressed an interest in formally placing
M in her sister’s care from the start through some sort of
private arrangement. A DHS worker dealing with her case
responded that she should consult her attorney about that
option. Yet, during the more than two-year period between
M’s removal and the close of the termination trial, mother
did not pursue a private adoption or guardianship, and she
testified at trial that her objective, at least for part of that
time, was to have M in her custody.
We are also persuaded that termination is in M’s
best interests. In particular, we are persuaded by Towell’s
testimony that M needs permanency and that it is critical
that it happen soon so that he can form attachments to his
caregivers. Mother, herself, cannot supply that permanency,
nor can M’s foster family supply it. DHS determined that it
could not approve a guardianship with mother’s sister—a
determination that is not before us—and no other potential
guardians have been identified. In view of those factors and
keeping in mind that it is DHS’s burden to show by clear and
convincing evidence that termination of mother’s parental
rights is in M’s best interests, we are persuaded that termi-
nation of mother’s parental rights is in M’s best interest so
that DHS can find a permanent home for him and help him
make the transition from his foster family to his adoptive
Cite as 314 Or App 290 (2021) 295
family. However, our conclusion in that regard is influenced
by DHS’s counsel’s representations at argument that moth-
er’s sister, though not eligible to be approved as guardian,
could be considered as an adoptive placement.1 Although
neither we, nor the juvenile court, are empowered to direct
DHS’s placement decisions, see ORS 419B.337 (“[T]he court
may place the ward in the legal custody of [DHS] for care,
placement and supervision.”); Dept. of Human Services v.
S. E. K. H./J. K. H., 283 Or App 703, 706-07, 389 P3d 1181
(2017) (reiterating ORS 419B.337), given DHS’s representa-
tion that mother’s sister has not been ruled out as an adop-
tive resource, we expect that DHS will evaluate her as a
potential adoptive resource and take into account the value
to M of maintaining the bond with his aunt that the record
suggests has been established.
Affirmed.
1
DHS’s counsel explained at oral argument that the adoption procedure had
not taken place yet and that “no one has been approved, no one has been ruled
out, including [mother’s sister and her husband] or any other family member
for that matter.” Shortly thereafter, counsel reiterated that “again I go back to,
[mother’s sister] has not been ruled out as * * * an adoptive placement, so there—
there’s nothing in here showing that she is not going to have any relationship
with the child anymore.”