Dept. of Human Services v. N. H. ( 2022 )

507
Argued and submitted August 16, affirmed October 26, petition for review
denied December 29, 2022 (370 Or 694)
In the Matter of S. L. A. H.,
aka S. H., a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
N. H.,
Appellant.
Multnomah County Circuit Court
19JU07460;
Petition Number T2019178;
A178130
520 P3d 424
Mother appeals from a judgment terminating her parental rights to
her daughter. Mother argues that the juvenile court erred in concluding that
(1) mother was unfit to parent, (2) the child’s reintegration into mother’s home
was improbable within a reasonable time, and (3) termination of mother’s paren-
tal rights was in the child’s best interest. Held: On de novo review, the Court of
Appeals concluded that the evidence was clear and convincing that, at the time
of the termination trial, mother was unfit to parent because her conduct had
seriously detrimental effects on the child and the child’s integration into mother’s
home was improbable within a reasonable time. The court further concluded that
termination of mother’s parental rights was in the child’s best interest.
Affirmed.
Patrick W. Henry, Judge.
Kristen G. Williams argued the cause and filed the briefs
for appellant.
Shannon T. Reel, 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, and Lagesen, Chief
Judge, and Joyce, Judge.
JOYCE, J.
Affirmed.
508 Dept. of Human Services v. N. H.
JOYCE, J.
Mother appeals from a judgment terminating her
parental rights to her daughter, S. Mother argues that the
juvenile court erred in concluding that (1) mother was unfit
to parent, (2) the child’s reintegration into mother’s home
was improbable within a reasonable time, and (3) termina-
tion of mother’s parental rights was in the child’s best inter-
est.1 On de novo review, ORS 419A.200(6); ORS 19.415(3)(a),
we affirm.
I. FACTS
A. Events Leading to Child’s Removal and Dependency
Jurisdiction
S was born in March 2018. She was transferred to
the newborn intensive care unit (NICU) shortly after her
birth because she needed a feeding tube. A few days later,
the hospital notified DHS of concerns about mother’s “cogni-
tive disabilities.” A DHS caseworker then began assessing
whether mother could appropriately care for S. Due to S’s
age and medical needs, DHS’s goal was to craft an in-home
plan for mother with a safety service provider who could
supervise and monitor child’s safety “24/7.”
During this time, mother became agitated that S
was being kept in the hospital. She stated that she planned
to bring S home, although hospital staff told her that S still
needed her feeding tube and was not ready to go home. At
one point, mother told hospital staff, “I don’t care what any-
one says, I’m coming up there to take my baby home and you
can’t stop me.”
Because there were not enough safety services in
place to ensure an in-home plan, and because mother was
unable to follow directions from hospital staff and nurses
regarding S’s medical needs, about 10 days after S’s birth,
1
Mother assigns error to the sufficiency of the evidence in proving that
mother neglected S under ORS 419B.506. We reject that argument without fur-
ther discussion because although the juvenile court included reference to the
allegation of neglect, the court’s written judgment relies solely on the ground of
mother’s unfitness under ORS 419B.504.
Cite as 322 Or App 507 (2022) 509
DHS filed a petition in juvenile court to have the court take
jurisdiction over S. In April 2018, the court found S within
its jurisdiction based on mother’s admissions that she has
an anger control problem that interferes with her ability to
safely parent the child and because the child has no legal
father. Later, DHS filed an amended petition for dependency
jurisdiction and the court found additional jurisdictional
bases based on mother’s admissions that she has “limited
cognitive abilities” and the “child has specialized medical
needs [m]other is unable or unwilling to provide for, inter-
fering with her ability to safely parent.”
After S was discharged from the hospital, DHS
placed S in a nonrelative foster home.
B. DHS Involvement and Mother’s Performance in Services
Mother participated in a neuropsychological and
psychological evaluation with Dr. Poppleton in October
2018. Poppleton diagnosed mother with a provisional mod-
erate intellectual disability, other specified trauma and
stressor-related disorder, and neglect of a child. He noted
that mother’s assessment results indicated that mother had
“significant cognitive and neuropsychological impairment
across all domains assessed, including verbal abilities,
immediate and delayed memory, visual-spatial skills, and
attention.” Her “non-verbal, problem-solving skills [were]
also significantly compromised.” Poppleton concluded that
mother’s “parenting weaknesses are related to that of her
cognitive capacity[,]” and recommended that mother have a
good support system, “such as a daily check-in support per-
son. Monitoring should be frequent, consistent, and long-
term.” Poppleton considered it positive that mother “has
been agreeable with her social workers” and that she was
“assertive, desires independence, and actively seeks sup-
port.” Poppleton also noted that mother “appear[ed] to have
good coping skills in place to help manage her anger[,]” and
“is proactive in seeking independence and support[.]” He was
“impressed with [mother’s] level of insight given her cognitive
limitations.”
Over the first year of S’s life, mother’s permanency
worker, Aviv, worked to find an adult foster home that could
510 Dept. of Human Services v. N. H.
facilitate an in-home plan for both mother and child, but
she was unable to find a suitable one.2 Meanwhile, to help
mother address her parenting skills, Aviv referred her to a
program specifically designed for parents with intellectual
disabilities at Family Skill Builders. Mother engaged in the
one-on-one hands-on parent training, which is designed to
teach mother how to safely care for S. Family Skill Builders
recommended three rounds of classes; mother declined to
attend the third round, stating that “she didn’t have any-
thing else to learn.” After mother declined continuing the
class, Aviv observed that her parenting skills regressed.
During a community visit, mother dropped S and S was
injured. As a result, DHS reduced community visits and
then moved mother’s visits back to the DHS office for social
service assistant (SSA) supervision.
Mother’s visits were sporadic. She missed her visits
so frequently that DHS suspended her visits several times.
When mother did attend visits, DHS personnel had to stay
in the same room with mother and S for safety reasons. The
SSA observed that mother was not able to understand S’s
needs and was not receptive to feedback. For example, during
one visit, S almost fell over onto the floor twice because
mother did not support S in sitting up, although the SSA
had repeatedly reminded mother to do so. To further help
mother understand S’s needs—which, as we describe below,
are extensive—DHS invited S’s foster parent to each fam-
ily decision meeting to explain to mother all of S’s current
medical diagnosis and needs in therapy. Aviv also invited
mother to the child’s medical appointments and expanded
visitations for all of S’s early intervention appointments, but
mother failed to attend most of those.
Additionally, based on Poppleton’s evaluation,
DHS referred mother to a licensed professional counselor,
Enticknap, who was experienced working with people with
developmental disabilities. Enticknap worked with mother
from May 2019 through July 2021. At trial, Enticknap tes-
tified that mother made progress on anger management,
2
Aviv personally called every adult foster home in Oregon—185 homes—to
see if they would be willing to allow mother to stay there with S, but they all
declined. Mother proposed some of her friends and neighbors as safety service
providers, but those persons were not suitable.
Cite as 322 Or App 507 (2022) 511
communication with her own mother and advocating for
herself, and she had secured an apartment. But Enticknap
noted that mother’s engagement in therapy was inconsis-
tent, and she was concerned about mother’s independent
functioning and decision making.
In July 2021, mother put S in a “time out” that S did
not understand. S then refused to attend the next visit. As a
result, DHS referred mother to Family Skill Builders again
for therapeutic visits. Mother attended all visits and demon-
strated “some understanding of attachment” and “showed
affection through words and touch.” However, mother did
not demonstrate an adequate understanding of S’s spe-
cial needs and limitations. The service provider noted that
mother appeared to expect “unrealistic language or atten-
tion abilities” from S.
On the advice of a disability advocate, mother
began seeing a different therapist, Johns, in August 2021.
Johns specializes in trauma and in attachment relation-
ships, parenting, behavioral issues, and brain differences.
She provided individual therapy to mother and child-parent
psychotherapy services for mother and S. Mother regu-
larly attended her twice weekly sessions with Johns. Johns
observed that mother consistently made progress with
frustration tolerance, emotional regulations, and self-care,
and Johns believed that mother demonstrated ability with
problem-solving. In observing mother’s interactions with
S, Johns described that mother made progress in reading
S’s facial expressions and body language and that she was
“attentive, responsive, gentle” with S. Johns testified that,
although mother and S were not really connecting in the
beginning, the attachment improved over time. However, by
the time of the termination trial, Johns noted that they had
not yet begun to work on improving mother’s ability to safely
parent S and she could not predict when they would begin to
address that.
In addition to the services that DHS provided to
mother, she has also received ongoing developmental dis-
ability support since at least 2015. Mother’s assessed needs
included keeping her safe and healthy, hygiene support,
accessing medical care, transportation, communication,
512 Dept. of Human Services v. N. H.
housekeeping, and support accessing in the community and
employment. Mother is not required to use any of the ser-
vices for which she qualifies. Rather, the services were pro-
vided at her requests. Mother frequently chose to not access
services. Specifically, mother declined to work with a behav-
ioral support specialist who analyzes what triggers certain
behaviors and helps a client prevent escalating behavior.
Mother also chose to not access services from a represen-
tative payee who could help her manage her money and
declined supportive living, such as a group home or adult
foster home, even at a time when she was homeless.
C. S’s Circumstances
At the time of the termination trial in January
2022, S was four years old. She has global developmental
delays and may need lifelong assistance due to a potential
unknown genetic disorder that is being monitored. She
exhibits challenging behaviors that demand individual
attention and can be difficult to manage. As an infant, S
needed physical therapy to help strengthen her muscles
to sit up, crawl, walk, and to overcome sensory challenges
and issues with self-regulation. She was difficult to soothe,
demonstrated frustration by screaming, and threw tan-
trums where she hit her head against the wall. She wore a
compression vest to help calm her down when she was over-
whelmed and used wrist weights to draw. S also attended
weekly speech therapy because she had “moderately delayed
receptive language skills and significantly delayed expres-
sive language skills.”
By the time of trial, S’s speech was improving,
although she remained difficult to understand and would
become frustrated when others did not understand her. In
addition to therapy, S also had appointments with her regu-
lar pediatrician, developmental pediatrician, eye doctor, and
geneticist. S qualified for developmentally disabled services.
In October 2020, S participated in a “best interest”
evaluation with Dr. Bennett. Bennett observed that S was
healthfully attached to her foster mother, with whom she
has been with most of her life and who wants to adopt her.
Due to S’s communication delays, Bennett noted that S had
a heightened need for a strong attachment. Any disruptions
Cite as 322 Or App 507 (2022) 513
in her bond with her primary caregiver will lead to her
developing long-term trust issues and likely make her “more
withdrawn, more avoidant, more anxious.” In addition, she
opined that, given S’s significant special needs, S needed a
consistent home environment with a reliable caregiver who
would respond to her consistently, keep appointments, and
be a strong advocate for her in the school to make sure that
she gets the services that she needs.
D. Mother’s Circumstances at the Time of Trial
At the time of the trial, mother had just started a
new job. She had changed five jobs in the previous month.
Mother testified that she did not need a job coach because
the coach just helped her communicate with her employer
and she believed that she should be able to do it herself. As
for living conditions, mother was living in a one-bedroom
apartment. She failed to pay her rent in the month before
trial and sought assistance to help her with the apartment
power bill.3 Although mother acknowledged that budget-
ing was a challenge for her, she insisted on doing it herself
because she valued her independence.
E. Termination of Parental Rights Trial
The juvenile court held the termination of parental
rights trial in January 2022, approximately four years after
S’s birth. The juvenile court found that DHS had demon-
strated by clear and convincing evidence that mother was
unfit by reason of mother’s conduct or condition that is seri-
ously detrimental to the child and that the child’s integra-
tion into her home within a reasonable time was improba-
ble. ORS 419B.504. The court then determined that on the
evidence presented, freeing S for adoption was in her best
interest. ORS 419B.500.
Mother now appeals, challenging each of the juve-
nile court’s conclusions.
II. ANALYSIS
To terminate a parent’s rights on the basis of unfit-
ness, a court must find, by clear and convincing evidence,
that (1) the parent is “unfit by reason of conduct or condition
3
Mother had been evicted twice for failure to pay rent.
514 Dept. of Human Services v. N. H.
seriously detrimental to the child or ward”; (2) “integration
of the child or ward into the home of the parent or parents is
improbable within a reasonable time due to conduct or condi-
tions not likely to change”; and (3) termination is in the child’s
best interest. ORS 419B.504; ORS 419B.500. “Evidence is
clear and convincing if it makes the existence of a fact highly
probable or if it is of extraordinary persuasiveness.” State
ex rel Dept. of Human Services v. A. M. P., 212 Or App 94, 104,
157 P3d 283 (2007) (internal quotation marks omitted).
A. Mother’s Unfitness
A parent’s fitness is measured at the time of the
termination trial. State ex rel Dept. of Human Services v.
Smith, 338 Or 58, 83, 106 P3d 627 (2005). Whether a par-
ent’s conduct or condition has had a seriously detrimental
effect on the child is meant to be “child-specific” and calls
for “testimony in psychological and developmental terms
regarding the particular child’s requirements.” State ex rel
Dept. of Human Services v. Huston, 203 Or App 640, 657, 126
P3d 710 (2006). For example, “minimally adequate parent-
ing skills may be different for a severely disabled child from
those for a child that has no disabilities.” State ex rel SOSCF
v. Wilcox, 162 Or App 567, 576, 986 P2d 1172 (1999).
Additionally, and as particularly relevant here, a
parent’s rights cannot be terminated solely because a par-
ent has a disability. Rather, ORS 419B.504(1)(f) permits a
court to consider a parent’s “mental health condition” only if
that condition is “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.504(2) further
provides:
“The court may not consider a parent’s disability, as
that term is defined in the Americans with Disabilities Act
of 1990 (42 U.S.C. 12101 et seq.), unless the parent’s con-
duct related to the disability is 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.”
(Emphasis added.)4
4
The Americans with Disabilities Act defines “disability” to include a “men-
tal impairment that substantially limits one or more major life activities of [the]
individual.” 42 USC § 12102(1)(A). A “mental impairment” may include “[a]ny
Cite as 322 Or App 507 (2022) 515
Those statutes work in tandem to limit how (and
whether) a court can consider a mental health condition
when that mental health condition qualifies as a disability
under the Americans with Disabilities Act (ADA): A court
cannot consider a parent’s disability alone as a basis to ter-
minate parental rights, but it may consider evidence of a
parent’s conduct if that conduct interferes with the parent’s
ability to provide proper care for the child for extended peri-
ods of time. That holds true even when that conduct is based
on or caused by a disability.5
In light of that framework, we must determine
whether mother’s intellectual disability and trauma disor-
der, as reflected in her conduct, is of such nature and dura-
tion as to render her incapable of providing for S. On de novo
review, we are persuaded that the evidence is clear and con-
vincing that, despite some recent progress, mother is pres-
ently unfit to parent S.
The evidence at trial demonstrated that mother
has made some of the progress that would be necessary to
safely parent. Mother’s second therapist, Johns, noted that
mother demonstrated improvement with frustration toler-
ance, emotional regulation, and self-care. Johns also stated
that although S was worried and not really connecting with
mental or psychological disorder such as intellectual disability, organic brain
syndrome, emotional or mental illness, and specific learning disability.” 28 CFR
§ 35.108(b)(1)(ii). “An impairment that substantially limits one major life activity
need not limit other major life activities in order to be considered a disability.”
42 USC § 12102(4)(C).
5
We note that ORS 419B.504(2)’s legislative history confirms our reading
of the statute. Section 2 was added to ORS 419B.504 in 2018. Senate Bill (SB)
1528 was introduced due to concerns that the statute, as previously written,
placed the burden on a parent to prove that any disability they possessed did
not make them unfit to parent. Disability Rights Oregon (DRO) worked with leg-
islators on the bill with the intent of ensuring that DHS is required to prove
that the parent’s disability renders the parent “incapable of providing proper
care for the child or ward for extended periods of time.” Audio Recording, Senate
Committee on Human Services, SB 1526, Feb 6, 2018, at 13:00 (statement of Bob
Joondeph, DRO Executive Director), https://olis.oregonlegislature.gov (accessed
Oct 19, 2022). The bill’s sponsors emphasized the need for the state to show that
a parent’s conduct is sufficiently detrimental to their children before removing
children—let alone terminating parental rights—regardless of disability. Audio
Recording, House Committee on Human Services and Housing, SB 1526, Feb 20,
2018, at 02:34 - 08:40 (statements of Sen Sara Gelser and Sen Tim Knopp), https://
olis.oregonlegislature.gov (accessed Oct 19, 2022).
516 Dept. of Human Services v. N. H.
mother in the beginning, mother remained attentive and
the attachment started to improve over time.
However, despite mother’s recent progress, there is
clear and convincing evidence that at the time of the trial,
mother struggles to internalize lessons she has been pro-
vided in developing her parenting skills, lacks insights into
S’s extensive ongoing needs, fails to respond to S appropri-
ately, and is unable to provide for her own basic needs or
a safe and stable home for S. As noted above, S is a child
who suffers from severe developmental delays “in every
area.” The consensus among S’s “best interest” evaluator,
therapist, caregivers, and caseworker was that S needs a
highly skilled caregiver who understands the child’s needs,
is able to implement the strategies that the therapist is
working on with S, and who will care for her in the long
term. Considering S’s significant developmental delays, a
caregiver without the necessary skills will be detrimental
to S’s progress and skill development.
Yet those are the needs that mother failed to demon-
strate that she can meet at the time of the trial. Despite
years of parenting assistance and classes, mother has been
unable to absorb necessary parenting information and gain
insights into S’s special needs. For example, mother insisted
that S was ready to be potty trained. However, the testimo-
nies from caseworkers and S’s foster mother clearly demon-
strated that S was not ready; in fact, when the foster mother
tried to engage in potty training with S, S would “freak out,
scream, say no, hide.” Similarly, during the trial, although
mother was aware of S’s developmental delays, she never-
theless testified that if S were returned to her care, she
would put S in “day care” while she was at work. Mother’s
testimony reflected that she fails to understand that due to
S’s developmental delays and needs for therapy, the child
cannot attend day care at this point.
In addition, mother injured S by dropping her on
her head and in another instance, she put S in a “time out”
that S did not understand, which resulted in S “absolutely
refus[ing] to get into the car” at the next visit. S has signif-
icant communication delays, which make her more “vulner-
able as a young child” due to her inability to communicate
Cite as 322 Or App 507 (2022) 517
a problem, a threat, or a feeling. Her caregiver’s ability to
recognize S’s needs and nonverbal cues is critical to ensure
S’s safety and health. Yet mother’s ongoing cognition lim-
itations, reflected in her inability to gain insights into the
child’s developmental level and ongoing need for therapy,
are detrimental to S’s development and future progress.
Mother also fails to provide a viable plan for caring
for S through outside support and exhibits unwillingness to
accept the developmental disability services that are avail-
able to her. Because of her intellectual disability, mother
requires social support to maintain her basic needs, but she
frequently chooses not to access the support available to her,
believing that she does not need services such as budget-
ing, behavior support specialist, or job coaching. Despite an
abundance of evidence to the contrary, mother testified that
she would be able to independently parent S and said that
that was because S “[is] a toddler[.] [I]t’s a lot more easier
to * * * parent her.” As mother put it at trial, she knew that
support is available, and she can ask for help, “but I choose
not to.” Mother further testified that she had not talked to
her support network, including her mother, personal ser-
vices worker, a disability rights advocate, and her individ-
ual therapist, about their coming to support her to parent
S because she was leaving it until she had custody. For the
people mother identified, mother acknowledged that none of
them would be available to help her with necessary daily
parenting needs. In all, mother continued to fail to under-
stand the limits on her ability to function independently and
to meet S’s ongoing needs.
Mother argues that in finding her unfit, the trial
court and DHS “impermissibly focused on mother’s intellec-
tual disability and Poppleton’s 2018 evaluation as the basis.”
We disagree. As described above, the trial court may con-
sider evidence of mother’s conduct related to the disability
if that conduct is “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.504(1)(f);
see also State ex rel SOSCF v. Mellor, 181 Or App 468, 477,
47 P3d 19 (2002), rev den, 335 Or 217 (2003) (diagnosis is
not enough; “there must also be evidence that the illness or
518 Dept. of Human Services v. N. H.
disorder renders the parent incapable of providing proper
care for the child for extended periods of time” (internal quo-
tation marks omitted)).
Here, the evidence shows that mother’s mental ill-
ness renders her incapable of providing proper care. At trial,
Poppleton testified that mother’s disability and mental con-
ditions negatively affected her abilities to use logic and judg-
ment to problem-solve, and to respond to things in a rational
manner. Those skills, as Poppleton noted, “are especially cru-
cial for parenting young children.” He explained that there
was a gap between mother’s abilities and S’s high needs and
that the way to bridge the gap was “either through internal
change of the individual, or it comes through some form of
support in their lives to be able to compensate for the inabil-
ity to make those changes.” However, as just described, the
record shows that mother failed to overcome the parenting
impediments that Poppleton identified, despite all the ser-
vices provided to her over the years. Framed slightly dif-
ferently, mother’s conduct—reflected in mother’s testimony
at trial and her performance during visits and parenting
classes—continues to be seriously detrimental to S, and
thus establishes her parental unfitness.
B. Integration of Child into Mother’s Home within a Reason-
able Time
When the parent is unfit, the court must consider
whether it is improbable that the child can be reintegrated
into the parent’s home within a reasonable time. State ex rel
SOSCF v. Stillman, 333 Or 135, 145-46, 36 P3d 490 (2001).
ORS 419A.004(26) defines “reasonable time” as “a period of
time that is reasonable given a child[’s] * * * emotional and
developmental needs and ability to form and maintain last-
ing attachments.”
Here, we are persuaded that it is improbable to
integrate S into mother’s home within a reasonable time.
Despite years of parenting assistance and classes, mother
still fails to respond appropriately to S’s cues, lacks any
understanding of her needs, and remains incapable of safely
caring for her without assistance. Given that almost four
years have passed since S’s removal, it is unlikely that
those conditions and conduct will change such that S could
Cite as 322 Or App 507 (2022) 519
be integrated into mother’s care within a reasonable time.
See Dept. of Human Services v. C. P., 285 Or App 371, 381,
396 P3d 278, rev den, 362 Or 94 (2017) (“Given the long-
standing and intractable nature of father’s personality dis-
order and the high probability that father will not be able to
safely parent the children, it is improbable that the children
can be integrated into father’s care within a reasonable
time.”).
To be sure, Johns, who had been working with
mother for about six months at the time of trial, provided
positive feedback on mother’s progress in improving her
parenting skills. However, as Johns acknowledged, she had
not yet begun to work with mother on the recommendations
that Bennett made about how to safely care for S and she
could not predict when they would begin to address them. At
the time of the trial, mother was still working on the initial
steps to build an attachment with S.
Under those circumstances, we conclude that DHS
provided clear and convincing evidence that S’s integration
into mother’s home is improbable within a reasonable time.
See Dept. of Human Services v. R. K., 271 Or App 83, 93, 351
P3d 68, rev den, 357 Or 640 (2015) (parent’s recent progress
in treatment and commitment to change does not overcome
other evidence of unfitness and, considering all the circum-
stances, it was improbable the child could be returned to the
parent’s care within a reasonable time).
C. Best Interests of the Child
We further conclude that termination of mother’s
parental rights is in the child’s best interest. ORS 419B.500
provides that “[t]he parental rights of the parents of a ward
may be terminated * * * only * * * if the court finds it is in the
best interests of the ward[.]” The “best interest” inquiry is
not weighted with a presumption in favor of adoption solely
because mother is found to be unfit. Dept. of Human Services
v. T. M. D., 365 Or 143, 161, 442 P3d 1100 (2019). That deter-
mination is instead focused on the needs of the child, taking
into consideration the unique circumstances of each case.
Id. at 166; see also Dept. of Human Services v. J. S. E. S., 315
Or App 242, 244-45, 501 P3d 556 (2021), rev den, 369 Or 209(2022) (reiterating that the best interest determination is
520 Dept. of Human Services v. N. H.
“focused on the needs of the child” and concluding that keep-
ing open an option of a permanent guardianship was not in
the child’s best interest given the parent’s current capacity).
Ultimately, to conclude that termination is in a child’s best
interest, we must be able to conclude that “the benefits to
the child of ending the child’s legal relationship with a par-
ent 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).
The record in this case is clear that S is thriving in
the care of her foster parents, who want to adopt her. S has
significant needs that require ongoing therapy, social sup-
port, and a highly skilled caregiver who is responsive to her
needs and who can advocate for additional services as she
grows. S’s current caregivers demonstrate a commitment to
S and insight into taking care of her special needs. Further,
S is bonded with her foster mother, who she has lived with
most of her life. Because of S’s developmental delays, Bennett
noted that S was more vulnerable to any attachment dis-
ruptions and that the longer S’s attachment to her current
providers grows, the more detrimental a change in perma-
nency would be to her later. Bennett recommended that S be
placed with a permanent caregiver without further delay.
Conversely, S has spent most of her life out of moth-
er’s care and is not strongly bonded to her. At the time of
the trial, mother demonstrated a continued lack of insight
into S’s developmental delays and need for ongoing thera-
peutic interventions. To be sure, a parent’s unfitness to
be a custodial resource does not present us with “a binary
choice between terminating the parent’s rights or return-
ing the child to that parent’s care”—a permanent guardian-
ship is one other potential permanent arrangement. Dept.
of Human Services v. D. M. P., 317 Or App 529, 530, 504
P3d 1221 (2022). But the record here does not demonstrate
that S had an interest in maintaining her legal relationship
with mother and we are not persuaded that S was attached
to mother by the time of the termination trial. Cf. Dept. of
Human Services v. D. E. P., 315 Or App 566, 571, 502 P3d
764 (2021) (concluding that the record lacks clear and con-
vincing evidence that termination is in the child’s best inter-
ests given that “B is attached to mother, and maintaining
Cite as 322 Or App 507 (2022) 521
a relationship with mother is important to B’s well-being”).
Evidence also shows that S was injured during a visit with
mother and that mother’s contact with S outside a therapeu-
tic environment caused S emotional struggles. For instance,
S’s foster mother testified that the visits with mother were
doing “a lot of damage” to S. S’s developmental delays and
high needs for proper care, together with mother’s inability
to safely parent and lack of understanding of S’s needs, put
S’s health and skill development at risk. Accordingly, we are
persuaded that the benefits to S of ending the legal relation-
ship with mother clearly outweigh any risk of harm posed
to S by a termination. We thus conclude that termination of
mother’s parental rights is in S’s best interest.
Affirmed.