T. R. K. v. N. M. H. , 329 Or. App. 456 ( 2023 )

456 December 6, 2023 No. 648
This is a nonprecedential memorandum opinion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 the Adoption of
B. R. K., a Child.
T. R. K.
and T. D. K.,
Petitioners-Respondents,
v.
N. M. H.,
Respondent-Appellant.
Jackson County Circuit Court
20AP01303; A180833
Charles G. Kochlacs, Judge.
Submitted August 23, 2023.
G. Aron Perez-Selsky filed the brief for appellant.
No appearance for respondents.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
PAGÁN, J.
Reversed.
Nonprecedential Memo Op: 329 Or App 456 (2023) 457
PAGÁN, J.
Mother appeals a judgment granting a petition for
adoption of child, B, by father and stepmother without moth-
er’s consent. The judgment terminated mother’s parental
rights pursuant to ORS 109.322. On de novo review, we con-
clude that it was error to terminate mother’s parental rights
because the record does not demonstrate that B’s welfare
is best promoted through adoption. J. W. V. v. J. L. W., 324
Or App 393, 395, 525 P3d 1237 (2023) (holding that under
ORS 19.415(3), we conduct de novo review of termination of
parental rights). Accordingly, we reverse.
We begin by noting that a petition for adoption
ordinarily requires both parents to consent to the adop-
tion. ORS 109.301. However, as we held in Moran v. Weldon,
184 Or App 269, 274-76, 57 P3d 898 (2002), the statutory
exception, ORS 109.322, substitutes a parent’s consent if the
petitioner demonstrates that (1) the non-consenting parent
is imprisoned under a sentence for a term of not less than
three years and has actually served three years; (2) a ground
for termination of parental rights exists in addition to the
non-consenting parent’s imprisonment; and (3) if a ground
for the termination of parental rights exists, the welfare of
the child is best promoted through the adoption.
Here, the trial court held that the petitioners for
adoption prevailed under ORS 109.322 because mother
served over three years of a 75-month sentence for charges
arising from a car accident that resulted in the death of her
other child. The court concluded that mother’s offenses con-
stituted extreme conduct under ORS 419B.502(3) and that
it was in the best interest of the child to terminate mother’s
parental rights because B lives with father and stepmother,
refers to stepmother as “mom,” and has stability within his
current family unit.
Having reviewed the entire record, we conclude
that the trial court erred in granting the adoption because
father and stepmother did not meet their burden of demon-
strating that it was in B’s best interest to terminate moth-
er’s parental rights.1 See Simons et ux v. Smith, 229 Or 277,
1
Father and stepmother did not submit a brief for our review. Our character-
izations of their legal arguments are based on legal memoranda submitted to the
458 T. R. K. v. N. M. H.
284, 366 P2d 875 (1961) (“Adoption, of course, terminates all
such rights of the natural parents. Both common sense and
fundamental due process would suggest that such inchoate
rights should not be cut off without a substantial reason.”);
see also Moran, 184 Or App at 275 (“Termination is the
greatest possible deprivation of the fundamental right to be
a parent.”).
We acknowledge that any act or omission by a parent
resulting in a child’s death is profoundly serious. However,
mother demonstrated an understanding of the gravity of
her prior actions, and her conduct thereafter was consistent
with that conclusion. There is no evidence of any other crim-
inal activity or child welfare history. Father testified that he
did not have concerns about mother’s parenting until after
the collision, and even after the incident, father cited only
general concerns about mother’s lack of responsibility.
Furthermore, the evidence was insufficient to show
that it was in B’s best interest to terminate mother’s parental
rights. See Moran, 184 Or App at 273 (“[T]he court must * * *
find that the biological parent could not or would not provide
adequate love and care for the child or that the child would
suffer undue physical or psychological harm.”). Stepmother
stated that B calls her “mom” and testified that adoption
was in B’s best interest because they were “just a regular
family.” However, the record did not suggest that B would
be distressed or harmed by an ongoing relationship with
mother. Rather, the record demonstrated that mother still
had a strong bond with B, that mother was engaged in the
responsibilities of parenting B, and that the bond between B
and the purported adoptive parents was not so strong as to
pose a risk of harm to B if adoption was not granted.
Thus, for the above reasons, we conclude that it was
not in the best interest of B for the trial court to terminate
mother’s parental rights by granting the adoption.
Reversed.
trial court and our reading of the trial transcript.