Dept. of Human Services v. K. M. I. , 336 Or. App. 221 ( 2024 )

No. 820 November 14, 2024 221
This is a nonprecedential memorandum opinion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 C. M. E. I.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
K. M. I.,
Appellant.
Lane County Circuit Court
22JU05798; A183409 (Control)
In the Matter of B. A. I.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
K. M. I.,
Appellant.
Lane County Circuit Court
22JU05803; A183411
Karrie K. McIntyre, Judge.
Submitted October 4, 2024.
Aron Perez-Selsky filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Inge D. Wells, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, Powers, Judge, and
Pagán, Judge.
SHORR, P. J.
Affirmed.
222 Dept. of Human Services v. K. M. I.
SHORR, P. J.
Mother appeals from judgments terminating her
parental rights to her children, B and C, on the basis of
unfitness, ORS 419B.504, and that it is in the children’s best
interest that mother’s rights be terminated, ORS 419B.500.1
On appeal, mother does not contest the juvenile court’s
determination regarding her fitness to parent the children.
Rather, in two assignments of error—one for each child—
she challenges only the determination that termination of
her parental rights is in B’s and C’s best interest. We con-
clude that clear and convincing evidence establishes that
termination of mother’s parental rights is in the children’s
best interest. Accordingly, we affirm.
Our review is de novo under ORS 19.415(3)(a). “That
standard requires us to examine the record with fresh eyes”
to determine whether termination of mother’s parental rights
is in B’s and C’s best interest. Dept. of Human Services v. T.
L. M. H., 294 Or App 749, 750, 432 P3d 1186 (2018), rev den,
365 Or 556 (2019). Under the applicable clear-and-convincing-
evidence standard, “we must be persuaded by the evidence that
it is highly probable that termination” is in the children’s bests
interest. Id. The determination of whether terminating the
legal relationship between a parent and child is in the child’s
best interest “requires a fact-specific, child-centered inquiry,”
and we have previously identified several considerations that
inform that determination, including: “(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 terminating parental rights; and (4) the risk of harm to
the child posed by termination.” Dept. of Human Services v. L.
M. B., 321 Or App 50, 52, 53, 515 P3d 927 (2022). “Facts that
demonstrate the parent’s unfitness also may demonstrate that
it is in the child’s best interest that the parent have no further
relationship with the child.” Dept. of Human Services v. T. M. D.,
365 Or 143, 162, 442 P3d 1100 (2019).
On appeal, mother argues that the juvenile court
erred in determining that termination of her parental rights
was in the best interest of the children because (1) the chil-
dren were bonded to her, notwithstanding the significant
1
The father of B and C is deceased.
Nonprecedential Memo Op: 336 Or App 221 (2024) 223
impediments to contact, (2) mother was participating in ser-
vices that would permit her to enjoy a positive, mutually
beneficial relationship with her children, and (3) the evi-
dence did not describe why adoption, rather than perma-
nent guardianship, could not afford the same stability the
children require. In response, the Department of Human
Services (DHS) argues that the record does not support
mother’s argument that the children are so strongly bonded
to her that termination of her parental rights would be det-
rimental to them, that mother’s long history of substance
abuse and her failed attempts at treatment suggest that she
would be able to play only a minimal role in the children’s
lives, and that this is a case where termination of mother’s
rights in order to free the children for adoption is necessary
to provide B and C the consistent and permanent placement
they need.
Both children were taken into protective custody
in January 2021 based in part on concerns about domestic
violence and mother’s ongoing substance use. The juvenile
court took dependency jurisdiction over the children in April
2021, based on mother’s admissions that her substance
abuse and mental health issues interfered with her ability
to parent.2 At the time of the termination trial, which began
on October 26, 2023, B was eight years old and C was four
years old.
Mother has had long-term struggles with substance
use, including the use of cocaine, methamphetamine, her-
oin, and fentanyl. Mother was provided with referrals by
DHS for substance use treatment, but she was unwilling
to participate in inpatient treatment as recommended and,
although she attempted to participate in outpatient treat-
ment, she did not complete any treatment services and has
been unable to achieve and maintain sobriety since the
court took jurisdiction over B and C. There is evidence in the
record that without significant and substantive long-term
inpatient treatment, her prognosis to address mental health
issues and substance abuse issues is poor.
2
DHS was also previously involved with B after he was born, in part, due to
mother’s substance abuse.
224 Dept. of Human Services v. K. M. I.
During the pendency of this case, mother engaged
in supervised parenting time with both children until her
time with B was suspended in approximately June 2022 due
to B’s significant and dangerous behavioral issues associ-
ated with the visits, including running away from the adults
in the building and again in the parking lot; after that,
mother only had visits with C. Mother often appeared to be
under the influence of substances when she went to see the
children. The consultant who conducted a permanency eval-
uation for B and C observed two family visits in May 2022
and described them as “disastrous” and testified that out
of her experience in watching hundreds of hours of visits,
“they were some of the most unsafe and chaotic visits” that
she had observed; she recommended at that time that all
visits be stopped for the best interest of the children—both
emotionally and physically. Despite the fact that DHS would
intervene and attempt to redirect mother’s concerning
behaviors during visits, she would not change her behaviors.
B and C are in separate placements, and they do
not have a strong sibling bond. B is currently living with a
step-grandparent, who is an adoptive resource. When B was
moved into foster care, he struggled with emotional regula-
tion, behavioral outbursts, language delay, and social delay.
He has been diagnosed with Attention Deficit Hyperactivity
Disorder (ADHD), Inattentive Type, as well as a language
disorder and trauma and intermittent explosive disorders.
B needs a permanent placement with a family who can tol-
erate outbursts and work with providers to help B improve
emotional and behavioral regulation; his current placement
is willing to do so. Although B has made progress, he will
need ongoing professional intervention to address his issues.
C struggled with emotional regulation, behavioral
outbursts, language delay and social delay when she was
first moved to foster care. With effort and professional inter-
vention, her behaviors have stabilized, and she has made
considerable gains in language and social skills. She has
been diagnosed with reactive attachment disorder and will
likely struggle to form a close bond with caregivers. It is
extremely important for C to have a stable, permanent home
where she can fully attach to caregivers. C is currently
Nonprecedential Memo Op: 336 Or App 221 (2024) 225
living in a foster placement that is not an adoptive resource;
once she is freed for adoption, DHS can begin to locate an
appropriate adoptive resource for her.
On appeal, mother argues that notwithstanding the
opinion of DHS’s professional witnesses, the children’s own
words and behavior signaled that they were still bonded
to mother. DHS responds that there is ample evidence in
the record that establishes that the children do not have
a healthy bond with mother. Having reviewed the entire
record de novo, we agree with DHS that there is not a strong
bond or attachment between either child and mother. We
also agree with DHS that the evidence in the record sup-
ports a determination that it is unlikely that mother will
be able to achieve and maintain sobriety and play a posi-
tive role in the children’s lives, contrary to mother’s asser-
tion otherwise. Lastly, the evidence in the record supports
a determination that adoption, rather than guardianship,
is the appropriate plan to address the specific needs of both
children.
We conclude by clear and convincing evidence, as
did the juvenile court, that termination of the parent-child
relationship between B and mother and C and mother is in
the children’s best interest. Clear and convincing evidence
also supports the conclusion that the benefits to B and C
of ending their legal relationships with mother and freeing
them for adoption outweigh the risk of harm posed by sever-
ing the relationships.
Affirmed.