Dept. of Human Services v. D. E. P. ( 2021 )

566
Submitted July 27, reversed November 10, 2021
In the Matter of B. L. S. R.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
D. E. P.,
aka D. P., aka D. P. L.,
Appellant.
Jackson County Circuit Court
20JU02133; A175362
502 P3d 764
Mother appeals from a juvenile court judgment terminating parental rights
to her child, B, who was nearly nine years old at the time of the termination
hearing. On appeal, she challenges the juvenile court’s finding, necessary to
its judgment, that termination of her parental rights was in B’s best interest.
Held: Given B’s attachment to mother and the availability of permanent guard-
ianship, the juvenile court erred in finding that terminating mother’s parental
rights was in B’s best interest.
Reversed.
Timothy C. Gerking, Judge.
G. 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 Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
ORTEGA, P. J.
Reversed.
Cite as 315 Or App 566 (2021) 567
ORTEGA, P. J.
Mother appeals from a juvenile court judgment ter-
minating parental rights to her child, B, who was nearly nine
years old at the time of the termination hearing. On appeal,
she challenges the juvenile court’s finding, necessary to its
judgment, that termination of her parental rights was in B’s
best interest. Given child’s attachment to mother and the
availability of permanent guardianship, we conclude that
the juvenile court erred in finding that terminating mother’s
parental rights was in B’s best interest. Accordingly, we
reverse the judgment of termination.
We review the facts de novo, ORS 19.415(3)(a), and
we recount only those facts necessary to give context to our
ruling. The juvenile court took jurisdiction of B and her two
older siblings nearly two years before the termination trial,
when B was seven years old. During those nearly two years,
B has been in a stable foster placement. As mother does not
contest, B has thrived in that placement and is bonded to
her foster mother, Morgan, who would like to adopt B.
Mother has a history of problematic drug use and is
a victim of domestic violence, and B was removed from the
home as a result of those issues. Mother’s drug use resulted
in arrests, criminal convictions, periods of incarceration,
and a term of probation. She started drug treatment several
times with minimal success. Throughout the life of the case
mother was in and out of a relationship with her abuser and
was in communication with him within the week before the
termination hearing. Mother acknowledged at the hearing
that she was not yet in a position to be a custodial resource
for B but felt that she could be ready within six months.
She also stipulated to the allegation that she was “unfit by
reason of conduct or conditions seriously detrimental to the
child,” but asserted that terminating her parental rights
was not in B’s best interest.
Mother participated in visits with B while the case
was pending, although she missed visits for months at a
time, which was troubling for B. B also had regular con-
tact with her siblings, who were in a different placement.
There was no dispute among the trial witnesses that B and
her siblings were all strongly bonded to mother and desired
568 Dept. of Human Services v. D. E. P.
to live with her. Although the majority of witnesses recom-
mended adoption, they all recognized that maintaining a
relationship with mother would be beneficial to B. The DHS
permanency worker, Rouhier, testified to having confidence
that Morgan would encourage a relationship between B
and mother even after adoption, and Morgan affirmed that
intention.
With regard to permanency, the testimony of key
witnesses does not reflect an accurate understanding of a
permanent guardianship as a placement option that would
be permanent. Morgan testified that she wants to adopt B
because she believes B deserves permanency and a place
where she belongs, but also acknowledged that no one had
explained to her, and she did not understand, the difference
between a guardianship and a permanent guardianship.
Dr. Munoz, who evaluated B, testified that psychologists do
not recommend adoption or guardianship, but rather offer
descriptions of conditions that a child needs. He explained
that he was not using the word “adoption” but opined that
the “best plan for [B] is the one that can provide her with the
most durability, consistency, and predictability.” Rouhier
testified that she recommended adoption because of concerns
with delays from permanency and because adoption “gives
children the highest level of permanency and * * * every
child thrives in the highest level of permanency.” Rouhier
expressed the understanding that mother could continually
challenge any guardianship and that the caregivers would
be required to defend it.
Although the juvenile court stated its intent to focus
on the best interest of B, its ruling focused more on mother’s
faults. The court stated:
“I do find there’s a need for durability, consistency and
predictability. I do find that mother is not credible. She has
admitted that she exposes her kids to unsafe people. * * *
“There was also testimony about adoption being the
strongest form of permanency or termination. I’m not
ordering adoption. The child’s obviously adoptable. And
concerns about the posture about setting up a contested
guardianship. But I think more telling from what the State
argued in rebuttal was that the child’s attorney is saying
that adoption is in the child’s best interest.
Cite as 315 Or App 566 (2021) 569
“I do find that [the child’s attorney] is correct in that
[B] does love both moms. I do find that she has stated that
there is a preference, but * * * she’s an eight year old. * * *
It’s my decision. And looking at this through the lens of
best interests, I absolutely find that it’s in her best interest
to proceed to termination, and it’s been proven by clear and
convincing evidence. [B] does have anxiety. She is vulnera-
ble. She has blossomed in * * * foster care.”
The court went on to discuss mother’s codependency issues
and her “dual diagnosis” in the context of mental health and
addiction. It clarified, “I’m not terminating her parental
rights because she’s a victim of domestic violence, I’m termi-
nating her parental rights because it affects [B].” The court
continued that B “needs a caregiver with skills necessary
to access services and children do best in the permanent
placement.” It concluded,
“[mother’s] aspirations, you know, her aspirations should
not rule over what is in [B’s] best interest. I agree that the
relationship with the birth mother is beneficial, but there
is just no way, given the testimony and the evidence that
was presented, that I don’t think that termination of Mom’s
parental rights would be in her best interest.”
On appeal, mother argues that termination of her
parental rights is not in B’s best interest because (a) B is
strongly bonded to mother and would suffer serious loss if
their relationship was severed; (b) there is no evidence that
mother ever subjected B to cruelty or abuse; (c) B’s psychol-
ogist and permanency caseworker both testified that she
would benefit from continuing her relationship with mother,
and termination jeopardizes that relationship; and (d) there
is no evidence that a permanent guardianship could not be
implemented.
DHS counters that the trial court did not err in
finding that termination was in B’s best interest. According
to DHS, despite B’s undisputed attachment to mother, she
has high needs and requires stability and permanency.
DHS maintains that adoption “will enable [B] to maintain
her relationship with mother, while also giving her the
safety, stability and permanency that mother is unable to
provide.” It contends that there “is every reason to believe
that mother would not agree to a permanent guardianship,
570 Dept. of Human Services v. D. E. P.
she would attempt to disrupt it, and it would not provide [B]
with the stability she needs.”
Parental rights may be terminated under ORS
419B.500 only upon a finding that it is highly probable that
doing so is in the particular child’s best interests. Dept. of
Human Services v. T. L. M. H., 294 Or App 749, 750, 432 P3d
1186 (2018), rev den, 365 Or 556 (2019). DHS must make that
showing by clear and convincing evidence. Id. Reviewing
de novo, we “examine the record with fresh eyes to deter-
mine whether the evidence developed below persuades us
that termination is in [the child’s] best interests.” Id.It is well established that a permanent guardianship
is a permanent arrangement that may not be challenged by
a parent and that adoption is not the only means of fulfilling
a child’s need for permanency. Dept. of Human Services v.
T. M. D., 365 Or 143, 165, 442 P3d 1100 (2019) (noting that a
permanent guardianship may only be vacated on the court’s
own motion or on the motion of a party other than a parent,
and then only in the child’s best interests); see also Dept. of
Human Services v. M. H., 306 Or App 150, 164, 473 P3d 1152,
1159 (2020) (rejecting the notion that permanency can only
be achieved through adoption and concluding that courts “do
not assume that severing a child’s legal relationship with a
legally unfit parent is necessary to that child’s best interest
without evidence”); Dept. of Human Services v. D. F. R. M.,
313 Or App 740, 745, 497 P3d 802 (2021) (concluding the
same and finding that the record lacked clear and convinc-
ing evidence that child’s best interests demanded that moth-
er’s relationship with the child should be legally severed).
Thus, we reject DHS’s oft-repeated argument, in this and
other cases, that adoption is the “most permanent option”;
all permanent options are permanent for these purposes,
and the assumptions of various witnesses and the juvenile
court in this case about mother’s ability to disrupt a perma-
nent guardianship are incorrect.
We conclude that the juvenile court erred in decid-
ing that DHS had met its burden to establish by clear and
convincing evidence that termination of mother’s paren-
tal rights is in B’s best interest. In reaching that conclu-
sion, we reject the premise underlying the juvenile court’s
Cite as 315 Or App 566 (2021) 571
determination, that permanency can only be achieved by
terminating mother’s parental rights. As the Supreme
Court explained in T. M. D., and as we emphasized in M. H.,
306 Or App at 164, a permanent guardianship is not a tem-
porary arrangement, and DHS’s contention that there is
reason to believe that mother would disrupt a guardianship
is based on a false premise.
Moreover, as all witnesses acknowledged, B is
attached to mother, and maintaining a relationship with
mother is important to B’s well-being. We give significant
weight to the importance of preserving a child’s relation-
ship with her biological parent where that is possible to do
consistent with her best interests. See D. F. R. M., 313 Or
App at 746. Here, the record lacks clear and convincing evi-
dence that B’s best interests require severance of mother’s
legal relationship with her so that any further contact is
entrusted entirely to the good will of an adoptive parent.
Although DHS and the court appear to have assumed that
B’s proposed adoptive parent would allow further contact,
that does not substitute for the required evidence that B’s
best interest requires termination of mother’s parental
rights; it is the court’s responsibility to protect a child’s best
interests, not to assume that the child’s future adoptive par-
ents will do so, especially armed with a court finding that
the child’s best interest requires termination of the child’s
legal relationship with the biological parent. Id. at 746-47.
We conclude, on de novo review, that DHS failed to estab-
lish, by clear and convincing evidence, that termination of
mother’s parental rights is in child’s best interest.
Reversed.