Dept. of Human Services v. L. M. B. ( 2022 )


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  •                                        50
    Submitted May 23, reversed and remanded July 27, 2022
    In the Matter of A. G. B.,
    a Child.
    DEPARTMENT OF HUMAN SERVICES,
    Petitioner-Respondent,
    and
    A. G. B.,
    Respondent,
    v.
    L. M. B.,
    Appellant.
    Multnomah County Circuit Court
    20JU04758;
    Petition Number 12020121;
    A177110
    515 P3d 927
    Mother appeals a judgment terminating her parental rights to her daughter, A.
    A was removed from mother’s care when she was around 10 months old and has
    since been with the same foster care parents. On appeal, mother does not chal-
    lenge the juvenile court’s determination that, under ORS 419B.504, grounds for
    terminating her parental rights are present. Rather, mother challenges only
    the determination under ORS 419B.500 that termination is in A’s best interest.
    Held: On de novo review under the applicable clear-and-convincing-evidence
    standard of proof, the Court of Appeals majority was not persuaded that it was
    highly probable that termination of A’s legal relationship with her mother is in
    A’s best interest.
    Reversed and remanded.
    Amy Holmes Hehn, Judge.
    G. Aron Perez-Selsky filed the brief for appellant.
    Ginger Fitch and Youth, Rights & Justice filed the brief
    for respondent A. G. B.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
    Solicitor General, and Inge D. Wells, Assistant Attorney
    General, filed the brief for respondent Dept. of Human
    Services.
    Cite as 
    321 Or App 50
     (2022)                            51
    Before Powers, Presiding Judge, and Lagesen, Chief Judge,
    and Hellman, Judge.
    LAGESEN, C. J.
    Reversed and remanded.
    Powers, P. J., dissenting.
    52                       Dept. of Human Services v. L. M. B.
    LAGESEN, C. J.
    Mother appeals a judgment terminating her paren-
    tal rights to her daughter A; A is now three years old but
    was not quite three at the time of the termination trial. A
    was removed from mother’s care when she was around 10
    months old and has been with the same foster care parents
    since. On appeal, mother does not challenge the juvenile
    court’s determination that, under ORS 419B.504, grounds
    for terminating her parental rights are present. Rather,
    mother challenges only the determination under ORS
    419B.500 that termination is in A’s best interest. For the
    reasons that follow, a majority of the three of us is not per-
    suaded by the evidence in this record that it is in A’s best
    interest to terminate mother’s parental rights. We therefore
    reverse and remand.
    Our review is de novo. ORS 419A.200(6); ORS
    19.415(3). “That standard requires us to examine the record
    with fresh eyes to determine whether the evidence developed
    below persuades us that termination is in [A’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). Because the
    standard of proof is clear-and-convincing evidence, we must
    be persuaded that it is “highly probable” that severing the
    legal relationship between A and her mother is in A’s best
    interest. 
    Id.
     As we have explained, “our role in resolving
    the question of [a child’s] best interest is, for the most part,
    identical to that of the juvenile court.” 
    Id.
     (internal footnote
    omitted). Put another way, when we review de novo, we are
    not performing our more typical appellate-court function
    of assessing whether the evidence before a trial court was
    legally sufficient to support its ruling. Rather, we are decid-
    ing for ourselves whether the case made by the party with
    the burden of persuasion persuades us that that party has
    proven its case.
    Whether terminating the legal relationship between
    a parent and a child is in the child’s best interest requires
    a fact-specific, child-centered inquiry into how termination
    likely will affect the particular child: “[T]he juvenile code
    demands a persuasive factual showing that termination of
    parental rights to a particular child is in that child’s best
    Cite as 
    321 Or App 50
     (2022)                                53
    interest, in view of the particular needs and circumstances
    of the child.” Id. at 753. Significantly, the Supreme Court
    has explained that even when a parent is unfit to parent a
    child, making reunification unlikely or impossible, there is
    no presumption that, because of the parent’s unfitness, it is
    in the child’s best interest that the parent’s rights be termi-
    nated. Dept. of Human Services v. T. M. D., 
    365 Or 143
    , 161-
    63, 442 P3d 1000 (2019). Rather, whether termination is in
    a child’s best interest must be determined on a case-by-case
    basis. 
    Id.
    Case law identifies several considerations that
    inform whether terminating a child’s legal relationship
    with a parent is in the child’s best interest. Those include
    (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.
    See 
    id. at 163-66
     (examining child’s bond with mother and
    mother’s family, the benefits of maintaining that bond, and
    whether stable caregiving relationship would be available
    in absence of termination to assess whether termination
    was in child’s best interest); see also T. L. M. H., 
    294 Or App at 751-52
     (concluding that record was inadequate to
    permit meaningful evaluation of whether termination was
    in child’s best interest, where child was attached to parent
    and the Department of Human Services (DHS) failed to
    develop “evidence that would permit a meaningful evalua-
    tion of whether and how [the child’s] attachments can be
    preserved in a manner consistent with his permanency
    needs”). Ultimately, to be able to conclude that termination
    is in a child’s best interest, we must be able to determine
    with confidence that the benefits to the child of ending the
    child’s legal relationship with a parent outweigh the risk of
    harm posed to the child by severing that legal relationship.
    In our view, the evidence developed by DHS in
    support of its case that termination is in A’s best interest
    does not allow for the fulsome inquiry needed to determine
    whether the benefits of permanently ending A’s legal rela-
    tionship with mother outweigh any risks to her posed by
    termination. The evidence is persuasive that it is in A’s best
    54                              Dept. of Human Services v. L. M. B.
    interest to remain long-term with her current caregivers,
    with whom she is thriving, and to whom she has formed an
    attachment, the severing of which could be detrimental to A.
    But the evidence shows that A has a bond with mother and
    calls her “mama”; and has different names for her care-
    givers.1 Moreover, A’s caregivers are willing to maintain A’s
    relationships with her biological family, provided boundar-
    ies are in place. Under those circumstances, to be convinced
    that it is highly probable that termination is in A’s best inter-
    est, we would need to know more about the likely effects of
    termination on A. Although DHS presented evidence that a
    benefit to A of termination would be that her current care-
    givers could adopt her, DHS did not develop evidence that
    allows for a meaningful evaluation of the risks, if any, posed
    to A of severing her legal ties to mother, or whether the ben-
    efits of severance outweigh any such risks. We find the fol-
    lowing evidentiary deficits noteworthy in that regard:
    •     Although Dr. Bennett conducted a “best interest”
    examination of A, she did not observe A and mother
    together, and she did not address whether and to
    what extent preserving a bond with mother would
    be beneficial or harmful to A, in the event A was not
    returned to mother’s care.
    •     There is no evidence that termination of mother’s
    parental rights is required to preserve A’s place-
    ment with her current caregivers, or even whether
    those caregivers, who know A and her relationship
    with mother well, perceive severing A’s ties with
    her mother to be in A’s best interest. Rather, the
    1
    Our dissenting colleague finds persuasive statements by A’s caregivers to
    Dr. Bennett, which Bennett included in the “best interest” report, that they did
    not observe “an obvious bond” between A and mother when A saw mother for
    the first time after she was removed from her care. We do not find that evidence
    particularly persuasive on the question of A’s attachment to mother. It is hearsay
    for one. Although there is no dispute that it was properly admitted, we decline
    to place great weight on it for that reason. Moreover, it is not entirely consistent
    with the testimony at trial. A’s foster mother testified:
    “So the first time [A] saw her mom after she was removed was at court so it
    wasn’t a visit exactly. She didn’t cry when she saw her mom but she did go
    willingly into her mom’s arms and that was after a weekend in our care, so
    when we were all together at court she would reach for like both her mother
    and for us to meet her needs.”
    Cite as 
    321 Or App 50
     (2022)                                  55
    evidence is that DHS did not inquire whether A’s
    caregivers were amenable to being her caregivers
    if A’s legal ties to mother remained intact. DHS
    caseworker Wooten testified that she had “not had
    that discussion [about guardianship] thoroughly
    enough.” That appears to be because of a standard
    practice of not considering whether guardianships
    might be appropriate for children of A’s age.
    •    There is no evidence addressing whether sever-
    ance of the legal relationship might be necessary to
    ensure that mother does not undermine the efforts
    of A’s caregivers to give her the stable, permanent
    environment that she needs.
    Given those evidentiary deficits, we are not per-
    suaded that it is highly probable that termination of A’s
    legal relationship with her mother is in A’s best interest. In
    our view, the record simply is not complete enough for us
    to make the call that it is “highly probable” that the bene-
    fits to A of severing her legal ties with mother outweigh the
    risks to her posed by severance. Accordingly, we reverse and
    remand.
    Reversed and remanded.
    POWERS, J., dissenting.
    On de novo review, I would conclude that termina-
    tion of mother’s parental rights is in A’s best interests given
    her particular situation and needs. As an initial matter, I
    agree with the majority opinion that it is in A’s best inter-
    est to remain long-term with her current caregivers, that A
    is thriving, and that A has formed an attachment to those
    caregivers and severing that attachment could be detrimen-
    tal to her. 321 Or App at 53-54. Further, although I agree
    that there could be more evidence about the likely effects
    that termination of mother’s legal relationship would have
    on A, I would nevertheless conclude that, on de novo review,
    it is in A’s best interest to be freed for adoption. Accordingly,
    I respectfully dissent.
    First, the majority opinion appears to place undue
    weight on mother’s relationship with A and relies too heavily
    56                              Dept. of Human Services v. L. M. B.
    on the names A uses for the adults in her life. See 321 Or
    App at 54 (concluding that “the evidence shows that A has
    a bond with mother and calls her ‘mama’; and has different
    names for her caregivers”). As an initial matter, although
    A refers to mother as “mama” or “mom,” A also uses simi-
    lar terms—albeit in a different language—for her resource
    parents: A uses “Ima” and “Tate,” which was described as
    “mom in Hebrew” and “dad in Yiddish.” Unlike the majority
    opinion, I would not place much weight on the nomenclature
    used by A, who was removed from her mother’s care when
    she was around 10 months old and has been placed with the
    same resource parents since that time.
    More substantively, although a DHS caseworker
    testified that A had a “form of attachment” to mother, the
    other evidence in the record demonstrates that their rela-
    tionship falls short of a bond as that term is commonly
    used. For example, the “best interest” evaluation submitted
    by Dr. Bennett, a child psychologist, describes A having “no
    obvious reaction” after the first weekend of being separated
    from her mother. Bennett explained that A “didn’t reach
    for [mother] and she didn’t cry for [mother]” when the care-
    givers and A left the visit.2 Further, mother’s testimony at
    the termination trial appeared to acknowledge that she did
    not have a strong relationship with A: “My current plan? My
    current plan is to get my child back with me but yet—I mean,
    so I can bond with her again[.]” Moreover, testimony by a
    DHS caseworker explicitly avoided using the term “bond” to
    describe mother’s relationship with A.3 In short, unlike the
    majority opinion, I would reject mother’s assertion on appeal
    2
    The majority opinion correctly notes that Bennett’s report includes hear-
    say; however, it is unobjected to hearsay and, therefore, considered substantive
    evidence. See, e.g., State v. Harris, 
    288 Or 703
    , 722, 
    609 P2d 798
     (1980) (explain-
    ing that “when hearsay evidence is introduced without objection it is entitled to
    consideration as ‘competent’ and substantive evidence”). Moreover, A’s resource
    (or foster) mother testified about A’s interactions with mother during the commu-
    nity visits:
    “Q: When you arrived at the visits would [A] run to her mother?
    “A: No.
    “Q: Would she cry upon seeing her mother?
    “A: No.”
    3
    At the termination trial, Wooten, the DHS caseworker who had been work-
    ing with mother and A since February 2019 explained:
    Cite as 
    321 Or App 50
     (2022)                                                  57
    that she and A “were attached, and had a close and loving
    relationship”; instead, I would agree with child’s argument
    on appeal that the “facts are less effusive.”
    Second, the majority opinion discounts Bennett’s
    testimony and “best interest” evaluation because she did not
    observe mother together with A and because her conclusions
    did not address “whether and to what extent preserving a
    bond with mother would be beneficial or harmful to A, in the
    event A was not returned to mother’s care.” See 321 Or App
    at 54. Although a more developed record may have included
    this information, the evidence that was adduced demon-
    strates, in my view, why termination is in A’s best interest.
    In her report, Bennett explained:
    “It is important to consider the impact of returning a child
    to a chaotic or unpredictable home environment after hav-
    ing already experienced relationship losses from moving
    homes or having variable contact, as there can be a com-
    pounded effect of verifying a child’s negative assumptions
    about the trustworthiness and reliability of adults who are
    in roles of caregiving. Putting [A] in a situation where she
    is again exposed to a chaotic home environment, drug use,
    and parental instability also puts her at risk of another
    placement disruption—which again adds to an accumula-
    tion of emotional stress and relationship confusion that can
    impact her developing relational models.”
    Bennett further concluded in her report that A “has spent
    over a year in this home, during a critical period of attach-
    ment, and has developed close relationships with these care-
    givers. Placing her in yet a different home puts her at risk
    of suffering relational loss and trauma that could impact
    her developing attachment models.” (Emphasis omitted.) At
    the termination hearing, after noting A’s history, including
    “back and forth contact with—with her biological mother
    “Q [by mother’s counsel]: * * * When you were rooting for [mother] to be
    successful that was because you saw that [mother] had a bond with her child;
    is that correct?
    “A [by Wooten]: That’s not correct. I wouldn’t use that language.
    “Q: Okay. You were rooting for her but you didn’t think she had a bond
    with her child?
    “A: Neither/or. I was rooting for her because I wanted to see her success-
    fully be able to parent her child free of substances.”
    58                       Dept. of Human Services v. L. M. B.
    [that] can also be a bit confusing with attachment develop-
    ment,” Bennett further elaborated on why an inconsistent
    contact with mother would be concerning. She explained,
    “especially at this age it changes the dynamic of how pri-
    mary that relationship is in terms of [A’s] conceptualization
    of who the primary caregivers are and who takes care of her,
    so people who step in and out of” a young child’s life “might
    continue to be familiar and still have a positive relationship
    but it’s not the same as a parenting relationship that’s con-
    sistent with daily care.” In my view, although this evidence
    is somewhat generic, it nevertheless addresses A’s present
    circumstances and raises valid concerns about her develop-
    ment, which certainly is a factor in weighing what is or is
    not in her best interest.
    Third, although the majority opinion correctly iden-
    tifies in its list of evidentiary deficits that there is “no evi-
    dence addressing whether severance of the legal relation-
    ship might be necessary to ensure that mother does not
    undermine the efforts of A’s caregivers to give her the stable,
    permanent environment that [A] needs,” the absence of that
    evidence should not, in my view, weigh heavily. See 321 Or
    App at 54. Evidence that a parent may seek to undermine
    efforts by a child’s caregiver certainly may be an affirmative
    reason why termination is in a child’s best interest, but it
    is not a necessary condition to showing why termination is
    in a child’s best interest. See, e.g., 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 “focused on the needs of the child” and con-
    cluding that keeping open an option of a permanent guard-
    ianship was not in the child’s best interest given the parent’s
    current capacity).
    Our cases discussing best interests repeatedly have
    observed that we will not assume that severing a child’s
    legal relationship with a parent deemed to be legally unfit
    is in a child’s best interest without evidence. See 
    id.
     at 244-
    45 (recognizing that “[t]he fact that a parent is unfit does
    not necessarily establish that termination of [the parent’s]
    parental rights is in the child’s best interest”). Similarly,
    and just as important, we also repeatedly have recognized
    Cite as 
    321 Or App 50
     (2022)                              59
    that a child’s needs for permanency and stability are para-
    mount. Dept. of Human Services v. F. L. B., 
    255 Or App 709
    ,
    733-34, 298 P3d 626, rev den, 
    354 Or 61
     (2013) (“As we have
    recognized time and time again, at some point, the child’s
    needs for permanency and stability in life must prevail.”
    (Internal quotation marks omitted.)). A’s brief in support of
    affirmance persuasively summarizes the situation: “[A] is
    loved by her mother who suffers under the impact of almost
    three decades of methamphetamine use along with con-
    current, untreated mental health issues. Two years before
    this termination trial, when her mother had five months of
    sobriety, her mother’s prognosis was still poor.” Here, the
    evidence demonstrates that A has a secure attachment with
    her resource parents. The relative weakness of the relation-
    ship between mother and A together with the other evidence
    in the record leads me to conclude on de novo review that
    terminating mother’s parental rights is in A’s best interest.
    Accordingly, I respectfully dissent.
    

Document Info

Docket Number: A177110

Judges: Lagesen

Filed Date: 7/27/2022

Precedential Status: Precedential

Modified Date: 10/10/2024