Dep't of Human Serv. v. D.M.T.

• Citation: 239 Or.App. 127,243 P.3d 836
• Decision Date: 24 November 2010
• Docket Number: J060312; Petition Number 06072JTF; A142473.
• Parties: In the Matter of C.D.T., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. D.M.T., Appellant.
• Court: Oregon Court of Appeals

243 P.3d 836

239 Or.App. 127

In the Matter of C.D.T., a Child.DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

v.D.M.T., Appellant.

J060312; Petition Number 06072JTF; A142473.

Court of Appeals of Oregon.

Argued and Submitted Jan. 19, 2010.

Resubmitted en banc July 28, 2010.

Decided Nov. 24, 2010.

Margaret H. Leek Leiberan, Beaverton, argued the cause for appellant. With her on the brief was Jensen & Leiberan.

Harry B. Wilson, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before BREWER, Chief Judge, and LANDAU, HASELTON, ARMSTRONG, WOLLHEIM, SCHUMAN, ORTEGA, ROSENBLUM, and SERCOMBE, JUDGES, and CARSON, Senior Judge.

ORTEGA, J.

Father appeals a judgment terminating his parental rights to his son. Among other grounds for termination, the juvenile court found that father was unfit under ORS 419B.504 because of criminal conduct, emphasizing that, under the conditions of father's post-prison supervision (PPS), "[f]ather is not authorized to have contact with his child." (Underscoring omitted.) We affirm because (1) father is characterized by a condition-having been convicted of first-degree encouraging child sexual abuse, ORS 163.684, and therefore being subject to a PPS condition that restricts any contact with minors-that is seriously detrimental to child; (2) as a result of his PPS condition, father was unlikely to be allowed to integrate child into his home for about two years, a period that is not a reasonable time for child to wait; and (3) termination is in child's best interests. Because we affirm on that basis, we do not consider whether the juvenile court erred by also terminating father's parental rights because of extreme conduct under ORS 419B.502.

On de novo review, ORS 19.415(3)(a), we find the facts as follows. In June 2006, when child was three and one-half years old, police investigated reports that father possessed child pornography. Father acknowledged to a detective that he saved child pornography on his computer, viewed child pornography videos on a regular basis, had been viewing such videos since approximately 2000, and found them sexually stimulating. The videos included images of young children being forcibly raped by adults. Father's sex offender therapist later noted that the materials involved were "extremely graphic displaying the sexual abuse of both male and female children as young as four" and that father's "interest in prepubescent children has been recurrent, intense, and no doubt involving sexual arousal * * *." Father was charged with 25 counts of first-degree encouraging child sexual abuse.

Father has had little contact with child since June 2006. During that year, father spent slightly over six weeks in jail before being released. According to father, there was confusion about whether his release agreement prevented him from seeing child. In January 2007, father underwent apsychological evaluation arranged by his attorney; the evaluator concluded that father would present no risk to child during supervised visits. In March, father pleaded guilty to eight counts of first-degree encouraging child abuse. At the end of May, father provided the Department of Human Services (DHS) with a copy of a court order from Judge Baisinger-who later signed the judgment in father's criminal case-stating that father was allowed to have supervised visits with child. In July and early August, before father was incarcerated, he had three supervised, one-hour visits with child. On the recommendation of child's therapist, father had no visits with child during father's incarceration.

In May and June 2007, shortly before going to prison, father sought a referral from DHS to a sex offender treatment program. DHS did not provide a referral, and father did not engage in any treatment before going to prison. Then, according to father, no sex offender treatment programs were available in prison.

Father was incarcerated from August 2007 to September 2008. Other components of his sentence continue to affect his ability to have contact with child. On seven counts, father was sentenced to 60 months of supervised probation, including a special condition that he "[h]ave no contact with minors except as authorized by DHS"; on the remaining count, he was sentenced to 18 months of imprisonment and 36 months of PPS. According to his parole officer, Michael, father will be on PPS until August 2012. Among his PPS conditions are requirements that he complete sex offender treatment, submit to polygraphs, and have no contact with minors.¹ Thus, at the time of the termination hearing, father was not allowed to have any contact with child.Michael explained that contact "includes telephones, letters, going through a third party, anything of that nature."

As required by his PPS conditions, father began sex offender treatment promptly after being released from prison. At the time of the termination hearing, in January and February 2009, he was four months into a 22- to 26-month cognitive behavioral program involving systematic lifestyle restructuring. The cognitive behavioral treatment offers tools needed to develop a relapse prevention plan. According to Caywood, father's therapist for that program, father was consistently attending the weekly group sessions and was "in the beginning stages of treatment and working to understand * * * the cognitive distortions and so forth that many offenders struggle with because of their own shame and fear." Concurrently with that treatment, Caywood wanted father to participate in laboratory phallometric testing and any recommended behavioral treatment. That additional program would involve assessments with physiological arousal measurements and would teach specific behavioral techniques to subdue and curtail inappropriate sexual interests. The behavioral intervention component usually lasts three to four months and may involve a later reassessment to check effectiveness. Caywood explained that he would get more information from the behavioral intervention program, but a referral to that program usually is more effective when the person is well into the treatment process. Father was less than a quarter of the way through his treatment program.

Michael testified that, in order to "earn that privilege" of modifying his PPS conditions to allow contact with child, father must comply with all PPS conditions and conditions of treatment, pass polygraphs, and show progress in treatment. Just before trial, father e-mailed mother, thereby violating a PPS condition that he not contact her. He asked mother to call Michael and request that the condition be removed; he also asked mother to conceal the contact that had already occurred. The expected sanction for father's PPS violation was a loss of computer privileges and time on work crew. Caywood found "the level of manipulation * * * [to] be a concerning issue." Michael testified that father has "got an uphill battle right now at this point to prove that what he actually has stated to me has been the truth."

Michael and Caywood together would decide whether father should be allowed unsupervised contact with children. If father developed a safety plan that was approved by Caywood and the PPS sex offender unit, then contact could be considered. Michael had not yet had any discussion with Caywoodabout the possibility for father to have contact with child, but, if Caywood agreed, she would be open to supervised or telephone contact.

Although Caywood and Michael testified that father might be able to have contact with child at an earlier time, they agreed that father is unlikely to be able to integrate child into his home for about two years. Caywood testified:

"Q. Okay. Am I also correct that there is nothing in the presentation of [father's] case at this point that would conclude [ sic ] you to think that he would be appreciably below that sixteenth month floor for reintegration into a family?

"A. No, I think the approach and the agenda he's expected to complete and address will take pretty close to two years." ²

Michael testified similarly about the likely time frame for father to have permission to integrate child into his home:

"Q. All right. Your testimony, at least as I would characterize it, was to the effect that with the people that you're supervising, no one has been able to regain care of their child on an unsupervised basis until near the end of their program, is that correct?

"A. Correct.

"Q. And the programs run two or three years, also correct?

"A. Yes.

"Q. Has [father] done anything to cause you to conclude that his time frame would likely be less than that two to three years?

"A. No. Not in my indications and not with speaking with John Caywood."

Thus, it is improbable that father will obtain a change in his PPS to allow him to integrate child into his home in less than two years.

The dissents conclude that the testimony of Caywood and Michael does not constitute clear and convincing evidence that it is likely to be two years before father would be allowed to integrate child into his home; in the dissents' view, Caywood's testimony is too equivocal, and Michael's testimony is entirely reliant on Caywood's. 239 Or.App. at 147-48, 243 P.3d at 847 (Wollheim, J., dissenting); 239 Or.App. at 160, 243 P.3d at 854 (Sercombe, J., dissenting). Although Caywood testified that he wanted more information to predict the path of father's treatment and the risk that father might engage in hands-on abuse of a child,³ it would be surprising if a therapist did not want more information about his client. Caywood's acknowledgment that more information would be useful does not undermine his testimony, based on his experience and the information that he did have about father, that integration was unlikely to be possible for about two years. Although Caywood gave different time frames for possible "contact" between father and child and for unsupervised...