Dep't of Human Servs. v. N. H. (In re S. L. A. H.)

• Decision Date: 26 October 2022
• Docket Number: A178130
• Citation: 322 Or.App. 507,520 P.3d 424
• Parties: In the MATTER OF S. L. A. H., aka S. H., a Child. Department of Human Services, Petitioner-Respondent, v. N. H., Appellant.
• Court: Oregon Court of Appeals

322 Or.App. 507

520 P.3d 424

In the MATTER OF S. L. A. H., aka S. H., a Child.Department of Human Services, Petitioner-Respondent,

v.N. H., Appellant.

A178130

Court of Appeals of Oregon.

Argued and submitted August 16, 2022.

October 26, 2022

Kristen G. Williams argued the cause and filed the briefs for appellant.

Shannon T. Reel, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Tookey, Presiding Judge, and Lagesen, Chief Judge, and Joyce, Judge.

JOYCE, J.

Mother appeals from a judgment terminating her parental rights to her daughter, S. Mother argues that the juvenile court erred in concluding that (1) mother was unfit to parent, (2) the child's reintegration into mother's home was improbable within a reasonable time, and (3) termination of mother's parental rights was in the child's best interest.¹ On de novo review, ORS 419A.200(6) ; ORS 19.415(3)(a), we affirm.

I. FACTS

A. Events Leading to Child's Removal and Dependency Jurisdiction

S was born in March 2018. She was transferred to the newborn intensive care unit (NICU) shortly after her birth because she needed a feeding tube. A few days later, the hospital notified DHS of concerns about mother's "cognitive disabilities." A DHS caseworker then began assessing whether mother could appropriately care for S. Due to S's age and medical needs, DHS's goal was to craft an in-home plan for mother with a safety service provider who could supervise and monitor child's safety "24/7."

During this time, mother became agitated that S was being kept in the hospital. She stated that she planned to bring S home, although hospital staff told her that S still needed her feeding tube and was not ready to go home. At one point, mother told hospital staff, "I don't care what anyone says, I'm coming up there to take my baby home and you can't stop me."

Because there were not enough safety services in place to ensure an in-home plan, and because mother was unable to follow directions from hospital staff and nurses regarding S's medical needs, about 10 days after S's birth, DHS filed a petition in juvenile court to have the court take jurisdiction over S. In April 2018, the court found S within its jurisdiction based on mother's admissions that she has an anger control problem that interferes with her ability to safely parent the child and because the child has no legal father. Later, DHS filed an amended petition for dependency jurisdiction and the court found additional jurisdictional bases based on mother's admissions that she has "limited cognitive abilities" and the "child has specialized medical needs [m]other is unable or unwilling to provide for, interfering with her ability to safely parent."

After S was discharged from the hospital, DHS placed S in a nonrelative foster home.

B. DHS Involvement and Mother's Performance in Services

Mother participated in a neuropsychological and psychological evaluation with Dr. Poppleton in October 2018. Poppleton diagnosed mother with a provisional moderate intellectual disability, other specified trauma and stressor-related disorder, and neglect of a child. He noted that mother's assessment results indicated that mother had "significant cognitive and neuropsychological impairment across all domains assessed, including verbal abilities, immediate and delayed memory, visual-spatial skills, and attention." Her "non-verbal, problem-solving skills [were] also significantly compromised." Poppleton concluded that mother's "parenting weaknesses are related to that of her cognitive capacity[,]" and recommended that mother have a good support system, "such as a daily check-in support person. Monitoring should be frequent, consistent, and long-term." Poppleton considered it positive that mother "has been agreeable with her social workers" and that she was "assertive, desires independence, and actively seeks support." Poppleton also noted that mother "appear[ed] to have good coping skills in place to help manage her anger[,]" and "is proactive in seeking independence and support[.]" He was "impressed with [mother's] level of insight given her cognitive limitations."

Over the first year of S's life, mother's permanency worker, Aviv, worked to find an adult foster home that could facilitate an in-home plan for both mother and child, but she was unable to find a suitable one.² Meanwhile, to help mother address her parenting skills, Aviv referred her to a program specifically designed for parents with intellectual disabilities at Family Skill Builders. Mother engaged in the one-on-one hands-on parent training, which is designed to teach mother how to safely care for S. Family Skill Builders recommended three rounds of classes; mother declined to attend the third round, stating that "she didn't have anything else to learn." After mother declined continuing the class, Aviv observed that her parenting skills regressed. During a community visit, mother dropped S and S was injured. As a result, DHS reduced community visits and then moved mother's visits back to the DHS office for social service assistant (SSA) supervision.

Mother's visits were sporadic. She missed her visits so frequently that DHS suspended her visits several times. When mother did attend visits, DHS personnel had to stay in the same room with mother and S for safety reasons. The SSA observed that mother was not able to understand S's needs and was not receptive to feedback. For example, during one visit, S almost fell over onto the floor twice because mother did not support S in sitting up, although the SSA had repeatedly reminded mother to do so. To further help mother understand S's needs—which, as we describe below, are extensive—DHS invited S's foster parent to each family decision meeting to explain to mother all of S's current medical diagnosis and needs in therapy. Aviv also invited mother to the child's medical appointments and expanded visitations for all of S's early intervention appointments, but mother failed to attend most of those.

Additionally, based on Poppleton's evaluation, DHS referred mother to a licensed professional counselor, Enticknap, who was experienced working with people with developmental disabilities. Enticknap worked with mother from May 2019 through July 2021. At trial, Enticknap testified that mother made progress on anger management, communication with her own mother and advocating for herself, and she had secured an apartment. But Enticknap noted that mother's engagement in therapy was inconsistent, and she was concerned about mother's independent functioning and decision making.

In July 2021, mother put S in a "time out" that S did not understand. S then refused to attend the next visit. As a result, DHS referred mother to Family Skill Builders again for therapeutic visits. Mother attended all visits and demonstrated "some understanding of attachment" and "showed affection through words and touch." However, mother did not demonstrate an adequate understanding of S's special needs and limitations. The service provider noted that mother appeared to expect "unrealistic language or attention abilities" from S.

On the advice of a disability advocate, mother began seeing a different therapist, Johns, in August 2021. Johns specializes in trauma and in attachment relationships, parenting, behavioral issues, and brain differences. She provided individual therapy to mother and child-parent psychotherapy services for mother and S. Mother regularly attended her twice weekly sessions with Johns. Johns observed that mother consistently made progress with frustration tolerance, emotional regulations, and self-care, and Johns believed that mother demonstrated ability with problem-solving. In observing mother's interactions with S, Johns described that mother made progress in reading S's facial expressions and body language and that she was "attentive, responsive, gentle" with S. Johns testified that, although mother and S were not really connecting in the beginning, the attachment improved over time. However, by the time of the termination trial, Johns noted that they had not yet begun to work on improving mother's ability to safely parent S and she could not predict when they would begin to address that.

In addition to the services that DHS provided to mother, she has also received ongoing developmental disability support since at least 2015. Mother's assessed needs included keeping her safe and healthy, hygiene support, accessing medical care, transportation, communication, housekeeping, and support accessing in the community and employment. Mother is not required to use any of the services for which she qualifies. Rather, the services were provided at her requests. Mother frequently chose to not access services. Specifically, mother declined to work with a behavioral support specialist who analyzes what triggers certain behaviors and helps a client prevent escalating behavior. Mother also chose to not access services from a representative payee who could help her manage her money and declined supportive living, such as a group home or adult foster home, even at a time when she was homeless.

C. S's Circumstances

At the time of the termination trial in January 2022, S was four years old. She has global developmental delays and may need lifelong assistance due to a potential unknown genetic disorder that is being monitored. She exhibits challenging behaviors that demand individual attention and can be difficult to manage. As an infant, S needed physical therapy to help strengthen her muscles to sit up, crawl, walk, and to overcome sensory challenges and issues with self-regulation. She was difficult to soothe, demonstrated frustration by screaming, and threw tantrums where she hit her head against the wall. She wore a compression vest to help calm her down when she was overwhelmed and used wrist weights to draw. S also attended weekly speech therapy because she ha...