Dept. of Human Services v. L.S.

• Jurisdiction: Oregon
• Parties: In the Matter of B.G.W., a Minor Child. STATE ex rel DEPARTMENT OF HUMAN SERVICES, Respondent v. L.S. and J.L.W., aka J.L.S., Appellants. In the Matter of A.L.W., a Minor Child. State ex rel Department of Human Services, Respondent, v. J.L. W., aka J.L.S., Appellant.
• Citation: 211 Or. App. 221,154 P.3d 148
• Docket Number: A131658 (Control).,A131775.,02-667J.,02-668J.
• Court: Oregon Court of Appeals
• Decision Date: 28 February 2007

154 P.3d 148

211 Or. App. 221

In the Matter of B.G.W., a Minor Child.

STATE ex rel DEPARTMENT OF HUMAN SERVICES, Respondent v. L.S. and J.L.W., aka J.L.S., Appellants.

In the Matter of A.L.W., a Minor Child.

State ex rel Department of Human Services, Respondent, v. J.L. W., aka J.L.S., Appellant.

02-668J.

02-667J.

A131658 (Control).

A131775.

Court of Appeals of Oregon.

Argued and Submitted September 15, 2006.

Decided February 28, 2007.

Inge D. Wells, Eugene, argued the cause for appellant L.S. With her on the brief was Wells & Wells.

Daphne E. Mantis, Eugene, argued the cause and filed the brief for appellant J.L.W.

Laura S. Anderson, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and SCHUMAN^* and ORTEGA, Judges.

ORTEGA, J.

Mother appeals the termination of her parental rights to her two children, A and B. Father appeals the termination of his parental rights to B.¹ We review de novo, giving weight to the credibility findings of the juvenile court. ORS 419A.200(6); State ex rel. Juv. Dept. v. Proctor, 167 Or.App. 18, 27, 2 P.3d 405, adh'd to on recons., 169 Or.App. 606, 10 P.3d 332 (2000). Because there is insufficient evidence that either mother or father was unfit at the time of trial, we reverse and remand.

The pertinent facts in this case occurred over a period of several years, from 2002 to November 2005, when the trial took place. We begin with a brief overview of the family relationships and the initial involvement of the Department of Human Services (DHS) with the family. We then examine mother's drug use and participation in treatment programs. Finally, we turn to father's participation in drug and alcohol and domestic violence treatment programs and the psychological evaluations of father.

Mother's older child, A, was born in April 2001. Mother and father were married in February 2002, about nine months before the birth of their child, B. After the marriage, mother, father, and A lived with mother's parents. In April 2002, mother obtained a Family Abuse Prevention Act (FAPA) restraining order against father, based on allegations that he was "a very angry person," made verbal threats, sometimes shoved or physically restrained her, and caused her to fear for her life and A's life. Father acknowledged saying "very hurtful things" but denied the other allegations of mother's FAPA petition. Father moved out of the household, and mother and A remained with mother's parents.

In late June 2002, a police officer found methamphetamine and pipes in a car in which mother was a passenger. Mother, who was five months pregnant with B, eventually admitted that the methamphetamine was hers, although she claimed that she was selling it and that she had not used methamphetamine for several months. She later pleaded guilty to unlawful possession of a controlled substance. In the final month of her pregnancy, mother had a urinalysis test (UA) that was positive for methamphetamine.

B was born in November 2002, and mother then withdrew her restraining order against father. Shortly after B's birth, mother had another positive UA, and DHS filed petitions invoking juvenile court jurisdiction. After a shelter hearing, the juvenile court placed A and B in the physical custody of mother, on the condition that mother live with her mother (grandmother), take UAs as requested, and participate in drug assessment and treatment. Father had visitation as authorized by DHS.

In December 2002, Pitcher, a DHS caseworker, convened a family decision meeting with mother and grandmother, which father did not attend. The plan that they developed required mother to complete a drug and alcohol assessment and to provide UAs. Later that month, when Pitcher met with father to discuss a service plan, he accused DHS of placing video cameras at his home. At trial, father maintained that a neighbor had informed him that the state had placed cameras outside his home. Father had not checked for cameras, but believed the neighbor.

In January 2003, the juvenile court took jurisdiction over both children. The court ordered mother to participate in a psychological evaluation, to follow all resulting recommendations, and to address concerns about domestic violence and substance abuse. Father was ordered to participate in a psychological examination, to follow all resulting recommendations, and to complete an approved domestic violence program.

Mother and father ended their relationship sometime in 2003. Father blamed their break-up, at least in part, on pressures caused by DHS. At the time of trial, mother and father had not yet divorced, purportedly for financial reasons. The children have lived at grandmother's house their entire lives.

We turn to the evidence regarding mother's drug use and her participation in various services. DHS referred mother to Prevention and Recovery Northwest for drug treatment from late 2002 to early 2003. Mother did not think that she needed treatment and told her drug and alcohol counselor, Beck, that she had used methamphetamine only twice in her life. Mother also told Beck that she had no history of physical abuse. During the time that Beck worked with mother, she did well in some respects but did not make progress in overcoming her denial. Still, mother thought she had done well in the program.

In February 2003, Dr. Sweet performed a psychological evaluation of mother. Sweet opined that mother was defensive, minimized problems, and thus was unlikely to benefit from services. He was concerned, for example, that mother reported that she had adequately addressed domestic violence concerns in a single one and one-half hour session. He diagnosed mother with low cognitive abilities and an adjustment disorder with depressed mood. Sweet thought that more examination was needed regarding whether mother suffered from a depressive disorder, alcohol or drug problems, and a personality disorder not otherwise specified, with characteristics of dependent and passive-aggressive personality disorders. He found mother difficult to diagnose clearly because she was so defensive.

In July 2003, mother and the two children were in a rollover car accident. The children were in car seats and were not injured. However, mother tested positive for marijuana and amphetamine and admits that she was under the influence of amphetamine at the time of the accident. She was not cited for any criminal charges arising from the incident.

DHS removed the children from mother's care and placed them in grandmother's custody, where they have remained ever since. After mother was released from the hospital, she moved back in with grandmother. After spending a month recovering from her injuries, she moved out of grandmother's home and lived with father for about two weeks. After that, she moved in with her new significant other, Anderson, whom she had met some years earlier and with whom she had recently become reacquainted.

In mid-August and September 2003, mother had two positive UAs for methamphetamine. In late October, she was admitted to an in-patient treatment program at Willamette Family Treatment Services (WFTS). Anderson supported mother's treatment and regularly visited her.

During mother's initial assessment with WFTS, she reported that she had used methamphetamine once at age 27, then twice in November 2002, and once in July 2003. The assessment notes that mother appeared to be minimizing her drug use and that, although mother said that she wanted treatment, she also denied any concern about relapse, which was inconsistent with recognizing her need for treatment.

Nevertheless, mother successfully completed the program. The discharge summary from WFTS, dated January 22, 2004, indicated that mother's prognosis was good if she continued in outpatient treatment and participated in 12-step meetings. Pitcher testified that she strongly encouraged mother to enter a halfway house that offered ongoing drug counseling, job training and placement, parenting classes, and other services, and where the children could be returned to her. In Pitcher's experience, people who have just completed in-patient treatment have a greater chance of success if they enter a halfway house than if they reenter the community directly.

At trial, however, mother denied that Pitcher had recommended going to the halfway house, although she acknowledged that Pitcher and WFTS staff had "mentioned" the halfway house as "an option." Mother had health problems that required surgery in December 2003, while she was in the WFTS program, and again in February 2004, after the program ended. According to mother, she and Pitcher decided that it would be better for her to move into Anderson's home than to go to the halfway house. Mother told Pitcher that she wanted to have the children with her and, after some investigation, Pitcher concluded that Anderson's home was a safe place for the children. Mother moved in with Anderson after completing the WFTS inpatient program.

The expected recovery time for mother's February 2004 surgery was two weeks, although mother testified that she was "laid up for a good three weeks, almost a month afterward." Mother and Anderson testified that she took Percocet, a prescribed pain medication, through the middle or end of March. However, a doctor's note—based on mother's own report to the doctor in March 2004 — stated that mother "was prescribed Percocet 2/20/04 # 30 for post-operation pain. She took the last dose 3/4/04." Consistently with that timing, the family decision meeting record for March 10—which mother signed— stated that mother "is now off all pain medication."

The record of that family decision meeting stated that the "[c]hoices are all about when the kids will transition home," with a planned return date of March 17. (Underlining in original.) The document also indicated that,...