In the Matter of H.R. v. H.L.R.
| Decision Date | 03 August 2011 |
| Docket Number | 09095J04; A146514.,05261J,06667J,09095J03,06667J05,09095J; Petition Numbers 05261J06,06667J04,05261J07 |
| Citation | 260 P.3d 787,244 Or.App. 651 |
| Court | Oregon Court of Appeals |
| Parties | In the Matter of H.R., aka H.D.D.; L.R., aka L.S.D.; K.R., aka K.I.R., Children.DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent,v.H.L.R. and K.D., Appellants. |
OPINION TEXT STARTS HERE
Megan L. Jacquot argued the cause and filed the brief for appellant H.L.R.James A. Palmer, Eugene, argued the cause and filed the brief for appellant K.D.Inge D. Wells, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and NAKAMOTO, Judge.NAKAMOTO, J.
After a trial in 2010, mother and father appeal from judgments terminating their parental rights to their three children on the basis of unfitness. ORS 419B.504. On de novo review, ORS 19.415(3)(a),1 we conclude that the trial court erred in terminating mother's and father's parental rights because the state did not prove by clear and convincing evidence that parents' conduct or conditions were seriously detrimental to the children. We thus reverse the judgments terminating their parental rights.
We state the relevant facts as we find them, with due regard to the trial court's findings as to the credibility of witnesses. State ex rel. Juv. Dept. v. Geist, 310 Or. 176, 194, 796 P.2d 1193 (1990). We begin with background information regarding father and mother, their children, and the conflicts between mother and the Department of Human Services (DHS) regarding father's paternity and whether he posed a danger to the children. We then proceed to mother's history with DHS; father and his contacts with the children and, later, with DHS; the status of the children; and the trial court's ruling.
Mother, H.L.R., and father, K.D., met in prison more than 10 years ago and have maintained a relationship in some form since that time. Mother was serving a sentence for her 1996 conviction of robbery and assault in the first degree, while father was serving a sentence for his 1999 conviction of two counts of attempted sex abuse in the first degree for touching the clothed breasts of an 11–year–old girl. Mother and father have three children together. They are H., a boy born in 2005; L., a girl born in 2006; and K., another girl, born in 2008.
Mother also has two older children, unrelated to father, whom she has never parented. They are not the subject of this case, but the removal of one of those children from mother's parents led DHS to contact mother around 2004. At that time, DHS evaluated mother to determine whether to place that child in mother's care. In 2005, while DHS was working with mother in regard to her older child, mother gave birth to H.
Starting in 2005, DHS suspected that K.D., a sex offender, was the biological father of H. and, later, of L. and K., despite mother's denials that he was the father of any of the children. In February 2007, at DHS's request, the juvenile court ordered paternity testing so that DHS could determine whether he was indeed the father, despite mother's denials. Nothing in the record indicates that DHS followed through and completed paternity testing as to father and any of the children at any time before 2009.
In the meantime, DHS maintained that father was a threat to H. and then L. and K. because of his sex offender status, and DHS directed mother to have no contact with him. Mother, however, did not believe and denied that father was a threat. She repeatedly defied DHS by maintaining her relationship with father and lying to DHS caseworkers concerning that relationship. Later, she allowed the children to have contact with father, contrary to DHS directives. Father, meanwhile, knew he was the father of the children but did not contact DHS and claim that he was the father until 2009.
In large part, mother's decision to remain in a relationship with father and to allow father to have a relationship with the children resulted in DHS removing H and the other children from mother's care at various points between 2005 and 2009. Ultimately, after all three children had been removed from mother and after father's paternity was established, a DHS evaluator concluded in 2009 that father was a low risk for sexually abusing his or any other children.
DHS first removed H. from mother at his birth in 2005 based on concerns about mother's previous criminal conviction; her mental health; and her relationship with a registered sex offender, father. Mother's 1996 criminal conviction was based on her stealing a purse and cutting a man in the neck with a box cutter when he confronted her as she fled. In two psychological evaluations of mother that DHS arranged in late 2004 and early 2005 in regard to her older child, mother was diagnosed with a personality disorder not otherwise specified, with antisocial and narcissistic traits. Both evaluators found that her prognosis was poor until she could recognize concerns held by DHS and accept some personal responsibility for her situation.
As for mother's relationship with father, she denied to DHS that he was H.'s father or that she had contact with father. But DHS learned from mother's probation officer that mother had lied about having no contact with father and that he was probably H.'s father. DHS also contacted father's probation officer to explore the matter of his paternity and learned that father had previously told his probation officer that he was going to be a father, but identified someone other than H.L.R. as the mother. Father's probation officer was skeptical of father's claim that H.L.R. was not the mother of his child.
While H. was in state custody, mother engaged in therapy and other services DHS provided. In early 2006, when H. was over nine months old, DHS placed him in mother's care. H. remained in mother's care for about 10 months, until DHS removed H. again in late 2006 because mother failed to advise DHS that she was pregnant again. DHS was concerned that mother was having ongoing contact with father.
Within a few weeks of H.'s second removal from mother, L. was born and was immediately removed from mother's care because “she was having ongoing contact” with father and “her mental health was not stable at the time.” Mother, though, continued to deny to DHS that K.D. was the father of H. or of L. Mother admitted that she hid her pregnancy from DHS because “she had felt threatened because she already had so little contact with her children.” According to mother, her refusal to disclose her pregnancy to DHS led to a more hostile relationship with the caseworker.
Mother has completed a “non-offending parent” class, which educates parents who have been in a relationship with a sex offender about threats of harm that such a person may pose to a child and how to keep the child safe. She also participated in individual counseling. In the spring of 2007, a psychologist evaluator, Sorensen, noted that mother nevertheless remained angry and resistant to accepting oversight and monitoring by DHS. In his opinion, mother had an antisocial personality disorder and, in general, in individuals with an antisocial personality But, Sorensen found “no direct evidence to indicate a specific inappropriate, illegal, or dangerous action” by mother that was harmful to her children and could not say that mother's “self-focus” will result in harm or threat of harm to children in her care. Sorensen noted that no one had reported danger to the children during mother's visits and that he saw “little reason to continue strict restrictions regarding her visitation.” He also suggested leaving it up to mother and her therapist to determine whether she wanted to continue counseling.
Thereafter, in 2008, DHS placed L., who was almost 18 months old, with mother and returned H., who was three years old, to her. Mother's therapist noted that she believed that mother had “learned techniques for keeping [H. and L.] safe from outside influences in the parenting program.” All home visits went well and the “children appear[ed] healthy and reasonably well adjusted.” In June 2008, DHS was satisfied with mother's progress and dismissed jurisdiction over H. and L.
In late 2008, mother gave birth to K., a pregnancy that she had not disclosed to DHS before the dismissal of jurisdiction over H and L. Of the three children, K. was the only one DHS did not remove from mother at birth. In December 2008, a teacher and special education coordinator with the Relief Nursery visited mother and all three children and noted that they were doing well. According to their report, mother's “house appeared clean[,] tidy[,] and safe [and]* * * the kids have books and art supplies easily accessible and clean up when asked.” Mother [. In regard to H., their report noted that he
In early 2009, though, DHS learned that mother faced possible eviction from her apartment because father was reported to be on the public housing property against a federal policy that bans all convicted sex offenders. DHS went to the home and observed blankets mother had hung up inside the otherwise clean apartment, which mother said was due to her fear of a neighbor who was harassing her. DHS removed all three children based on concerns about mother's...
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