State ex rel. Dept. of Human Serv. V. Cain

• Decision Date: 27 December 2006
• Docket Number: 0100727; A131436.
• Citation: 150 P.3d 439,210 Or. App. 237
• Parties: In the Matter of Devon Edward Byrd, a Minor Child. STATE ex rel DEPARTMENT OF HUMAN SERVICES, Respondent, v. Holly Rheanan CAIN and Gary Byrd, Appellants.
• Court: Oregon Court of Appeals

150 P.3d 439

210 Or. App. 237

In the Matter of Devon Edward Byrd, a Minor Child.

STATE ex rel DEPARTMENT OF HUMAN SERVICES, Respondent, v. Holly Rheanan CAIN and Gary Byrd, Appellants.

0100727; A131436.

Court of Appeals of Oregon.

Argued and Submitted August 7, 2006.

Decided December 27, 2006.

James A. Palmer, Eugene, argued the cause and filed the brief for appellant Holly R. Cain.

Inge D. Wells, Eugene, filed the brief for appellant Gary Byrd.

Christina M. Hutchins, Assistant Attorney General, filed the brief for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and ORTEGA, Judge, and BREITHAUPT, Judge pro tempore.

ORTEGA, J.

Mother and father appeal from a juvenile court judgment terminating their parental rights to their child, D. The trial court determined that mother was presently unfit, ORS 419B.504,¹ primarily because of her mental illness, her drug use, and her failure to effect a lasting adjustment to those circumstances. The trial court also terminated father's parental rights based on unfitness, ORS 419B.504, and neglect, ORS 419B.506.² We conclude that the record establishes beyond a reasonable doubt that, for a period of nine months before the filing of the petition and for more than two years before the trial, father elected not to participate in visitation and did not have any contact with D. Therefore, on de novo review, we affirm the termination of father's parental rights based on neglect. See State ex rel Dept. of Human Services v. Squiers, 203 Or.App. 774, 789, 126 P.3d 758 (2006) ("[A] finding of neglect [may] be based on * * * a parent's failure to maintain contact[.]"). We write only to address mother's challenge to the termination of her rights based on unfitness.

We begin by identifying the applicable law. Father is a member of the Upper Skagit Tribe, and the parties agree that child is an Indian child to whom the Indian Child Welfare Act (ICWA) applies. 25 U.S.C. § 1903(4) (defining Indian child); OAR 413-070-0120(8) (same). The ICWA's requirements supplement and, where in conflict, displace state law governing the termination of parental rights to Indian children. State ex rel SOSCF v. Amador, 176 Or.App. 237, 243, 30 P.3d 1223, rev. den., 333 Or. 73, 36 P.3d 974 (2001); see also State ex rel Juv. Dept. v. Tucker, 76 Or.App. 673, 677, 710 P.2d 793 (1985), rev den., 300 Or. 605, 717 P.2d 1182 (1986) (noting that the ICWA applies when the court "knows or has reason to know that an Indian child is involved") (citing 25 U.S.C. § 1912(a); further citation omitted). Accordingly, termination of mother's parental rights must be supported by evidence beyond a reasonable doubt, the standard applicable under the ICWA. ORS 419B.521(4); 25 U.S.C. § 1912(f). See generally State ex rel. Juv. Dept. v. Charles, 106 Or.App. 637, 639, 810 P.2d 393, rev. den., 312 Or. 150, 817 P.2d 757 (1991) (applying the ICWA to proceedings involving an Indian child and a non-Indian parent). We review the juvenile court's judgment de novo, ORS 419A.200(6)(b), giving considerable weight to its findings regarding credibility, and affirm.

We turn to the factual record, beginning with an overview before delving into mother's complicated history. The record contains a number of psychological evaluations of mother and, although the diagnoses vary slightly, they all identify her as suffering from a personality disorder characterized by extreme emotional instability and impulsivity and by frequent and inappropriate expressions of anger and conflicts with others, particularly with authority figures. Additionally, mother's history includes periodic methamphetamine use, addiction to marijuana, and domestic violence.

Mother's involvement with the Department of Human Services (DHS) spans an eight-year period beginning with the birth of her first child, J, in 1997.³ We divide the relevant history into three time periods: (1) the four-year period beginning in 1997, when DHS first began working with mother, until early 2002, shortly after D's birth and his removal from mother's home; (2) the following two years, ending in 2004, which were characterized by DHS's insistence on, and mother's resistance to, mental health and drug treatment; and (3) the final period leading up to the termination trial in late 2005, which includes mother's mixed successes in mental health and drug treatment. Within each time period, we focus on three topics: (a) mother's involvement and interaction with DHS; (b) mother's mental health issues and therapy; and (c) mother's drug use and attempts at recovery.

We begin with the first time period, spanning from 1997 to D's birth in early 2002. DHS first became involved with mother and her first child, J, because he was hospitalized for failure to thrive two weeks after he was born. In the ensuing two years, DHS received approximately 11 referrals, or reports of concern, about mother's care of J, although two were deemed unfounded. The referrals consistently involved reports of physical abuse and neglect of J. The first referral, when J was six weeks old, consisted of a report that J was not being fed enough. Mother explained that she had not fed J any formula for a period of more than 24 hours because her father (whom she had not asked) would not take her to get any formula and that, in any event, the baby was fine because he was sleeping. When J was 15 months old, a referral occurred after mother slapped J, leaving a hand print on his face. At the time, mother admitted to the slap and explained that she had "just lost it"; at trial, mother denied the incident but did admit to another slapping incident that occurred when J was 3 or 4 years old. Another referral consisted of a report that mother was not bathing or feeding J and that she had spanked him for waking up too early. The referrals reflected a continuing pattern of, as one DHS worker described it, "over and over and over again [mother] losing her temper and slapping [J]."

A twelfth referral in late 2000 consisted of a report that J was found wandering the neighborhood early in the morning, alone, dressed only in a diaper. J was removed from mother's care, a petition was filed, and mother was convicted of criminal neglect for the incident. Mother's interactions with DHS following that incident were particularly volatile; she threatened a caseworker who was trying to schedule a family decision meeting with the comment, "You have no fucking idea how bad[ly] I want to beat the shit out of you right now." Mother asserted, "I don't need [a] fucking meeting. I need my fucking kid."

Indeed, mother's interactions with DHS workers, family members, and others were consistently volatile, aggressive, and even violent. DHS employees reported on various occasions that mother was "furious," "very hostile," "combative," and "aggressive" during their interactions with her. One caseworker explained that mother "[did not want] anybody to tell her how to do anything, how to raise her son." Another DHS worker said that mother's attitude would frequently shift from cooperative to belligerent. During this first time period, mother's father and an ex-boyfriend filed restraining orders against her. Mother's father stated in support of his restraining order that mother had threatened him and that she "follow[ed] through [with] threats." The ex-boyfriend stated in support of his order that mother is an "unstable person and [there is] no telling what she would do." Mother also was arrested for assault when she threw a soda can at her mother, causing a skull fracture. Mother boasted about the incident to a caseworker, who testified that mother laughed about the fact that she "had just gotten into a fist fight with her mother [and] had been charged with cracking * * * her skull open."⁴ In another incident involving police, mother tried to punch J's babysitter and chased her out the door after the babysitter suggested that mother clean up J and change his clothes.

Eventually, mother signed a service agreement with DHS, and complied with the agreement by engaging in supervised visits with J and completing a parenting class. She also participated in a comprehensive psychological evaluation, performed by Dr. James Ewell in December 2000. Ewell diagnosed mother with attention deficit/hyperactivity disorder (ADHD); post-traumatic stress disorder (PTSD); and borderline, antisocial, and narcissistic personality disorders.

According to Ewell, mother's most salient features were affective instability, a history of inappropriate and intense anger, stress-related paranoid ideation, unstable relationships, and impulsivity. Because she suffered from multiple forms of psychopathology, Ewell considered her situation to be "quite complex and disabling" and indicated that she would need intensive, long-term intervention, including psychotherapy, parenting classes, anger management, and support group work. Her prognosis for change was poor, not only because mother's personality disorders would be highly resistant to intervention, but because mother considered herself to be a "great mother" with no need for services. Ewell referred mother to Douglas County Mental Health (DCMH) for mental health treatment.

Dr. Randy Olander, a psychologist for DCMH, evaluated and began individual therapy with mother several months after Ewell's evaluation. Similarly to Ewell, Olander diagnosed mother with a personality disorder not otherwise specified, with borderline and narcissistic traits. Additionally, he diagnosed her with an adjustment disorder with depressed mood and polysubstance abuse in early remission. Olander testified that mother's life seemed to be in ongoing "chaos" and that she appeared to consider treatment to be "an inconvenience to her." She was "verbally combative" at times and once called him a liar. Eventually he referred mother to another therapist at DCMH because he and mother were...