A145369 Dept. of Human Services v. T. C. A.
Case Date: 02/16/2011
Docket No: none
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FILED: February 16, 2011 IN THE COURT OF APPEALS OF THE STATE OF OREGON In the Matter of A. L. A., DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. T. C. A., Appellant. Lane County Circuit Court In the Matter of A. D. F., DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. T. C. A., Appellant. Lane County Circuit Court Maurice K. Merten, Judge. Argued and submitted on November 02, 2010. Andrew D. Coit argued the cause for appellant. With him on the brief was Coit & Associates, P.C. Karla H. Ferrall, 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 Ortega, Presiding Judge, and Sercombe, Judge, and Landau, Judge pro tempore. ORTEGA, P. J. Reversed and remanded. ORTEGA, P. J. Mother appeals from judgments terminating her parental rights to her two sons, AA and AF. Both children were removed from mother's care because of concerns that mother was manufacturing and using drugs. Mother engaged in drug treatment and other services, but relapsed into heroin use. The day before the hearing on the petitions to terminate her and father's parental rights,(1) mother completed further treatment, and experts projected that she might be able to resume parenting in six to 18 months. The children were doing well, and there was no evidence that they were likely to suffer harm from waiting six to 18 months for permanency. On this record, we need not address whether mother is unfit, because we conclude that the Department of Human Services (DHS) failed to prove, by clear and convincing evidence, that integration of the children into mother's home was improbable within a reasonable time due to conduct or conditions not likely to change. Accordingly, we reverse and remand. We state the facts as we find them on de novo review, ORS 19.415(3)(a). AA was born in July 2000, and AF was born in March 2007. In April 2008, the children were removed from mother and father's care after DHS received a report from the sheriff's office that mother and father were growing marijuana. Police searched the family home and found drug paraphernalia and dried marijuana in places accessible to children, as well as marijuana and other drug-related items in a search of a previous residence. Mother later pleaded guilty to one count of unlawful delivery of marijuana and two counts of child endangerment. A DHS protective services worker, Gomez, spoke with AA, then in second grade. He was aware that mother and father grew and smoked marijuana and was able to describe the use of a bong. AA told Gomez that he would get in trouble for talking about selling marijuana and that he worried when people whom he did not know came to the house. The children were placed in substitute care, with mother's aunt serving as their foster mother through the time of the termination hearing in February and March 2010. In June 2008, mother admitted that each child had been in a place where unlawful activity involving marijuana occurred and that "controlled substances and paraphernalia were found in a location in the residence within the child's reach." She further admitted that, while under the influence of alcohol or drugs, she had been unable or unwilling to provide necessary care, guidance, and protection and that, if left untreated, her substance abuse presented a threat of harm. The juvenile court took jurisdiction and ordered mother, among other things, to complete a psychological evaluation and a drug and alcohol evaluation, to follow any recommendations for treatment, and to demonstrate a drug-free lifestyle. Given our resolution of this matter, we need not recount in exhaustive detail mother's efforts to address her behavior that was harming the children, but we provide an overview of that history in order to provide context for our decision to reverse the judgment of termination. We also include evidence of how the children were doing in foster care. Beginning in June 2008, mother participated in intensive outpatient treatment for cannabis dependence and alcohol abuse at Willamette Family Treatment (WFT). Mother showed a positive attitude and participated in extra services. Although her progress was somewhat mixed from August through November, mother successfully completed treatment and was discharged in January 2009. While in treatment, mother underwent a psychological examination with Dr. Sorensen. Mother reported a history of frequent marijuana use and explained that previously she had not seriously considered the consequences of drug activity and never expected the children to be removed. She also stated that she and father always supervised the children and told them not to touch drugs or bongs. Although she tried to justify her drug-related behavior, she voiced reasonable insight into the impact of her conduct on the children, and Sorensen found little cause for serious concern about mother's ability to parent. When the children were removed, each had some delays. AA was at least a year behind in reading, so his foster mother worked with him for an hour every day on reading and got him extra help at his school. AF received early intervention services (essentially special education) and made progress even before the home visit services began. Despite significant delays, his condition improved in a short time, so that he no longer needed services. Mother did well during visits with the children. She addressed each child's needs, was affectionate, and displayed good parenting skills. However, there is some indication that she occasionally handled things in a way that caused difficulties for AA. For example, when he asked her if she was doing everything that the judge told her to do, she told him she was "doing everything [she was] supposed to be doing and then some." However, as it turned out, mother began using heroin not long after that conversation. She also missed some visits, without giving a satisfactory, if any, explanation at all. In January 2009, AA began counseling at Options. He was diagnosed with an adjustment disorder with anxiety; further information was needed to rule out the possibility that he also had post-traumatic stress disorder (PTSD), chronic. His therapist, McDonald, testified that AA was traumatized by the separation from mother, partly because he blamed himself for the family's break-up. He also felt anxiety about fighting that he had observed between mother and father.(2) In February, after finishing the WFT program, mother moved to be closer to the children and, under a plan to transition the children to her care, had 10 to 15 longer visits with them in the foster home, supervised by the children's foster mother. Although mother was good with the children and they were happy to see her, the foster mother suspected that mother might have been high during one or two visits. Also, mother missed some visits and telephone visits without warning, which upset AA. Because of those difficulties and problems with scheduling, the additional visits were ended at the foster parents' request. Mother appeared to be doing well but then, in April, missed a urinalysis (UA) test and was dishonest about it. Soon after that, she had a UA that was positive for opiates, and she then entered residential treatment at Pacific Ridge in May 2009. At intake, she reported that she had quit using alcohol and, because of the UAs, marijuana--but that she had used heroin daily for the last six to eight months.(3) The intake counselor diagnosed mother with opioid dependence and noted that mother appeared to be "in the 'lip service' stage of change." Mother was prescribed Suboxone, a medication that decreases opiate cravings and prevents opiate highs.(4) Her progress notes reflect positive change, and mother was discharged on June 1 with a plan to attend outpatient treatment. Later in June, the juvenile court held a permanency hearing. DHS asked for more time for mother to complete treatment. The court ordered a 90-day extension in the permanency plan and ordered mother to, among other things, follow any and all recommendations for aftercare and relapse prevention and demonstrate a drug-free lifestyle. After that permanency hearing, AA told the caseworker that he wanted to live with his grandmother, the prospective adoptive placement, because he did not trust mother and was upset with her for not following through as she had promised. AA's desire not to be reunited with mother, coupled with the fact that the case was then over a year old, prompted DHS to seek a change in the permanency plan. In July, after a second permanency hearing, the court changed the plan to adoption. During that time, mother engaged in services. She participated in two drug treatment programs at Serenity Lane: an intensive outpatient program that she successfully completed in August, and a recovery support program, which she began in September. Mother also began treatment with Dr. Hayes at Beyond Addictions, who prescribed Suboxone for mother to detoxify and maintain abstinence from heroin. From October to December, while in recovery support, mother also participated in a parenting class, attending every session and displaying a positive, open attitude. In January 2010, mother, at her attorneys' request, participated in a psychiatric and alcohol and drug evaluation with Dr. Larsen. Larsen found mother to be bright and forthcoming, and he saw no signs of any mental disease other than substance abuse. Mother told Larsen that she was taking Suboxone, was actively involved in Alcoholics Anonymous and Narcotics Anonymous (NA), and was subject to UAs every two weeks through Serenity Lane and her probation officer. Larsen diagnosed alcohol and substance abuse but, at the time, saw no suggestion of active dependence on or addiction to substances. Unfortunately, it turned out that mother had already relapsed at the time of that evaluation. Three days later, mother submitted to a UA at DHS's request, and it was positive for morphine, consistent with heroin use. Initially, mother insisted that there had been a mistake, but she later admitted that she had been using heroin three or four times per week since late October. At trial, mother acknowledged that, if she had not been caught, she would not have told anyone that she was using. Mother was discharged from her recovery support program so that she could obtain a higher level of care, and she reentered Pacific Ridge in late January. The intake form placed mother at the acceptance stage (described as "believes they have a problem with alcohol/drugs, yet is unwilling to make all necessary changes to stay sober--the 'yes, but |