Department of Human Services v. D. M. T.

*129ORTEGA, J.

Father appeals a judgment terminating his parental rights to his son. Among other grounds for termination, the juvenile court found that father was unfit under ORS 419B.504 because of criminal conduct, emphasizing that, under the conditions of father’s post-prison supervision (PPS), “[flather is not authorized to have contact with his child.” (Underscoring omitted.) We affirm because (1) father is characterized by a condition — having been convicted of first-degree encouraging child sexual abuse, ORS 163.684, and therefore being subject to a PPS condition that restricts any contact with minors — that is seriously detrimental to child; (2) as a result of his PPS condition, father was unlikely to be allowed to integrate child into his home for about two years, a period that is not a reasonable time for child to wait; and (3) termination is in child’s best interests. Because we affirm on that basis, we do not consider whether the juvenile court erred by also terminating father’s parental rights because of extreme conduct under ORS 419B.502.

On de novo review, ORS 19.415(3)(a), we find the facts as follows. In June 2006, when child was three and one-half years old, police investigated reports that father possessed child pornography. Father acknowledged to a detective that he saved child pornography on his computer, viewed child pornography videos on a regular basis, had been viewing such videos since approximately 2000, and found them sexually stimulating. The videos included images of young children being forcibly raped by adults. Father’s sex offender therapist later noted that the materials involved were “extremely graphic displaying the sexual abuse of both male and female children as young as four” and that father’s “interest in prepubescent children has been recurrent, intense, and no doubt involving sexual arousal * * Father was charged with 25 counts of first-degree encouraging child sexual abuse.

Father has had little contact with child since June 2006. During that year, father spent slightly over six weeks in jail before being released. According to father, there was confusion about whether his release agreement prevented him from seeing child. In January 2007, father underwent a *130psychological evaluation arranged by his attorney; the evaluator concluded that father would present no risk to child during supervised visits. In March, father pleaded guilty to eight counts of first-degree encouraging child abuse. At the end of May, father provided the Department of Human Services (DHS) with a copy of a court order from Judge Baisinger — who later signed the judgment in father’s criminal case — stating that father was allowed to have supervised visits with child. In July and early August, before father was incarcerated, he had three supervised, one-hour visits with child. On the recommendation of child’s therapist, father had no visits with child during father’s incarceration.

In May and June 2007, shortly before going to prison, father sought a referral from DHS to a sex offender treatment program. DHS did not provide a referral, and father did not engage in any treatment before going to prison. Then, according to father, no sex offender treatment programs were available in prison.

Father was incarcerated from August 2007 to September 2008. Other components of his sentence continue to affect his ability to have contact with child. On seven counts, father was sentenced to 60 months of supervised probation, including a special condition that he “[h]ave no contact with minors except as authorized by DHS”; on the remaining count, he was sentenced to 18 months of imprisonment and 36 months of PPS. According to his parole officer, Michael, father will be on PPS until August 2012. Among his PPS conditions are requirements that he complete sex offender treatment, submit to polygraphs, and have no contact with minors.1 Thus, at the time of the termination hearing, father was not allowed to have any contact with child. *131Michael explained that contact “includes telephones, letters, going through a third party, anything of that nature.”

As required by his PPS conditions, father began sex offender treatment promptly after being released from prison. At the time of the termination hearing, in January and February 2009, he was four months into a 22- to 26-month cognitive behavioral program involving systematic lifestyle restructuring. The cognitive behavioral treatment offers tools needed to develop a relapse prevention plan. According to Caywood, father’s therapist for that program, father was consistently attending the weekly group sessions and was “in the beginning stages of treatment and working to understand * * * the cognitive distortions and so forth that many offenders struggle with because of their own shame and fear.” Concurrently with that treatment, Caywood wanted father to participate in laboratory phallometric testing and any recommended behavioral treatment. That additional program would involve assessments with physiological arousal measurements and would teach specific behavioral techniques to subdue and curtail inappropriate sexual interests. The behavioral intervention component usually lasts three to four months and may involve a later reassessment to check effectiveness. Caywood explained that he would get more information from the behavioral intervention program, but a referral to that program usually is more effective when the person is well into the treatment process. Father was less than a quarter of the way through his treatment program.

Michael testified that, in order to “earn that privilege” of modifying his PPS conditions to allow contact with child, father must comply with all PPS conditions and conditions of treatment, pass polygraphs, and show progress in treatment. Just before trial, father e-mailed mother, thereby violating a PPS condition that he not contact her. He asked mother to call Michael and request that the condition be removed; he also asked mother to conceal the contact that had already occurred. The expected sanction for father’s PPS violation was a loss of computer privileges and time on work crew. Caywood found “the level of manipulation * * * [to] be a concerning issue.” Michael testified that father has “got an uphill battle right now at this point to prove that what he actually has stated to me has been the truth.”

*132Michael and Caywood together would decide whether father should be allowed unsupervised contact with children. If father developed a safety plan that was approved by Caywood and the PPS sex offender unit, then contact could be considered. Michael had not yet had any discussion with Caywood about the possibility for father to have contact with child, but, if Caywood agreed, she would be open to supervised or telephone contact.

Although Caywood and Michael testified that father might be able to have contact with child at an earlier time, they agreed that father is unlikely to be able to integrate child into his home for about two years. Caywood testified:

“Q. Okay. Am I also correct that there is nothing in the presentation of [father’s] case at this point that would conclude [sic] you to think that he would be appreciably below that sixteenth month floor for reintegration into a family?
“A. No, I think the approach and the agenda he’s expected to complete and address will take pretty close to two years.”2

Michael testified similarly about the likely time frame for father to have permission to integrate child into his home:

“Q. All right. Your testimony, at least as I would characterize it, was to the effect that with the people that you’re supervising, no one has been able to regain care of their child on an unsupervised basis until near the end of their program, is that correct?
“A. Correct.
“Q. And the programs run two or three years, also correct?
“A. Yes.
“Q. Has [father] done anything to cause you to conclude that his time frame would likely be less than that two to three years?
*133“A. No. Not in my indications and not with speaking with John Caywood.”

Thus, it is improbable that father will obtain a change in his PPS to allow him to integrate child into his home in less than two years.

The dissents conclude that the testimony of Caywood and Michael does not constitute clear and convincing evidence that it is likely to be two years before father would be allowed to integrate child into his home; in the dissents’ view, Caywood’s testimony is too equivocal, and Michael’s testimony is entirely reliant on Caywood’s. 239 Or App at 147-48 (Wollheim, J., dissenting); 239 Or App at 160 (Sercombe, J., dissenting). Although Caywood testified that he wanted more information to predict the path of father’s treatment and the risk that father might engage in hands-on abuse of a child,3 it would be surprising if a therapist did not want more information about his client. Caywood’s acknowledgment that more information would be useful does not undermine his testimony, based on his experience and the information that he did have about father, that integration was unlikely to be possible for about two years. Although Caywood gave different time frames for possible “contact” between father and child and for unsupervised contact to be “within the realm of possibilities,” those answers were in response to different questions than the question when integration was likely. The time frame for contact or visits, supervised or unsupervised, naturally may differ from the time frame for integration of a child into a parent’s home, and the time frame that is possible naturally may differ from the time frame that is likely for integration. Acknowledging those differences does not undercut the force of Caywood’s testimony about the probable time at which integration might be allowed: two years.

Likewise, Michael testified that, if father were compliant with all PPS conditions, she would be unlikely to disagree with a hypothetical recommendation from Caywood *134that father be allowed unsupervised contact in six months. Michael was clear, however, that she believed — based on her experience supervising other sex offenders, her own observations of father, and her discussions with Caywood — that father would be unlikely to be allowed to have child in his care, unsupervised, before two years had passed. The juvenile court found both Michael and Caywood (but not father) to be credible witnesses. Their testimony constitutes clear and convincing evidence that father is unlikely to be able to integrate child into his home within two years.

Meanwhile, child, at age six, had not seen father at all since the summer of 2007, a year and a half before the termination hearing. Shortly before the termination hearing, child’s therapist, Monahan, noted that child asked where father was but had no obvious emotional reaction to talk of father. Monahan testified that, when she told him that he would not have visits with father immediately, child “seemed a little sad, but nothing really extreme and he went back to the Play-Doh.”

Child has significant developmental and emotional needs. As a result of premature birth, child is about one and one-half years delayed developmentally. He also suffers from severe headaches and possibly from seizures. He has been diagnosed with borderline cognitive function and adjustment disorder and is at risk for developmental behavioral and emotional issues. Because of child’s cognitive delays, transitions are extremely difficult for him. In addition, child has traits of post-traumatic stress disorder (PTSD) and reactive attachment disorder (RAD), although he does not have the full-blown disorders.

Transitions are likely to continue to be difficult for child and to cause him to regress, according to Stoltzfus, a psychologist who evaluated child. PTSD, adjustment disorder, and RAD are treatable but will “re-emerge quickly if he’s put back into a neglectful or abusive environment.” Even without neglect or abuse, change is very hard for child, “[a]nd every change he endures will set him back. And it doesn’t mean he can’t pop back eventually, but it just takes longer.” Stoltzfus explained that each transition increases the risk *135that child will develop RAD, although child probably could manage a transition into another “very stable home.”

Stoltzfus’s evaluation was consistent with the observations of child’s occupational therapist, Cox, that “any changes are gonna be challenging for [child].” Child may have outbursts if, for example, a toy that he likes is out of place in Cox’s office. Cox explained that any change can cause child to need to relearn an entire skill. If child’s clothes are in a different place, for example, child needs “help redoing that whole task. So if you can imagine, you know, having, you know, his whole life changed where he lived or anything like that, it would be kind of starting out at ground zero again and re-teaching him those things again.”

In addition to needing a very stable home, child needs, according to his therapist, “permanency with someone who is really going to be paying attention to his special needs.” Monahan testified that child currently “seems pretty confused about family roles and family, who’s supposed to be doing what and who cares about him and who doesn’t, what family he has, what family he doesn’t have.” In Monahan’s view, child needs permanency before the end of father’s sex offender treatment program:

“Q. Developmentally does [child], given this confusion he has about family, need a permanent family at this point?
“A. Yes, he does.
“Q. Do you think it would, in your professional opinion, cause him harm developmentally and in terms of ability to maintain forming [sic] attachments to have to wait two years or up to two years to have a permanent family situation designated?
“A. Yes, I think it would.”

According to child’s service providers, child is bonded to his maternal grandmother, who is his current placement and wishes to adopt him, and she is able to meet his significant needs. Monahan testified that child has stabilized in his grandmother’s care. Indeed, in Stoltzfus’s view, the care that child received from his grandmother for an extended period prevented development of the full-blown diagnoses of PTSD and RAD.

*136The juvenile court terminated father’s parental rights on multiple bases, one of which was that father is unfit under ORS 419B.504(6) because of criminal conduct that impairs his ability to provide adequate care for child. Father appeals.

We agree with the juvenile court that termination was proper under ORS 419B.504, which provides:

“The rights of the parent or parents may be terminated as provided in ORS 419B.500 if the court finds that the parent or parents are unfit by reason of conduct or condition seriously detrimental to the child or ward and integration of the child or ward into the home of the parent or parents is improbable within a reasonable time due to conduct or conditions not likely to change. In determining such conduct and conditions, the court shall consider but is not limited to the following:
“(1) Emotional illness, mental illness or mental retardation of the parent of such nature and duration as to render the parent incapable of providing proper care for the child or ward for extended periods of time.
“(2) Conduct toward any child of an abusive, cruel or sexual nature.
“(3) Addictive or habitual use of intoxicating liquors or controlled substances to the extent that parental ability has been substantially impaired.
“(4) Physical neglect of the child or ward.
“(5) Lack of effort of the parent to adjust the circumstances of the parent, conduct, or conditions to make it possible for the child or ward to safely return home within a reasonable time or failure of the parent to effect a lasting adjustment after reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected.
“(6) Criminal conduct that impairs the parent’s ability to provide adequate care for the child or ward.”4

*137That statute requires us to decide (1) whether the parent is unfit — that is, whether the parent has engaged in conduct or is characterized by a condition and whether the conduct or condition is seriously detrimental to the child — and (2) whether, given the parent’s conduct or condition, it is improbable that the child may be integrated into the parent’s home within a reasonable time. State ex rel Dept. of Human Services v. Smith, 338 Or 58, 80-81,106 P3d 627 (2005); State ex rel SOSCF v. Stillman, 333 Or 135, 145-46, 36 P3d 490 (2001). A “reasonable time” is measured by “a child or ward’s emotional and developmental needs and ability to form and maintain lasting attachments.” ORS 419A.004(20). If grounds for termination are proved, then we decide whether termination is in the child’s best interest. ORS 419B.500; Smith, 338 Or at 79. The factual basis for termination, unless admitted, must be proved by clear and convincing evidence. ORS 419B.521(1).

As pertinent to our analysis, father contends that his criminal conduct does not present a risk of harm to child and that, given DHS’s lack of reasonable efforts to provide sex offender treatment for father before his incarceration and to provide visits between father and child, DHS failed to prove that integration into father’s home is improbable within a reasonable time due to conduct or conditions not likely to change. Father further contends that termination of his parental rights is not in child’s best interests. DHS responds that father is unfit because of sexually abusive criminal conduct, that the portions of ORS 419B.504 applicable to father do not require a showing of reasonable efforts, that child cannot be integrated into father’s home within a reasonable time, and that termination is in child’s best interests. We *138agree that each of the statutory requirements for termination under ORS 419B.504 was proved.

First, father is unfit because, at the time of the termination hearing, he was subject to a PPS condition that he have no contact with minors, and father’s condition is seriously detrimental to child. That condition is not enumerated in ORS 419B.504, but it nevertheless may be considered in the unfitness analysis. See Stillman, 333 Or at 149 (concluding that the father’s incarceration and residence in halfway house, which precluded him from personally caring for children or otherwise maintaining custodial parental role, could be considered a “condition” under ORS 419B.504); State ex rel Dept. of Human Services v. Keeton, 205 Or App 570, 582, 135 P3d 378 (2006) (considering “sequellae” of past criminal conduct in assessing the mother’s conduct and its detriment to her children). Father’s condition, in conjunction with his earlier incarceration, has prevented and will continue to prevent him from providing a stable home to child for a prolonged period that is seriously detrimental to child. According to treatment providers, child has made great progress while in his grandmother’s care, but he still needs a stable environment to prevent him from developing full-blown RAD. Unlike the children in Stillman, who were generally well-adjusted and attached to the father and suffered only some anxiety about their future as a result of the father’s incarceration, 333 Or at 150-53, child here has a significant need for stability to avoid regression and severe emotional harm. Father’s condition leaves child without the stable home that child needs and thus is seriously detrimental to child.

Second, child’s integration into father’s home is improbable within a reasonable time due to conditions not likely to change. Child cannot wait as long as the two years likely required to change father’s PPS so as to allow him to integrate child into his home. The statutory definition of “reasonable time” requires a child-specific inquiry and “testimony in psychological and developmental terms regarding the particular child’s requirements.” Id. at 146; see also State ex rel SOSCF v. Freeman, 174 Or App 194, 204-05, 23 P3d 1009, rev den, 332 Or 430 (2001) (noting that the legislature amended the time for integration from “in the foreseeable future” to “within a reasonable time,” as defined by the child’s *139emotional and developmental needs; those amendments “shifted the statute’s focus from the parent to the child in the sense that the time frame for integration now is to be measured by the child’s needs, not by the parent’s potential for reform”). Here, child’s therapist testified that waiting up to two years for permanency will be harmful to child, who already has been diagnosed with adjustment disorder and is at risk for developing full-blown PTSD and RAD. Father will likely need two years before he could obtain approval from his parole officer to integrate child into his home. Thus, at the time of the termination hearing, it is improbable that father’s condition would change, allowing integration of child into father’s home, within a reasonable time as measured by child’s needs.

In his dissent, Judge Wollheim takes a different view, contending that DHS can meet its burden to prove that integration of the child into the parent’s home “is improbable within a reasonable time due to conduct or conditions not likely to change,” ORS 419B.504, only “by showing that services have failed or will fail.”5 239 Or App at 154 (Wollheim, J., *140dissenting). Certainly, unless excused from doing so, ORS 419B.340(5), DHS is required to make reasonable efforts during dependency proceedings. The issue at this stage of the case, however, is whether “integration of the child or ward into the home of the parent or parents is improbable within a reasonable time due to conduct or conditions not likely to change.” ORS 419B.504 (emphasis added). The legislature’s use of the present tense requires the court to decide the improbability of integration due to conduct or conditions not likely to change at the time of the termination hearing, not to decide whether the parent’s conduct or condition might have been susceptible to change at some point in the past. See State ex rel Dept. of Human Services v. Rardin, 340 Or 436, 447, 134 P3d 940 (2006) (holding that use of present tense in “the parent or parents are unfit,” ORS 419B.504, means that court must consider whether the parent is unfit at time of termination hearing, not whether the parent was unfit at some point in past). The legislature’s choice of verb tense in ORS 419B.504 takes on particular force in the context of other provisions of the Juvenile Code that require, during proceedings that precede any termination hearing, a determination whether DHS “has made reasonable efforts.” ORS 419B.185(l)(a), (c); ORS 419B.340(1); ORS 419B.476(2)(a); see also ORS 419B.337(l)(b) (requiring, in removal order or order continuing care, finding whether “[reasonable efforts * * * have been made”); ORS 419B.498(2)(b)(C) (reason not to file termination petition where court or citizen review board determined that DHS “did not make reasonable efforts”). If the legislature had intended to require a finding regarding past reasonable efforts in every ORS 419B.504 case, it knew how to do so. It chose not to.

We hasten to add that, in some cases, DHS’s failure to make reasonable efforts may be relevant to the determination regarding integration. In Keeton, for example, we concluded that the state had failed to prove that the children could not be integrated into the mother’s home within a reasonable time due to conduct or conditions not likely to change. 205 Or App at 583. We assumed, without deciding, that the mother’s “condition as an untreated sex offender” was seriously detrimental to her children, but concluded that the state had failed to prove that that condition was “ ‘not *141likely to change’ ” or that integration was “ ‘improbable within a reasonable time.’ ” Id. The record there showed that the mother was committed to following through with treatment, but DHS had failed to make a timely referral for such treatment. Id. at 573-75. The children, who were doing well and who wanted to return to the mother, could be returned to her after she began treatment but before she completed it, according to a psychosexual evaluator. Id. at 573, 575-76. Thus, the condition that prevented the children’s integration into the mother’s home (the mother’s failure to begin sex offender treatment) could be ameliorated within a reasonable time, as of the termination hearing, if DHS provided a referral.

Those facts are markedly different from the facts in this case. Here, father’s condition is his PPS, which prevents him from providing a stable home to child. As of the termination hearing, his PPS conditions were unlikely to change to allow integration for two years, regardless of whether DHS provided any services at that time. Integration thus is improbable within a reasonable time due to a condition not likely to change.

Having concluded that father is unfit under ORS 419B.504, we consider whether termination is in child’s best interests, ORS 419B.500. Child has stability and a strong bond with his maternal grandmother, who wishes to adopt him, and his emotional health has improved under her care. She can provide him with the stable home that he needs now and that father will be unable to provide within a reasonable time. Termination of father’s parental rights is in child’s best interests.

Affirmed.

In his dissent, Judge Wollheim states that father “is subject to a condition of probation that is within the control of DHS; father may have contact with child if DHS authorizes that contact.” 239 Or App at 157 (Wollheim, J., dissenting). Although that probation condition is within DHS’s authority, father’s PPS condition is not. See ORS 144.102(1) (providing, in part, that “[t]he State Board of Parole and Post-Prison Supervision or local supervisory authority responsible for correctional services for a person shall specify in writing the conditions of post-prison supervision imposed under ORS 144.096”). As noted, this opinion focuses on father’s condition of being subject to a PPS condition that prevents him from being able to provide child with a stable home.

Father asserts that he could integrate child into his home in six to 18 months. He relies on Caywood’s testimony that, “as a standard of practice,” integration generally takes six to 18 months, beginning with closely supervised visits, and that, consistently with that approach, he would recommend that contact between father and child begin with “very carefully supervised, structured visits.” When asked specifically about the likely time frame in which father might be able to integrate child into his home, however, Caywood testified as quoted above.

Our analysis relies on clear and convincing evidence that father is unlikely to obtain a change in his PPS condition that would allow him to provide child with a stable home within a reasonable time. We do not reach any conclusion regarding any risk that father would abuse child if child were returned to father.

ORS 419B.504 provides that, “[i]n determining such conduct and conditions, the court shall consider but is not limited to the following [enumerated subsections.]” (Emphasis added.) The statute thus requires us to consider each enumerated subsection in determining a parent’s conduct or conditions that establish whether the parent is unfit and whether integration is improbable within *137a reasonable time. Under subsection (5), then, we must consider a parent’s failure “to effect a lasting adjustment after reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected.” Nothing in the statute, however, elevates any subsection above another. Thus, although we must consider reasonable efforts as provided in subsection (5), a lack of proof of a condition under subsection (5) does not mean that we must reverse the termination of parental rights if another basis for termination is proved and if the statutory requirements are satisfied in all other respects. In this case, we have considered the conduct and conditions enumerated in ORS 419B.504(1) to (6), but we limit our discussion to a single condition— restrictions on contact with child resulting from father’s PPS — that we find dispositive here.

The dissent cites State ex rel SOSCF v. Frazier, 152 Or App 568, 955 P2d 272, rev den, 327 Or 305 (1998), and State ex rel Dept. of Human Services v. R. O. W., 215 Or App 83, 99, 168 P3d 322 (2007), for the proposition that, in all unfitness cases, DHS must show that it has made reasonable efforts to help the parent become minimally adequate. Those cases, however, involved different legal and factual determinations than this case, and they do not impose such a broad requirement. In Frazier, we addressed reasonable efforts in the context of ORS 419B.504(5), which requires a court to consider the “failure of the parent to effect a lasting adjustment after reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected.” 152 Or App at 581-83, 601. In R. O. W., the mother was unfit because cognitive disabilities made her unable to safely care for the child without constant supervision; the father was unfit because he was unable to protect the child from the mother and, as pertinent under ORS 419B.504(5), had not adjusted that circumstance despite DHS’s reasonable efforts. 215 Or App at 100-03. Rejecting the mother’s argument that DHS had not made reasonable efforts, we found DHS’s efforts reasonable and concluded that, as pertinent under ORS 419B.504(1), the mother’s mental deficiencies were “ ‘of such a nature and duration as to render [her] incapable of providing proper care for [the child] for extended periods of time.’ ” R. O. W., 215 Or App at 105 (first bracketed material in R. O.W.). Thus, reasonable efforts were part of our analysis of the mother’s unfitness because of her mental deficiencies; if remediable, those deficiencies might not render her incapable of caring for the child for an extended period. In neither case did we hold, as the dissent advocates, that a lack of reasonable efforts in the past means that termination is error, regardless of the parent’s condition at the time of the termination hearing and regardless of whether it is improbable that a change in that condition could he effected so as to enable integration within a reasonable time.