Department of Human Services v. A. L. M.

RIGGS, S. J.,

concurring in part, dissenting in part.

I concur in that portion of the majority opinion that affirms the termination of mother’s parental rights to both daughter A and daughter V. I dissent from that portion of the majority opinion that reverses the termination of father’s parental rights to daughter V.

To begin with, I agree with and commend the accuracy of the majority’s recitation of the relevant statutory and case law and the evidence in this case. In fact, the majority’s *641factual discussion forms much of the basis for my dissent. I also agree that our review is de novo and that the correct relevant standard is proof by clear and convincing evidence, giving appropriate weight to the juvenile court’s assessment of witness credibility. I part company with the majority as to whether, under the facts outlined in the majority opinion and the analysis contained in the trial court’s findings of fact and conclusions of law, the state has sustained its evidentiary burden of proof. I believe that the totality of the facts support, clearly and convincingly, the trial court’s conclusion that father is not fit and is not a candidate for providing reintegration of V within any reasonable period of time.

Unlike the majority, I believe that it is necessary for us first to determine that father is unfit before engaging in the inquiry as to whether integration of the child in father’s home is improbable within a reasonable time due to conduct or conditions not likely to change. See State ex rel SOSCF v. Stillman, 333 Or 135, 145, 36 P3d 490 (2001) (court engages in the integration inquiry “only if’ court determines that the parent is unfit). I would conclude on this record, based on the circumstances described in the majority opinion and highlighted in this dissent, that father is unfit.

As for the question of integration of the child into father’s home, I would affirm the trial court’s determination that it is improbable that integration could occur within a reasonable time due to conduct or conditions not likely to change, primarily based on facts that I highlight here. V, the child in question here, currently is approximately two and a half years old. She was a toddler at the time of the trial and has been in one kind or another of substitute care of the state since she was about a month old. At the time of the trial, the evidence shows that V has made progress in becoming a happy and normal child, notwithstanding the tumultuous circumstances that accurately characterize the nature of her brief life with father and mother and the horrific circumstances experienced by mother’s other children, as demonstrated by the facts in mother’s case here and in the several termination proceedings involving Vs siblings that occupy much space in the trial and appellate records of this state. V *642has been assessed as capable of forming a successful attachment to an adoptive family. An appropriate adoptive resource has been identified.

The majority opinion does a credible job of outlining father’s past circumstances, but I wish to highlight a bit of that background that father brings to the table for this little girl. The record includes evidence of repeated instances in which father seeks to continue the highly toxic relationship with mother, along with the proclaimed desired involvement of mother in Vs life if father prevails in the termination proceeding. Father was warned repeatedly over a substantial period of time that involvement of mother in Vs life was not possible and that father needed to build a life without mother’s influences on the future family. Nevertheless, father has continued to seek involvement with mother in defiance of Department of Human Services (DHS) rules and notwithstanding repeated warnings that that conduct put at risk father’s future relationship with V. Father’s disdain for the rules is amply characterized by text messages that father and mother exchanged, including one message in which father stated, “[H]ow many times more [do] U want me to show U, Que I’m not gonna do what they say.”

The majority also describes evidence of a sexual encounter between father and a 14-year-old female acquaintance, M. After the incident was reported, father first accused the girl of lying, then admitted the sexual encounter, and then, again, changed his story and denied that the sexual encounter occurred and said that it was just a “joke.” Although the charges against father were dismissed, the trial court in the termination hearing made specific findings that father committed the sexual abuse with the 14-year-old girl based on the evidence in the termination case.

The majority also adequately describes other encounters between father and mother connected to violence, criminal conduct, and injury as reported to police by mother, including repeated incarcerations of father for a variety of reasons over relevant periods, including at the time of the termination hearing.

One of the state’s expert witnesses, Dr. Truhn, a psychologist, examined father and concluded that father had a *643compulsive emotional need to continue his involvement with mother. Indeed, father himself testified at the termination hearing that he was still very much in love with mother, and that he believed that mother “took very good care of V.” The majority acknowledges that mother presents risks to V, that father has in the past been dishonest about his involvement with mother, and that he has even disregarded court orders prohibiting contact with mother, having had contact with her as recently as September 2009, just a few months before the termination hearing.1 Inexplicably, however, the majority disregards the juvenile court’s implicit finding that father is not credible about his relationship with mother and finds instead that father is not likely to again become involved with her. That is not a risk that I am prepared to take for V. Father’s past conduct, including his candid text message to mother, discussed above, casts serious doubt on his claims that he would comply with any prohibition of contact with mother, even with counseling.

As to father’s sexual abuse of M, the majority acknowledges that it is troubling, but concludes, essentially, that there is no evidence that father is not amenable to treatment that would make him a safe parent within a reasonable time. Again, I have a different view of the evidence. Although seemingly acknowledging father’s sex abuse, 242 Or App at 636, the majority nevertheless suggests that there is ambiguity in that fact, noting that father denied the abuse. In fact, the record shows that father denied, then admitted, then denied the abuse. The trial court found that father had in fact committed the sexual abuse of M and would need a psycho-sexual evaluation and sex offender treatment, that his denial of wrongdoing had stymied treatment, and that services rendered to date have been ineffective. The majority does not question those findings. Truhn opined that treatment for this kind of sexual molestation “could take months or years” and that a full assessment would be needed to structure the correct program.

*644The majority faults the state for failing to present evidence that father could not be successfully treated within a reasonable time. My view of the facts supports a conclusion that the state has sustained its burden of showing, by clear and convincing evidence, that father is not a candidate for integration of V into his life within any reasonable time in the foreseeable future. All of the evidence — Truhn’s testimony and father’s own duplicitous behavior in defiance of DHS rules, in particular — points inexorably to that conclusion. On this record, it appears that father is unlikely to change his conduct. In view of father’s persistence and untruthfulness with regard to his relationship with mother and his deceit and unwillingness to admit at the termination hearing that he had sexually abused M, even after having earlier admitted it, I am unable to conclude that, even with “successful” treatment, father probably will become a safe parent within any time. To require, in addition, that the state provide explicit evidence that a particular treatment cannot be successfully completed within a reasonable time asks too much, and I do not believe that the statutes, the case law, or the field of psychology require any more specificity. The adverse effect on the child of prolonging the harmful relationship with father and delaying permanency is self-evident.

Thus, I would conclude that the record overwhelmingly supports the trial court’s opinion. It is time this case is affirmed and this little girl is given the opportunity for as much of a normal life as can be provided for her. And as soon as possible.

I respectfully dissent.

I note that the majority says that, after early 2009, “the record does not show that [father] was in contact with mother during periods when he had the opportunity to be.” 242 Or App at 638. However, the record shows that father told Truhn that he had had contact with mother as recently as September 2009.