473 P.3d 1152
Or. Ct. App.2020Background
- Child (5 at trial) removed from mother at 2½; experienced 12 placements before termination proceeding.
- Child diagnosed with trauma/stressor-related and adjustment disorders; exhibits severe behavior problems triggered by transitions and needs a skilled, stable caregiver.
- Child had improved in two consecutive long-term placements, most recently with a therapeutic foster mother who sought to adopt; child is bonded to foster mother and to maternal grandmother (weekly overnights).
- DHS identified maternal relatives in Alaska as a potential adoptive resource and completed an ICPC study; DHS said agency rules prioritized relatives and could place child in Alaska.
- Juvenile court found mother unfit and reunification improbable but denied DHS’s petition because it could not find, by clear and convincing evidence, that freeing the child for adoption was in the child’s best interest given the likely disruptive move to Alaska and the risk of losing grandmother contact.
- On appeal DHS argued the court erred by considering the child’s likely adoptive placement in its best-interest analysis; the Court of Appeals rejected that legal argument and affirmed on de novo review, holding DHS failed to meet its burden.
Issues
| Issue | Plaintiff's Argument (DHS) | Defendant's Argument (Mother/Child interests) | Held |
|---|---|---|---|
| Whether a juvenile court may consider a child's likely adoptive placement when determining if freeing for adoption is in the child's best interest under ORS 419B.500 | Placement is a post-termination dispositional matter (ORS 419B.527); best-interest analysis should not consider ultimate placement | Court may consider prospective adoptive placement if it informs what is in the particular child’s best interest | Court: Permissible to consider likely adoptive placement when it bears on the child’s specific needs and circumstances; DHS’s argument rejected |
| Whether DHS proved by clear and convincing evidence that freeing the child for adoption was in the child’s best interest | Adoption provides permanency; DHS prioritized relatives and asserted adoption (whether with foster parent or relatives) was in child's best interest | Adoption not proven: likely move to Alaska would be disruptive, threaten grandmother contact; permanent guardianship or adoption by foster mother could provide needed stability | Court: On de novo review DHS did not meet its burden; termination denied because adoption (as likely to result in Alaska placement) was not shown to be in child’s best interest |
Key Cases Cited
- Dept. of Human Services v. T. M. D., 365 Or. 143 (Oregon 2019) (no presumption in favor of termination; DHS bears burden to prove best interest)
- Dept. of Human Services v. T. L. M. H., 294 Or. App. 749 (Or. Ct. App. 2018) (de novo review standard and requirement of clear and convincing evidence for best-interest finding)
- Dept. of Human Services v. T. L. B., 294 Or. App. 514 (Or. Ct. App. 2018) (child-specific evidence required to prove need for permanency supports termination)
- Dept. of Human Services v. T. M. M., 248 Or. App. 352 (Or. Ct. App. 2011) (consideration of a foster placement willing to adopt in best-interest analysis)
- Dept. of Human Services v. D. M. T., 239 Or. App. 127 (Or. Ct. App. 2010) (termination may be supported where child has stability and strong bond with adoptive relative)