In the Matter of Crp
244 Or. App. 221
Or. Ct. App.2011Background
- Mother, who was 19, killed the children's father during a domestic dispute, leading to her criminally negligent homicide conviction and five-year incarceration.
- DHS took custody of H.L. shortly after the incident and of C.P. after her birth in jail, placing both with mother's sister D.P. for a period before moving them to the paternal grandmother in Washington State.
- The juvenile court adjudicated jurisdiction over H.L. in 2008 and over C.P. in 2009; DHS later identified adoption by the paternal grandmother as the permanency plan and placed the children with her.
- Mother pleaded guilty in 2010 and was sentenced to 60 months’ imprisonment; she is eligible for release around July 2013.
- At termination, the trial court found mother unfit due to past alcohol abuse, domestic violence history, and her ongoing incarceration; on de novo review, the appellate court reversed, finding no clear and convincing present unfitness.
- The court emphasized that the conduct or condition must be assessed as of the termination trial and held that mother’s incarceration, standing alone, did not establish serious detriment to the children.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether incarceration renders a parent unfit under ORS 419B.504 | DHS argues incarceration causes serious detriment; unfitness stays due to ongoing absence. | Mother contends incarceration alone is not clear and convincing evidence of unfitness given her evidenced rehabilitation potential. | Incarceration alone did not prove present unfitness. |
| Whether past alcohol abuse and domestic violence history establish present unfitness | DHS relies on history to show ongoing risk and inability to parent. | Sebastian's evaluations show no current personality disorders or persistent dependence; history does not prove current unfitness. | Past issues did not meet clear and convincing standard for present unfitness. |
| Whether removal and relocation in DHS placements caused serious detriment to the children | Relocation worsened attachment and stability, supporting unfitness. | Detriment evidence was not clear and convincing; placement changes were not clearly caused by mother's conduct. | Evidence did not show serious detriment attributable to mother. |
| Whether the court should terminate based on continued parental unavailability during primary attachment years | Mother will be unavailable for several years, harming primary attachment. | Children are settled with grandmother and can form attachments to others; termination not warranted. | Termination not supported by evidence of irreparable detriment during attachment years. |
Key Cases Cited
- State ex rel. Dept. of Human Services v. Stillman, 333 Or. 135 (2001) (incarceration and its consequences are within the court's consideration for unfitness)
- State ex rel. Dept. of Human Services v. A.M.P., 212 Or. App. 94 (2007) (clear and convincing standard defined; highly probable or extraordinary persuasiveness)
- State ex rel. Dept. of Human Services v. Hinds, 191 Or. App. 78 (2003) (definition of clear and convincing evidence in termination context)
- State ex rel. Dept. of Human Services v. Simmons, 342 Or. 76 (2006) (fitness of the parent measured at time of termination trial)
- State ex rel. Dept. of Human Services v. Rardin, 340 Or. 436 (2006) (DHS actions contributing to child welfare outcomes; allocation of responsibility for consequences)