Filed: December 20, 2001
In the Matter of
Jacara Murelle Ahlgren-Stillman,
a Minor Child.
STATE ex rel STATE OFFICE FOR SERVICES
TO CHILDREN AND FAMILIES,
Petitioner on Review,
and
LAURA AHLGREN,
Respondent,
v.
DONALD E. STILLMAN,
aka Donnie Stillman,
Respondent on Review.
_____________________________
In the Matter of
Keith Alexander Stillman,
a Minor Child.
STATE ex rel STATE OFFICE FOR SERVICES
TO CHILDREN AND FAMILIES,
Petitioner on Review,
and
LAURA AHLGREN,
Respondent,
v.
DONALD E. STILLMAN,
aka Donnie Stillman,
Respondent on Review.
On review from the Court of Appeals.*
Argued and submitted January 9, 2001.
Denise G. Fjordbeck, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
James A. Palmer, Eugene, argued the cause and filed the brief for respondent on review.
Lynn M. Travis and Mary Kane, of the Juvenile Rights Project, Inc., Portland, filed a response for minor children.
Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices.**
GILLETTE, J.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed.
*Appeal from Lane County Circuit Court, Jack A. Billings, Judge. 167 Or App 446, 1 P3d 500 (2000).
**Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case; Balmer, J., did not participate in the consideration or decision of this case.
GILLETTE, J.
In this termination of parental rights case, the trial court terminated father's parental rights in his two minor children, because of his incarceration and drug-related activities. See ORS 419B.504 (1997) (providing for termination of parental rights if court finds, inter alia, parent unfit by reason of conduct or condition seriously detrimental to child). The Court of Appeals reversed, holding that the evidence did not demonstrate that father was unfit at the time of the termination hearing. State ex rel SOSCF v. Stillman, 167 Or App 446, 1 P3d 500 (2000). For the reasons that follow, we affirm the decision of the Court of Appeals.
In reviewing a decision of the Court of Appeals that is essentially an appeal from a suit in equity, ORS 419A.200(5); ORS 19.415(3), this court may review de novo or may limit its review to questions of law. ORS 19.415(4); see also Ken Leahy Construction, Inc. v. Cascade General, Inc., 329 Or 566, 571, 994 P2d 112 (1999) (so stating). In this instance, because we reach issues that the majority opinion of the Court of Appeals did not address, and some of those issues are fact-dependent, we elect to review the record de novo.
Before his most recent conviction and incarceration, father abused methamphetamines and, before father met mother, he had been convicted twice on drug charges. In fact, father met mother when both were in a drug treatment program. They eventually had a daughter (born in 1991) and a son (born in 1993). After father's third arrest in 1996 on a federal charge of possession with intent to manufacture methamphetamine, and in light of mother's persistent drinking and methamphetamine use, the State Office of Services to Children and Families (SOSCF) (1) sought to terminate their parental rights. SOSCF postponed action on that petition, notwithstanding father's impending criminal trial and likely incarceration, and ultimately withdrew the petition in January 1998, after father entered prison, because mother appeared to be doing well in her efforts to overcome her own drug problem. However, mother again relapsed and, in August 1998, SOSCF filed another petition to terminate both mother's and father's parental rights. At the subsequent termination hearing in June 1999, mother conditionally stipulated to terminating her rights; father did not. (2)
When father was arrested, SOSCF initially placed the children for a short period in temporary care. Soon afterwards, however, SOSCF placed the children with a foster parent in the extended family, namely, mother's former step-mother. At the time of the termination hearing, that foster parent could retain the children only for a few more months. Thus, at least one transition was in the offing for the children, although that transition likely would to be to another member of the highly supportive extended family.
At the termination hearing, SOSCF's case centered on the children's need for permanence. A social worker who provided counseling to the children testified on behalf of SOSCF that the children needed permanency, predictability, and stability in their lives, and that changes, such as those that might follow from the pending termination proceeding, created tension for them. For example, she testified that the older child exhibited "parentified" behavior in the months preceding the termination hearing, in that the child assumed an adult role in the foster home in trying to take control of her situation. The child also had gained a significant amount of weight during that period. According to the social worker, that weight gain indicated "a great deal of anxiety in her life and that she was probably overeating to try to reduce that." Further, the social worker testified:
"[T]hese children are very similar to other children I work with that have been in long-term foster care. They need permanency, they need safety, they need to know where they're going to be next week, next month, next year, and where they go to high school and where they're going to be coming home from vacations.
"* * * * *
"Their life goes on hold, it continues to be on hold developmentally. It's very difficult for a child to continue to make progress in their life, go through the developmental stages that they need to go through to become adults if even their present is tentative, that they don't know what's going to be predictable for them.
"* * * Sometimes I've referred to children like this as the ghost children because they seem insubstantial in their connection with the world and with reality and with present time because they're so insecure about what's going to happen for them."
Other than that general testimony, which principally concerned the effect of foster care on the children, there is very little psychological evidence in the record pertaining to the children. The record contains no written mental health evaluation of either child. Indeed, the only testimony concerning the psychological condition of the younger child was that he was relatively quiet and reserved, and that he worried about his parents. Moreover, there is virtually nothing in the record that sheds light on any ill effects that the children might have suffered from their parents' involvement with drugs before the children were placed in foster care. (3)
SOSCF also focused on the possibility that father would be unable to overcome his addiction to drugs and the likelihood of a relapse. The agency introduced a psychological evaluation of father, which was performed over two years before the termination hearing, and several months before father's conviction and sentencing. The psychologist who examined father concluded that father at that time was likely to relapse because he was externally motivated, i.e., he was motivated to cooperate with counseling and treatment not through a sincere desire to improve himself, but merely out of a desire to avoid the consequences of noncompliance.
The psychological report concluded, however, that "[c]hemical dependency is the primary psychological problem that would impair [father's] ability to function as a parent." At the termination hearing, the psychologist elaborated, testifying that, other than chemical dependency, father had no serious mental health problems: "He has * * * the ability to [be a good parent] and lacks any serious psychological problems that would * * * make that impossible or prevent him from doing that if that is what he tried to do." SOSCF presented no more recent evidence of father's mental health status.
Father, on the other hand, submitted evidence that he had made progress in rehabilitation during his incarceration. Father completed a multi-phase drug treatment program that began before father's trial on the drug charges. The clinical supervisor in charge of that program testified that, when father entered the program, he was angry and resistant, he minimized the significance of his addiction, and he was motivated to complete the program out of a desire to obtain a lighter sentence at his trial. However, after several weeks, the counselor observed that father had made a significant turnaround in his attitude. At the completion of the first phase of his treatment, father asked for an additional four weeks of treatment. He was highly successful in that program. The clinical supervisor also testified that father sincerely came to appreciate the effect that his drug use had had on his children and was addressing the deficits in his life so that he could maintain custody of the children.
In addition, father's therapist for the second phase of the drug treatment program stated that, notwithstanding a brief relapse before beginning that phase, father was the most successful client with whom she had ever worked. (4) Father also took parenting classes, including an extensive, 72-hour parenting class accredited through Chemeketa Community College. He completed a 12-week human sexuality class and a 62-hour real estate class. Father organized a prison 12-step program and worked for the forest service. In all those endeavors, father drew uniformly high praise from the officials in charge. (5)
At the time of the termination hearing, father's remaining prison time was approximately four months. After that, father predicted that he would reside in a halfway house or possibly in home confinement. Father admitted that the children might have to remain in foster care for as long as a year, until he was able to find a job and provide a home for them. An SOSCF representative testified that, given the amount of time that the children already had spent in foster care, that period was simply too long. She stated that SOSCF "is not willing to consider [father] and is not able to consider him as a resource for his children because he is incarcerated. What the children need is permanency." The representative also testified that it was "in the best interests of these children not to continue to wait any longer as they've already waited for three years." She added that
"the concern is his current incarceration, the length of time it would take him to transition back into the community to demonstrate that he is in fact clean and sober. And that will take a long period of time in order for him to demonstrate that. Based on that, the agency does not feel it's in the children's best interest to have them remain in foster care indefinitely while the father demonstrates that to the agency and to the community."
The trial court found by clear and convincing evidence that father was unfit. See ORS 419B.521(1) (setting clear and convincing evidence standard). It based that finding on what that court styled as father's "criminal conduct which impairs his ability to adequately care for [the children], that's by virtue of his incarceration." It also found that the children needed permanency immediately. It found that father's desire to make the children wait until he had established himself was an example of father putting his needs ahead of the children's. The court also thought that father's continued incarceration and the likelihood that father would relapse into addiction upon release from prison "pose[d] an unacceptable risk to the mental and emotional well being of the children." The trial court therefore terminated father's parental rights and committed the children to the care of SOSCF.
On father's appeal, the Court of Appeals reversed. The court reviewed the evidence regarding father's incarceration and noted that, in light of the short duration of the balance of his sentence and potential time to be spent in a halfway house, "such a relatively short period of separation" does not render a parent unfit. Stillman, 167 Or App at 457. In addition, the court held that SOSCF had not proved that father's prior drug use had made him unfit as a parent. "[T]he point is not that we are certain that father will succeed. Rather, the record does not show, by clear and convincing evidence, that he will not." Id. at 459. The court concluded:
"On this record, neither father's incarceration nor the possibility of a relapse provides clear and convincing evidence that father is presently unfit under ORS 419B.504 (1997). Accordingly, we need not decide whether the conduct or condition that makes father unfit also makes integration of his children into his home improbable within a reasonable time."
Id. (citations omitted). Chief Judge Deits dissented, maintaining that father was unfit and that the children's integration into the father's home was improbable within a reasonable time. Id. at 459-67 (Deits, C. J., dissenting). We granted SOSCF's petition for review.
Generally, a court may terminate parental rights for the purpose of freeing a child for adoption if the court finds that termination is in the best interest of the child. ORS 419B.500. The specific bases for termination are set out in ORS 419B.502 to ORS 419B.508. Those statutes provide for termination based on such circumstances as extreme parental misconduct, unfitness, neglect, or abandonment. The statute that sets out the formula for a termination upon a finding of parental unfitness, ORS 419B.504, 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 and integration of the child 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 deficiency of the parent of such nature and duration as to render the parent incapable of providing proper care for the child 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.
"(5) Lack of effort of the parent to adjust the circumstances of the parent, conduct, or conditions to make the return of the child possible 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."
(Emphasis added.) The emphasized parts of the statute were added in 1997. Or Laws 1997, ch 873,