Dept. of Human Services v. N. H.

507

Argued and submitted August 16, affirmed October 26, petition for review

denied December 29, 2022 (370 Or 694)

In the Matter of S. L. A. H.,

aka S. H., a Child.

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Respondent,

v.

N. H.,

Appellant.

Multnomah County Circuit Court

19JU07460;

Petition Number T2019178;

A178130

520 P3d 424

Mother appeals from a judgment terminating her parental rights to

her daughter. Mother argues that the juvenile court erred in concluding that

(1) mother was unfit to parent, (2) the child’s reintegration into mother’s home

was improbable within a reasonable time, and (3) termination of mother’s paren-

tal rights was in the child’s best interest. Held: On de novo review, the Court of

Appeals concluded that the evidence was clear and convincing that, at the time

of the termination trial, mother was unfit to parent because her conduct had

seriously detrimental effects on the child and the child’s integration into mother’s

home was improbable within a reasonable time. The court further concluded that

termination of mother’s parental rights was in the child’s best interest.

Affirmed.

Patrick W. Henry, Judge.

Kristen G. Williams argued the cause and filed the briefs

for appellant.

Shannon T. Reel, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Tookey, Presiding Judge, and Lagesen, Chief

Judge, and Joyce, Judge.

JOYCE, J.

Affirmed.

508 Dept. of Human Services v. N. H.

JOYCE, J.

Mother appeals from a judgment terminating her

parental rights to her daughter, S. Mother argues that the

juvenile court erred in concluding that (1) mother was unfit

to parent, (2) the child’s reintegration into mother’s home

was improbable within a reasonable time, and (3) termina-

tion of mother’s parental rights was in the child’s best inter-

est.1 On de novo review, ORS 419A.200(6); ORS 19.415(3)(a),

we affirm.

I. FACTS

A. Events Leading to Child’s Removal and Dependency

Jurisdiction

S was born in March 2018. She was transferred to

the newborn intensive care unit (NICU) shortly after her

birth because she needed a feeding tube. A few days later,

the hospital notified DHS of concerns about mother’s “cogni-

tive disabilities.” A DHS caseworker then began assessing

whether mother could appropriately care for S. Due to S’s

age and medical needs, DHS’s goal was to craft an in-home

plan for mother with a safety service provider who could

supervise and monitor child’s safety “24/7.”

During this time, mother became agitated that S

was being kept in the hospital. She stated that she planned

to bring S home, although hospital staff told her that S still

needed her feeding tube and was not ready to go home. At

one point, mother told hospital staff, “I don’t care what any-

one says, I’m coming up there to take my baby home and you

can’t stop me.”

Because there were not enough safety services in

place to ensure an in-home plan, and because mother was

unable to follow directions from hospital staff and nurses

regarding S’s medical needs, about 10 days after S’s birth,

1

Mother assigns error to the sufficiency of the evidence in proving that

mother neglected S under ORS 419B.506. We reject that argument without fur-

ther discussion because although the juvenile court included reference to the

allegation of neglect, the court’s written judgment relies solely on the ground of

mother’s unfitness under ORS 419B.504.

Cite as 322 Or App 507 (2022) 509

DHS filed a petition in juvenile court to have the court take

jurisdiction over S. In April 2018, the court found S within

its jurisdiction based on mother’s admissions that she has

an anger control problem that interferes with her ability to

safely parent the child and because the child has no legal

father. Later, DHS filed an amended petition for dependency

jurisdiction and the court found additional jurisdictional

bases based on mother’s admissions that she has “limited

cognitive abilities” and the “child has specialized medical

needs [m]other is unable or unwilling to provide for, inter-

fering with her ability to safely parent.”

After S was discharged from the hospital, DHS

placed S in a nonrelative foster home.

B. DHS Involvement and Mother’s Performance in Services

Mother participated in a neuropsychological and

psychological evaluation with Dr. Poppleton in October

2018. Poppleton diagnosed mother with a provisional mod-

erate intellectual disability, other specified trauma and

stressor-related disorder, and neglect of a child. He noted

that mother’s assessment results indicated that mother had

“significant cognitive and neuropsychological impairment

across all domains assessed, including verbal abilities,

immediate and delayed memory, visual-spatial skills, and

attention.” Her “non-verbal, problem-solving skills [were]

also significantly compromised.” Poppleton concluded that

mother’s “parenting weaknesses are related to that of her

cognitive capacity[,]” and recommended that mother have a

good support system, “such as a daily check-in support per-

son. Monitoring should be frequent, consistent, and long-

term.” Poppleton considered it positive that mother “has

been agreeable with her social workers” and that she was

“assertive, desires independence, and actively seeks sup-

port.” Poppleton also noted that mother “appear[ed] to have

good coping skills in place to help manage her anger[,]” and

“is proactive in seeking independence and support[.]” He was

“impressed with [mother’s] level of insight given her cognitive

limitations.”

Over the first year of S’s life, mother’s permanency

worker, Aviv, worked to find an adult foster home that could

510 Dept. of Human Services v. N. H.

facilitate an in-home plan for both mother and child, but

she was unable to find a suitable one.2 Meanwhile, to help

mother address her parenting skills, Aviv referred her to a

program specifically designed for parents with intellectual

disabilities at Family Skill Builders. Mother engaged in the

one-on-one hands-on parent training, which is designed to

teach mother how to safely care for S. Family Skill Builders

recommended three rounds of classes; mother declined to

attend the third round, stating that “she didn’t have any-

thing else to learn.” After mother declined continuing the

class, Aviv observed that her parenting skills regressed.

During a community visit, mother dropped S and S was

injured. As a result, DHS reduced community visits and

then moved mother’s visits back to the DHS office for social

service assistant (SSA) supervision.

Mother’s visits were sporadic. She missed her visits

so frequently that DHS suspended her visits several times.

When mother did attend visits, DHS personnel had to stay

in the same room with mother and S for safety reasons. The

SSA observed that mother was not able to understand S’s

needs and was not receptive to feedback. For example, during

one visit, S almost fell over onto the floor twice because

mother did not support S in sitting up, although the SSA

had repeatedly reminded mother to do so. To further help

mother understand S’s needs—which, as we describe below,

are extensive—DHS invited S’s foster parent to each fam-

ily decision meeting to explain to mother all of S’s current

medical diagnosis and needs in therapy. Aviv also invited

mother to the child’s medical appointments and expanded

visitations for all of S’s early intervention appointments, but

mother failed to attend most of those.

Additionally, based on Poppleton’s evaluation,

DHS referred mother to a licensed professional counselor,

Enticknap, who was experienced working with people with

developmental disabilities. Enticknap worked with mother

from May 2019 through July 2021. At trial, Enticknap tes-

tified that mother made progress on anger management,

2

Aviv personally called every adult foster home in Oregon—185 homes—to

see if they would be willing to allow mother to stay there with S, but they all

declined. Mother proposed some of her friends and neighbors as safety service

providers, but those persons were not suitable.

Cite as 322 Or App 507 (2022) 511

communication with her own mother and advocating for

herself, and she had secured an apartment. But Enticknap

noted that mother’s engagement in therapy was inconsis-

tent, and she was concerned about mother’s independent

functioning and decision making.

In July 2021, mother put S in a “time out” that S did

not understand. S then refused to attend the next visit. As a

result, DHS referred mother to Family Skill Builders again

for therapeutic visits. Mother attended all visits and demon-

strated “some understanding of attachment” and “showed

affection through words and touch.” However, mother did

not demonstrate an adequate understanding of S’s spe-

cial needs and limitations. The service provider noted that

mother appeared to expect “unrealistic language or atten-

tion abilities” from S.

On the advice of a disability advocate, mother

began seeing a different therapist, Johns, in August 2021.

Johns specializes in trauma and in attachment relation-

ships, parenting, behavioral issues, and brain differences.

She provided individual therapy to mother and child-parent

psychotherapy services for mother and S. Mother regu-

larly attended her twice weekly sessions with Johns. Johns

observed that mother consistently made progress with

frustration tolerance, emotional regulations, and self-care,

and Johns believed that mother demonstrated ability with

problem-solving. In observing mother’s interactions with

S, Johns described that mother made progress in reading

S’s facial expressions and body language and that she was

“attentive, responsive, gentle” with S. Johns testified that,

although mother and S were not really connecting in the

beginning, the attachment improved over time. However, by

the time of the termination trial, Johns noted that they had

not yet begun to work on improving mother’s ability to safely

parent S and she could not predict when they would begin to

address that.

In addition to the services that DHS provided to

mother, she has also received ongoing developmental dis-

ability support since at least 2015. Mother’s assessed needs

included keeping her safe and healthy, hygiene support,

accessing medical care, transportation, communication,

512 Dept. of Human Services v. N. H.

housekeeping, and support accessing in the community and

employment. Mother is not required to use any of the ser-

vices for which she qualifies. Rather, the services were pro-

vided at her requests. Mother frequently chose to not access

services. Specifically, mother declined to work with a behav-

ioral support specialist who analyzes what triggers certain

behaviors and helps a client prevent escalating behavior.

Mother also chose to not access services from a represen-

tative payee who could help her manage her money and

declined supportive living, such as a group home or adult

foster home, even at a time when she was homeless.

C. S’s Circumstances

At the time of the termination trial in January

2022, S was four years old. She has global developmental

delays and may need lifelong assistance due to a potential

unknown genetic disorder that is being monitored. She

exhibits challenging behaviors that demand individual

attention and can be difficult to manage. As an infant, S

needed physical therapy to help strengthen her muscles

to sit up, crawl, walk, and to overcome sensory challenges

and issues with self-regulation. She was difficult to soothe,

demonstrated frustration by screaming, and threw tan-

trums where she hit her head against the wall. She wore a

compression vest to help calm her down when she was over-

whelmed and used wrist weights to draw. S also attended

weekly speech therapy because she had “moderately delayed

receptive language skills and significantly delayed expres-

sive language skills.”

By the time of trial, S’s speech was improving,

although she remained difficult to understand and would

become frustrated when others did not understand her. In

addition to therapy, S also had appointments with her regu-

lar pediatrician, developmental pediatrician, eye doctor, and

geneticist. S qualified for developmentally disabled services.

In October 2020, S participated in a “best interest”

evaluation with Dr. Bennett. Bennett observed that S was

healthfully attached to her foster mother, with whom she

has been with most of her life and who wants to adopt her.

Due to S’s communication delays, Bennett noted that S had

a heightened need for a strong attachment. Any disruptions

Cite as 322 Or App 507 (2022) 513

in her bond with her primary caregiver will lead to her

developing long-term trust issues and likely make her “more

withdrawn, more avoidant, more anxious.” In addition, she

opined that, given S’s significant special needs, S needed a

consistent home environment with a reliable caregiver who

would respond to her consistently, keep appointments, and

be a strong advocate for her in the school to make sure that

she gets the services that she needs.

D. Mother’s Circumstances at the Time of Trial

At the time of the trial, mother had just started a

new job. She had changed five jobs in the previous month.

Mother testified that she did not need a job coach because

the coach just helped her communicate with her employer

and she believed that she should be able to do it herself. As

for living conditions, mother was living in a one-bedroom

apartment. She failed to pay her rent in the month before

trial and sought assistance to help her with the apartment

power bill.3 Although mother acknowledged that budget-

ing was a challenge for her, she insisted on doing it herself

because she valued her independence.

E. Termination of Parental Rights Trial

The juvenile court held the termination of parental

rights trial in January 2022, approximately four years after

S’s birth. The juvenile court found that DHS had demon-

strated by clear and convincing evidence that mother was

unfit by reason of mother’s conduct or condition that is seri-

ously detrimental to the child and that the child’s integra-

tion into her home within a reasonable time was improba-

ble. ORS 419B.504. The court then determined that on the

evidence presented, freeing S for adoption was in her best

interest. ORS 419B.500.

Mother now appeals, challenging each of the juve-

nile court’s conclusions.

II. ANALYSIS

To terminate a parent’s rights on the basis of unfit-

ness, a court must find, by clear and convincing evidence,

that (1) the parent is “unfit by reason of conduct or condition

3

Mother had been evicted twice for failure to pay rent.

514 Dept. of Human Services v. N. H.

seriously detrimental to the child or ward”; (2) “integration

of the child or ward into the home of the parent or parents is

improbable within a reasonable time due to conduct or condi-

tions not likely to change”; and (3) termination is in the child’s

best interest. ORS 419B.504; ORS 419B.500. “Evidence is

clear and convincing if it makes the existence of a fact highly

probable or if it is of extraordinary persuasiveness.” State

ex rel Dept. of Human Services v. A. M. P., 212 Or App 94, 104,

157 P3d 283 (2007) (internal quotation marks omitted).

A. Mother’s Unfitness

A parent’s fitness is measured at the time of the

termination trial. State ex rel Dept. of Human Services v.

Smith, 338 Or 58, 83, 106 P3d 627 (2005). Whether a par-

ent’s conduct or condition has had a seriously detrimental

effect on the child is meant to be “child-specific” and calls

for “testimony in psychological and developmental terms

regarding the particular child’s requirements.” State ex rel

Dept. of Human Services v. Huston, 203 Or App 640, 657, 126

P3d 710 (2006). For example, “minimally adequate parent-

ing skills may be different for a severely disabled child from

those for a child that has no disabilities.” State ex rel SOSCF

v. Wilcox, 162 Or App 567, 576, 986 P2d 1172 (1999).

Additionally, and as particularly relevant here, a

parent’s rights cannot be terminated solely because a par-

ent has a disability. Rather, ORS 419B.504(1)(f) permits a

court to consider a parent’s “mental health condition” only if

that condition is “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.” ORS 419B.504(2) further

provides:

“The court may not consider a parent’s disability, as

that term is defined in the Americans with Disabilities Act

of 1990 (42 U.S.C. 12101 et seq.), unless the parent’s con-

duct related to the disability is 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.”

(Emphasis added.)4

4

The Americans with Disabilities Act defines “disability” to include a “men-

tal impairment that substantially limits one or more major life activities of [the]

individual.” 42 USC § 12102(1)(A). A “mental impairment” may include “[a]ny

Cite as 322 Or App 507 (2022) 515

Those statutes work in tandem to limit how (and

whether) a court can consider a mental health condition

when that mental health condition qualifies as a disability

under the Americans with Disabilities Act (ADA): A court

cannot consider a parent’s disability alone as a basis to ter-

minate parental rights, but it may consider evidence of a

parent’s conduct if that conduct interferes with the parent’s

ability to provide proper care for the child for extended peri-

ods of time. That holds true even when that conduct is based

on or caused by a disability.5

In light of that framework, we must determine

whether mother’s intellectual disability and trauma disor-

der, as reflected in her conduct, is of such nature and dura-

tion as to render her incapable of providing for S. On de novo

review, we are persuaded that the evidence is clear and con-

vincing that, despite some recent progress, mother is pres-

ently unfit to parent S.

The evidence at trial demonstrated that mother

has made some of the progress that would be necessary to

safely parent. Mother’s second therapist, Johns, noted that

mother demonstrated improvement with frustration toler-

ance, emotional regulation, and self-care. Johns also stated

that although S was worried and not really connecting with

mental or psychological disorder such as intellectual disability, organic brain

syndrome, emotional or mental illness, and specific learning disability.” 28 CFR

§ 35.108(b)(1)(ii). “An impairment that substantially limits one major life activity

need not limit other major life activities in order to be considered a disability.”

42 USC § 12102(4)(C).

5

We note that ORS 419B.504(2)’s legislative history confirms our reading

of the statute. Section 2 was added to ORS 419B.504 in 2018. Senate Bill (SB)

1528 was introduced due to concerns that the statute, as previously written,

placed the burden on a parent to prove that any disability they possessed did

not make them unfit to parent. Disability Rights Oregon (DRO) worked with leg-

islators on the bill with the intent of ensuring that DHS is required to prove

that the parent’s disability renders the parent “incapable of providing proper

care for the child or ward for extended periods of time.” Audio Recording, Senate

Committee on Human Services, SB 1526, Feb 6, 2018, at 13:00 (statement of Bob

Joondeph, DRO Executive Director), https://olis.oregonlegislature.gov (accessed

Oct 19, 2022). The bill’s sponsors emphasized the need for the state to show that

a parent’s conduct is sufficiently detrimental to their children before removing

children—let alone terminating parental rights—regardless of disability. Audio

Recording, House Committee on Human Services and Housing, SB 1526, Feb 20,

2018, at 02:34 - 08:40 (statements of Sen Sara Gelser and Sen Tim Knopp), https://

olis.oregonlegislature.gov (accessed Oct 19, 2022).

516 Dept. of Human Services v. N. H.

mother in the beginning, mother remained attentive and

the attachment started to improve over time.

However, despite mother’s recent progress, there is

clear and convincing evidence that at the time of the trial,

mother struggles to internalize lessons she has been pro-

vided in developing her parenting skills, lacks insights into

S’s extensive ongoing needs, fails to respond to S appropri-

ately, and is unable to provide for her own basic needs or

a safe and stable home for S. As noted above, S is a child

who suffers from severe developmental delays “in every

area.” The consensus among S’s “best interest” evaluator,

therapist, caregivers, and caseworker was that S needs a

highly skilled caregiver who understands the child’s needs,

is able to implement the strategies that the therapist is

working on with S, and who will care for her in the long

term. Considering S’s significant developmental delays, a

caregiver without the necessary skills will be detrimental

to S’s progress and skill development.

Yet those are the needs that mother failed to demon-

strate that she can meet at the time of the trial. Despite

years of parenting assistance and classes, mother has been

unable to absorb necessary parenting information and gain

insights into S’s special needs. For example, mother insisted

that S was ready to be potty trained. However, the testimo-

nies from caseworkers and S’s foster mother clearly demon-

strated that S was not ready; in fact, when the foster mother

tried to engage in potty training with S, S would “freak out,

scream, say no, hide.” Similarly, during the trial, although

mother was aware of S’s developmental delays, she never-

theless testified that if S were returned to her care, she

would put S in “day care” while she was at work. Mother’s

testimony reflected that she fails to understand that due to

S’s developmental delays and needs for therapy, the child

cannot attend day care at this point.

In addition, mother injured S by dropping her on

her head and in another instance, she put S in a “time out”

that S did not understand, which resulted in S “absolutely

refus[ing] to get into the car” at the next visit. S has signif-

icant communication delays, which make her more “vulner-

able as a young child” due to her inability to communicate

Cite as 322 Or App 507 (2022) 517

a problem, a threat, or a feeling. Her caregiver’s ability to

recognize S’s needs and nonverbal cues is critical to ensure

S’s safety and health. Yet mother’s ongoing cognition lim-

itations, reflected in her inability to gain insights into the

child’s developmental level and ongoing need for therapy,

are detrimental to S’s development and future progress.

Mother also fails to provide a viable plan for caring

for S through outside support and exhibits unwillingness to

accept the developmental disability services that are avail-

able to her. Because of her intellectual disability, mother

requires social support to maintain her basic needs, but she

frequently chooses not to access the support available to her,

believing that she does not need services such as budget-

ing, behavior support specialist, or job coaching. Despite an

abundance of evidence to the contrary, mother testified that

she would be able to independently parent S and said that

that was because S “[is] a toddler[.] [I]t’s a lot more easier

to * * * parent her.” As mother put it at trial, she knew that

support is available, and she can ask for help, “but I choose

not to.” Mother further testified that she had not talked to

her support network, including her mother, personal ser-

vices worker, a disability rights advocate, and her individ-

ual therapist, about their coming to support her to parent

S because she was leaving it until she had custody. For the

people mother identified, mother acknowledged that none of

them would be available to help her with necessary daily

parenting needs. In all, mother continued to fail to under-

stand the limits on her ability to function independently and

to meet S’s ongoing needs.

Mother argues that in finding her unfit, the trial

court and DHS “impermissibly focused on mother’s intellec-

tual disability and Poppleton’s 2018 evaluation as the basis.”

We disagree. As described above, the trial court may con-

sider evidence of mother’s conduct related to the disability

if that conduct is “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.” ORS 419B.504(1)(f);

see also State ex rel SOSCF v. Mellor, 181 Or App 468, 477,

47 P3d 19 (2002), rev den, 335 Or 217 (2003) (diagnosis is

not enough; “there must also be evidence that the illness or

518 Dept. of Human Services v. N. H.

disorder renders the parent incapable of providing proper

care for the child for extended periods of time” (internal quo-

tation marks omitted)).

Here, the evidence shows that mother’s mental ill-

ness renders her incapable of providing proper care. At trial,

Poppleton testified that mother’s disability and mental con-

ditions negatively affected her abilities to use logic and judg-

ment to problem-solve, and to respond to things in a rational

manner. Those skills, as Poppleton noted, “are especially cru-

cial for parenting young children.” He explained that there

was a gap between mother’s abilities and S’s high needs and

that the way to bridge the gap was “either through internal

change of the individual, or it comes through some form of

support in their lives to be able to compensate for the inabil-

ity to make those changes.” However, as just described, the

record shows that mother failed to overcome the parenting

impediments that Poppleton identified, despite all the ser-

vices provided to her over the years. Framed slightly dif-

ferently, mother’s conduct—reflected in mother’s testimony

at trial and her performance during visits and parenting

classes—continues to be seriously detrimental to S, and

thus establishes her parental unfitness.

B. Integration of Child into Mother’s Home within a Reason-

able Time

When the parent is unfit, the court must consider

whether it is improbable that the child can be reintegrated

into the parent’s home within a reasonable time. State ex rel

SOSCF v. Stillman, 333 Or 135, 145-46, 36 P3d 490 (2001).

ORS 419A.004(26) defines “reasonable time” as “a period of

time that is reasonable given a child[’s] * * * emotional and

developmental needs and ability to form and maintain last-

ing attachments.”

Here, we are persuaded that it is improbable to

integrate S into mother’s home within a reasonable time.

Despite years of parenting assistance and classes, mother

still fails to respond appropriately to S’s cues, lacks any

understanding of her needs, and remains incapable of safely

caring for her without assistance. Given that almost four

years have passed since S’s removal, it is unlikely that

those conditions and conduct will change such that S could

Cite as 322 Or App 507 (2022) 519

be integrated into mother’s care within a reasonable time.

See Dept. of Human Services v. C. P., 285 Or App 371, 381,

396 P3d 278, rev den, 362 Or 94 (2017) (“Given the long-

standing and intractable nature of father’s personality dis-

order and the high probability that father will not be able to

safely parent the children, it is improbable that the children

can be integrated into father’s care within a reasonable

time.”).

To be sure, Johns, who had been working with

mother for about six months at the time of trial, provided

positive feedback on mother’s progress in improving her

parenting skills. However, as Johns acknowledged, she had

not yet begun to work with mother on the recommendations

that Bennett made about how to safely care for S and she

could not predict when they would begin to address them. At

the time of the trial, mother was still working on the initial

steps to build an attachment with S.

Under those circumstances, we conclude that DHS

provided clear and convincing evidence that S’s integration

into mother’s home is improbable within a reasonable time.

See Dept. of Human Services v. R. K., 271 Or App 83, 93, 351

P3d 68, rev den, 357 Or 640 (2015) (parent’s recent progress

in treatment and commitment to change does not overcome

other evidence of unfitness and, considering all the circum-

stances, it was improbable the child could be returned to the

parent’s care within a reasonable time).

C. Best Interests of the Child

We further conclude that termination of mother’s

parental rights is in the child’s best interest. ORS 419B.500

provides that “[t]he parental rights of the parents of a ward

may be terminated * * * only * * * if the court finds it is in the

best interests of the ward[.]” The “best interest” inquiry is

not weighted with a presumption in favor of adoption solely

because mother is found to be unfit. Dept. of Human Services

v. T. M. D., 365 Or 143, 161, 442 P3d 1100 (2019). That deter-

mination is instead focused on the needs of the child, taking

into consideration the unique circumstances of each case.

Id. at 166; see also Dept. of Human Services v. J. S. E. S., 315

Or App 242, 244-45, 501 P3d 556 (2021), rev den, 369 Or 209

(2022) (reiterating that the best interest determination is

520 Dept. of Human Services v. N. H.

“focused on the needs of the child” and concluding that keep-

ing open an option of a permanent guardianship was not in

the child’s best interest given the parent’s current capacity).

Ultimately, to conclude that termination is in a child’s best

interest, we must be able to conclude that “the benefits to

the child of ending the child’s legal relationship with a par-

ent outweigh the risk of harm posed to the child by severing

that legal relationship.” Dept. of Human Services v. L. M. B.,

321 Or App 50, 53, 515 P3d 927 (2022).

The record in this case is clear that S is thriving in

the care of her foster parents, who want to adopt her. S has

significant needs that require ongoing therapy, social sup-

port, and a highly skilled caregiver who is responsive to her

needs and who can advocate for additional services as she

grows. S’s current caregivers demonstrate a commitment to

S and insight into taking care of her special needs. Further,

S is bonded with her foster mother, who she has lived with

most of her life. Because of S’s developmental delays, Bennett

noted that S was more vulnerable to any attachment dis-

ruptions and that the longer S’s attachment to her current

providers grows, the more detrimental a change in perma-

nency would be to her later. Bennett recommended that S be

placed with a permanent caregiver without further delay.

Conversely, S has spent most of her life out of moth-

er’s care and is not strongly bonded to her. At the time of

the trial, mother demonstrated a continued lack of insight

into S’s developmental delays and need for ongoing thera-

peutic interventions. To be sure, a parent’s unfitness to

be a custodial resource does not present us with “a binary

choice between terminating the parent’s rights or return-

ing the child to that parent’s care”—a permanent guardian-

ship is one other potential permanent arrangement. Dept.

of Human Services v. D. M. P., 317 Or App 529, 530, 504

P3d 1221 (2022). But the record here does not demonstrate

that S had an interest in maintaining her legal relationship

with mother and we are not persuaded that S was attached

to mother by the time of the termination trial. Cf. Dept. of

Human Services v. D. E. P., 315 Or App 566, 571, 502 P3d

764 (2021) (concluding that the record lacks clear and con-

vincing evidence that termination is in the child’s best inter-

ests given that “B is attached to mother, and maintaining

Cite as 322 Or App 507 (2022) 521

a relationship with mother is important to B’s well-being”).

Evidence also shows that S was injured during a visit with

mother and that mother’s contact with S outside a therapeu-

tic environment caused S emotional struggles. For instance,

S’s foster mother testified that the visits with mother were

doing “a lot of damage” to S. S’s developmental delays and

high needs for proper care, together with mother’s inability

to safely parent and lack of understanding of S’s needs, put

S’s health and skill development at risk. Accordingly, we are

persuaded that the benefits to S of ending the legal relation-

ship with mother clearly outweigh any risk of harm posed

to S by a termination. We thus conclude that termination of

mother’s parental rights is in S’s best interest.

Affirmed.