MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
BILL MEIER, Justice.
I. INTRODUCTION
Appellant Lance A. Fleming and All Other Occupants (Fleming) appeal the trial court's judgment awarding possession of real estate to Appellee Fannie Mae a/k/a Federal National Mortgage Association. In three issues, Fleming argues that the trial court erred by rendering judgment for Fannie Mae because (1) Fannie Mae's pleading is invalid, (2) a business records affidavit tendered to the trial court failed to meet the requirements of the rules of evidence, and (3) the substitute trustee's deed tendered to the trial court was insufficient to support a prima facie claim of title. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
In 2006, Fleming executed a deed of trust that granted Carteret Mortgage Corp Main Branch a security interest in real estate located at 2100 York Drive, Fort Worth, Texas 76134 (the property). The deed of trust included the following provision:
If the Property is sold pursuant to this Section 22, [Fleming] or any person holding possession of the Property through [Fleming] shall immediately surrender possession of the Property to the purchaser at that sale. If possession is not surrendered, [Fleming] or such person shall be a tenant at sufferance and may be removed by writ of possession or other court proceeding.
Mortgage Electronic Registration Systems, Inc., as nominee for Carteret Mortgage Corp., subsequently assigned all of its right, title, and interest in the mortgage executed by Fleming to Central Mortgage Company. Fleming defaulted under the terms of the deed of trust, and Central Mortgage Company appointed a substitute trustee to conduct a foreclosure sale of the property. Fannie Mae purchased the property in February 2009 and subsequently sent a notice to Fleming demanding that he vacate the property. It is undisputed that Fleming did not vacate the property.
In July 2009, Fannie Mae filed an action for forcible detainer in the justice court against Fleming, alleging that Fleming was in wrongful possession of the property since the date of the foreclosure sale. The justice court signed a judgment in favor of Fannie Mae, and Fleming appealed to the county court at law. The county court denied Fleming's plea in abatement, which challenged the validity of Fannie Mae's pleading on the ground that the petition was not properly sworn, and found that Fannie Mae was entitled to possession of the property. The county court denied Fleming's motion for new trial, and this appeal followed.
III. PLEADING AND PLEA IN ABATEMENT
In the first issue, Fleming argues that the trial court erred by rendering judgment for Fannie Mae because Fannie Mae's amended petition "was not a valid pleading which even required [Fleming's] answer." Fleming contends that the affidavit attached to Fannie Mae's amended petition did not meet the requirement of rules of civil procedure 739 and 93 that a petition for forcible detainer be sworn because the attorney who signed the amended petition stated, "I have read the foregoing [petition] and to the best of my personal knowledge, the facts stated therein are true and correct." [Emphasis added.] Fleming argues that this alleged defect, which was raised in the plea in abatement and ruled on prior to trial, is "jurisdictional and may be raised at any time."
Two of our sister courts have recently addressed this identical issue and held that a defective verification did not deprive the county court of jurisdiction to hear the forcible detainer action. See Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 469 (Tex. App.-Dallas 2010, pet. filed); Reagan v. NPOT Partners I, L.P., No. 06-08-00071-CV, 2009 WL 763565, at *1-3 (Tex. App.-Texarkana Mar. 25, 2009, pet. dism'd w.o.j.) (mem. op.). We agree with the reasoning and conclusions reached by these courts. Accordingly, assuming that the verification was defective, we hold that, to the extent Fleming raises a jurisdictional challenge to the trial court's judgment in favor of Fannie Mae, such a challenge is without merit. See Shutter, 318 S.W.3d at 469; Reagan, 2009 WL 763565, at *2.
To the extent Fleming challenges the trial court's denial of his plea in abatement, we review a trial court's ruling granting or denying a plea in abatement for an abuse of discretion. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988). The trial court abuses its discretion when it acts in an unreasonable and arbitrary manner, or without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). A plea in abatement challenges the plaintiff's pleading by asserting that facts outside the pleadings prevent the suit from going forward until the problem can be cured. Morgan v. City of Alvin, 175 S.W.3d 408, 421 (Tex. App.-Houston [1st Dist.] 2004, no pet.).
Like the appellant in Shutter, in this case, Fleming did not allege or explain how the alleged defective verification was an impediment to the trial court's determination of immediate possession, nor has Fleming offered any analysis demonstrating that he was harmed by the trial court's alleged erroneous denial of the plea in abatement. See Shutter, 318 S.W.3d at 470. Accordingly, we overrule Fleming's first issue.
IV. BUSINESS RECORDS AFFIDAVIT
In the second issue, Fleming argues that the trial court "erred in granting judgment" because the business records affidavit that Fannie Mae tendered to the county court did not meet the requirements of rules of evidence 803(6), 803(7), and 902(10) for establishing the admissibility of the documents evidencing the foreclosure sale and notices to vacate (Plaintiff's Exhibits 1-A, general warranty deed with vendor's lien; 1-B, deed of trust; 1-C, assignment of mortgage; 1-D, substitute trustee's deed; and 1-E, notices to vacate). He complains that Fannie Mae "does not offer an affiant who can testify of personal knowledge of [Fannie Mae's] record-keeping, nor of [Fannie Mae's] law firm's record-keeping, but of a third-party contractor of the law firm's record keeping."
We initially observe that Fleming agreed at trial that Plaintiff's Exhibits 1-A, 1-B, 1-C, and 1-D "would be admissible as public records." We construe Fleming's agreement as a concession that those exhibits were self-authenticated certified copies of public records under rule 902(4) and admissible as an exception to the hearsay rule under rule 803(8). See Tex. R. Evid. 803(8), 902(4).
The business records exception provides that evidence meeting certain criteria should not be excluded under the hearsay rule. See Tex. R. Evid. 803(6). The four requirements are (1) the records were made and kept in the course of a regularly conducted business activity, (2) it was the regular practice of the business activity to make the records, (3) the records were made at or near the time of the event that they record, and (4) the records were made by a person with knowledge who was acting in the regular course of business. In re E.A.K., 192 S.W.3d 133, 141 (Tex. App.-Houston [14th Dist.] 2006. pet. denied). The prerequisites of rule 803(6) may be provided by the custodian of records or a "qualified witness." Tex. R. Evid. 803(6). Rule 803(6) does not require a witness who is laying the predicate for introduction of a business record to be the creator of the document or even an employee of the company keeping the subject record. Houston Shell Concrete Co. v. Kingsley Constructors, Inc., 987 S.W.2d 184, 186 (Tex. App.-Houston [14th Dist.] 1999, no pet.). Rather, an affiant may qualify as a "qualified witness" by demonstrating personal knowledge of the facts contained within the business record. Id. (citing Duncan Dev., Inc. v. Haney, 634 S.W.2d 811, 813-14 (Tex. 1982)). "Determining admissibility of business records affidavits involves deciding whether `the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.'" Simien v. Unifund CCR Partners, 321 S.W.3d 235, 246 (Tex. App.-Houston [1st Dist.] 2010, no pet.) (citing Tex. R. Evid. 803(6)). The admission or exclusion of evidence rests within the sound discretion of the trial court. State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001).
Fannie Mae submitted the business records affidavit of William Attmore to establish the admissibility of, among other things, Plaintiff's Exhibit 1-E, the notices to vacate the property. The affidavit states in relevant part the following:
My name is William Attmore, I am over the age of eighteen (18) years, have never been convicted of a felony, and have personal knowledge of the facts contained in this Affidavit and they are true and correct to the best of my knowledge and belief.
I am employed by NATIONAL DEFAULT EXCHANGE, L.P., an affiliated service provider for the law firm of BARRETT DAFFIN FRAPPIER TURNER AND ENGEL, LLP, (hereinafter "BDFTE"), attorneys for Plaintiff, FANNIE MAE ALSO KNOWN AS FEDERAL NATIONAL MORTGAGE ASSOCIATION as a paralegal and I am authorized to make this Affidavit on behalf of BDFTE as attorneys for Plaintiff herein. I have care, custody and control of all records concerning the non-judicial foreclosure and forcible entry and detainer proceedings against [Fleming]; hereinafter "Defendant(s)".
I am the custodian of the records of BDFTE, attorneys for Plaintiff, FANNIE MAE ALSO KNOWN AS FEDERAL NATIONAL MORTGAGE ASSOCIATION. Attached hereto are thirty-four (34) pages of records from the foreclosure and forcible entry and detainer file against Defendants. The said thirty-four (34) pages of records are kept by Plaintiff in the regular course of business, and it was in the regular course of business for an employee or representative of BDFTE, with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the originals or exact duplicates of the original.
On APRIL 9, 2009, a Notice to Vacate was forwarded by certified mail, return receipt requested, and regular mail, postage prepaid, to [Fleming], demanding that the Defendants vacate the property within three (3) days or forcible detainer proceedings would be commenced against them and all other occupants.
The affidavit thus demonstrates that Attmore is the custodian of records for the law firm that represented Fannie Mae at trial, and it tracks the requirements of rule 803(6). See Tex. R. Evid. 803(6). Fleming does not challenge the trustworthiness of the business records covered by the affidavit. Attmore's affidavit contains information upon which the trial court could have reasonably concluded that Attmore was qualified to testify about the matters contained in the business record. See Houston Shell Concrete Co., 987 S.W.2d at 186. Therefore, we hold that the trial court did not abuse its discretion by concluding that Attmore's affidavit met the requirements for establishing the admissibility of and by admitting Plaintiff's Exhibit 1-E under the business records exception. We overrule Fleming's second issue.
V. INSUFFICIENT SUBSTITUTE TRUSTEE'S DEED
In the third issue, Fleming argues that the substitute trustee's deed tendered into evidence was insufficient to support a prima facie claim of title because paragraphs four and five of the affidavit accompanying the deed, which address notice of the default and military status, were not based on the affiant's personal knowledge but were instead made "[t]o the best of [the affiant's] knowledge and belief." Fleming contends that this defect resulted in Fannie Mae's noncompliance with property code section 51.002(e), which provides that in establishing that the debtor was served with notice of foreclosure, "[t]he affidavit of a person knowledgeable of the facts to the effect that service was completed is prima facie evidence of service." Tex. Prop. Code Ann. § 51.002(e) (Vernon Supp. 2010).
A forcible detainer action is the procedure by which the right to immediate possession of real property is determined. See Cattin v. Highpoint Village Apartments, 26 S.W.3d 737, 738-39 (Tex. App.-Fort Worth 2000, pet. dism'd w.o.j.). Forcible detainer actions are intended to be a summary, speedy, and inexpensive remedy for resolving the question of who is entitled to immediate possession of real property. Id. Rule of civil procedure 746 provides that "the only issue shall be as to the right to actual possession[,] and the merits of the title shall not be adjudicated." Tex. R. Civ. P. 746. Thus, to prevail in a forcible detainer action, a plaintiff is not required to prove title but is only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession. Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 433 (Tex. App.-Houston [1st Dist.] 2007, no pet.). Consequently, whether the sale of property under a deed of trust is invalid may not be determined in a forcible detainer and must be brought in a separate suit. Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.-Dallas 2010, no pet.).
Fannie Mae demonstrated its right to possession of the property — the substitute trustee's deed evidenced Fannie Mae's purchase of the property; the deed of trust evidenced Fleming's status as a tenant at sufferance; and the notices to vacate evidenced Fannie Mae's notification to Fleming that he was a tenant at sufferance and that he must vacate the property. Any defects in the foreclosure process or with Fannie Mae's title to the property may not be considered in a forcible detainer action. See Shutter, 318 S.W.3d at 471; Williams, 315 S.W.3d at 927 (citing Scott v. Hewitt, 127 Tex. 31, 35, 90 S.W.2d 816, 818-19 (1936)). We overrule Fleming's third issue.
VI. CONCLUSION
Having overruled all of Fleming's issues, we affirm the trial court's judgment.
, child here has a significant need for stability to avoid regression and severe emotional harm. Father's condition leaves child without the stable home that child needs and thus is seriously detrimental to child.
Second, child's integration into father's home is improbable within a reasonable time due to conditions not likely to change. Child cannot wait as long as the two years likely required to change father's PPS so as to allow him to integrate child into his home. The statutory definition of "reasonable time" requires a child-specific inquiry and "testimony in psychological and developmental terms regarding the particular child's requirements." Id. at 146; see also State ex rel SOSCF v. Freeman, 174 Or. App. 194, 204-05, 23 P.3d 1009, rev den, 332 Or. 430 (2001) (noting that the legislature amended the time for integration from "in the foreseeable future" to "within a reasonable time," as defined by the child's emotional and developmental needs; those amendments "shifted the statute's focus from the parent to the child in the sense that the time frame for integration now is to be measured by the child's needs, not by the parent's potential for reform"). Here, child's therapist testified that waiting up to two years for permanency will be harmful to child, who already has been diagnosed with adjustment disorder and is at risk for developing full-blown PTSD and RAD. Father will likely need two years before he could obtain approval from his parole officer to integrate child into his home. Thus, at the time of the termination hearing, it is improbable that father's condition would change, allowing integration of child into father's home, within a reasonable time as measured by child's needs.
In his dissent, Judge Wollheim takes a different view, contending that DHS can meet its burden to prove that integration of the child into the parent's home "is improbable within a reasonable time due to conduct or conditions not likely to change," ORS 419B.504, only "by showing that services have failed or will fail." 239 Or. App. at 154 (Wollheim, J., dissenting). Certainly, unless excused from doing so, ORS 419B.340(5), DHS is required to make reasonable efforts during dependency proceedings. The issue at this stage of the case, however, is whether "integration of the child or ward into the home of the parent or parents is improbable within a reasonable time due to conduct or conditions not likely to change." ORS 419B.504 (emphasis added). The legislature's use of the present tense requires the court to decide the improbability of integration due to conduct or conditions not likely to change at the time of the termination hearing, not to decide whether the parent's conduct or condition might have been susceptible to change at some point in the past. See State ex rel Dept. of Human Services v. Rardin, 340 Or 436, 447, 134 P.3d 940 (2006) (holding that use of present tense in "the parent or parents are unfit," ORS 419B.504, means that court must consider whether the parent is unfit at time of termination hearing, not whether the parent was unfit at some point in past). The legislature's choice of verb tense in ORS 419B.504 takes on particular force in the context of other provisions of the Juvenile Code that require, during proceedings that precede any termination hearing, a determination whether DHS "has made reasonable efforts." ORS 419B.185(1)(a), (c); ORS 419B.340(1); ORS 419B.476(2)(a); see also ORS 419B.337(1)(b) (requiring, in removal order or order continuing care, finding whether "[r]easonable efforts * * * have been made"); ORS 419B.498(2)(b)(C) (reason not to file termination petition where court or citizen review board determined that DHS "did not make reasonable efforts"). If the legislature had intended to require a finding regarding past reasonable efforts in every ORS 419B.504 case, it knew how to do so. It chose not to.
We hasten to add that, in some cases, DHS's failure to make reasonable efforts may be relevant to the determination regarding integration. In Keeton, for example, we concluded that the state had failed to prove that the children could not be integrated into the mother's home within a reasonable time due to conduct or conditions not likely to change. 205 Or. App. at 583. We assumed, without deciding, that the mother's "condition as an untreated sex offender" was seriously detrimental to her children, but concluded that the state had failed to prove that that condition was "`not likely to change`" or that integration was "`improbable within a reasonable time.`" Id. The record there showed that the mother was committed to following through with treatment, but DHS had failed to make a timely referral for such treatment. Id. at 573-75. The children, who were doing well and who wanted to return to the mother, could be returned to her after she began treatment but before she completed it, according to a psychosexual evaluator. Id. at 573, 575-76. Thus, the condition that prevented the children's integration into the mother's home (the mother's failure to begin sex offender treatment) could be ameliorated within a reasonable time, as of the termination hearing, if DHS provided a referral.
Those facts are markedly different from the facts in this case. Here, father's condition is his PPS, which prevents him from providing a stable home to child. As of the termination hearing, his PPS conditions were unlikely to change to allow integration for two years, regardless of whether DHS provided any services at that time. Integration thus is improbable within a reasonable time due to a condition not likely to change.
Having concluded that father is unfit under ORS 419B.504, we consider whether termination is in child's best interests, ORS 419B.500. Child has stability and a strong bond with his maternal grandmother, who wishes to adopt him, and his emotional health has improved under her care. She can provide him with the stable home that he needs now and that father will be unable to provide within a reasonable time. Termination of father's parental rights is in child's best interests.
Affirmed.
WOLLHEIM, J., dissenting.
The Department of Human Services (DHS) sought to terminate father's parental rights under ORS 419B.502 and, alternatively, ORS 419B.504. DHS's allegation under ORS 419B.502 provides context in this case as, under that statute, DHS need not provide services aimed at reunifying the family where it can prove that the parent engaged in extreme conduct. Here, DHS concedes that it did not provide reasonable services to father in contravention of the legislative policy, ORS 419B.090(5), and the juvenile court's prior order in this case. Because father did not engage in extreme conduct as defined by ORS 419B.502, DHS did not prove that it provided father with reasonable services, which DHS acknowledges it did not provide despite the juvenile court's prior order, and reasonable services are a well-established element to unfitness under ORS 419B.504, 1 respectfully dissent.
I. THE FACTS
On de novo review, ORS 19.415(3)(a), the majority and I read the record differently on some points. In order to frame my disagreement with the majority, I offer a description of the facts as I read the record.
In July 2006, father was arrested and charged with 26 counts of encouraging child sexual abuse. As a result of father's arrest, DHS filed a petition to establish jurisdiction over the child. At a July 2006 jurisdictional hearing, the juvenile court ordered father to obtain a psychosexual evaluation and participate in treatment. The court also ordered DHS to "make those referrals and offer those services reasonably necessary to achieve reunification."
Although the court ordered DHS to assist father in accessing treatment, DHS did not make any referrals or offer any services to father. Rather, father's attorney, not DHS, arranged for father to obtain a psychosexual evaluation. The evaluation was conducted by Nielsen, a clinical and forensic psychologist. Nielsen's report diagnosed father as having paraphilia not otherwise specified, which indicates that father has a pattern of sexually deviant interests. Nielsen concluded that father "would probably not ever intentionally harm his son in any way" but "would be more of a risk [to other children] if he had exposure to unrelated children." Nielsen recommended that father "receive sexual offender treatment," because the "only way to alter or control his sexual addiction via the internet is through some type of monitoring that can be best found through typical sex offender treatment." Father then contacted some sexual offender treatment providers but could not afford to pay for treatment. Father requested referrals from DHS to sex offender treatment programs, making written requests in May and June 2007. There is no evidence in the record that DHS responded to those requests.
"The essential features of a Paraphilia are recurrent, intense sexually arousing fantasies, sexual urges, or behaviors" including those involving "children or other nonconsenting persons that occur over a period of at least six months." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 566 (4th ed, text revision 2000) ( DSM-IV-TR). Paraphilia not otherwise specified is a coding for paraphilias that do not meet the criteria for any specific category. Id. at 576.
Before his criminal trial, father requested contact with child. DHS did not facilitate father's request until father obtained a court order in his criminal case that clarified that father's pretrial release conditions on the pending criminal charges did not restrict him from supervised visits with child. DHS then authorized three supervised visits with child in July and August 2007. The DHS worker who supervised the contacts reported that father's conduct during the visits was "appropriate."
After the third visit, father was sentenced in August 2007, based on his guilty pleas, to eight counts of encouraging child sexual abuse in the first degree. On the first count, father received an 18-month term of incarceration to be followed by a 36-month period of post-prison supervision (PPS). On the remaining seven counts, father was sentenced to probation for 60 months. His probationary terms restrict him from having any contact with children unless authorized by DHS. Father began serving his term of incarceration upon sentencing in August 2007, and DHS has not authorized father to have any contact with child since that time.
The conditions of father's post-prison supervision (PPS) appear in the record through the testimony of Michael, father's probation officer. The record suggests that Michael supervises father for both the PPS conditions and probation conditions. Based on Michael's testimony, father's PPS conditions appear similar to his probation conditions.
By July 2008, DHS had identified an adoptive resource — child's maternal grandmother — and petitioned for termination of father's parental rights. The petition followed an evaluation by child's therapist, Monahan, who reported that "[s]poradic contact with a parent is extremely stressful and confusing for any child but especially for a younger child such as [child]." Monahan added that sporadic contact is likely to be "detrimental to the parent-child relationship." Monahan thus recommended against allowing visits with father or mother. At the time of Monahan's recommendation, which occurred in March 2008, DHS had not allowed father to have contact with child for seven months.
In September 2008, father was released from prison. Father's probation conditions bar him from having any contact with any child unless DHS authorized that contact. Two weeks after father's release, father enrolled in a sex offender treatment program arranged through the county's probation office. That program was designed to last approximately 22 to 26 months.
In early 2009, approximately four months after father was released from prison, the juvenile court conducted a trial on the termination of father's parental rights. DHS alleged that termination was proper because father had engaged in extreme conduct against a child, ORS 419B.502, and father was unfit under ORS 419B.504. Specifically, DHS alleged that father's extreme conduct under ORS 419B.502 was "sex abuse of a child by the parent."
DHS also petitioned to terminate mother's parental rights, which the trial court did. Mother's parental rights are not an issue on appeal.
DHS's allegation under ORS 419B.504 was less specific. DHS alleged: "father is unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into the father's home is improbable within a reasonable time due to conduct or conditions not likely to change"; and the petition further alleged that father failed 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."
Father testified at the termination trial. He presented his plan for reintegrating child into his home. At that time, father was living with his parents, planned to remain there for the foreseeable future, and had an extra bedroom in which child could stay. Father acknowledged that, as of the time of the termination trial, he was not "in a position * * * to independently care for" child, at least in part because he had not seen child since August 2007 and because, as he recognized, he did not have specific information regarding child's current special needs. Nonetheless, father asserted that he would be able to engage in a "gradual" transfer of custody from child's maternal grandmother that could be completed "within six months" and that he could then assume the role of stay-at-home parent.
Caywood, father's counselor in the sex offender program, testified that reintegration of minor children into the home of a sex offender is possible through a structured treatment program that begins with observed, supervised parent-child contacts. Those programs typically last between six and 18 months. Caywood noted that father has been "very cooperative" in treatment and has "completed the work in front of him." Caywood also testified that he supported allowing father to begin supervised visits with child in conjunction with that treatment program. Caywood testified that it would be "within the realm of possibilities [that father] could be around a child unsupervised" as soon as six months after supervised contact begins.
Moreover, Caywood distinguished different types of sex offenders between "having sort of hands on victims and the type of pornographic material [father] was viewing." That distinction is particularly relevant, according to Caywood, because father passed a polygraph examination indicating that "his interests had not translated into actual hands on behaviors." For that reason, Caywood acknowledged that the general course of treatment was between 22 and 26 months, but that father's treatment could be shorter. Caywood speculated that integration could take two years but also testified that father could have supervised contact with child starting in six months and that integration of child into father's home would start with supervised contact with father. On cross-examination, Caywood testified that father could integrate child with unsupervised contact within four to six months.
Caywood was less certain about the timeline for reintegration but Caywood was clear on one point: More information was needed before he could make a meaningful prediction as to father's progress through treatment — not to mention any time frame for integration. Caywood testified that he needed another, more current psychosexual evaluation of father to set forth a definitive program for father. Similarly, Caywood testified that father presented "a very low risk" to children in the present but admitted that he needed more data before he could make a long-term evaluation. Indeed, as he was pushed to predict timelines for father's progress through therapy, Caywood complained, "I see [father] once a week for an hour and a half or so, and I have access to the criminal records and his current active file with parole and probation. That's the extent of my, you know, the criteria I have to make my assessment." Caywood's testimony is ultimately less than clear and convincing about a timeline for integration. Caywood gave three different estimates for the time it would take: four to six months; six months; or two years. But Caywood was certain about one point: He simply did not have enough data to make a prediction with which he was comfortable.
Father's probation officer, Michael, testified that father's conditions of supervision could be modified to allow father to have supervised visits with child. Michael would need to recommend to the judge in the criminal case that the conditions of supervision be modified. Michael indicated that she would follow Caywood's recommendation whether to allow visits so long as father was compliant with all the other conditions of probation and father continued to pass all polygraph examinations. The record indicates that father has passed all of his polygraph examinations. Michael testified that the probation conditions for other sex offenders whom she had supervised had been modified to allow unsupervised contact with their children when they had neared the completion of sex offender treatment. Thus, Michael's testimony establishes that father's probation conditions can be modified and that similar modifications have occurred toward the end of sex offender treatment. But as to the time frame for father's treatment — which Michael testified determines the time frame for father's ability to have contact with child — she deferred to Caywood's judgment.
However, father had violated a term of his probation that prohibited all contact with mother. Michael indicated that the sanction for that violation would be that father would lose his computer privileges.
II. THE JUVENILE COURT'S JUDGMENT
As previously mentioned, the court's findings must be established by clear and convincing evidence. ORS 419B.521(1). 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. Human Services v. A. M. P., 212 Or. App. 94, 104, 157 P.3d 283 (2007).
The issue is whether those facts support termination of father's parental rights. ORS 419B.502 and ORS 419B.504 provide separate bases for terminating a parent's right to raise her or his child. ORS 419B.500 provides that parental rights may be terminated as provided under ORS 419B.502 to 419B.524 if termination is "in the best interest of the ward." If a parent is unfit under either ORS 419B.502 or ORS 419B.504 and termination serves the best interest of the child under ORS 419B.500, then the judgment must be affirmed. See State ex rel Dept. of Human Services v. Radiske, 208 Or. App. 25, 61, 144 P.3d 943 (2006) (a termination judgment will be affirmed if it serves the child's best interest and the juvenile court correctly found the statutory ground for termination).
The juvenile court terminated father's parental rights on the basis of extreme conduct, ORS 419B.502, and unfitness, ORS 419B.504. Because this case cannot be fully understood without an examination of DHS's allegations under ORS 419B.502, and because I would reverse, I discuss both of the court's bases for terminating father's parental rights.
III. EXTREME CONDUCT, ORS 419B.502
DHS's allegation of extreme conduct provides the context for the issues that arise in this case. The general legislative policy is to encourage reunification of the family by providing reasonable services, unless the case involves extreme conduct by the parent. ORS 419B.090(5) provides:
"It is the policy of the State of Oregon,
in those cases not described as extreme conduct under ORS 419B.502, to offer appropriate reunification services to parents and guardians to allow them the opportunity to adjust their circumstances, conduct or conditions to make it possible for the child to safely return home within a reasonable time."
(Emphasis added.) Here, DHS alleged that father engaged in extreme conduct.
DHS's allegation of extreme conduct provides a possible explanation as to why DHS did not seek reunification of the family in this case. DHS refused to allow father to have conduct with child prior to father's convictions, and even after the court clarified that father was permitted to have supervised contact with child, DHS authorized only sporadic contact with father. DHS's theory that father had engaged in extreme conduct also provides context for DHS's decision not to provide father with services even after the court ordered DHS to provide father with services. By refusing to allow father judicially authorized contact with child and ignoring an order to provide father with reasonable services, DHS created some of the very conditions that it now contends justify terminating father's parental rights under ORS 419B.504. I first discuss why ORS 419B.502 does not apply to father's actions and then discuss why DHS failed to establish, by clear and convincing evidence, that father's parental rights should be terminated under ORS 419B.504.
A court may terminate a parent's rights under ORS 419B.502:
"if the court finds that the parent * * * [is] unfit by reason of a single or recurrent incident of extreme conduct toward any child. In such a case, no efforts need to be made by available social agencies to help the parent adjust the conduct in order to make it possible for the child or ward to safely return home within a reasonable amount of time. In determining extreme conduct, the court shall consider the following:
"(1) Rape, sodomy or sex abuse of any child by the parent."
The focus of the inquiry under ORS 419B.502 is on the egregiousness of past conduct, not on whether the conduct has a detrimental effect on the child in the present. In addition, in extreme conduct cases, ORS 419B.502 provides that "no efforts need to be made by available social agencies to help the parent adjust the conduct in order to make it possible for the child or ward to safely return home."
In this case, DHS alleged that "father is unfit * * * by reason of the following extreme conduct toward a child: * * * Sex abuse of a child by the parent." The juvenile court found that the allegation was supported by clear and convincing evidence. The issue, therefore, is whether the phrase "sex abuse" in ORS 419B.502(1) encompasses father's conduct of downloading and viewing child pornography.
The statute defines extreme conduct to include "sex abuse of any child by the parent." ORS 419B.502(1) (emphasis added). The use of the word "by" conveys the legislature's intent that ORS 419B.502(1) applies only when a parent himself or herself engages in sexual abuse of any child. Statutory context confirms that interpretation. The criminal code defines crimes of "sexual abuse" as requiring that the crime be committed by the offender, himself or herself: a person commits the crime of sexual abuse only if the person "subjects another person" to some form of sexual contact. ORS 163.415(1)(a) (third-degree sexual abuse); ORS 163.425(1)(a) (second-degree sexual abuse); ORS 163.427(1)(a) (first-degree sexual abuse). Consequently, I conclude that ORS 419B.502(1) applies only when a parent himself or herself subjects any child to some form of sexual contact.
Although father was convicted of serious offenses, eight counts of encouraging child sexual abuse in the first degree, ORS 163.684, father was not convicted of sexually abusing any child himself. By duplicating or printing a visual image of child pornography on his computer, father did not himself subject any child to sexual contact. On the record in this case, father neither personally participated in sexually abusing any child nor did he direct anyone else to sexually abuse any child. There is no evidence, let alone clear and convincing evidence, that father himself committed "rape, sodomy or sex abuse of any child" under ORS 419B.502(1). Therefore, the trial court erred in terminating father's parental rights under ORS 419B.502. Next, I consider whether the trial court erred under ORS 419B.504.
IV. UNFITNESS, ORS 419B.504
Father's conduct was deplorable. My dissent is not based on a conclusion that father's conduct was acceptable. If the record established that DHS proved, by clear and convincing evidence, that it provided reasonable services or that DHS was relieved of its duty to provide any services, then I would agree with the majority and affirm the trial court's judgment terminating father's parental rights. But DHS did not meet its burden of proof. I now turn to the statutory requirement of reasonable services.
A. DHS Must Prove Reasonable Services
ORS 419B.504 provides that the court may find that the parent is
"unfit by reason of conduct or condition seriously detrimental to the child or ward and integration of the child or ward in to the home of the parent * * * 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:
"* * * * *
"(5) Lack of effort of the parent to adjust the circumstances of the parent, conduct, or conditions to make it possible for the child or ward to safely return home within a reasonable time 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."
The parent's fitness "must be measured at the time of the parental rights termination trial." State ex rel Dept. of Human Services v. Simmons, 342 Or. 76, 96, 149 P.3d 1124 (2006) (emphasis in original). The analysis focuses on the detrimental effect that a parent's conduct or condition has on the child and not on the egregiousness of that conduct in the abstract. State ex rel SOSCF v. Stillman, 333 Or. 135, 146, 36 P.3d 490 (2001). In addition, ORS 419B.504 "requires clear and convincing evidence that `[DHS made] reasonable efforts to assist parents in making the adjustments to enable them to become minimally adequate parents.`" State ex rel Dept. of Human Services v. R. O. W., 215 Or. App. 83, 99, 168 P.3d 322 (2007) (quoting State ex rel SOSCF v. Frazier, 152 Or. App. 568, 582, 955 P.2d 272, rev den, 327 Or. 305 (1998)) (brackets in R. O. W.). As previously mentioned, evidence is clear and convincing where the evidence makes the asserted fact "highly probable" or the evidence is of "extraordinary persuasiveness." A. M. P., 212 Or. App. at 104.
On appeal, DHS essentially concedes that it did not make reasonable efforts. In its petition, DHS alleged that father failed 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." The trial court expressly concluded that DHS proved some allegations by clear and convincing evidence but the trial court did not conclude that father failed to make a lasting adjustment after reasonable efforts were made. Thus, the trial court found that DHS did not prove that allegation by clear and convincing evidence. Moreover, DHS noted on appeal that it does not "renew the five grounds which the juvenile court found unproved."
DHS's concession is well taken. The evidence shows that DHS never provided father any assistance in maintaining contact with child. Although Monahan observed that "[s]poradic" parental contact was likely to be "extremely stressful and confusing for any child" and "detrimental to the parent-child relationship," DHS limited father to sporadic contact by allowing only three supervised visits over two and one-half years. Those three visits resulted from father's own active efforts. Father's conduct in those visits was "appropriate." DHS then prohibited father from maintaining contact with child while father was incarcerated in August 2007. Nothing in the record establishes that father's incarceration physically prohibited visitation.
The record does not establish, by clear and convincing evidence, that any improbability that father can reintegrate child into his home within a reasonable time from child's perspective was due to father's conditions or conduct. To the contrary, DHS's conduct in severely restricting father's visits with child to an extremely "sporadic" frequency appears to have had a negative impact.
Nonetheless, DHS argues that it does not have to prove that it provided reasonable services. DHS is wrong. ORS 419B.504 requires DHS to prove, by clear and convincing evidence that the improbability that the child may be reintegrated into the home is "due to conduct or conditions not likely to change." DHS can only prove that fact by showing that services have failed or will fail.
Statutory context confirms that interpretation. As a general rule, DHS must provide parents with reasonable services. "[I]n those cases not described as extreme conduct," the legislatively enacted policy is "to offer appropriate reunification services to parents and guardians to allow them the opportunity to adjust their circumstances, conduct or conditions to make it possible for the child to safely return home within a reasonable time." ORS 419B.090(5). Thus, the legislature has expressly highlighted the difference between terminations under ORS 419B.502 that involve extreme conduct and terminations under ORS 419B.504 that do not involve extreme conduct. In cases involving extreme conduct, DHS need not provide reasonable services, ORS 419B.090(5), nor must DHS prove that it did so to terminate parental rights, ORS 419B.502 ("In such a case [involving extreme conduct], no efforts need to be made by available social agencies * * *."). But in cases not involving extreme conduct, the general rule — DHS must provide and prove reasonable services — persists. And, at a termination trial, DHS must prove that integration is improbable due to the parent's conduct or condition that is not likely to change within a reasonable time. ORS 419B.504. Furthermore, the court must scrutinize whether the parent put forth inadequate efforts despite the reasonable services made available by DHS. See ORS 419B.504(5) (requiring the court to consider the "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").
The majority relies on contextual references to infer a policy that DHS need not prove that it provided reasonable services under ORS 419B.504. That inference from legislative silence is particularly weak in light of the legislature's expressed policy of providing reasonable services in all cases except those involving extreme conduct.
Case law confirms that interpretation. For example, in R. O. W., we first stated what DHS must prove, including reasonable services, and second, analyzed whether DHS proved the necessary elements. 215 Or. App. at 99 (setting forth elements DHS must prove in a termination hearing, including reasonable efforts); Id. at 104-05 (stating that "[w]e next consider whether DHS made reasonable efforts to assist [the] parents" and later concluding that "DHS's efforts in assisting mother to become a minimally adequate parent were reasonable"). In R. O. W. we concluded that, whenever DHS proves that reasonable efforts were provided but were unsuccessful, we will affirm the trial court's decision terminating parental rights. Id.
Whether DHS's efforts were reasonable depends on the particular circumstances of each case. Id. at 99. If services would not assist the parent in reintegrating the child into the home, it is reasonable for DHS to decline to provide services. Id. at 105; see also ORS 419B.340(4) (if "further preventive or reunification efforts could not permit the ward to remain without jeopardy at home, the court may authorize or continue the removal of the ward"); State ex rel SOSCF v. Farish, 182 Or. App. 322, 336, 49 P.3d 811, rev den, 334 Or. 693 (2002) (DHS's choice to provide some services but not others may be reasonable under the circumstances); Frazier, 152 Or. App. at 602 (DHS relieved of any duty to provide therapy where parent never requested services and did not take advantage of other opportunities).
However, DHS is obligated to provide services, which, if successful, would allow a parent to reintegrate a child into the home within a reasonable time. Accordingly, "[i]f sex offender treatment is a requirement for family reunification, then it follows that a realistic reunification plan must provide an opportunity for the parent to complete the required treatment successfully." State ex rel SOSCF v. Burke, 164 Or. App. 178, 191, 990 P.2d 922 (1999), rev den, 330 Or. 138 (2000) (emphasis added). Alternatively, DHS can satisfy its burden of proving reasonable services by showing that it is reasonable to provide no services. See R. O. W., 215 Or. App. at 105 (DHS proved reasonable services where it established that further services would be futile). Again, on this record, DHS simply failed to prove that it either provided reasonable services or it was reasonable not to provide any services. Thus, the majority misses the point when it concludes that reasonable services must be proved in some but not all cases. I agree with the majority's statement as an abstract proposition of law. But DHS must prove what is reasonable based on the record in this case. Here, because DHS concedes that it did not provide reasonable services, I would reverse the trial court's termination of father's parental rights.
Because DHS failed to prove that father is unfit under ORS 419B.504, there is no need to consider whether termination is in child's best interests. In other words, the state may not terminate a parent's parental rights where the state has not established that the parent is unfit. The Supreme Court has stated, albeit in a slightly different context, that "perfection in parenting is neither attainable nor required." Simmons, 342 Or. at 103; State ex rel Dept. of Human Services v. Smith, 338 Or. 58, 87, 106 P.3d 627 (2005). The legislature has taken the same tact in requiring proof by clear and convincing evidence that a parent is unfit before authorizing termination of parental rights, see, e.g., ORS 419B.502 (stating standard); ORS 419B.504 (same), along with the duty imposed on DHS to provide reasonable services before terminating parental rights under ORS 419B.504. That is consistent with the liberty interest at stake in any case involving the termination of parental rights, which is "perhaps the oldest of the fundamental liberty interests recognized by" the United States Supreme Court. Troxel v. Granville, 530 US 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); see also id. at 68 ("[S]o long as a parent adequately cares for his or her children ( i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family.").
B. DHS Failed to Adduce Clear and Convincing Evidence that Integration is Unlikely Within a Reasonable Time.
Finally, I would reverse even under the majority's analysis because the majority incorrectly relieves DHS of its burden of proof. DHS must prove that father is unfit because of conduct or a condition that is seriously detrimental to child and that child's integration into father's home is improbable within a reasonable time due to conditions not likely to change. As to father's unfitness, the majority concludes that father is unfit because he is subject to a PPS condition that he have no contact with minors, including child. At the outset, it is noteworthy that father's condition of PPS can be changed if father establishes that he can safely have contact with child. It is also worth noting that DHS failed to comply with the court order to provide father with any services, contrary to the policy of the State of Oregon. Setting aside DHS's failure to provide any services to father, there are flaws in the majority's two reasons for concluding that father's condition is seriously detrimental to child.
First, the majority reasons that "[f]ather's condition, in conjunction with his earlier incarceration, has prevented and will continue to prevent him from providing a stable home to child." 239 Or. App. at 138. That is confusing because the majority emphasizes that we examine father's conduct "at the time of the termination hearing" and that we do not look at past events to determine whether termination is proper. 239 Or. App. at 140. But, if we were to look at father's condition in the context of past events, the majority seems to suggest that father's seriously detrimental condition is not simply the condition of PPS that father have no contact with minors; rather, the majority appears to be suggesting that other concerns about father would justify terminating his parental rights. Without any doubt, father's paraphilia is a very serious and concerning condition. However, DHS adduced evidence that father was experiencing success in treatment, and experts predicted that father posed little to no risk to child, and, further, that father could safely have contact with child within four to six months.
The majority does not address the difficult issue in this case. Father engaged in conduct that, while egregious, does not rise to the level of extreme conduct as defined by ORS 419B.502. It is the policy of the State of Oregon to seek reunification of families whenever possible in cases, such as this, that do not involve extreme conduct. The majority would affirm the termination of father's parental rights because he is subject to a condition of probation that is within the control of DHS; father may have contact with child if DHS authorizes that contact. DHS has a duty to seek reunification of the family. This record does not establish by clear and convincing evidence that father cannot integrate child within a reasonable time. The record establishes that integration is possible within four to six months. The majority says that child cannot wait two years. The record does not establish that two years are required before integration is possible.
Second, the majority contends that "[f]ather's condition leaves child without the stable home that child needs and thus is seriously detrimental to child." 239 Or. App. at 138. But as the majority reports: "child is bonded to his maternal grandmother, who is his current placement and wishes to adopt him, and she is able to meet his significant needs." 239 Or. App. at 135. Thus, child is currently in a stable home. Moreover, father has proposed a reintegration plan that is consistent with child's needs. Caywood testified that reintegration of child would require a methodical process that can start as soon as six months into treatment, and father has proposed such a reintegration plan. Although there is no question that child faces substantial difficulties, DHS has failed to adduce clear and convincing evidence that father's condition — a condition of probation restricting contact with minors — is seriously detrimental to child.
As to whether child's integration into father's home is improbable within a reasonable time due to conditions not likely to change, the majority relies on two facts: (1) child cannot wait two years for father's probation conditions to change and (2) "[f]ather will likely need two years before he could obtain approval from his parole officer to integrate child into his home." 239 Or. App. at 139. In concluding that father will need two years to obtain approval from his parole officer to integrate child into his home, the majority incorrectly relieves DHS of its burden of proof.
The majority contends that Caywood's testimony establishes that father cannot integrate child within two years, so termination is proper. However, Caywood also recommended that father integrate child within six months at one point and four months at another point in the record. Moreover, as he was pressed to predict time frames for father's treatment, Caywood repeatedly testified that he did not have enough information to make such predictions because he sees father "once a week for an hour and a half or so, and I have access to the criminal records and his current active file with parole and probation. That's the extent of my, you know, the criteria I have to make my assessment."
As to father's progress through treatment generally, Caywood testified that, before he could make an evaluation he was comfortable with, he needed more information. Given that Caywood twice testified that father could integrate child within six months but also predicted that father may integrate child within two years at another point and that Caywood consistently warned that he did not have adequate information to make predictions about father's progress, Caywood's testimony does not establish clear and convincing evidence that father will not be able to integrate child within a reasonable time. The majority does not identify other evidence as to the time when father will be able to reintegrate child, and I am not aware of any. Accordingly, DHS has not proved by clear and convincing evidence that child's integration into father's home is improbable within a reasonable time due to conditions not likely to change.
The majority also relies on Michael's testimony that father can integrate child as father progresses through sex offender treatment. Michael also made a prediction about father's time frame for making that progress. However, Michael's testimony was based on general observations about sex offender treatment, not specific to father, that is the sort of testimony the majority otherwise rejects, see 239 Or. App. at 132 n 2 (rejecting generalized testimony about progress through treatment).
As to any predictions specifically about father, Michael testified that she would rely on Caywood's recommendations. Moreover, the majority omits Michael's testimony that "I'm sorry to say that I can't give an exact time frame of when [contact between father and child] would be allowed"; that, "if Mr. Caywood said in six months, `I would have no concerns from a treatment position about [father] having contact with children unsupervised`"; and that Michael would likely adopt that position if father were complying with his other probation conditions. Thus, Michael's testimony does not establish that father could not have contact with child until he finishes treatment and Michael's testimony did not elevate Caywood's equivocal evidence as to the time frame for when integration can begin to clear and convincing evidence.
DHS did not provide father with reasonable services. DHS continued to ignore that statutory requirement even after the court ordered DHS to provide reasonable services. Nonetheless, DHS would terminate father's parental rights because it incorrectly decided that reasonable services are not necessary.
I respectfully dissent.
Carson, S. J., joins in this dissent.