Father in dangerous mental state regains custody

PORTLAND — An Oregon man has regained custody of his child, even though trial and appellate courts found his mental state poses a danger to the 2-year-old.

The Oregon Court of Appeals on Wednesday overturned a trial court's finding that put the child in state custody. It was the second time the appeals court ruled on the case — a previous ruling was unclear and apparently misinterpreted by the lower court.

The overturned decision puts the child firmly back in the father's custody, pending a new hearing in trial court. The appeals court said reviewing whether a parent's condition at the time of a hearing poses a risk to the child "does not have an easy answer."

But it ruled the trial court erred when it relied on the father's history of substance abuse, mental state and threat of relapse to deny him custody, which the appeals court called "facts that have ceased to exist or for which there is no evidence."

The case began in 2011, when the Oregon Department of Human Services took custody of the child. The father, identified in court documents as "N.P.," conceded in August 2011 that his use of controlled substances made him an inadequate parent.

By December 2011, the father had completed drug and alcohol counseling and addressed the problem. He then tried to win back custody of his child.

But the Department of Human Services refused, saying the child belonged in state custody because the father "has ongoing mental health and/or anger and frustration problems that impair his ability to competently parent the child."

The department made no claims about substance abuse, its original reasoning for taking custody of the child.

A trial court judge agreed in 2012. "Viewed in light of the risk that is represented by his use of controlled substances," the judge wrote in an opinion, "the father's anger and frustration represent a condition that, without treatment, impairs his ability to parent."

And the appellate court still found that the father's "anger, frustration, intemperance and immaturity" represented a threat to the child. But the appellate court ruled that the trial court erred when it relied on his history of substance abuse and threat of relapse.

The appeals court has established a high bar to prove that a parent's condition poses a threat to a child. Whether it was possession of pornography or failure to complete sex offender treatment, the appeals court has ruled in at least two other cases that parents were still fit to retain custody of their children.

The appeals court said that the evidence before the trial court "was sufficient to establish that father's condition or conduct gave rise to a current threat of serious loss or injury to the child."

But the court didn't rely on that to deny him custody, instead using the fact that the father had a substance abuse problem at the time of the hearing, and the appellate court ruled "there was no evidence to support that determination."

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