*1 February Argued and submitted affirmed October denied reconsideration 19,1990, 19,1991 (311 166) February December for review allowed In Matter of Adoption Dylan Eder, Eder and Children. L.
Robert EDER Eder, and Michelle Longo Respondents, WEST, Anita Appellant. A50557)
(A414; CA F. James cause for Young, Bay, argued appellant. Coos him With on Services Corporation, Oregon Legal brief was Bay. Coos
Stephen Lovejoy, City, argued A. Lincoln the cause for respondents. Jenny him Cooke, With on the brief was Port- land.
NEWMAN, J. dissenting.
Edmonds, J.,
NEWMAN, J.
In this father adoption proceeding, peti and his wife the court to allow wife to sons from adopt tioned father’s two to mother. The court previous marriage his concluded had wilfully neglected mother provide proper
cause to care and maintenance for the children that, therefore, preceding for the next require did not her consent. ORS 109.324.1 appeals judgment. review, On de novo we affirm. Father and mother obtained dissolution July, custody sons, 1983. The court awarded of their two old, years Dylan, then three then nine months Benjamin, father, old, subject to visitation mother. The court father, custody to because it was concerned about the awarded emo- instability effect of mother’s emotional on children’s development. July, 1984, tional father moved to begun regressive had judgment, display because mother, wetting, after such behavior visitations with as bed had sexu- reported had to father ally abused him. September, modified the dissolu- *3 all prohibit
tion visitation between mother and children, by except supervised for visitation both After a it that mother not believ- hearing, father. found was she able, paranoid that she unstable and and that had was in oriented The court “sexually Benjamin. acts” with engaged ordered: provides: ORS 109.324 parent just wilfully neglected without “If either is believed to have deserted or proper the child for one and sufficient cause to care maintenance for petition year filing adoption parent preceding of the for and such does not next the parent adoption, upon writing in shall be such a consent to the there served why in show cause the of the citation accordance with ORS 109.330 to had, Upon hearing being if not the finds that such child should be decreed. court just parent wilfully neglected cause has deserted or without and sufficient preceding provide proper one the care and maintenance for the child for next parent filing adoption, discretion of of the the of such at the consent and, required consent is
the court is not determines that such not court proceed regardless objection required, authority of the the court shall have wilfully neglected parent. determining parent In or such whether the has deserted provide proper cause to care and maintenance visitations, child, may disregard and contri- incidental communications apply given parentis under This in loco butions. section does where consent ORS 109.316 109.318.” “Any change or modification of the terms Order only by will approval be of the court and after has [mother] psychiatric psychiatrist acceptable had evaluation a therapy may court and such or further evaluation as be recom- mended.” December, 1984, mother entered a con- plea no
test to sexual abuse in the degree second for the acts she that Benjamin committed against July, 1984. received a She suspended years sentence and five probation. One condition of probation was that she not have contact with until further order the court.
f January, mother met twice a Kjaer, with Dr. psychiatrist whom she chose and the court an approved, for evaluation. His diagnosis was: “borderline personality; acute reaction; (to situation normal grief response the divorce and children); withdrawal of possible depressive manic (bipolar) disease; pedophilia (by history).” He long- recommended term psychotherapy and stated that she “accept must reality of her misbehavior.” strongly disagreed with diagnosis and refused to seek treatment from Kjaer, because it would require her to sexually admit that she had child, abused her deny. she continued to Over course of next years, three she filed numerous motions change psychiatrists and to the restrictions on visita Collins, tion. she Although psychiatrist saw Dr. in New Mexico,2 approximately April, four times in him, approve accepted because he stated mother’s denial of the sexual abuse and that he would not be treating her for that.
The court all dismissed of mother’s numerous visitation, motions to allow continually failed to obtain therapy prerequisite awas to visitation. Although children, mother wrote letters to the they often con- inappropriate remarks, tained unrealistic particular soon, fact, that she would be with the children when, in *4 knew that she could not see them until she had obtained appropriate treatment. One Benjamin letter to referred to the 2 Throughout litigation, Fe, Mexico, this mother has lived in Santa New and in Oregon. in various locations cozy “warm bed” that had for him her home. Father they read edited the letters before were children. a is self-employed Mother is artist whose work exhib- Her annual galleries. approximately ited in several income $7,000, $4,000 approximately pay- of which is attributable to ments that she receives from the dissolution settlement. She income. Mother was not ordered to also receives some barter birthdays gifts for the children. She sent them for pay support dollars, holidays occasionally and enclosed five ten also as gifts. November, 1987, attempted mother to establish
In Dylan and the court to hold telephone contact with moved The denying telephone visitation. court contempt father in March, 1988, again appoint- moved for declined. counselor, Kjaer had informed the ment a new of further evaluation of mother. court that would not no visitation. The court ordered that there be acceptable list mutually submitted a Father and mother for Behav- therapists, the court ordered the Center (Center) replace Kjaer as ioral Intervention and treat- health for evaluation approved professional mental her misconduct with ment mother for sexual problems. psychological her other Center on three June, 1988, mother went to the diag- The Center’s psychological occasions for evaluation. of Kjaer. those conclusions were consistent with noses and treatable at the mother was not The concluded that report abuse, lack of her total denial of sexual Center because made recom- uncooperativeness. It also motivation place on should mendations for restrictions the court “sex modify its decision that visitation, if it choose to should visitation precondition a specific treatment” be offender with the children. modify a motion mother filed August
On visitation, allow in accordance the dissolution August articulated. On that the Center guidelines with the adoption. After filed the father and his wife matters,3 allowed the hearing on both a consolidated proceeding, terms court also heard motion At the same appeal only is the probation. issue denied both motions. It
89 adoption by wife, retaining father his status as father of the adoption children. It ruled that mother’s consent to the was required, wilfully because she and without and suffici- neglected by ent cause had her children do one failing to the thing them, that would allow her to regain visitation with that is, to obtain treatment. assigns ruling that as error. She argues that
there was not clear convincing evidence had that she children, the because neglected all that she could to increase her access to through them the also courts. She argues neglect that she did not by nonsupport, them the dissolution to pay support. did not order her 109.324, may Under ORS the dispense court with the requirement of parental consent to an it finds convincing clear and evidence that the parent wilfully has neglected without just and sufficient to provide proper cause care and maintenance for the child for one the preceding petition. Palumbo, v. 99 App 312, 316, 781 Or P2d 1247 Chaffin (1989). statutory The court must apply the criteria with dis cretion, mechanically. Reeves, Swarthout v. 26 Or (1976). To a parent’s evaluate whether behavior constitutes neglect, the court should focus on the presence or absence of minimal expressions concern, of ordinarily are money measured in terms of payments and personal Palumbo, contacts. v. supra, Or App 99 at Chaffin 315; Roberts, Mead App 238, 242, 702 (1985). v. 74 Or P2d 1134 of expressions absence may minimal concern be tem pered by facts that show that a parent’s hardship financial resulted in an inability financial or that support show that lack of visitation resulted from unwarranted con imposed by Palumbo, straints parent. custodial v. Chaffin 315; 99 supra, Roberts, Or at Mead v. supra, 242. do not it neglect
We consider evidence of that mother contribution, made no financial apart gifts, from token support, children’s because the dissolution judgment did not obligate so, her to do very and she had limited financial Adams, resources. See DaCosta 84, 87, 677 67 Or App (1984). do, however, significance We attach failure her during statutory to see children period, as well as during preceding years. three Although argues restriction on visitation was “constraint” judicial children, it that excused lack contact with was that restriction in the first own misconduct that necessitated have led the place, things and she refused do could responsibil- acknowledge court remove that restriction —to and to obtain sex offender ity for her sexual abuse sexually had oriented acts with engaged treatment. Mother had in the Benjamin, been convicted sexual abuse second against Benjamin that she had committed degree for acts July, had not therapy obtained the problems, required psychological for her emotional accept responsibility for the sexual because she refused *6 and just of her child. Her lack of visitation was without abuse from her and subse- cause and resulted misconduct sufficient to have the door opened failure take actions that would quent there was clear and visitation. We conclude that resuming to neglect. of wilful The convincing evidence require consent.
Affirmed. J.,
EDMONDS, dissenting. wilfully mother has The concludes majority 109.324, her children under ORS neglected have led the court things to do the that could “refused acknowl- rights] restriction her visitation remove [of th[e] —to of for her abuse edge responsibility sexual App By 104 specific offender treatment.” Or 90. obtain sex meaning new into ORS legislates the holding, majority this 109.324, provides, part: * * * wilfully neglected parent to have
“If either is believed provided proper care just to have and sufficient cause without preceding the the child for one next and maintenance for * ** of adoption, the consent filing of ** * and, required of court is not parent at the discretion adoption] proceed authority to the court shall have [with determining parent. regardless objection of such * * * neglected just parent wilfully without whether the has provide proper care and maintenance cause to visitations, child, may disregard incidental communications and contributions.” holding precedent. majority’s
91
66,
(1973),
13 App
“Neglect,
be
‘without
and sufficient
must be
ux,
‘intentional,
deliberate or wilful.’ Wilcox v. Alexander et
(1960).
is,
220 Or
“The cases do not
delineate the
neglect
satisfy
which will
the statute and obviate the neces-
sity
obtaining
parent’s
consent
an
Such
probably impossible.
accurate definition is
petitioner
required
prove
“Under our statute a
is not
respondent parent
parental
that the
intended to abandon all
See,
Draper,
Dept.
State ex rel Juv.
v.
497,
App
7 Or
(1971), Sup
review
(1972).
denied
“For
previously
adoptions
court has
denied
objecting parent
child,
when the
has frequently visited the
see
Dews,
Eacret v.
511,
Ct review
App
10 Or
P2d
Sup
500
denied
at least knows
parent
or where the
iswho
child,
keeping the
receiving adequate
that the child is
See,
Mack,
Dept
State ex
rel Juv.
v.
care.
App 570,
12 Or
Drake,
(1973);
Drake
8 Or
Green,
(1971), Sup
Ct review denied
(1972);
Smith v.
4 Or
533, 480
(1971).”
(First
P2d
empha
13 Or
at 70.
supplied;
emphasis
sis
original.)
second
*7
Thus,
always
we have
evaluated the presence or absence of
minimal expressions
parental
concern in terms of money
payments
personal
or
contacts.
v. Palumbo, 99 App
Or
Chaffin
312, 315,781
(1989). Moreover,
P2d 1247
as
in
we said Mead v.
Roberts,
74 Or App
(1985):
Here, in the year preceding the filing of the petition, mother was no obligation pay under and did pay any support. However, she knew where her children were they During at were receiving all times and that excellent care. time, prohibited by visiting she was a from court order November, 1987, she attempted children. to establish by with the children but was father. phone contact rebuffed later, month mother moved the court to hold father in One allowing telephone for not calls. The court did contempt March, 1988, rule that motion until when it declined to on contempt granted and his motion to hold father any During future contact. decree to forbid a time, monthly write to her sons on basis continued to inquired parties well-being. of third as to their regularly a Also, fall mother moved to have new in the a list of therapist submitted names court-appointed substitute, a The court ordered and in approval. court for evaluation, a June, 1988, sex offender mother submitted * * * was “untreatable because her which concluded that she denial, uncooperativeness.” lack of motivation and Nonethe- that, no inter- less, expressed it stated [children] “[u]nless mother, deteriorated seeing or their behavior est their visits, they probably then should be significantly following on depend should not permitted to resume contact. This mother moved entering report, After the therapy.” [mother’s] limited, supervised visitation the court to grant petition later, his new wife filed days Four father and Bantsari, 29 Or v. This to Tallman analogous case is mother refused to (1977), where the judg dissolution in the comply requirements with visitation modified the behest, At the the trial ment. father’s support. pay eliminate child requirement decree not visit his chil Thereafter, support and paid he never and mainte dren, desire visitation although he “to continued 29 Or his children.” relationship with nance of his familiar adoption, denial of 749. We affirmed the saying: to visit with the chil- support failure pay
“Failure neglect necessarily wilful desertion dren do not constitute contemplated ORS cause as no-support/no-visitation 109.324. held where We have so Mahoney parent, by the custodial *8 arrangement is induced (1973), Linder, it is all the P2d 901 14 514
93 where, here, more true as the lack contact between non- parent custodial custodial and children is due to the conduct parent and the order the court over the desires contrary.” parent the noncustodial Or 29 at 750. (Emphasis supplied.) majority ignores also our analysis in DaCosta v.
Adams, 84, 677 67 Or App where the father had petition adoption filed a over the protests of the mother. Although decree of gave dissolution her no visitation rights, she periodically, although irregularly, called her child. made an child, She unsuccessful attempt visit her after petition filed a to modify the decree to her later, visitation A short time the father filed peti tion for We said: * * * enjoy efforts to ignored. visitation cannot be
“[Mother’s] subsequent From her regular effort to establish visitation through decree, the dissolution which ante- modification of filing proceedings, dated the ine child of the genu- we infer a maintaining concern for strengthening parent- (Emphasis bond.” Or supplied.) at 88.
Here, isit undeniable that mother continues to desire visitation and relationship maintenance of her with her chil- above, dren. As detailed she made several attempts to contact her during children the year before was filed. Father, however, prohibited her from talking to the children and obtained a court order that forbade calls continued previous in effect a order that restricted mother from having any personal children, contact with the unless she were to obtain court-approved counseling.
The majority makes much of the fact that mother did not acknowledge her sexual Benjamin abuse of and obtain sex offender treatment. attempted to obtain treatment that did require her to admit that she had Ben- abused jamin. The court declined to approve program. treatment agree I admitting that she had abused was an important in structuring consideration visitation rights interests, were in his best but her failure to do so is “neglect” meaning within the of ORS To 109.324. contrary, attempts to have visitation her with children vigorously pursuing legal during pertinent remedies one-year period meet the statutory test of minimal expressions of concern. salutary majority seeks to may be ends that
There *9 There is little emo- terminating rights. obtain abuses her child and sexually for a who support tional her. treatment that will rehabilitate refuses to obtain then justifies conduct termina- is stake here. Whether such More decision, are not legislative is a and we parental rights tion of beyond its natu- language to extend the law authorized we think is a accomplish for us to what meaning in order ral Anderson, R. R. Co. v. result. Union Pac. (1942). Moody said in Supreme As the Court are we bound Voorhies, 257 Or rearrange parent- 109.324 and cannot language of ORS by the except statutory criteria have relationships when the child not' sex offender treatment The failure to obtain been met. ordinary meaning of the word. “neglect” any under Under parents should beware. Non-custodial they comply or fail to with disagree with majority’s holding, they have obligation, regardless ordered whether any court children minimal concerns about their express endeavored losing their ways, the risk of they all other available stand result, and intend that did not legislature parental to achieve it. expand ORS 109.324 we should not Warren, JJ., join in J., and Buttler and Joseph, C. opinion. dissenting