912 P.2d 904 | Or. | 1996
Dissenting Opinion
dissenting.
I dissent from the court’s denial of review in this case. The opinion of the Court of Appeals contains three erroneous statements of the law that applies to termination of parental rights, statements that demonstrate a failure to appreciate both the overall statutory scheme and its application to this case.
The first fundamental error made by the Court of Appeals is the statement that “abandonment,” as that term is used in ORS 419B.508,
If the Court of Appeals meant that a parent’s “abandonment” of a child cannot be a factor in a trial court’s consideration of unfitness under ORS 419B.504 unless the evidence also meets all the requirements of ORS 419B.508, that conclusion is equally incorrect. Each statute (ORS 419B.504, 419B.506, and 419B.508) provides a separate and independently sufficient basis for termination, which should be analyzed separately and on its own terms. ORS 419B.504 allows the trial court to consider any kind of “conduct or condition seriously detrimental to the child,” when “integration of the child into the home of the parent or parents is improbable in the foreseeable future due to conduct or conditions not likely to change.”
The second fundamental error of the Court of Appeals is the suggestion that the absence of emotional and physical abuse of the children is relevant to a determination under either ORS 419B.506 (neglect) — which was properly before the court — or ORS 419B.508 (abandonment) — on which the court erroneously relied. Payne, 136 Or App at 198-99. The Court of Appeals weighed the absence of emotional and physical abuse in comparison to the parents’ failure to visit or otherwise contact the children for extended periods of time
The third fundamental error in the opinion of the Court of Appeals is its treatment of the concept of “reasonable and lawful cause” for neglect or failure to provide for the needs of a child, ORS 419B.506. The Court of Appeals noted that the parents “both resented CSD’s involvement from the beginning” and that CSD was sometimes inflexible in scheduling visits. Payne, 136 Or App at 197; see also id. at 197-98 & n 8 (same). The court also stated that “hostility toward CSD is not an acceptable reason to terminate an individual’s parental rights.” Id. at 198 n 10. The opinion as a whole appears to treat the parents’ resentment of CSD, and the post hoc view that CSD’s requirements were unfair, as “reasonable and lawful cause” for these parents’ undeniable neglect and failure to provide for the needs of their children.
If allowed to stand, this opinion suggests that a parent can passively resist compliance with requirements (such as visitation requirements) lawfully set by CSD, seek no modification in juvenile court of those requirements, and later successfully defend a petition for termination of parental rights on the ground that the requirements were unreasonable or onerous, despite the absence of other alternative efforts to maintain a relationship with the children, such as by calls or letters. Such a suggestion is stunningly at odds with the messages that this court has sent in the past. See State ex rel Juv. Dept. v. Jones, 290 Or 799, 811-16, 626 P2d 882 (1981) (mother had “reasonable and lawful cause” for failing to provide for the needs of her daughter for the statutory period, then a year, when she suffered from a debilitating illness and the juvenile authorities had informed her in writing that she was prohibited from having any contact with the girl); Eder v. West, 312 Or 244, 269-70, 821 P2d 400 (1991) (under ORS 109.324, mother’s actions, including petitioning the court for modification of court-imposed restrictions on visitation and
In summary, the Court of Appeals made three fundamental errors of law in analyzing this case. The issues are ones that, regrettably, arise often. For the foregoing reasons, I dissent from the court’s denial of the petition for review.
ORS 419B.508 provides:
“The rights of the parent or parents may be terminated as provided in ORS 419B.500 if the court finds that the parent or parents have abandoned the child or the child was left under circumstances such that the identity of the parent or parents of the child was unknown and could not be ascertained, despite diligent searching, and the parent or parents have not come forward to claim the child within three months following the finding of the child.”
ORS 419B.504 provides:
“The rights of the parent or parents may be terminated as provided in ORS 419B.500 if the court finds that the parent or parents are unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into the home of the parent or parents is improbable in the foreseeable future due to conduct or conditions not likely to change. In determining such conduct and conditions, the court shall consider but is not limited to the following:
“(1) Emotional illness, mental illness or mental deficiency of the parent of such nature and duration as to render the parent incapable of providing proper care for the child for extended periods of time.
“(2) Conduct toward any child of an abusive, cruel or sexual nature.
“(3) Addictive or habitual use of intoxicating liquors or controlled substances to the extent that parental ability has been substantially impaired.
“(4) Physical neglect of the child.
“(5) Lack of effort of the parent to adjust the circumstances of the parent, conduct, or conditions to make the return of the child possible or failure of the parent to effect a lasting adjustment after reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected.”
ORS 419B.506 provides:
“The rights of the parent or parents may be terminated as provided in ORS 419B.500 if the court finds that the parent or parents have failed or neglected*5 without reasonable and lawful cause to provide for the basic physical and psychological needs of the child for six months prior to the filing of a petition. In determining such failure or neglect, the court shall consider but it not limited to one or more of the following:
“(1) Failure to provide care or pay a reasonable portion of substitute physical care and maintenance if custody is lodged with others.
“(2) Failure to maintain regular visitation or other contact with the child which was designed and implemented in a plan to reunite the child with the parent.
“(3) Failure to contact or communicate with the child or with the custodian of the child. In making this determination, the court may disregard incidental visitations, communications or contributions.”
Mother failed to visit or have any other contact with the children from March 9, 1993, to September 1, 1993, and again from March 10, 1994, to November 10, 1994. Father failed to visit or have any other contact with the children from March 9, 1993, to October 14, 1993, and again from January 27,. 1994, to November 16, 1994.
Lead Opinion
MEMORANDUM OPINION
Petition for review denied.