507 P.2d 1161 | Or. Ct. App. | 1973
Lead Opinion
This is a proceeding to terminate parental rights in three children
“The rights of the parent or parents may be terminated * * * if the court finds that the parent or parents:
“(a) Are unfit by reason of conduct or condition seriously detrimental to the child; or .
“(b) Have wilfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child for one year. In determining whether the parent has wilfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child, the court may disregard incidental visitations, communications and contributions.”
In a proceeding to terminate parental rights the state has the burden of proving, by a preponderance of competent evidence, facts sufficient for termination. ORS 419.525 (2); State ex rel Juv. Dept. v. Wilson, 9 Or App 468, 497 P2d 871 (1972). On appeal the parents contend that the state did not carry its burden as to either of the statutory grounds. For the reasons which follow, we agree, and we therefore reverse the order of the juvenile court.
The parents first assert that the state did not prove by a preponderance of the evidence that they “wilfully * * * neglected without just and sufficient cause” to provide care and maintenance for their children for one year. In State ex rel Juv. Dept. v. Draper, 7 Or App 497, 505-506, 491 P2d 215 (1971), Sup Ct review denied (1972), we said that before parents’ rights may be terminated pursuant to that statutory ground, proof is required
*572 “* * * that the parent failed to perform parental duties * * * and that his neglect was voluntary [citations omitted] and intentional [citations omitted].”
Finally, in determining whether the failure to support constitutes wilful neglect within the meaning of the statute, any prior notice that the parent might have had of the possibility of a termination proceeding is a relevant consideration. See Thies v. Barnes, 11 Or App 158, 501 P2d 1305 (1972).
Applying these criteria to the facts of the case at bar, we conclude that the parents herein have not wilfully neglected their children “* * * without just and sufficient cause * * *” within the meaning of the statute.
The record indicates that the Macks are severely limited in their earning capacities, that Shirley Mack has been hospitalized’ for large intervals of time, and that their income during the time period in question was extremely low. Although a proceeding was commenced by the Welfare Recovery Division in June 1970 to require the father, Dale E. Mack, to contribute to the support of the children, the court found on August 12, 1970, after several court appearances by the father, that “* # * said father’s financial ability to provide support for said children has not improved, and * * * he has no present ability to provide support for said children * * Thus, there has been no showing of a failure to contribute to support where contribution was feasible. We cannot say that this is evidence of wilful neglect.
There is sharp conflict in the testimony regarding the Macks’ attempts to visit the children. Mr. and
Finally, the record shows that the Macks were not aware of the possibility of a termination proceeding until they actually received notice of its initiation. To the extent that this is a relevant consideration, it cuts in favor of the Macks in this case since, once they had notice of the proceeding, they mended their ways and adhered to a visitation schedule fixed by the court. This fact, coupled with the fact that the Macks have had the determination to contest the termination proceeding before the juvenile court and before this
Second, the parents assert that the juvenile court erred in finding them “unfit by reason of conduct and conditions
It is beyond dispute that in rendering its decision the juvenile court felt that it was acting in the best interests of the children. However that criterion, determinative in questions of custody, is not completely determinative when the issue is that of termination of parental rights. Moody v. Voorhies, 257 Or 105, 475 P2d 579 (1970); Simons et ux v. Smith, 229 Or 277, 366 P2d 875 (1961). As stated in Moody:
■ «* * # [Cjourts are bound by the language of the statutes and cannot rearrange parent-child relationship except when the statutory criteria have been met. * * *” 257 Or at Ill.
Our decision on the issue of termination does not in any way affect the custody of the children in this case. We have decided only that the Macks’ paréntal rights cannot be terminated at this time. The
Reversed.
The original proceeding involved four children. One of the children, Carolyn Sue Mack, is now deceased.
See State v. Grady, 231 Or 65, 371 P2d 68 (1962).
It appears that the juvenile court may have construed the statute to allow termination where the parents allow environmental “conditions” to exist which are seriously detrimental to the child. If' so, such construction was erroneous. In State v. Blum, 1 Or App 409, 463 P2d 367 (1970), we pointed out that the statute refers to a “condition” of the parent or parents (in that case, mental illness).
Concurrence Opinion
specially concurring.
I agree that State v. McMaster, 259 Or 291, 486 P2d 567 (1971), in which the factual situation bore some striking similarities to the facts of this case, seems to require the result in the court’s opinion here. The opinion in McMaster stated that the welfare of the children is the primary consideration in cases such as this. See ORS 419.474; and State v. McMaster, supra, 259 Or at 296. But it also stated that the court thought that the legislature had “* * * a more serious and uncommon detriment [to the child] than that caused by the conduct of parents such as the McMaster s * * *” in mind when it set up the statutory criteria for termination of parental rights. If this assessment of legislative intent is incorrect, it is the legislature’s prerogative to express its intent more clearly.
I do not agree with the reliance placed upon State v. Grady, 231 Or 65, 371 P2d 68 (1962),
We have pointed out other criticism of the Grady oniuion in State ex rel Juv. Dept. v. Archuletta, 12 Or App 596, 506 P2d 540 (1973), and State v. Blum, 1 Or App 409, 414, n 2, 463 P2d 367 (1970).