*1 568 29; Arguеd May 13, 1997, and submitted resubmitted In Banc November affirmed (327 305) February petition 23, 1998 for review denied June Or
In the Matter of Frazier, Rose Marie a Child.
STATE ex rel STATE OFFICE FOR SERVICES TO & FAMILIES, CHILDREN
Respondent, v.
Gary FRAZIER Kolacki, Glenda Appellants. (Control))
(95-040; CA A95571 In the Matter of Faith Ann Sparks, a Child.
STATE ex rel STATE OFFICE FOR SERVICES TO FAMILIES, CHILDREN &
Respondent, v.
Gary FRAZIER Kolacki, Glenda Appellants. A95582)
(96-294; CA (Cases Consolidated) P2d 272 *3 570-a Kelly W. the cause and filed the brief for George argued appellant Gary Frazier. Gough argued
Terrance P. the cause and filed the brief for Glenda appellant Kolacki. Hadlock, General,
Erika L. Assistant Attorney argued respondent. Hardy cause for With her on the brief were General, Linder, L. Solicitor Myers, Attorney Virginia General.
DEITS, C. J.
570-b J.,
Edmonds, dissenting.
571 DEITS, C. J. termi- a judgment father appeal
Mother and ORS daughters. two to their rights their nating parental 419A.200(5), we (1995). review, ORS On de novo 419B.500 affirm. of favor the evidence rights, terminate parental
To
419B.521
ORS
convincing.
must
clear and
termination
be
(1995).
has met its burden
the state
determining
In
whether
(1995)1 the
419B.504,
under ORS
termination
of
proof
in that statute
all of the factors listed
must consider
court
v.
ex rel CSD
See State
relevant considerations.
any
other
(1996)
J.,
(Graber,
dissent
1, 4,
419B.500 integration seriously of the the child and detrimental to conduct or condition improbable parent in the foreseeable the home of the child into future due to conduct likely change. determining such In or conditions not conditions, to the but is not limited court shall consider conduct following: “(1) illness, deficiency parent mental mental illness or Emotional providing proper parent incapable of render the and duration as to such nature periods of time. child for extended care for the
“(2) abusive, any nature. cruel or sexual child of an Conduct toward “(3) liquors intoxicating sub- or controlled or habitual use of Addictive substantially impaired. ability parental has been to the extent stances
“(4) Physical neglect of the child. “(5) parent, adjust of the parent the circumstances of effort of the Lack possible of the social conduct, child or failure return of the to make the or conditions adjustment available lasting reasonable efforts parent after to effect a appears that no reasonable that it agencies duration of time for such extended lasting adjustment can be effected.” 2 view, prove of the that, at least one must in its the state states The dissent (1995) (1995) to terminate in order 419B.506 or ORS in ORS 419B.504 factors proven one of more than state has parental rights. that the Because we conclude (1995) parent, decide whether we do not as to each 419B.504 the factors in ORS credibility, to the trial court’s on issues of
weight”
findings
due to the court’s
to see and hear the
ability
witnesses. State
176,
Geist,
ex rel Juv.
v.
310 Or
Here, the trial had met court concluded that state rights its burden to terminate of both mother illness, and father based on emotional mental illness or men tal such a nature and duration as to render them deficiency of care for these children for incapable providing proper extended of time. The court also concluded that due periods *6 circumstances, to the lack of effort to their parents’ adjust conduct, to make the pos or conditions return of the children sible and their failure to effect a after lasting adjustment reasonable efforts available social for such by agencies extended of time that it that no appears duration reasonable (1) lasting adjustment can be effected under ORS 419B.504 (5). and The trial court its conclusions: explained multiple has to kill occa- “[Father] [mother] threatened sions, holding at least once a firearm to her head while she child, suggestion Rose Frazier. The held Marie allegations up get [mother] made these shelter Womenspace simply is not credible view of numerous times, including at other abuse open disclosures two sworn Moreover, petitions. despite his consistent unsworn denials abuse, testify did not in the trial of these cases. [father] oath, Accordingly, deny allegations under nor he did not subject rigors did he himself to the of cross examination. “I also find Dr. mental [fatherfs Ewell’s assessment not a persuasive. [Father] state and outlook is viable evidentiary The resource to raise either of these children. abundantly supports [finding]. record ples this Limited exam- living include electrification of the room [fatherfs couch, unhealthy, roof and his setting traps prowlers, totality threatening relationship [mother]. towards supports disturbing pessimistic and the evidenсe both [father] offered the intensive petitioner assessment. The convincing applies independently individual factor or clear and standard to each (cid:127) by considering totality may even when no one be met of all if the circumstances ,;r specific proven convincing is to a eli standard. enumerated factor psychotherapy by services discussed Dr. Ewell. [Father] rejected those services.
[*] v [*] % “[Mother]’s credibly circumstances were also assessed by Dr. parenting weak, Ewell. Her skills are her intellect is limited, and she personality suffers from a disorder stem- ming from an unfortunate combination of causes which impair her successfully chances to ever parent children.
“[Mother] has accepted homemaker and parenting training, rejected but has sexual counseling, abuse does not comprehend her need to seek the long-term inten- sive treatment by recommended Dr. Ewell. The most trou-
bling aspect of this case lies in SCF’s failure to offer intensive, [mother] the individualized psychotherapy dis- cussed in Dr. report Ewell’s after it was received agency in April 1995. ‡
íJí if* significant “A variety of services were offered to [mother]. She even sought some However, services on her own. she refused one of the most critical required services in her case: sexual abuse treatment. Dr. report Ewell’s makes clear that her prognosis for change poor. [Mother] does not comprehend her need for intensive treatment.
“ ‘Under the optimistic scenario, most [mother] will probably require year years to two intensive interven- tion, by long-term followed monitoring supervision. *7 > * * “Significantly, when agency petition decided to
termination, it met with both in June 1995. [Father] was adamant that he wished parent to Rose. The agency made it ongoing clear that services pro- would be vided if hand, desired. On the other acquies- [mother] was cent, and offered to turn Rose over to wholly [father]. Her inappropriate reaction only was not consistent with Dr. assessment, Ewell’s but highlights also the bleak outlook for services a parent to who alternatively alleges, then abuse, denies violent and asserts then withdraws interest in * * * parenting. (who “There was no evidence that [mother] did not tes- trial) tify in ever showed in therapy, interest even after she was represented by Moreover, counsel in proceedings. these May August to Sparks Faith absconding with found The fact that Faith was ominously. portends [mother] company in of a man who
with her strong resis- her as a minor shows alleges sexually abused (References to yields pessimism.” to change which tance omitted; emphasis supplied.) the record that the trial argument first address father’s We will The petition parental rights. his terminating court erred rights father’s alleged parental for termination the following grounds: terminated on Rose3 should be seriously condition by reason of conduct or is unfit “[F]ather ofthe child into the integration to the child detrimental future due to in the foreseeable improbable home is father’s change, including, but likely to or conditions not conduct following: limited to the “(a) intoxicating liquors or use of Addictive or habitual ability parental has to the extent that substances controlled been substantially impaired.
“(b) illness, illness, or mental mental An emotional render the and duration as to deficiency nature of such periods extended providing care for incapable father time.
“(c) emotional, abuse of the Mental, psychological or child.
“(d) the child. neglect emotional Physical and circumstances, “(e) father’s adjust Lack of effort child to the make return of the conduct or conditions adjustment lasting effect a failure to possible, or father for such agencies social by efforts available after reasonable appears that it reasonable of time extended duration can effected.” lasting adjustment be no proved the state trial court that with the agree We unfit on the father is convincing evidence clear and that render mental deficiencies he suffers from ground him for the children care proper of providing incapable conduct, circumstances, his adjust of effort that due to lack rights identical as to Faith is petition of father’s for termination emotional, psychological sib “[m]ental, abuse of the child’s except alleges that it (d). (c) paragraph ling” paragraph it excludes *8 children possible to make the return of the conditions after reasonable lasting adjustment his failure to effect a no agencies lasting adjust- available social by efforts 419B.504(1) (5). ment can be made. ORS our conclusion is as follows. The evidence supporting 1996, 21 and trial, At the time of mother was September married, years they began father was 51 old. are not but They sexually 18. Mother was living together when her her throughout boyfriends. abused childhood mother’s Father told a caseworker that he befriended mother and took her in to from sexual her get away perpetrated by abuse boyfriend. child, mother’s current Mother and father’s first Rose, was born 1994. She was taken from them in April 1995. Faith January May was born in 1996. The state imme- diately for termination mother’s petitioned parental rights as to Faith and obtained a warrant to seize her from mother. The state located and removed Faith from mother about three weeks before trial. Sometime during the period father and mother lived father together, suffered a stroke. Mother and father separated for a of time after period Rose was removed. As of the trial, time of the were once they again living together.
Ewell, a who psychologist examined father mother in April concluded that father suffers from a delusional disorder. He stated that with a delusional people disorder, delusions, who have persecutory sometimes act on delusions, those “thinking them, other are out harm people even their spouses, and react or in physically way a violent [toward] them.” Ewell that a said delusional disorder was likely to remain with some degree permanency or rigidity. His was that prognosis father needed “long-term, intensive psychotherapy” before he could become a viable resource for his He daughter. doubted that anger management training alone would be sufficient to “have the In necessary impact.” his he report, concluded that
“[g]iven complete point, [father’s] almost denial at this prognosis fact, for successful In I poor. intervention is do not believe that services could expected produce be safe, results of becoming [father] resource within any time-frame which would meet the needs of his almost year intervention, con- his intensive old child.Without
one dition is likely improve.” spontaneously Grosscup, psychologist father who examined
Dr. major depression July from a that he suffered 1995, testified schizophrenic disorder, she defined which and a disorder initially thinking.” con- She the delusional the “umbrella for related to his neu- condition was father’s mental cluded that thought rological problems his related to that she were considering that father the evidence However, after stroke. predated problems significant stroke, his that mental had a fac- the stroke as would rule out that such evidence she said persecu- diagnosis change to delusional her and would tor tory. problems Grosscup even father’s Further, stated that if change prоg- neurologically her based, she would were “[ejxtremely poor.” that her She testified nosis, was which paranoid “strong ideation” a very streak of tests showed cooperate with ther- for father to make it difficult would gray Although Grosscup apy. “in the that she was stated rights should be termi- to whether father’s area” as was that case scenario that the best nated, she also said unsupervised eventually visitation evolve into could father Grosscup monitoring. indicated that she believed never with custody regain without full able to father would ever be monitoring. state record about in this evidence
There is considerable experts’ assess- with the that is consistent father’s conduct father testified that the state’s witnesses of him. All of ment property. prowlers obsessively At on his concerned was garage he he point, when a into father shot bullet one prowlers, prowlers. thought To deter the heard that he gutter drainpipes, greased hung roof, on the fish hooks top heads pounded then broke the of fence slats nails into the yard placed he had into which around boards off stayed facing up. He sometimes were nails that hammered prowlers. attempt night Prowlers were up to catch in an all primary topic workers with the social ofconversation father’s parents’ accused a caseworker He also home. came to who bugging phone. his Nancy mid-July, Bischofs-Reeves, a mother told In providing provider to the services had been who homecare family, rage he had run out of went into a because that father dumped rage glass drugs. in his he broke She said that later, mother told Bischofs- cereal on the floor. Several weeks strangle put a had tried to her and had Reeves that father gun filed had Rose in her arms. Mother to her head while she restraining that, a in which she related in addition for to order holding gun head, a to her father had earlier threatened January 11, 1995, her life. her and that she feared for On reported County Department Health worker gotten angry put handgun her, father had and choked if her throat and threatened to kill her she left with Rose. On January 24, mother called Bischofs-Reeves and told her that again gun head, father had baby held a to her this time while the present. time, At the State Officeof Service to (SOSCF)4personnel, Children and Families with the assis- police, placed tance of removed Rose the home and police in foster care. Thе searched father and found a loaded handgun pocket, forgotten in his which he claimed to have *10 placing February got 1, 1995, there. On a second restraining against reported order father. Ewell that mother relationship “emotionally told him that her with father was physically volatile” that, and that she had told him on gun occasions, four different father had held to her head although kill and threatened to her. She said that father they things they her, never hit other, threw at each that “wrestle[d]” on and that occasion she had knocked his front during teeth out one incident. attempts
Father to minimize the effect his behavior may by stating not, have had on Rose that the child was physically parents fought. fact, harmed when the The dissent stating although t, concurs with father th father’s conduct respect put danger to mother “could nave Rose in child].” App [the harm, it was not directed at 152 Or at 617 (emphasis supplied). However, fact that the father’s violence may mother, Rose, been aimed at is of little rele- have not potentially vance if the violence could also harm the child. unquestioningly, shows, The record that at least put some of father’s violent behavior Rose at serious risk of people harm. Mother told several of an incident in which she (CSD). 4 Formerly Division Children’s Services holding her. Rose when father assaulted On a later visit was just days house, the four before SOSCF removed Rose par- visiting the home, the SOSCF caseworker Marshall was interaction ents. She witnessed an between found said her. She testified that when father out she scared gun January reported had incident to that someone angry “glared” SOSCF, he at mother. became her, say regard- And that you “He asked ‘Did that?’ was incident, reported. ing again, had been gun said, actually moved away. “She ‘No’ and moved She away sitting placed herself on the from where she was just floor Rose. And so—and Rose was then between beside actually them. so Rose was in front two of She moved her, cringed and she and bowed her head.” raging this confrontation for sev- Father continued with minutes. that she and that she eral more The SOSCF caseworker testified angry “very father so was fearful” because was actually got up he to check on whereabouts after left father’s going he was about what was to do because she “concerned next.” physically
Although not violent in father did become confrontation, father the above incident shows that did though stop angry not mother even his confrontation with signs though child mother in their mother’s fear and even exhibited presence. mother and Father’s violence towards placing reaction to that Rose between violence— danger. put Further, father and Rose serious herself — person Womenspace “non- testified Rose was intake following responsive” one of when mother came the shelter reaction and stated that such a father’s violent outbursts who domestic vio not uncommon for children have witnessed will curtail his behav lence. Evidence father violent *11 positioned him and ior, even if one of the children is between target anger, supports is a dan his our view father ger children. including suggests condition, that his mental
Father paranoia prowlers behavior, is and his violent his about stroke, that the court should wait related to his and somehow major artery procedure done to clear a see if medical to has a apparently changed The dissent his mental condition. father evaluation of the fact that Ewell’s relying agrees, and that Ewell for his strokes he was treated occurred before have a neuro- may delusional disorder that father’s testified and evi- However, convincing there is clear origin. logical mental prob- that father’s that indicates dence in this record As to his strokes. discussed are not related lems and behavior father’s mental above, problems evidence shows that All three of father’s he had his strokes. long existed before in delu- engaged testified that their father daughters adult They childhood. throughout behavior their sional violent their mother while she was said that he was violent towards included a at his pointing gun his wife. The violence physical her, out of her earrings to kill wife, threatening ripping wall, ears, her head her out of ramming through pushing her to car, forcing her with a moving burning cigarette contin- other men.5 Father’s violent behavior have sex with adulthood, children’s an incident including ued into his one a fork and ended daughter up where father attacked with as tried to intervene. After hitting daughter a second she of the hus- being by daughter’s removed from house one band, at the ranting daughter, calling father stood outside your her names and “Get out here. I’m to kick saying, going ass.” One testified that she had seen father throw- daughter had left their ing girlfriends stones at one of his after father relationships mother. The said that all of father’s daughter was intimate involved violence. women with whom he end, did not рropensity Father’s toward violence states, father’s divorce immediately following dissent The evi- from his anew after his strokes. begin just wife thoughts dence unrefuted that father had paranoid any behavior before he had strokes. long resulted violent did Further, there been when he although may periods have that his behavior, the evidence shows engage violent emphasized portions kind mother accused are identical to the ofbehavior provider testimony committing against a care her. There was also father of cigarette an from a her that consistent with ash that Rose had a burn mark on was baby dropped while he the ash on the and that mother had told her that father had baby her, holding had been burned was the third time that the and that this intentional, baby were that the burns on the father’s ash. There is no evidence however. *12 the kinds of vio- conduct toward mother is similar to
violent lence that he perpetrated against with whom other women relationships. intimate he had reports
The fact that there have no further of been significant abuse since Rose’s removal also is not domestic together although living because, and father were they apart trial, the time after Rose the time of was removed from that lived most of Further,
their there is evidence home. suggests that father’s tendencies toward violence surgery, against the includ others have not diminished since testimony they ing were concerned SOSCF caseworkers’ safety dealing during pen when father the about their dency with proceedings. the One caseworker stated termination “enraged” personnel at SOSCF numerous that father became children removed and another testified times after the were him and his child. that father had threatened The dissent asserts that “it is uncontroverted medical treatment for a health condition father underwent problems anger apparently after was related his App However, the dissent Rose was removed.” 152 Or ignores 617-18. def- that there was a the fact that no witness testified likely, father’ abusive inite, correlation between or even expec- was an and his medical condition or that there conduct the treatment for the medical condition would tation that regular doctor, tendencies. Neither father’s cure his violent operated father, that father’s who testified nor the doctor regular related to his stroke. Father’s violent tendencies were symptoms doctor, Hill, that father had emotional testified depression stroke, that could be related to the such problems for However, he also said that the frustration. treating father did not include treatment which he was mental illness. surgeon, that father had DuPriest, testified
Father’s symptoms following him in he examined of stroke when difficulty express- spring a “moderate amount of of 1995: ing his hand.” When asked and “mild weakness of himself’ appeared communi- with his father to be frustrated whether “[t]hat replied yes difficulties, and said DuPriest cation talking.” quite typical people He stated have trouble when anxiety experience people to uncommon for that it was not they particularly it interferes with stroke, when have a when ability did He testified that father not communicate. their appear he him and that he examined be delusional when any suffering appear ofmental illness. not sort did to be surgical procedure Finally, purpose DuPriest said that father’s mental disorder. eliminate procedure, clearing purpose involved which [father] artery prevent neck, was “to his blocked carotid *13 occasionally having He said such another stroke.” that surgery helps people improve and that from their strokes definitely speech improved is much father had because his say having not caused father to better. He did that stroke surgery expected to or that could cure become violent father be fact, that, In he noted even of his violent outbursts. custody surgery, spoke hearing, after when of his father upset, symptoms very causing he became his to worsen a lit- tle. father testified the last that he had The doctor time seen I
he had “seemed like he was back to what consider failure to father could normal.” His comment whether be expected likely violent, however, less due to the doc- to be engaged any knowledge tor’s lack of that father had surgery. before the DuPriest concluded his domestic violence testimony by saying that there was “no medical reason that I parent [father] know of shouldn’t able his child.” be to (Emphasis supplied.) imped- However, the condition that is ing ability psychological, to his is father’s care for children psychologist not Because is neither a nor a medical. DuPriest neurosurgeon, for there was no reason him to be aware of problems psychological and, course, of no reason father’s for problems. him to for treat father those convincing clear conclude that there is and еvi We problems dence such a and mental are of that father’s emotional incapable of car as to render him nature duration ing is clear and children. We conclude that there his also adjust convincing lack of to his that father’s effort evidence by reasonable efforts social conduct and circumstances after agencies adjust lasting appear it that no make reasonable Although spe does not ment father can be effected father. terminating cifically argue his that the court erred in trial parental rights father’s emo Faith, as to the evidence that being problems incapable him render tional and mental 582 lasting to his to resource Rose and failure make a
adjustment him become a to enable to resource to Rose evi is equally incapable caring dence that father is for Faith. 419B.523(2); Miglioretto, Dept. ORS see rel v. State ex Juv. 88 (1987) (need AppOr 126, 129, 744 P2d not 298 show harm to child).6 specific can child if show harm to another argument principal parental rights
Father’s
his
prove
should not be terminated
that the
has
is
state
failed to
lasting adjustment
going
that a
not
is
to occur
has
because it
agencies
not
shown
available social
made reasonable
disagree.
required
efforts to assist him. We
The
is
state
making
make reasonable
assist
efforts to
adjustments
minimally adequate
enable them become
parents.
Dept. Oseguera,
App
ex
State
rel Juv.
v.
520,
Or
(1989).
type
sufficiency
526,
The record establishes develop parenting opportunities and demonstrate his icant accordingly, improve and, his mental condition skills and to lasting adjustment necessary prevent termi- to make the parental rights, he take advan- nation ofhis tage but that failed to assistance to of or benefit from those resources. Offers of early pregnancy parents began Rose. as mother’s with parent when she came to Mother was identified as an at-risk her prenatal pregnant doctor visit while she was with first days of Rose’s life Rose. The nurses noticed the first few lacking parenting skills. Because of that mother seemed to be Healthy Begin- public that, nurse referred both nings, parents program designed provide to first-time services risk factors. Bischofs-
who have exhibited certain Healthy Beginnings assigned by to visit the fam- Reeves was parenting homemaking ily provide services. She vis- weekly parent’s to three home for orie-and-a-half ited per August told not to visit until when she was hours reports in the home. There- due to of domestic violence visit provided after, of the home. She she met with mother outside develop- child and father information on both mother safety, child, disci- mеnt, education, pline activities to do with community techniques, resources. access Although noted that father seemed to have bonded with she *15 gentle her, she also noted when he held the child and was that father rejected parents her. Both seemed all advice from the basic needs that it was mother’s role to care for to believe 584 baby play
of the and that it was father’s role to with her. long that, Father told the service worker as mother was duty provide physical alive, it was mother’s for the needs of willing the child. Father said he was not to take over that responsibility something happened unless to mother.7 Usu- ally, home, when Bischofs-Reeves would come to the father parenting class, would leave. Mother and father went to a father but quit attending only apparently class, after one because seeing breast-feeding during of his discomfort at mothers class.
Bischofs-Reeves and others were also concerned about the unsafe conditions the home. Bischofs-Reevestes- tified that father had wired the couch with electrical current keep dogs off couch.8Rose was allowed wander living protection around the room her walker with no gas heating despite suggestions something stove be protect burning eventually done to Rose from herself. Father pipe pre- installed some PVC vent Rose from newspaper on the floor around the stove to getting times, too close in her At walker. other gas was strewn about near the stove. The evi- gun that, occasion, dence also shows on one a was left baby’s gun time, crib. Another a was left on the kitchen floor safety appeared provider with the off. It to the care who playing observed this situation that Rose had been on the newsprint floor at that time because she had all over her. Once, Bischofs-Reeves noted a burn on Rose’s arm that appeared cigarette falling to have been the result of a ash explained happened accidentally her. Mother it had holding while father was Rose and that this was the third time that she had been burned in that manner. Mother also spanked told Bischofs-Reeves that father had ing Rose for chew- child-proof on an electrical cord. Both refused to the house and mother stated that Rose would learn not to things supposed touch that she was not to touch. 7 caseworker, removed, “incapable Father told a before Rose was that he was changing diaper” removed, because it made him ill. After she was but before he reunited, child, caring and mother when asked how he would deal with for the he said that he would hire someone to care for her and that if he had no choice but change diaper gloves dip baby’s he would use rubber bottom in water to
clean her. unplugged Father told her that he it when Rose was out of her crib. *16 January through 1995, a con-
From October County Family employee Lane was Resources of the tract family “par- provide a to the to in-home services instructed parent “goes explained into the that a aide She ent aide.” according plan specific provides to the care services home and responsibili- family.” specific one of her said that the She for ties family. spent respite provide She three care to the towas respite providing care at no home, week at the hours each charge. safety concerned told father that she was about When she couch house, as the fact that the
issues in the such guns electrically charged left the were around and got angry simply said he did not like the house, father and coming parent people his house. The aide to social services suggested parents could ben- other resources which stating them, efit, mother refused that she didn’t want but anyone life that she was “fine.” else involved and provider, Stewart, service Colleen who
Another Nursery, Family program for Lane coordinator South January Rose in 1995. The also came to the home to check on program provides respite parent support also care as well as par- groups. to Stewart came to the home twice counsel doing regard to to her ents and physical development. check how Rose was picked up She also had Rose twice and long, and stay nursery. very refused to taken to a Mother go at all. intention was to enroll the father did Stewart’s program parents parent education called in an intensive Together helps parenting parents set skills Families shortly goals. However, the home Rose was removed from family. began provide for the after Stewart services Libby August called the In Marshall ofSOSCF reports had received and told them that she methamphetamine use and that she domestic violence kept being properly that Rose was not fed was concernеd parents homemaking services clean. Marshall offered the nursery. provided until She services and access a relief par- public Rose One nurse testified that was removed. average amount of services ents more than the received help child, that time for their them learn to care because pay budget to offer and a there were abundant services to they they Although providers said that the services. the service helping Rose, mother leam to care for focused more on they only rejected sugges- said that did so after father their participate. tions that he par- that,
It is true after Rose was taken from the regularly parenting ents, father did attend classes. The clas- voluntary meaning par- “self-directed,” ses were ticipants preferred aspects parenting they determined what Among specific questions
to learn about. develop baby’s mother and father asked were how mental baby having “temper skills, how to care for a tantrum” and baby. Although how to work with a “stubborn” the class violence, addressed domestic neither mother nor father they admitted that domestic violence was an issue that they any on, needed work ing did not seek to obtain train- *17 program issue. The director of the said that she say any improvement could that the showed in parenting way knowing their skills because she had no of they Simply attending how parroting acted outside of class. classes and taught
back the information in the class is not enough. There must be some evidence that father used that “adjust system.” [his] underlying information to belief App Gohranson, Or 143 47. No such evidence was offered here. anger manage-
Father also he asserts that took an ment class after Rose was removed and that he did “well it[.]” anger management participate class; Father in an did required he was to terms his sentence of for an assault completion, conviction.9 Father a of received certificate but given anyone specified the certificate is to who attends a number classes. There is also evidence that father was quite animated However, involved in class. and the facilita- accepted respon- tor of the class did not feel that father ever sibility assaulting nor felt remorse for his actions in a relative with a bat: primarily “[Father] it, seemed to be remorseful about but getting custody
becausehe was concernedabout ofhis child * * though you *.Soit as he wasn’t was remorsefulbecause people; consequence don’thit it was ofthe what because happen if would he did.” degree beating Father was in the fourth his brother- convicted assault legs in-law’s with a baseball bat. “pretty much minimized father The facilitator testified that the violence.” He had done” and that he “minimized what he testified that he acknowledged the did that father not believe hitting referring severity violence, to his brother-in-law ofthe despite “tapping” him, that he hit him so hard evidence the victim’s that he had broken that there was some concern legs. problems continually and for his Father blamed mother portrayed his to he dealt with himself as the victim. As how anger, response it and he able to “stuff’ his was that above, father became Also, it as noted “control” “enraged” sometimes. personnel times after at SOSCF numerous Finally, report states that were removed. Ewell’s children anger training management alone was not sufficient deal partici- opinion, problems. In his father must with father’s pate psychotherapy his in intensive in order to correct delu- disorder, which Ewell viewed as the root of his violent sional behavior. parents,
After the children were removed from the attorneys, he had father, SOSCF workers told and his what the children returned. SOSCF did not do order have sign agreement,” father but casework- have formal “service clearly specifically informed ers father he needed and ofwhat things fact, In father of the that he was told do. did several drug regularly children, He underwent a do. visited got psychological evaluation. As alcohol evaluation parenting anger classes above, noted he also attended management However, when Marshall told father classes. regarding violence, domestic father she had concerns *18 Cynthia problem. Fellez, a denied that he had a social serv- specialist 1995, in March testified ices that, who took over the case changes approached he first father about
when she willing listen, she told make, had him that he he to but that when to was violence, the domestic he need to deal with would “irate.” became thing to do the one that Ewell
Father also refused April him in and that a worker told recommended SOSCF engage get in the children he must do back— psychotherapy. father was first When intensive one-on-one psy- obtain intensive that he needed to told chotherapy, a caseworker saying receptive, he so that would do he seemed days. within 30 The caseworker testified that as the termi- proceeding approached, nation however, father became angry get therapy and that he did not said have to the and attorney: that instead he would hire a new point, “And at that when the decision had for a come file petition, I oppor- termination told him that he still had an tunity recommended, to do what was that there are times get when we close to a hearing termination where will we you pull compliance: back if are in He needed to do the anger management. He get needed to in himself involved therapies for, you know, thinking, intensive his I delusional know, guess, you diagnosis just was what the And he was. fight.” said he would position
The dissent takes the there was a disagree. “rush” to seek termination in this case. We Rose parents January was removed in 1995. Almost a year petitions par- later, filed SOSCF to terminate the rights year-and-a-half ents’ as to It Rose. was more than a petitions. before trial on Further, was held the evidence parents shows SOSCF worked with the after Rose was only removed. It after it became clear that the willing get were not experts the mental health treatment that the agency said was needed that the filed to terminate parental rights. Finally, significantly, their there is no up had, evidence that father sought trial, even to the date of the any out mental health treatment indicated inten- tion to do so. appeal, asserts,
Father that because the state did help required therapy not him find cost, it failed no duty meet its to make reasonable him efforts to assist becoming minimally adequate parent. However, is there no requested finding evidence that father ever assistance in psychotherapist, provided by much less one the state at no contrary, cost to him. To the the evidence shows that rea- get therapy son father did not is because he that he believed despite psychotherapist’s diagnosis it, did not need only view, our recommendation.10 In has there no been year eight The trial was held one months after Rose was taken into cus Indeed, tody, yet yet single psychotherapy father had not class. there attended a willing participate psychotherapy no evidence that he is even now in order to get custody back his children.
589 “significant progress” here, shown there is no evidence that any progress adjustment fathеr has made toward of his Accordingly, by proven behavior. we hold that the state has 419B.504(1) convincing evidence, clear and based on ORS (5), by that father is unfit reason of conduct or conditions seriously integration detrimental to his children and that improbable the children into his home is in the foreseeable unlikely future because it is will that the conduct or conditions change.
Mother also contends that the trial court erred in ter minating parental rights. petitions her The for termination alleged parental rights that mother’s should be terminated following: based on the
“[M]other by is unfit reason of conduct or condition seri- ously detrimental to the child and integration child into the mother’s improbable home is in the foresee- able future due to conduct or likely conditions not change, including, but not limited to the following:
“(a) Addictive or habitual intoxicating use of liquors or controlled substances to the extent parental ability has been substantially impaired.
“(b) An illness, emotional illness, mental or mental deficiency of such nature and duration as to render the mother incapable of providing periods care for extended time.
“(c) Physical neglect and emotional of the child.
“(d) Lack of adjust effort the mother’s circum- stances, conduct or conditions to make return of the child to the mother possible, or lasting adjustment failure to effect a after by reasonable efforts agencies available social for such extended duration of appears time that it reasonable that lasting adjustment no can be effected.”11 argues
Mother that the trial court erred in terminat- ing parental rights her because the state failed to meet its proof burden of because the state failed to on the issue of whether she was unfit and
provide her with services neces- sary reintegrate the children into her home. We conclude petitions parental rights for termination of mother’s for both children were identical. convincing proven evidence the state has clear phys- deficiencies, her is unfit due to her mental
that mother inability adjust neglect of Rose and her ical and emotional possible of the children circumstances to make return *20 (4) 419B.504(1), time. ORS a reasonable amount of within (5); App DeVore, Or at 431. days above, in the first few of Rose’s As discussed parenting expressed life, nurses concern about mother’s noting behaving skills, that she was manner, gruffly to very inappropriate speaking [the] “in a * * baby saying, scolded baby point [mother] [the] *. At onе baby’s the face already’ You’ve eaten and she covered ‘No. said, sternly go to her Another time she ‘Now with blouse. ” sleep.’ noted that mother handled Rose The medical staff also roughly. public trial, health nurse testified that mother’s At flag flags top pole. the of the It behavior was like “red get any brighter and redder than that.” When Rose doesn’t public health the old, another nurse visited was one week very gruff with Rose She, too, noticed that mother was house. that acted like she had no idea what to do with she public baby. over, the nurse had Before the month was program parents Healthy Beginnings, a the to referred designed provide who have to services to first-time risk factors. exhibited certain heard mother call visit,
On her first Bischofs-Reeves playful. not at all Bischofs- Rose a “brat” a tone that was seemed to bond and others noted that mother never Reeves played rarely Rose, her cuddled with with the child. Mother spoke speak her, to it was often her. When she did baby. people gruffly. She to take the She often asked other thought baby “hated” her. She stated said that she that baby, job simply that it was fath- her was to care for that during job play her. Bischofs-Reeves testified er’s parenting mother, mother’s the time that she worked with improvement. skills showed little vomiting, diarrhea, fevers and often suffered
Rose tried testified that she in her mouth. Bischofs-Reeves thrush probably problems explain due to that the were to mother rejected feeding, inappropriate her but mother advice. example, feeding baby mother tastes of For when was pizza old, at seven-and-one-half months Bischofs-Reeves ready digestive system explained the child’s was not properly digest saying foods, off, such brushed going that Rose liked these foods and that to con- she feed them This had eat- tinue to to her. was after Bischofs-Reeves telling been ing periods mother for months that Rose should not be yet. long solid foods Mother also did not feed the child for saying spoil At time, she did not want to her. gave baby Although point, only night. one she water at continually Bischofs-Reeves told mother that Rose’sformula kept refrigerated, provider must it be service often found sitting spoil. out, which could cause it did When mother refrigerate formula, she would not warm the formula feeding Despite warnings before it to the child. from Bischofs- switching Reeves brands of can formula cause infants change discomfort, stomach mother continued to for- Rоse’s haphazardly. mula *21 dirty.
Often visited, when Bischofs-Reeves Rose was August, On a visit in old, when the child four was months completely Bischofs-Reeves that found Rose’s clothes were “spit-up” soaked with that and her hair matted.12 was Mother given told she Bischofs-Reeves that had not Rose a bath that day day people or the before. Several stated that the house very dirty, primarily dog was there was house hand, On the hair. other conflicting, testimony although
other, the overly dirty. was cluttered, it was not Bischofs-Reeves and others were also concerned about the unsafe conditions in the home as described above.
The record also shows that often mother exhibited understanding development. example, of lack ofchild For public reported the health that in 1994, nurse October when “popped” Rose about old, was five or six months mother Rose baby heading on the bottom the because was for a shoe edge playing was at of the blanket on. that she was enough Rose, Mother told that. You “That’s know better began cry, her, than that.” When told “Don’t Rose she until One caseworker said that did not know that Rose had blonde hair placed regularly. after she was in a home where her hair washed foster was
you pull in me. work with me” that on You know doesn’t inappropriate. said The voice that the nurse was tone of provider lik- the situation that witnessed described care “drive-by” came out of it to a because mother nowhere ened baby warning. also said that the and discipline without She swatted “punishment inappropriate did was because baby stop its not crying crime” “a can no sooner fit the and because arrange The next at five than for the sunset.” months provider in which Rose month, the care witnessed an incident pulled slapped hair mother held her. Mother mother’s while counting to three as if she Rose on the hand and started expected being understand the child to that she was disci- plined. Similarly, Holo, the doctor took Dr. to whom diaper rash, a severe tes- Rose for ear infections and case inappropriate expectations parents’s tified to the light Rose age. of her generally good taking was Rose to
Mother about she ill or when she needed immunizations. doctor when was Rose, time the doctor examined November first upper respiratory tract and an ear infec- she had an infection “finally perforated,” However, Holo tion that hаd testified physical neglect that she was also concerned about “obvious of the child.”
“Q: ofthe child? What was the condition quite appeared dirty At that the child to be “Holo: time hours, fed, fed for so it had not been about six was fussy very hungry. very appeared And to be I did nothing baby in mother had the officebecause the see to eat time. forthe child at the you
“Q: childhadn’t eaten for Didthe mother tell six hours? *22 Yes,she
“Holo: did. feedings “Q: interval between for a What is normal age? ofthat child probably six-month-old, three to four hours For a “Holo: hungry. they getting be would mother make at that time? “Q: did the What statements many during “Holo: She stated to me she times that visit that stated, out. She ‘This is I like was burned not fun. don’t said, many this.’ She ‘I’mtired’ times and she stated the dad her, things for give won’t do ‘but he would never let me her ” to someone else to care for.’ Holo testified that the statement that “he would let me never give to someone else to care for” followed her question about whether mother had ever thought about placing child in foster care or her to allowing be which she adopted, said she asked in of mother’s light numerous comments about being burned out.
During visit, 21, next on December Holo saw fur- ther evidence that Rose was being neglected.
“Q: What was the purpose of that visit?
“Holo: That for a diaper was rash. And what we noticed at also, that time was that the —and nurse noticed this ears, the child had dirt caked very behind the had a bad dia- rash, per though you know, she had not changed, been frequently at that time.
“Q: you “Did notice anything about the condition of the child’s walker?
* * * * “Holo: very dirty, Yes. It was and there was—her clothing very dirty hair, was also and covered with dog and her hair sticky was and matted with diaper falling food. The was apart wet, it was so and she drying was covered with feces at that time.
“Q: you Did make a being comment about the child’s cute to the mother? I say very cute,
“Holo: did that. I said she’s and the mother ” said, You take her home then.’ Holo testified that she did not feel that mother was meeting even minimal standards At some in the parenting. point visit, mother told the always doctor’s nurse that she kept loaded at her side and gun that a loaded lean- gun kept ing a wall in the house against where the child was present. above,
As noted in mid-July told Bischofs-Reeves that father had he gone rage into because *23 rage drugs. he had She said that his broken
had run out of glass dumped later, Several weeks cereal on the floor. strangle had tried to Bischofs-Reeves that father mother told gun put in her to her head while she had Rose her and had Womenspace, a referrеd mother to arms. Bischofs-Reeves violence victims. Mother went women’s shelter for domestic story the same to the shelter and told the coordinator restraining Mother filed for a she had told Bischofs-Reeves. holding gun that, in order in which she related addition time, at that father had threatened her before to her head “pulled” However, her she and that she feared for life. days restraining she did so order two later. She said because charge, scheduled for trial on an assault and she father was restraining influence the was afraid that the order would out- Despite Bischofs-Reeves’ recommendation to the con- come. trary, offered, returned to father. Mother was at no mother Womenspace, but cost, services for battered women while accept she chose not to those services. August 17, 1994,
SOSCF first became involved parents and told them when Marshall of SOSCF called reports she had of domestic violence and metham- received phetamine use and that she was concerned that Rose was not kept being properly Mother admitted to Mar- fed or clean. “major” fight, had had a but denied shall that she and father gun claiming head, that instead that father had held a just handing pointing her, it to it at her. Mother he was August keep appointment Marshall on 26. failed to an parents’ September then came to the home on 21. Marshall asserting Rose, did not hold Marshall noted that mother homemaking parents it “too hot.” Marshall offered the nursery. The did occa- and access to a relief services nursery. subsequent sionally to the relief On a take Rose counseling suggested mother because she visit, Marshall indicated that about the domestic abuse. Mother was worried high go she had seen in school see a counselor that she would help evi- issues. There is no her deal with her sexual abuse however, that she did so. dence, County parent from Lane
In aide October weekly began providing in-home services at no Resources charge. January, respite provider noted As late as slept during said that her home visits. She most of diaper arrive, when she would Rose’s would be soaked with put urine. She said that mother would not allow her to med- baby’s diaper icine on the hold Rose rash. Mother also told her not to during just visits because it made the child want to respond positively” be held after she left. Mother “didn’t any respite provider’s suggestions caring of the for Rose. resрite provider testified that mother did not hold the baby roughly, much and that she handled Rose one time “nearly throwing many her in the crib.” She had theof same *24 including concerns that Bischofs-Reeves had testified to feeding mother’s failure to warm Rose’s bottle before her (mother warming “spoil said that the bottle would her and getting it”), leaving guns she was too used to around the (mother people home said that she had once shot at some bothering were father, her and but that she had missed the home) people safety but had hit their motor and other issues, having electricity. such as the couch wired with program Family A coordinator for South Lane Nurs- ery early January came to the home to check on Rose in 1995. She asked mother to take Rose out of her crib so that she doing developmentally. pro- could see how well Rose was gram picked up coordinator testified that mother Rose with straight away body her arms held out from her and “kind of plopped ground.” her on the She said that mother did not any during show interest in the child the entire visit and program exhibited no attachment to her. The coordinator said that Rose’s movements indicated that she had not had opportunity develop large much motor muscles. As the points period dissent out, over the of time that Rose was being language evaluated, her social skills and skills were in “average” range. the However, there is also evidence that all deteriorating. of her skills were The dissent concludes that only this evidence shows that mother was in need of services parent neglect. agree and not that she is an unfit due to We with the dissent that the evidence shows that mother inwas need of However, services. the evidence also shows that serv- being provided despite ices were that, services, the parenting improving. mother’s skills were not July through January
From 1995, mother reported at least three incidents where father had threatened gun, her with a as described above. After the final incident in January, parties’ home, in which Rose was removed from the remaining parties separated, with father the home and the stay going an months. While mother aunt several drug separated, party each accused the other of abuse and neglecting Rose. counseling 1995, offered in March but
Mother was request the At she declined SOSCF, offer. caseworker parties psychological examinations both underwent April drug and eval- Ewell in 1995. Both also had alcohol regular At attended visitations with Rose. uations and voluntarily SOSCF, mother attended recommendation parenting However, mother classes. Rose was not returned to program because, testi- at that time facilitator of although fied, classes, she did not seem mother attended actually apply able to she had learned and there to be what improvement parenting Also, in her skills. was no noticeable was concerned because she was uncertain the caseworker living parties’ of the about where mother was the status Additionally, although point relationship. at one said that she returned and other “numerous” times wanted Rose parent. stating she did not want to be a 1995, caseworker told the On June *25 parental going they to seek termination of their that were rights. said seemed unaffected The caseworker that mother rights sign by her to the stated that she would news even to father: Rose over know, And, know, keep you you trying I to “A: was I— track, you things, explain that we again, trying to have — not, them, of this know, have concerns about both was we on, know, just pass potato, you like it
you potato, hot hot to do some things, that do some she needed he needed to said, I things in order them to considered resources. be then, know, clearly: you Are you question ‘Understand this therefore, to be resource you do not want saying said, said, Tes, I Tou’re And she I don’t.’ And to Rose?’ said, ‘No, I clear, don’t this?’ And she you are not? You want this.’ don’t want
“Q: Okay. sign releases.” “A: And she would assigned that, case said to the A new caseworker attorneys parents’ spoke to the taken, she after Rose was services, but that the about available about 20 times copy psycholo- anything requested the than a of other never eight September gist’s report. after 1995, months On petitioned parent’s removing house, SOSCF from the Rose rights regards parents’ Rose. At some the terminate point parties period, during had reconciled and were the this together. attending About the time that with visits Rose pregnant termination, mother became decided to seek state visitations with Rose after with Faith. Mother did not attend learned that SOSCF intended Faith was born because she take custody baby. Instead, mother absconded of by attempt prevent apparent Faith’s removal Faith in an During again separated. parties time, this were SOSCF.13 found, Faith in the arms of man When was she was sexually Faith had had her as child. said abused custody removed from mother’s about three weeks before was By parties again had trial, the time of reunited. trial. concluding
In that there was not clear and convinc- neglect, ing due to dissent evidence that mother was unfit particular pieces of focuses on evidence and concludes particular provide does clear and convinc- evidence ing proof However, all the cir- that mother was unfit. when of regarding con- cumstances mother’s care the children are supports that mother sidered, the evidence the conclusion neglect unfit result of the children. The trial as a why terminating explanation court, in its mother’s a critical fact in this case: mother’s it was parental rights, identified alternatively pattern of
*26 behavior had shown a consistent alternatively pur- alleging, denying father and then abuse suing, withdrawing parenting. pattern then That interest unlikely highly will, it that mother demonstrates willing, time, able, be within a reasonable amount of consistently in a safe care for the children environment. had absconded with the child. ately [13] after she was The dissent is born; wrong first in they stating had to that SOSCF locate her to remove took custody her from mother who of Faith immedi
598
When the entire are here, circumstances considered question there is no that mother’s unfitness has been estab- convincing lished that, clear and The evidence. record shows despite outpouring attempts help an of services and parent, Rose, her learn to mother did not bond with did little provide support her emotional needed, she ways fed her in that caused the child to sick and that be could keep malnutrition,14 have resulted did not the child or the despite urgings and, child’s environment clean from serv- providers safety problems, ice to correct some she refused to keep make effort an in a house condition that was safe Although go parent- for an infant or a toddler. mother did ing removed, classes after Rose was there was no indication Simply attending that she benefitted from the classes. clas- enough. App ses Gohranson, is not 143 Or 42. Mother must apply family absorb and the information to her own to dem- adjust onstrate that has she made efforts to her behavior to reintegration allow the of the children into the Id. In home. only words, other must she not understand what behavior change, “adjust underlying she must she must also her belief system.” change improve par- Id. Mother’s failure to or her clearly enting adjust inability unwillingness skills her or shows system. underlying her belief Mother’s ambivalence potential parental rights about the termination of her as to impending, telling Rose, even termination was is a indi- cator of her attitude toward child. physically
Our conclusion that mother has and emo neglected tionally supported by her children is also evidence incapable protecting that she is and her children from abuse danger. psychological physical abuse father although perhaps mother, inflicted on not directed at the placed way. Rose, often child harm’s In the situation angrily in which described above father confronted mother in placing worker, front of SOSCF mother’s action in Rose “cowering” herself between and father demonstrates agree We with the dissent that there is no evidence that suffered Rose from However, malnutrition at the of her time removal. there evidence that mother lengths inadequate sometimes did not feed for time that Rose extended were continually types an infant and that mother fed the child different formula properly child, feeding store sometime did her formula warm it before all suffering gastrointestinal of which to the led child discomfort. *27 by placing willing harm shield herself to mother is at a father, and that herself father and between the child con- Mother’s psychologically mother. dominates rmnrmnm, dangers recognize clearly to she is unable shows that duct does not and presented father’s behavior her children to home. protect in the from violence her children to know how continually and defended with father reconciled has Mother him. mother demonstrated taken, after Rose was Even protect children. When her not or not that she could would finally police to restrain officer had located, a Faith was assaulting had accom worker who the SOSCF mother from custody attempted Faith, panied he to take and, him when through sexually her said had abused the man who mother away in his arms. Without Faith childhood ran out her allowing question, access to her to have a man who abused inability unwillingness astounding to an her child shows App protect at 431. DeVore, 108 Or her child from abuse. emphasizes did fact that the state dissent reported that father had mother remove Rose until not gun pointed kill her. threatened to her, choked her and a catalyst Certainly to served as father’s violent behavior that the The dissent asserts Rose from the home. remove parents’ petitioned the terminаte state not have would rights toward mother. How- for father’s violence but inter- of SOSCF first shows that Marshall ever, the evidence reports domestic violence had received vened because she methamphetamine she was concerned use and because Clearly, kept being properly fed or clean. that Rose was relating neglect issues of concerned with Marshall was inability as with moth- the child as well to care for mother’s protect inability in home. the child from violence er’s totality Considering evidence, we conclude of the phys- convincing has that mother evidence there is clear and protect emotionally neglected ically Rose and is unable 419B.504(4). her from harm. ORS only argues respect that the Faith, mother With regarding fed and “well that she was Faith is evidence very loving bond healthy, clean, that there was she was that mother We assume and her mother.” Faith between attempting argue that the state must show that Faith suf- during fered abuse her short time with in order for parental rights mother’s to be terminated as to that child.15 (“ORS Miglioretto, App That is not correct. See 88 Or at 129 419.523(2) require [a] does not child remain an abu- sive environment until the state can show that abuse of that particular child has occurred. If there is evidence of abuse of any manently permits child, per- the statute a court to remove a child situation.”) dangerous (emphasis origi- from a nal). Accordingly, may we consider whether mother’s behav- negatively ior affected Rose in our determination of whether parental rights should be terminated as to Faith. con-We neglect clude that the evidence of mother’s Rose, and the dangerous exposed, sup- environment to which the child was *28 port parental rights the termination of mother’s to Faith. rights supported,
The termination of mother’s is also standing by convincing alone, clear and evidence that moth- incapable er’s mental providing condition rendered her of care to her psychological children. Ewell concluded from his examination of mother that she suffers from “borderline ability, personality psycho/ [ ] intellectual a disorder and social confusion:” cognitive deficiencies, “[Mother’s] personality her dis- history
order and long-term of sexual highly abuse within a dysfunctional family, all render her incapable of parenting at this time. Her level of social judgment, problem-solving and sensitivity grossly are impaired. Reasoning highly is concrete and nearly void of empathy. At the time of this assessment, [mother] did not seem to any realize that of problems these were in existence. is in long-term,
“[Mother] need of psycho- individualized therapy. Intervention will need to be tailored to her own cognitive level of I ability. doubt that she would be able to benefit group forms of intervention. learning The place which took within her childhood and the role models family function, she had of how a should inadequate. were In insight addition to oriented psychotherapy, [mother] will 15Mother’s statement an also is incorrect statement of the facts in the record. above, As discussed placed there is danger by evidence that mother Faith in allow ing sexually the man who had abused mother to watch Faith when mother was attempting to elude SOSCF. self-management and inter- skills of taught need to be basic personal communication. and home- parenting classes require
“[Mother] will also building. long-term will necessitate maker skill This case change supervising. prognosis monitoring and entering intimate high [mother] a of poor. There is risk men. abusive, domineering relationships with or otherwise an becoming appropri- faces “[T]he [mother] barriers intellectual abil- ate resource include borderline confusion psycho/social and the ity, personality a disorder by living dysfunctional, a sexualized years caused of within result, currently family As a she does environment. conditions and devastating nature these comprehend optimistic most own to seek treatment. Under the her need scenario, probably require year years to two [mother] will intervention, by monitoring long-term intensive followed successfully supervision. completing Without this level treatment, likely spontaneously her condition is not improve.” testimony report. The
Ewell’s met its was consistent with his state 419B.504(1). proof as ORS burden convincing is also clear and evidence
There lasting adjustment after mother failed to make reasonable 419B.504(5). agencies. As did efforts available social ORS provide father, asserts that the state failed to her change her to circumstances services would allow However, clear and and conditions. the evidence is convinc- given ing opportunities In for assistance. that mother was provided to mother addition the numerous services *29 rejected above, offers Women- are discussed mother appar- dealing problems space her current abuse and for with speak ently up promises would to did not follow on that she past high her sexual abuse issues. her school counselor about attorney her that intensive SOSCF informed mother and psychotherapy be the children could was needed before on her own did such treatment returned. Mother not seek to the state assist she not assert that she asked and does finding appropriate in the treatment. continually light to refused
In of the fact that mother acknowledge psychological treatment, that she needed effecting a her in all to assist state did that was reasonable 602
lasting adjustment by informing her and her that counsel she complete psychotherapy need would to intensive before the Compare App Charles, children could be returned. 123 Or at Brady, App with ex v. 332, 342, 235-36 State rel CSD 135 Or (1995). parent may 691, 899 P2d rev den 322 360 A Or by passively stand when informed of the measures that must parental rights taken to be avoid termination of and then part paren- a lack claim of effort on the state because of (termination App Boren, tal inaction. at See 105 Or 607 appropriate respond present plan where father failed to to a reintegrating home); App for child Robinson, into 31 Or at (termination ignored appropriate 1101-02 where mother CSD). participate any programs suggested by refused to in certainly
Further, while
a
it is
in child’sbest interest
reintegrated
family,
possible,
to be
into a
if
there must be
probability
might happen.
App
Boren,
some
Or
105
at
placed
indefinitely
610. Children
should not be
foster care
parent
face
of evidence that the
will not be able to
minimally
parent
adequate
period
a
become
ain reasonable
(termination
Geist,
of time. See
a wholesome and healthful State exrel Dept. App McDonald, Juv. v. 399, 401, 590 38 Or P2d rev (1979). den vincing Or 149 The evidence here is clear and con necessary treatment is both any if father there is be chance either of them could become resource for the see children. We no evidence that parents get willing necessary either of the was or treatment. parents
In sum, this is not case where were change attempting to their conduct but or conditions were by parents given thwarted state. The were abundant parent resources with which to learn and to maintain a They rejected safe and clean most household. advice con- tinued treat recommendations from the state with indiffer- they help Both ence. denied that needed serious rejected psychological problems requirement SOSCF’s they Any obtain treatment. further efforts the state to regard assist mother and father in to their need to receive Miglioretto, App therapy would been Or have futile. See
603 willing change (where, being his to to work than rather sexually children, father continues towards abusive behavior testimony psychologists deny occurred, that it to change likelihood whatever behav- “little that he will is there holding currently supports patterns is that father has” ior he unfit). terminating and mother’s did in The trial court not err rights. father’s
Affirmed. dissenting. J.,
EDMONDS, majority the has met its burden holds that state by convincing proving evidence that mother and of clear and parental rights ought in terminated. At stake father’s be principle application fundamental about this case is the of a parental rights. quantum proof necessary of to terminate any principle transcends termination case Because lacking I is that the this case because believe meet that evidence standard, I dissent. begin prove
I
must
axiom that the state
petition,
allegations
it made in
ex rel Juv.
its
see State
(1981),
Dept.
Jones,
799, 810,
290 Or
it at least one of those clear must convincing prevail. 419B.521. The evidence order to ORS ought alleges parental rights termi- state that mother’s to be seriously “by detrimen- nated reason of conduct or condition integration of the child into the home tal to the child and parent improbable future or in the foreseeable likely change.” ORS due to conduct or conditions grounds alleges following 419B.504. The state further termination under ORS 419B.504:
“(a) intoxicating liquors or use of or Addictive habitual parental ability extent that has controlled substances substantially impaired. been
“(b) illness, illness, An mental mental emotional as to render the deficiency of such nature and duration periods providing care for extended incapable time.
“(c) neglect of the child. Physical and emotional “(d) Lack of adjust effort the mother’s circum- stances, conduct or conditions to make return of the child possible, or failure to effect lasting adjustment after reasonable efforts social agencies for such extended per- iods of time that it appears reasonable that lasting no *31 adjustment can be effected.” allegations against The state makes similar father. The trial court concluded that the state did not meet proof respect allegations against its burden of to the impairment parental ability mother of of because of sub- physical neglect stance abuse and and emotional Rose, of but prove allegations regarding did its mental deficiencies and by adjust major- lack of effort her to her circumstances. The ity, goes beyond on de review, novo the trial court’s conclu- proved sions and holds that the state also that mother is unfit physical neglect.1 Regarding because of and emotional allegation neglect, majority concludes: “When the entire here, circumstances are considered there question is no that mother’s unfitness has been established by clear convincing evidence. The that, record shows despite an outpouring of attempts services and help her parent, learn to mother did Rose, not bond with did little to provide her with the emotional support needed, that she fed ways her in that caused the child to be sick and which could malnutrition, have resulted in did not keep the child or the child’s environment clean despite urgings from the providers service to correct some safety problems, she refused to make an keep effort to the house in a condition that was safe for an infant or a toddler.” App 152 Or at 598 (footnote omitted). arriving majority In great at conclusion, its a overlooks (often objective provided by deal of evidence, the state’s own witnesses), that, when considered combination with the majority opinion, support evidence recounted in the serves to the trial court’s conclusion that the state failed to meet its proof. burden of prenatal
Before Rose born, was mother obtained County Department care. The Health identified mother as an majority agrees prove with the trial court that the state failed to neglect. father was unfit due to substance abuse and youth, parent including factors, her “at-risk” based several apparent the fact that she was a first-time mother and family system. support lack in When Rose was born of a viable April healthy baby. born, was a After Rose was she hospital expressed also staff concerns about They Rose. mother’s behavior toward “Healthy Beginnings,” voluntary program designed referred mother help voluntarily particiрated in at-risk first-time Mother mothers. program, frequent by parent- which included home visits ing provide regular instruction, counselors to assessments support development group meetings the child’s for the parents. regularly result, As a mother’s care Rose was during par- observed ents’ the nine months that Rose in her custody.
Additionally, being Holo, Rose was seen Dr. pediatrician, during this time. She testified that mother brought Rose to her officefor treatment for nine different vis- its. She noted concerns about Rose’s cleanliness on two occa- *32 signs significant sions but testified that she saw no medical problems beyond diaper an ear infection and rash and that any physical there was never evidence of or sexual abuse. Contrary majority’s speculation regarding to the mother’s feeding practices, absolutely there is no evidence the rec- ord to indicate fact, that Rose suffered from malnutrition. In that, Holo testified over course her the treatment of Rose “[Rose] appear gen- while she was in care, mother’s did to be erally good in overall health.”
Regarding evidence that mother had not bonded majority neglects opinion Rose, with the to note that Holo’s partner, Geisler, Dr. infection, who treated for an ear Rose opinion was of the had bonded with Rose. She following spoke also at the made note in Rose’s chart: “I to Mom great lengths. very loving caring. Brought She is [Rose] poor in for concerns about the ear but had a under- standing rearing.” Furthermore, child mother’s aunt together observed mother and Rose before Rose was removed by the state. She testified: They got
“A along bring her [Mother] fine. would over CSD had her to with always before visit me. She made sure diaper wet, that she was clean. her Whenever was she fussed, hungry, if she she seen was changed her. When she played hold She her. took of that. She her. care would with her. toys played She that she had “Q love child? Did she Yes, very
“A much.
“Q the child love her? Did
“A Yes.” relates that coordinator majority program
The in Jan- Lane visited home Family Nursery South and “said that Rose’s movements indicated uary 1995 motor develop had had much her opportunity large she however, out, It point 152 Or at 595. fails to App muscles.” development being regularly that Rose’s was evaluated (when In Healthy program. September Beginnings from the old), program’s Rose 21 weeks Rose’s chart was Further- that her motor skills were normal. counselors states more, weeks, reflects age at the of 21 its assessment old child the lan- Rose had the social skills of a 28-week Rose only old child. The area where skills of a 30-week guage ability,” where “adaptive tested “questionable” and high questionable. score was between low normal the assessment Healthy worker who Beginnings performed testified: RC.[2] I I refer child to see the point
“At this don’t go any big hoops except I through don’t call the doctor. don’t normal/ques 86 [borderline ‘Hmm. It like say, looks God, no, There’s honest to difference between tionable].’ paying that we need to start more except [scores] those two attention to the child. I kid. give your to do with you
“So let me some tricks *33 I to you want put to a mobile above her bed. you want you I side her room. want change her crib the other 85, toy I and do this. you dangle a take her outside. want role, score at that get matter. when I that’s My 86 doesn’t Do these level, say, I is ‘Hmm. It’s time to intervene. that’s again.’ time and test And I’ll come back next things. 2 the meant when the record what witness We unable to determine from are “RC.” referred to the she
607 time, it happened up. what at the 35 weeks’ and went She (Emphasis supplied.) came back to normal” A in December performed 35-week assessment was before Rose removed from the home 1994 the worker was 24, January Contrary majority’s 1995. the assertion that “all of her skills were at deteriorating,” App Or to the adaptive actually range. Rose’s score normal improved Furthermore, testimony the worker’s admits to the inference the could be attributed to the fol- improvement lowing her advice after the 21-week As the assessment. majority notes, all of the other correctly areas that were assessed, lower than the assessment, while September remained in the normal the range with of Rose’s exception gross skills, motor which had into dropped questionable the range. provider The service attributed the gross low motor skills score to the her parents leaving Rose in crib and walker time, too much which restricted movements. On balance, developmental assessment evidence serves to what the verify public health department staff hospital suspected from the outset: mother was in need of services. It not, however, does that termination of prove paren- mother’s tal rights necessary due to For the neglect.3 majority to hold mother’s parental rights ought be terminated of neglect because on this record is unprecedented our case law, holding and its evidences disregard of the cоmplete need for evidence that is clear and convincing prob- or highly able to support that action. pervades
The same deficit majority’s analysis the home regarding environment. As the majority opinion concedes, the evidence the cleanliness of the regarding par- ents’ home is There conflicting. are of concern reports about excessive However, amounts hair in the dog present home. majority that, responds agree “We the dissent that the evidence However, need shows that mother was in of services. the evidence also shows that that, being provided services, despite parenting services were mother’s App statement, correct, improving.” skills were not 152 Or That 595. even if does complete analysis. parental rights neglect requires The termination of parenting Moreover, more than the demonstration of deficiencies abilities. improve parenting evidence demonstrates that mother became involved in several removed, programs opportunity ment after Rose was but never has had the to have custody partic of her children and to demonstrate that she has benefitted from her ipation in them. *34 of Service to Chil- as as the State Office late October (SOSCF) “Family Plan,”
dren Resource Worker and Families “Strengths category Supports,” the indicated under parents’ the house was “neat and clean.” Rose was family Despite later. the home three months removed from findings, majority concludes that mother was SOSCF’s the * * * keep parent an because she “did not the child’s unfit App Apparently, in Or the environment clean.” 152 at 598. majority, dog the evidence of excessive amounts of view of enough carry to the hair in the home is prove state’s burden to allegations by convincing its clear and evidence. In support majority’s simply con- sum, the evidence does the Again, prove the state has failed to that mother was clusions. regard by requisite in the standard. unfit this Finally, majority opinion concerns about the relates safety proof the that mother was the home environment parent Although neglect. is correct that an unfit due to it providers that he had the couch father told the service wired dog electricity keep it, the offof he told them that also up power he disconnected the when Rose was about. though unwise, no father’s action was there is evidence Even that Rose any
expеrienced it. service harm from When the push being providers expressed Rose concern about able gas pipe against stove, PVC bar- her the father built a walker prevent happening. Again, that occurrence from ricade by gas the is no evidence that Rose was ever harmed there guns being report loaded left around stove. There was about investigated report and concluded that it Rose. SOSCF the “ voluntarily of harm.” Mother ‘unfounded’ for threat acknowledged one that Rose had been burned on occasion accidentally cigarettes fell father’s when ash from reported acci- also that there were two similar arm. Mother investigated. past, in those incidents were not dents but monitoring reports, professionals Despite none of those par- Rose from the environment acted remove home significant com- time. inaction is home at the Their ents’ they of the conditions ment on viewed the seriousness how Their inaction time of their observations. home at the testimony gives trial inference that their rise to the also constituted a belated support allegations, effort to the state’s eyes proved unsatisfactory in the of the trial an effort that majority’s all, court. In the proof conclusion that the state carried regard neglect by its burden of is belied the obser- physicians vations of Rose’s were and the actions of those who regularly monitoring the home environment. Dept. Pennington, App
In State ex rel Juv.
v.
104 Or
(1990),
though
194,
etto, 88 Or 126, 744 P2d 298 and then uses its holding springboard regarding analysis as a its about the incorrectly care of Faith. As a result, it concludes that under 419B.504(d), neglected ORS evidence that mother Rose is parental rights sufficient to terminate mother’s in Faith on ground neglect convincing of in the absence of clear and neglect majority’s pred evidence of of First, Faith. factual supported by icates are not the record. The evidence from providers during Rose’s care the time that mother had cus tody is that while there were some deficiencies in mother’s capable healthy baby care that were correction, of Rose was a custody. majority at the time that SOSCF took Second, the paints picture a much bleaker of mother’s care of Faith than supports. the record It is correct that mother was concerned could be SOSCF when she was born on that Faith seized parental rights May petition to terminate in 3, 1996. 28,1996, filed on and the warrant her cus- Faith was June tody May birth, At 29,1996. the time ofFaith’s was issued obligation legal was under no to surrender Faith to mother being Faith, she was held in the SOSCF. When SOSCF found mother had accused of arms of an individual who abuse teenager. building in as a Mother was the same at the talking police. to the There is no evidence that Faith had time “care” of abuser or that her been entrusted mother’s presented Also, sexual to an infant. abuser risk of abuse neglected during no had Faith there is the evidence that mother custody. that Faith in her care time Finally, regard, majority legal commits this neglected it holds Rose error when that evidence that mother rights sufficient evidence to terminate mother’s Miglioretto, In held ORS Faith. we that where former 419.523(2)(b)4provided parental rights in a child could parent proved if the state had be terminated any “[c]onduct engaged abusive, cruel toward child of an supplied) (emphasis nature,” evidence such sexual conduct need not subject been directed at the child who was have proceeding. the termination reasoned that the We *36 require parental return child to a statute did not the of the girls young had sexual of several occurred home where in abuse past that in evidence the abuser the home the without put change at in future would the child risk. We would the incapacity “Although parent’s or said, emotional or mental directly physical neglect the related to the child must be before requirement not a for termination based on sex- court, that is supplied). physical (emphasis 129 The ual Id. at abuse.” reasoning majority an of our makes -unwarranted extension legis- Miglioretto in in is with case that inconsistent the this enacting what said lature’s intent the statute and with we prove state under ORS that case about what the must 419.504(4). allege no The and there is evidence state did sexually by physically or Faith abused that Rose or was ever reasoning, majority’s parent. SOSCF Under the will be either custody terminate take of children and able to 4 419B.504(2). as Now renumbered ORS child, the of a rights previous neglect to them on basis of the care parents providing proper even the are though presently the to the child before court. alleged the evidence recapitulate regarding
To that was in neglect: good Rose’s testified Rose pediatrician normal and health; Rose’s scores were about developmental were not for alarm worker the cause to the who conducted assessment; of treating physician’s one Rose’s and mother’s Rose; aunt “bonded” believed mother had SOSCF clean”; evaluated the home as “neat some the environ- of mental safety adequately concerns were addressed the parents and report gun the about a loaded was determined by SOSCF to In every particular, be unfounded. the state has failed to its prove allegations neglect by of clear convinc- ing evidence. The majority wrong from the trial depart court’s failed conclusion state prove was unfit physical due to and emotional of neglect Rose.
That leaves the allegations of emotional or mental illness or deficiency mental and the lack of effort make the return of the children possible potential for ter- grounds key mination.5 The of the understanding import evi- dence these regarding allegations begins with the uncontro- verted fact that removal Rose of from the home was trig- gered by mother’s of father’s report acts of violent behavior said, majority physically emotionally “Our conclusion that mother neglected supported by incapable pro her children is also evidence that she is tecting danger.” App single her children from abuse and 152 Or That 598. sen speaks analysis. majority’s tence about volumes a consistent in the flaw In order to support proven allegation its conclusion the state had its under ORS 419B.504(4) Rose, neglected majority that mother relies on the use of evidence ignores that physical the distinction that itself the statute makes between evidence of the neglect ability provide parent of a child and evidence about ofa care parent’s parenting for a child. focuses The latter on the while the former abilities 419B.504(1) particular actually given focuses on the level of care to the ORS child. provides determining rights parents that a court in whether should be ter they minated tional are unfit because shall whether suffer from an consider emo illness, deficiency mental illness or mental of such and duration nature “as parent incapable proper providing to render the care for the child extended 419B.504(4) contrast, periods says of time.” In shall ORS that the court consider *37 any “[pjhysical neglect majority’s telling of the child.” The statement because it analytical lumps together illustrates an effect rather than method that all ofthe to create an evidence requiring prove specific allegations the its clear and state to convincing evidence.
612 the mother. SOSCF became involved with fam- first against gun. with a July 1994, in when father threatened mother ily the in January the state removed Rose from home When as a a calls from 1995, it was result of series again phone had “started mother to social workers father reporting incidents, the threatening [her].” kill But for these state to rights never to terminate the petitioned would have result, connec- proper inquiry of the As a the is what parties.6 tion, if conditions had to those inci- any, the mental parents’ and the state has that those conditions proven dents whether in unlikely change are the foreseeable future.
As the evidence in to the importantly, regard considered in of the remaining allegations light must be fol- time line: lowing
(1) born; 1994: Rose is April (2) from the January par- 1995: Rose is removed custody; ents’ assigned family The to the testified: SOSCF caseworker reports first one “Wellthere were two different of domestic violence. The con- public reading [the worker] from the notes of health оn cerned a—and I’m 1/13/95, * * * * * * derringer he tried to to her that said choke stuck
throat, baby with the find her and murder her. And mother said if she left he’d yet morning. [methamphetamine] he his said that hadn’t had this public again worker] The incident with [the “And I talked to health the 13th. gun Wednesday morning the have been don’t know what date would occurred —I public [The worker] the house. health hadn’t offhand—occurred derringer baby the know Rose was. The asked if was loaded. She doesn’t where baby dirty again, wasn’t the was—that was—it said that but that rea- removal, particular. son said, 20th, just [mother] “He “And then on 24—1 went out on the fight- they gun.” were me She’dbeen She did admit that handed ing mistaken. living room. kitchen Rose was awake in the time in the and that living adjacent room room—is to the kitchen in that house. is the next public [father] [the worker] that “Then there call health was another * * [mother], [the threatening [mother’s] had called kill A friend of started baby. [Father] public [the friend] to worker] [mother] wants take health — daughter by previous baby go mar- [father’s it’s adult wants sister’s baby riage] [father] because ofhis [mother] doesn’t want leave the temper. (Emphasis up child.” to the removal of the “Sothose were the events supplied.) led *38 (3) assumes Court The Juvenile 1995: March jurisdiction Rose; over
(4) April into a service enters SOSCF 1995: engage encourages to agreement father and mother with therapy; long-term and intensive
(5) petition to file a 2,1995: SOSCF decides June rights parents’ parental Rose; to terminate (6) petition a 17,1995: SOSCF files November rights parental Rose; as to terminate (7) May bom, imme- 3,1996: Faith is and SOSCF custody diately her; takes
(8) petition ter- files a 28, 1996: SOSCF June rights parents’ parental Faith; minate the (9) September Trial is held on 1996: petitions. participated compre- parents April in a 1995,
In both by psychological Dr. James conducted hensive evaluation psychologist. referred the The SOSCF worker who Ewell, a parents requested assessment address the to Ewell that the following specific concerns: to either of these becom-
“1. What are barriers ing resources? parental viable needs to meet the individual provided
“2. Can services be parents? of these results expected produce
“3. Can these services be in the safe resource parent becoming of either a almost-one-year-old child?” necessary for the time frame reported During Ewell, mother her interview with only three when she was father had left her mother that her years old, her mother five old. she was about months When remarried and again 12. After she was then divorced when relationships began having with a series of that, her mother reported those men sexu- that one of men. Mother different ally years she old until time she was her from the abused by reported instances of sexual abuse other was 18. Mother boyfriends. has Mother her friend’s and one of an uncle regarding any counseling than abuse, other received never talking having to a school counselor. She admits to tem- bad per high occasionally while in school and she would punch becoming angry lockers or walls after with other stu- On at one occasion, dents. least she was involved in fist fight girl, suspended with another and twice she was high fighting. school, once for years old,
When 13 or 14 she became acquainted go with father would to his to ride residence horses. After she turned she house, moved into father’s pregnant. relationship and she became Mother described her being mutually physically father emotional vol- reported great yelling arguing atile. She that a deal occurred and that, occasions, between them on four different gun had father held a to her head and threatened to kill her. *39 told occasion, She Ewell that on one she knocked out two of reported father’s front teeth. She also numerous of instances throwing things them at each other.
At mother, the time Ewell interviewed she separated reported from father and that she did not intend any relationships into enter other intimate within the near mother, Based his future. interview with Ewell summa- report: rized in his written very
“[Mother] seemed limited in level of interpersonal her understanding perception. and There was poor evidence of judgment Throughout making. and decision this evaluation interview, accept any [mother] did not for responsibility personal problems wrongdoing. Her lack of understand- ing beyond insight explained and went could which be ability. extremely limited dysfunctional intellectual Her early experiences likely childhood and life have most com- disorder, bined to personality cognitive create a well as impairment.” battery psychological
Ewell conducted a of tests. also intelligence quotient placed her Mother’s full scale score of 79 eighth approximately percentile, at which is within the the deficiency, range just of intellectual and borderline below average report: explained low Ewell in his classification. cognitive ability level [mothеr’s] “Individuals of often have difficulty reasoning. They may with forms of abstract also experience difficulty judgment problem and social might some- be expected [mother] be solving. It would her the needs of ability to understand in her impaired what considering true when particularly be This would child. emotional, tangible needs.” less more concluded: Ewell disorder deficiencies, personality her cognitive
“[Mother’s] dys- highly abuse within long-term sexual history of parenting incapable family, all render functional this judgment, problem-solving Her level of social time. Reasoning highly con- sensitivity grossly impaired. are ofthis assess- At the time nearly empathy. void of crete and these any seem to realize ment, did not [mother] in existence. were problems psycho- long-term, individualized is in need of
“[Mother] to her own tailored Intervention will need be therapy. she be able ability. I doubt that would cognitive level of learning The intervention. group forms of benefit which and the role models her childhood place took within function, inadequate. family were had of how a should she [mother] will insight psychotherapy, In addition to oriented and inter- self-management taught skills of need to be personal basic communication. classes and home- require parenting will also
“[Mother] long-term This case will necessitate building. maker skill monitoring change is prognosis supervision. entering intimate [mother] high There is a risk poor. domineering, men. abusive, or otherwise relationships with questions, barriers specific to [SOSCF’s] “In answer becoming appropriate an faces in [mother] *40 ability, personal- a intellectual resource include borderline by years caused confusion ity psycho/social disorder and the family environ- sexualized dysfunctional, a living of within currently comprehend result, does not As a she ment. need to her own conditions and devastating nature of these scenario, optimistic most Under treatment. seek of inten- years year to two probably require will [mother] monitoring long-term intervention, by followed sive this level successfully completing supervision. Without likely spontaneously treatment, is not her condition improve.” evaluation, his after trial held 18 months
At the conditions— diagnosed none of mother’s Ewell testified disorder, personality past sexual abuse, IQ or low —would themselves lead to a conclusion that mother was incapable raising children. Significantly, Ewell never reevaluated mother or father after April 1995 and after were they involved in various personal parenting enhancement pro- grams. His testimony trial was based on evaluations that occurred mother completed her efforts to improve before parenting abilities.
Mother offered evidence that after Rose had been removed from her custody in January she, on her own initiative, enrolled in a parenting class that was specifically designed address the needs of parents with cognitive disa- bilities. The class lasted for approximately weeks and was structured three terms around a traditional academic schedule. It began October 1995 and concluded in June 1996. Mother’s evidence indicates that she attended regu- larly and participated fully until she diligently gave birth to Faith in May trial, 1996. At testified Ewing that he found it significant that, on her own and without compulsion order, court mother had voluntarily gone to parenting classes and completed them. Her SOSCF caseworkers testi- fied, however, that even she though was attending class, her parenting skills that they observed during supervised visits with Rose did not visibly improve. course, Of that tes- timony must be tempered by the facts that SOSCF had already decided to terminate rights mother’s in June 1995 and that mother has never had custody of Rose and Faith since January 1995.
Shortly after Rose removed, SOSCF entered into a agreement service with mother that required mother to obtain a substance evaluation, abuse a psychological eval- uation, to keep appointments with SOSCF workers and to maintain a regular visitation schedule with Rose. Mother complied with all of these requirements. Nevertheless, SOSCF decided to petition to terminate her parental rights before she completed requirements. Even more indicative of SOSCF’s approach is the fact that SOSCF did not seek to help mother deal with domestic abuse after Rose was removed; the very problem that had prompted Rose’s removal from mother’s custody. trial, At mother’s SOSCF caseworker testified: *41 In her child. Well, realistically, control of you have
“Q. child control of her fact, has continued have your agency her, say why you couldn’t January of 1995. So since ‘[Mother], violence. We have a concern about domestic we back, you If the child you. can want groups help that have mean, power the to do you clearly I had go groups’? to those that, you? didn’t that, response would Yeah, my have
“A. I could done know, initial you as far as the service been have that — initial things like the the it seemed to me agreemеnt, Domestic agreement steps. were the first violence service further down the something that we’d look at would be you road, had a psychological when we evaluation that — know, big picture at first looking it—I the of want- was and, you dealing person I was with this ing to know what know, in the than big picture what she need rather would simply plugging specific her into a service. ** *
“Q. anybody your agency [mother]— did ever offer I really “A. don’t know.” in the ever
Finally, there is no evidence record SOSCF removed, it clear Rose the made after was of and Faith on her demonstrat- dependent return Rose was of constructively potential to deal ing ability home). (the major problem domestic abuse neglect in the majority opinion regarding defect the remaining as a common in its treatment of runs thread January issues. It declines to focus on what occurred between was date of trial. In June 1995 when Rose removed Yet, 1995, SOSCF aware all the circumstances. was of above Rose get mother’s efforts to back agency’s response 2,1995, to to terminate mother’s petition its decision on June clear: the abil- rights. The mandate of the statute is in the future must be parent of the foreseeable ity change evi- must be demonstrated fact “improbable” for the When the reason convincing. dence that is clear and from the home is considered family properly removal of Rose it period, occurred relevant time along with what within its burden. As the state has met hardly can be said clear and con- that’s not the “stuff’ of which law, matter vincing evidence made. regarding
I turn to the evidence as to father remaining allegations. Although father’s conduct could have put danger Rose in harm, it was not fact, directed at her. In according to the home nurse who visited mother and father they custody while had Rose, father interacted with Rose *42 and had established a close bond with her before she was apparent, major removed from the home. As will become period thrust of the state’s evidence comes from time that preceded participation anger management father’s in parenting against classes. It is accurate that the conduct by daughters, father’s ex-wife before as testified to his his treatment mother, of and the baseball bat incident after suggest his strokes that he will continue to be abusive in the by However, future. that evidence is offset somewhat the fact reports that there are no of abusive conduct between 1975 Moreover, and 1993. it is uncontroverted that father under- appar- went medical treatment for a health condition that ently problems anger was related to his after Rose was Significantly, removed. no witness testified to incidents of by surgery, though violence committed father after his even September the trial was not held until 1996. physicians
The medical evidence from father’s regarding sought father’s condition is as follows: Father symptoms treatment in 1992 for that were later attributed to having by his tion of one of had a stroke. The stroke was caused the restric- arteries,
father’s carotid which in turn oxygen reaching portions decreased the amount of of father’s predated brain. The restriction of the arteries the strokes period medically probable some unknown of time and it is (TIA’s) experienced that he “transient ischemic attacks” before he had the stroke. The TIA’s would have caused symptoms causing permanent stroke-like without brain damage. oxygen The loss stroke, of due to the however, organic damage, provides neurological caused brain which explanation symptoms for father’s stroke which included loss cognitive ability, aphasia,7 depression of worry. frustration, surgery
His treatment included vascular to relieve the 7Aphasia impairment power symbols is “the loss or of the use as words that ideas results from a brain lesion.” Webster’s Third New International (1993). Dictionary, 99 exactly when sur- the record It is unclear from restriction. gery except place Ewell evaluated it after occurred took Grosscup’s April evaluation before 1995 and father August 1996. majority says no witness testified
The conduct and father’s abusive there a correlation between clear and that “there is condition and concludes his medical convincing father’s that indicates that evidence in this record problems strokes.” not related his and behavior are mental App erroneous. 152 Or at 578-79.8Both assertions are contrary testimony is first assertion testimony physicians as of the state’s father’s well expert psychologist principle Dr. Ewell witness, Ewell. testified: delusions, may neurologically in fact be
“[S]ome of those say I I rela- guess So I best can is that think the caused. a neu- tionship possibly is that some these delusions have base, they (Empha- it do not.” rological possible but *43 supplied.) sis acknowledgment
In addition to his that father’s delusions neurological condition, his could have been caused Ewell рersecutory have delusions or testified “individuals who thoughts paranoid have kinds of do sometimes act on those thinking thoughts, people them, other are out to harm even spouses, physically way their them.” Ewell also confirmed that and or in a violent to react experience treating
he had neurological problems that have “individuals who’ve had caused I delusions, and in those cases believethat medication (Emphasis supplied.) helpful.” at has been least somewhat physician that in to the Father’s testified addition improve oxygen supply surgery performed to to vascular and that brain, father’s his treatment included medication worry symptoms depression frustration, and had father’s they improved. physicians testified that believe Also, father’s make timony ingly, he medical their regarding majority testimony paranoid or psychological father’s conduct is apparently in that delusional regard conclusions about father’s also ought credible, many years relying to be they given before his stroke. While were not testimony no mental weight qualified of father’s condition. all. daughters experts their tes Accord physical why parent that there is no reason father could not physicians’ testimony, his children. Besides Ewell’s and the military Zaeklin, a retired noncommissioned medical officer family, who was familiar with the testified that after the being treatment, medical father ceased “delusional” and * * * calm, “a became lot more lota more under control.” Additionally, Grosscup, Dr. who examined father undergone after Rose was removed and father after had sur- gery, presented equivocal testimony present about father’s ability parent. Grosscup testified that father ahas schizo- phrenic major depressive disorder and a disorder, both opined progno- related to medical his condition. She that his “extremely poor” neurologi- sis is if even his difficulties are cally hand, based. On other she also testified that she did anything suggest [that father] not “see should no have con- Ultimately, tact” with his children. asked, in when sub- question stance, the “bottom line” about whether his rights replied, gray terminated, should be she “I’m in the Opinions “gray equate hardly area.” area” to “clear and convincing” Grosscup testimony reasons, evidence. For these legally
and Ewell cannot suffice to meet the state’s highly probable par- burden that it is that father is unable ent now and in the future due to conduct or conditions not likely change. summary,
In the evidence is uncontroverted that probably experienced TIA’s, because of the father stroke-like symptoms years before Rose was bom. Sometime in 1992 experienced organic before, father a stroke that caused damage, brain which could have caused or contributed to the by many delusional behavior observed of the state’s wit- custody, nesses. After Rose his was removed from father sought including treatment, obtained medical vascular surgery symptoms improved. Signif- medication, and his icantly, Grosscup, only psychologist Dr. *44 to evaluate treatment, father he obtained medical was not able to after express parental opinion permanently terminating an in favor of his Again, rights. hard-pressed I am to understand how the state’s to evidence rises the level of the clear and convinc- ing requires standard that the law under the above circum- stances. weighs father that regarding factor
There is another statutory has carried its that the state the conclusion against SOSCF to offer services by of efforts the absence burden: by Father was told custody. into him after Rose was taken evaluation, drug get psychological to obtain a SOSCF with in visitation and to participate evaluation and alcohol regu- to visit Thereafter, and mother continued father Rose. received In their caseworker Rose. larly April with father that she evaluation, and she told Ewell’s psychological recom- him as psychotherapy intensive undergo wanted him that he had a also told mended in the evaluation. She However, SOSCF did not the therapy. deadline to obtain such a way implementation offer in to facilitate any Nonetheless, father to com- agreed for his program benefit. 23, 1995, On June the case- days. mence within 30 therapy SOSCF and informed them that worker met with their After parental rights. to seek termination of going fact, the notion of rejected he was informed of that father that he its decision to oppose and told SOSCF would therapy Three months had rights. elapsed terminate his of the court jurisdiction since Rose had been found within had caseworker had demanded days and 60 since the passed in therapy. Apparently, father become involved with relationship SOSCF’s decision created an adversarial efforts on his to become involved any part father that stalled Nonetheless, thereafter contin- in a father therapy program. him. help in other programs designed ued to be involved his summarizes the effect on aptly Father’s counsel and SOSCF’s client a result of the above circumstances decision to terminate: hasty management class and done anger has taken an
“[Father] drugs or it; problems has no well he has shown he neurological alcohol; treatment for the he has obtained He has taken some 30 problems caused his strokes. classes; consistently visited and he has parenting weeks of changes have affected how these with Rose. No one knows Faith, a child respect abilities. With parenting father’s all, met at the record is hardly (perhaps met father has inadequate unclear), successful or we have never seen how changes, if not effected is. But even father has parenting his *45 622 the chance in (Emphasis
he deserves to make them.”9 original.) easy
These kinds of cases are not
to decide. Because
temptation
involved,
children are
there is a
to overlook the
policy
regarding
rights
parental
of the law
termination of
every
However,
that transcends
case like this one.
we must
parental rights
be mindful that the termination of
severs the
liberty
parents
fundamental
of natural
care
for and have
custody
Santosky Kramer,
the
of their children.
v.
455 US
(1982).
745,
5999,
71 L Ed 2d
I have examined
the evidence of
and the conduct and mental and emotional conditions of
purpose
determining
father and mother for the
whether
proven
likely
the state has
that those circumstances are not
9
particular
depending
There is no rule of law that dictates a
outcome
on serv
actually
Rollins,
599, 603,
ices
(1996).
offеred. State ex rel
v.
CSD
322 Or
Protection for the children would not end if we were judgment to reverse the in this case. would remain They court, under jurisdiction of the trial and their care would be If subject supervision. to its it were highly probable father’s abuse of others would itself and past repeat endanger future, I Rose and Faith’s welfare the foreseeable would But, not hesitate affirm the trial “rush” to court. the state’s In seek termination it from prevented making showing. has, I light of the constitutional that this decision implication cannot these facts that the state good hold conscience on has carried statutory its burden. I must dissent.
Accordingly, JJ., Warren and in this dissent. Armstrong, join