Adoption of Eder, Matter of

• Jurisdiction: Oregon
• Parties: In the Matter of the ADOPTION OF Benjamin EDER and Dylan Eder, Children. Robert L. EDER and Michele Longo Eder, Respondents on Review, v. Anita WEST, Petitioner on Review. CC A414; CA A50557; SC S37667. *
• Citation: Adoption of Eder, Matter of, 821 P.2d 400, 312 Or. 244 (Or. 1991)
• Court: Oregon Supreme Court
• Decision Date: 22 November 1991

Page 400

821 P.2d 400

312 Or. 244

In the Matter of the ADOPTION OF Benjamin EDER and Dylan Eder, Children Robert L. EDER and Michele Longo Eder, Respondents on Review, v. Anita WEST, Petitioner on Review.

CC A414; CA A50557; SC S37667.

Supreme Court of Oregon In Banc ^*.

Argued and Submitted April 4, 1991.

Decided Nov. 22, 1991.

James F. Young, Oregon Legal Services Corp., Coos Bay, argued the cause and filed the petition for petitioner on review.

Stephen A. Lovejoy, Lincoln City, argued the cause for respondents on review. With him on the response to the petition was Jenny Cooke, Portland.

VAN HOOMISSEN, Justice.

This is a contested step-parent adoption proceeding pursuant to ORS chapter 109. Robert Eder (father) and Michele Longo Eder (wife) (hereinafter referred to collectively as petitioners) petitioned to allow wife to adopt father's two children from his previous marriage to Anita West (mother). The trial court found that mother's consent to the adoption was not necessary because of her wilful and unexcused neglect of her children. ORS 109.324. ¹ The court granted the petition and entered a decree of adoption. The Court of Appeals, sitting in banc, affirmed 6-4. Eder v. West, 104 Or.App. 84, 799 P.2d 192 (1990).

We allowed review to consider whether the record contains clear and convincing evidence that mother's consent to the adoption was not required. ² On de novo review, ORS 19.125(4), we do not find such evidence. Therefore, we reverse the Court of Appeals' decision and vacate the trial court's decree of adoption.

Father and mother were married in 1978. Two children were born of the marriage, B (in 1980) and D (in 1982). In 1982, father filed a petition for dissolution of the marriage. In 1983, a dissolution judgment was entered which awarded father custody of the children. The dissolution court found that father would provide a far more stable emotional environment for the children and that he was "conscientious, hard-working and motivated to provide a stable home." The court further found that mother was emotionally unstable and likely to make unannounced and sudden changes in her life that would not be conducive to a stable environment for the children. The court awarded mother "liberal" visitation on a specific schedule.

In July 1984, father moved to terminate mother's visitation based on allegations that, during the months preceding the filing of his motion, he had noticed " 'regressive' [behavior] patterns in [B] after visitation with mother, such as wetting his pants and 'acting out' earlier stages of development"; that he had observed B at mother's home "dressed in a young girl's dress"; that B had reported to him that B had been sleeping in the nude with his mother and that she had 'played with him' "; and that B had reported to a Children's Services Division caseworker "that his mother had been 'playing with his genitals'," and that she had engaged in other forms of sexual contact when they were together. A temporary order terminating mother's visitation with both children was entered.

After a hearing in September 1984, the trial court found that mother was not credible, that she was paranoid and emotionally unstable, and that there had been "sexually oriented acts [by her] towards [B]" contributing toward his emotional problems, including gender identity questions. Based on those findings, the court prohibited any further visitation by mother with the children except for telephone visits personally supervised by father. The court further ordered that visitation would not be resumed without the court's approval and after mother had been evaluated by a court-approved psychiatrist and had received "such therapy or further evaluation as may be recommended [by that psychiatrist]."

In December 1984, mother pleaded "no contest" to and was convicted of the crime of sexual abuse in the second degree, ORS 163.415, a Class A misdemeanor, for the acts that she committed against B earlier that year. ³ She was sentenced to one year in custody; execution of that sentence was suspended, and she was placed on five years' probation. Two special conditions of her probation were that she "[h]ave no contact with [B] until further order of the Court," and that she "[c]ontinue her psychiatric evaluation and treatment." Subsequently, mother has consistently denied any sexual misconduct with B, stating that she only pleaded "no contest" in 1984 so that B would not have to testify in court.

In January 1985, mother met twice with Dr. Kjaer, a psychiatrist whom she chose and the dissolution court approved, for evaluation. ⁴ Kjaer diagnosed mother as:

"Borderline Personality, Acute Situation Reaction, Normal Grief Response (to the divorce and withdrawal of children), Possible Manic Depressive (Bipolar) Disease, and Pedophilia (by history)."

He reported that mother's denial was a significant problem impeding her treatment, that she must "accept the reality of her misbehavior," and he recommended long-term counseling and psychotherapy coupled with medication. He added:

"It is possible, however, to entertain a treatment program in which the patient is allowed to temporarily maintain a partial denial in order to develop a trust and working relationship with the therapist. It is possible to facilitate that with antidepressive medication which will strengthen the patient's internal resources. The patient, however, must be prepared to accept the financial responsibilities inherent in this phase of therapy and probably would be required to pay for each session in advance."

Kjaer reported that he was unable to recommend a treatment program for mother "which is cost effective," because of her refusal to admit "that she has done something wrong." Kjaer concluded:

"At this point I see no advantage in attempting to engineer a visit between [mother] and her children, since she does not have their best interest solely at heart because she cannot focus clearly on their needs rather than hers. If she cannot accept the reality of her misbehavior and the therapy outlined above, she might have to relinquish her parental rights permanently." (Emphasis in original.)

Because she understood that Kjaer would require her to admit that she had sexually abused her child as a prerequisite to treatment, and because she also asserted that she could not afford to pay for Kjaer's services, mother rejected Kjaer's diagnosis and treatment plan.

Later in January 1985, mother moved to New Mexico, where she saw Dr. Collins, a psychiatrist, about four times in March and April 1985. A free-lance artist, mother paid Collins with artwork that she created. In an April 1985 letter to mother's lawyer, Collins recommended that mother be allowed supervised visitation with the children. Collins wrote that, although mother had denied any sexual abuse of B, Collins would not "pass judgment" on whether mother had done so and that he would not be treating her for sexual abuse. He gave no diagnosis of mother's condition. Mother saw Dr. Collins between 15 and 20 times during 1985 to 1988. According to Collins, the majority of those sessions revolved around mother's concerns about the children and her hopes of having a relationship with them.

In May 1985, based on the fact that mother had moved to New Mexico and was seeing Collins, her lawyer asked the dissolution court for permission to substitute Collins as her treating psychiatrist. The court did not approve Collins as a treating psychiatrist. Thereafter, mother changed her lawyer and, in June 1985, her new lawyer moved to dismiss her motion for change of psychiatrists for the reason that mother had returned to Oregon. That motion was allowed. ⁵ Mother never sought treatment with Dr. Kjaer thereafter. In July 1985, mother moved pro se to reinstate visitation on the basis of her treatment with Collins and his recommendation for supervised visitation. In September 1985, because she had not undertaken therapy with Kjaer, the court dismissed her motion.

In September 1985, mother moved pro se that someone other than father read her letters to the children. That motion was allowed. In October 1985, she moved pro se to substitute Dr. Collins for Dr. Kjaer, because, she asserted, she had a poor relationship with Kjaer and she could not afford to pay him. That motion was denied.

In October 1985, mother moved pro se for the court to suggest "a program of behavior to provide a way to reunite [her] with [the children]." In her affidavit, she complained that she was "frustrated in [her] catch-22 situation," because Dr. Kjaer was the only court-approved psychiatrist but "he doesn't want to be involved and he would write a release letter if I paid a large bill that I cannot." The motion was denied.

In December 1985, mother moved pro se to be allowed telephone visits with the children. Because of the special condition of her 1984 criminal probation that she have no contact with B, she was not allowed telephone visits with him. Pursuant to the September 1984 modification order that allowed telephone visits with both children personally monitored by father, however, her motion was allowed as to D.

In April 1986, mother again moved pro se to substitute Dr. Collins for Dr. Kjaer. In her affidavit, she stated that she had returned to New Mexico and again was being treated by Collins. In May 1986, she also moved pro se to allow the children to visit her in New Mexico. In June 1986, she moved Ipro se to have a lawyer appointed for the children. All three motions were denied.

In August 1986, father moved in the dissolution court to terminate mother's parental rights. He alleged that "she has failed or neglected without reasonable and lawful cause to provide for the basic psychological needs of the children for one year prior to" his motion, or that she "is unfit by reason of conduct or condition seriously detrimental to the children and integration of the children into her home for visitation or...