State ex rel. Children's Services Div. v. Payne

• Decision Date: 14 March 1996
• Citation: 912 P.2d 904,323 Or. 1
• Parties: In the Matter of Stephanie Darlene PAYNE, a Child. STATE ex rel. CHILDREN'S SERVICES DIVISION, Petitioner on Review, v. Dianna R. PAYNE and Michael E. Payne, Respondents on Review. In the Matter of Joshua Michael Payne, a Child. STATE ex rel. CHILDREN'S SERVICES DIVISION, Petitioner on Review, v. Dianna R. PAYNE and Michael E. Payne, Respondents on Review. In the Matter of Matthew Scott Payne, a Child. STATE ex rel. CHILDREN'S SERVICES DIVISION, Petitioner on Review, v. Dianna R. PAYNE and Michael E. Payne, Respondents on Review. In the Matter of Michael Emerson Payne, a Child. STATE ex rel. CHILDREN'S SERVICES DIVISION, Petitioner on Review, v. Dianna R. PAYNE and Michael E. Payne, Respondents on Review. CC 94-5738; CA A87112 (Control), CC 94-5739; CA A87113, CC 94-5740; CA A87114, CC 94-5741; CA A87115 and SC S42704.
• Court: Oregon Supreme Court

Page 904

912 P.2d 904

323 Or. 1

In the Matter of Stephanie Darlene PAYNE, a Child.

STATE ex rel. CHILDREN'S SERVICES DIVISION, Petitioner on Review, v. Dianna R. PAYNE and Michael E. Payne, Respondents on Review.

In the Matter of Joshua Michael Payne, a Child.

STATE ex rel. CHILDREN'S SERVICES DIVISION, Petitioner on Review, v. Dianna R. PAYNE and Michael E. Payne, Respondents on Review.

In the Matter of Matthew Scott Payne, a Child.

STATE ex rel. CHILDREN'S SERVICES DIVISION, Petitioner on Review, v. Dianna R. PAYNE and Michael E. Payne, Respondents on Review.

In the Matter of Michael Emerson Payne, a Child.

STATE ex rel. CHILDREN'S SERVICES DIVISION, Petitioner on Review, v. Dianna R. PAYNE and Michael E. Payne, Respondents on Review.

CC 94-5738; CA A87112 (Control), CC 94-5739; CA A87113, CC

94-5740; CA A87114, CC 94-5741; CA A87115 and SC S42704.

Supreme Court of Oregon In Banc.

March 14, 1996.

On petition filed October 25, 1995, for review from the Court of Appeals. ^*

Katherine H. Waldo, Assistant Attorney General, Salem, filed the petition for petitioner on review. With her on the petition were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

No appearance contra.

MEMORANDUM OPINION.

Petition for review denied.

GRABER, J., dissented and filed an opinion in which GILLETTE, J., joined.

GRABER, Justice, dissenting.

I dissent from the court's denial of review in this case. The opinion of the Court of Appeals contains three erroneous statements of the law that applies to termination of parental rights, statements that demonstrate a failure to appreciate both the overall statutory scheme and its application to this case.

The first fundamental error made by the Court of Appeals is the statement that "abandonment," as that term is used in ORS 419B.508, ¹ was a basis for the trial court's decision in this case. State ex rel. CSD v. Payne, 136 Or.App. 186, 199, 901 P.2d 863 (1995). That simply is not accurate. The judgment of the trial court rested on ORS 419B.504 (unfitness) ² and ORS 419B.506 (neglect) ³ as alternative and independently sufficient grounds for termination. In describing reasons why it found that the parents were unfit under the standard established in ORS 419B.504, the trial court stated that "abandonment" of the children was one of six factors considered. In other words, the Court of Appeals analyzed the evidence by reference to a statute that was not relevant.

If the Court of Appeals meant that a parent's "abandonment" of a child cannot be a factor in a trial court's consideration of unfitness under ORS 419B.504 unless the evidence also meets all the requirements of ORS 419B.508, that conclusion is equally incorrect. Each statute (ORS 419B.504, 419B.506, and 419B.508) provides a separate and independently sufficient basis for termination, which should be analyzed separately and on its own terms. ORS 419B.504 allows the trial court to consider any kind of "conduct or condition seriously detrimental to the child," when "integration of the child into the home of the parent or parents is improbable in the foreseeable future due to conduct or conditions not likely to change."

The second fundamental error of the Court of Appeals is the suggestion that the absence of emotional and physical abuse of the children is relevant to a determination under either ORS 419B.506 (neglect)--which was properly before the court--or ORS 419B.508 (abandonment)--on which the court erroneously relied. Payne, 136 Or.App. at 198-99, 901 P.2d 863. The Court of Appeals weighed the absence of emotional and physical abuse in comparison to the parents' failure to visit or otherwise contact the children for extended periods of time ⁴--even though the Court of Appeals found, as had the trial court, that the parents' failure to visit or contact the children was detrimental. Id. at 198, 901 P.2d 863. In view of the statutory definitions of neglect, ORS 419B.506, and abandonment, ORS 419B.508, that kind of weighing is erroneous as a matter of law. Neither of those statutes requires or suggests that abuse must be shown to justify termination; the absence of abuse has no place in a decision as to their application.

The third fundamental error in the opinion of the Court of Appeals is its treatment of the concept of "reasonable and lawful cause" for neglect or failure to provide for the needs of a child, ORS 419B.506. The Court of Appeals noted that the parents "both resented CSD's involvement from the beginning" and that CSD was sometimes inflexible in scheduling visits. Payne, 136 Or.App. at 197, 901 P.2d 863; see also id. at 197-98 & n. 8, 901 P.2d 863 (same). The court also stated that "hostility toward CSD is not an acceptable reason to terminate an individual's parental rights." Id. at 198 n. 10, 901 P.2d 863. The opinion as a whole appears to treat the parents' resentment of CSD, and the post hoc view that CSD's requirements were unfair, as "reasonable and lawful cause" for these parents' undeniable neglect and failure to provide for the needs of their children.

If allowed to stand, this opinion suggests that a parent can passively resist compliance with requirements (such as visitation requirements) lawfully set by CSD, seek no modification in juvenile court of those requirements, and later successfully defend a petition for termination of parental rights on the ground that the requirements were unreasonable or onerous, despite the absence of other alternative efforts to maintain a relationship with the children, such as by calls or letters. Such a suggestion is stunningly at odds with the messages that this court has sent in the past. See State ex rel. Juv. Dept. of Multnomah County v. Jones, 290 Or. 799, 811-16, 626 P.2d 882 (1981) (mother had "reasonable and lawful cause" for failing to provide for the needs of her daughter for the statutory period, then a year, when she suffered from a debilitating illness and the juvenile authorities had informed her in writing that she was prohibited from having any contact with the girl); Eder v. West, 312 Or. 244, 269-70, 821 P.2d 400 (1991) (under ORS 109.324, mother's actions, including petitioning the court for modification of court-imposed restrictions on visitation and use of other available means to contact the children, demonstrated a deliberate, good faith interest in maintaining a parent-child relationship, precluding a finding of wilful neglect). Utter neglect of a child's need for parental contact for six months is not excused under ORS 419B.506 by a parent's unilateral and subjective perceptions about the unfairness of having the state involved in the family or about the unfairness of particular conditions of visitation.

In summary, the Court of Appeals made three fundamental...