STATE EX REL. DHS v. Rardin

• Court: Oregon Supreme Court
• Writing for the Court: De MUNIZ, J.
• Citation: STATE EX REL. DHS v. Rardin, 110 P.3d 580, 338 Or. 399 (Or. 2005)
• Decision Date: 14 April 2005
• Docket Number: CC No. 2590J; CA A125045; SC S51810.
• Parties: In the Matter of Jennifer Jeannette Rardin, a Minor Child. STATE ex rel DEPARTMENT OF HUMAN SERVICES, Respondent on Review, v. Christopher RARDIN, Petitioner on Review.

110 P.3d 580

338 Or. 399

In the Matter of Jennifer Jeannette Rardin, a Minor Child.

STATE ex rel DEPARTMENT OF HUMAN SERVICES, Respondent on Review, v. Christopher RARDIN, Petitioner on Review.

(CC No. 2590J; CA A125045; SC S51810).

Supreme Court of Oregon, En Banc.

Submitted on the Record February 4, 2005.

Decided April 14, 2005.

James A. Palmer, Eugene, filed the brief for petitioner on review.

Robert M. Atkinson, Assistant Attorney General, Salem, filed the brief for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Karen S. Torry, Portland, filed a brief on behalf of Jennifer Rardin, Minor Child.

De MUNIZ, J.

A juvenile court terminated father's parental rights. Father appealed to the Court of Appeals. The Court of Appeals, however, dismissed father's appeal, because that court concluded that the notice of appeal was untimely and that father had failed to raise a colorable claim of error. ORS 419A.200(5)(a) permits a party to file an untimely notice of appeal from a juvenile court judgment if the party (1) demonstrates the existence of a colorable claim of error in the underlying proceeding from which the appeal is taken; and (2) demonstrates that the failure to file a timely notice of appeal was not the party's fault.¹ The issue in this parental termination proceeding is whether father has raised a "colorable claim of error" sufficient to excuse his late-filed notice of appeal. We conclude that father's appeal raises a colorable claim of error, and we therefore reverse the order of the Court of Appeals and remand for further proceedings.

We take the facts from the trial court's letter opinion. In 1995, while father and mother were living together, mother conceived and bore the child that is the subject of this dispute. Father signed the birth certificate, acknowledging his status as the child's father. About six months later, however, mother informed father that child was not his. In October 1995, the Support Enforcement Division required father to pay child support as the legal father. When child was a year and a half old, parents separated. Father made some child support payments after the separation.

Between 1997 and 1999, the Department of Human Services (DHS) could not locate father. When contacted in 1999, father told DHS did not want to participate in child's upbringing and support unless he could be convinced of his paternity through a DNA test. Father could not afford the fee, which was between $1,250 and $2,500, and DHS would not pay for testing. Father and DHS corresponded intermittently from 1999 to 2001.

In April 2002, DHS sent father a letter of expectation² stating that, if father worked with DHS, DHS would assist him in developing a relationship with child and that she eventually might be placed with him. By mid-2002, however, DHS became less interested in assisting father and decided to seek the termination of his parental rights. DHS instructed father not to contact child directly but, instead, to send letters, cards, pictures, and presents to her through DHS. He sent items at least once a week. Later, however, DHS informed father that it had stopped giving his cards and letters to child. Father initially did not understand that termination was DHS's goal. However, DHS did advise father that it had decided to seek to terminate his parental rights because the changes that DHS wanted in father's actions had not occurred quickly enough. In August 2002, father paid for paternity testing that confirmed that he was child's biological father.

In October 2002, DHS filed a petition for termination of father's parental rights.³ The petition alleged, inter alia, that father was

"unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into the father's home is improbable within a reasonable time due to conduct or conditions not likely to change, including, but not limited to the following: a) Failure to present a viable plan for the return of the child to the parent's care and custody [and] b) Abandonment of the child."

After a hearing, the trial court issued a lengthy and detailed letter opinion. The court made the following findings regarding father's current living conditions:

"[Father] now lives in Pomeroy, Washington. He has lived there about five or six years. He has extended family living in that area. [Father] has other children with whom he gets along very well. [He] is engaged to be married to a woman who has a five year old child. [Father] currently lives in a trailer with an addition which has two or three bedrooms. The yard is clean and fenced. Two children live with the family. They have a poodle dog. * * * [Father] is employed as a general contractor. He has also been working as a painter. If [child] were to be allowed to live with [father], she would go to elementary school in Pomeroy, Washington. The school is about eight blocks away and most of the children walk to school. After school, [father] or other extended family members could watch [child]. Those family members provide regular child care for the other children living in his home."

The trial court noted father's desire to have a relationship with child:

"[Father] wants a relationship with [child]. * * * Since the petitions have been filed, [father] has asked to see [child] but has not been allowed to see her. His attempts to write to her have also been limited. * * * DHS['s] only concern about [father] is his lack of a relationship with [child]."

With respect to child having had little contact with father during her life, the trial court noted:

"Treatment providers believe [child's] relationship to [father] is further complicated by the fact that [child] has had other father figures who have been abusive and hurtful. As a result, [child] does not trust men. She is confused by the fact that her father had not met her yet, but writes and says he loves her. She wonders why he now wants to be involved with her. She does not remember him and does not recall ever meeting him. She thinks of him as a stranger."

In addition, the trial court noted the psychologist's observations:

"Dr. Eastman was aware that there were no alcohol or drug issues raised concerning [father]. Dr. Eastman also opined that had visitation started with the father a year ago, that might have been a viable plan. However, according to Dr. Eastman, any biological father should be reintegrated into his child's life not later than the child's third birthday. Had services been provided earlier, [father] might now be reintegrated into [child's] family relationships."

(Footnotes omitted.) The court then explained the circumstances for the lack of contact between father and child:

"[Child] was three years old in 1998. At that time, [father] knew of [child's] circumstances. DHS has contacted with him [sic], but he chose to do nothing to avail himself of services because of his self-imposed DNA test precondition to contact with [child] and acceptance of services.

* * * The Court notes that the current reasons [father] has not met [child] is that counselors and DHS have asked him to wait for [child] to become emotionally better prepared for that meeting. The Court further notes that this issue would never have arisen had [father] promptly acknowledged paternity or promptly agreed to participate in reunification service."

On the merits, the trial court concluded that DHS had failed to prove abandonment. The remaining legal issue, according to the trial court, was whether father had presented a "viable plan for the return of the child to the parent's care and custody[.]" The trial court acknowledged that father had a suitable home and family, and a plan for child's schooling. Emphasizing the delays that ensued in the contacts between father and DHS, however, the court concluded that father's "contact came so late that [child] is not psychologically able to accept him as a * * * parent":

"The fact that he now presents a viable place for physical location of [child] is not sufficient. As a result of the delayed contact between [father] and [child], it is not emotionally viable for [child] to be incorporated into [father's] home within a reasonable time. The Court concludes that these facts establish by clear and convincing evidence that [father] has failed to present any viable plan to return [child] to his home, care and custody."

The court continued:

"With regard to [father's] petition, the evidence is uncontradicted that a biological father should be integrated into a child's life not later than the child's third birthday. After the child's third birthday, the child will usually view the absent father as a stranger. At that point, establishing a plan to introduce the father to the child may take substantial time, because the child must be allowed time to admit a stranger into her life and accept him emotionally as the father."

Thus, as the trial court saw it, the only consideration that justified terminating father's parental rights was that father's attempts to establish a relationship with child came too late.

On May 6, 2004, the trial court entered a judgment terminating father's parental rights. Relying on ORS 419B.504, the judgment stated that

"father is unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into the father's home is improbable within a reasonable time due to conduct or conditions not likely to change, including the following: failure to present a viable plan for the return of the child to the parent's care and custody."

The judgment also stated, relying on ORS 419B.506, that

"father has failed and neglected without reasonable and lawful cause to provide for the basic physical and psychological needs of the child for six months prior to the filing of the petition as shown by his: failure to implement a plan designed to lead to the integration of the child into

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