State ex rel Juv. Dept. v. Proctor

• Citation: 167 Or. App. 18,2 P.3d 405
• Parties: In the Matter of Trebin Jenkis, a Minor Child. STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Appellant, v. Mysta PROCTOR and Brandon Jenkis, Respondents.
• Decision Date: 03 May 2000
• Court: Court of Appeals of Oregon

2 P.3d 405

167 Or. App. 18

In the Matter of Trebin Jenkis, a Minor Child.

STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Appellant, v. Mysta PROCTOR and Brandon Jenkis, Respondents.

(9607-81949; CA A105270)

Court of Appeals of Oregon.

Argued and Submitted November 4, 1999.

Decided May 3, 2000.

Laura S. Anderson, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Kathryn Worden Underhill filed the brief for child. Peter Miller argued the cause and filed the brief for respondent Mysta Proctor.

No appearance for respondent Brandon Jenkis.

Before LINDER, Presiding Judge, and DEITS, Chief Judge, and KISTLER, Judge.

DEITS, C.J.

The state appeals the trial court's dismissal of the state's petition to terminate the parental rights of mother and father. We review de novo, ORS 419A.200(5), to determine whether clear and convincing evidence supports the petition for termination. We affirm with respect to mother and reverse as to father.

Mother and father never married. Child was born April 2, 1996. On the morning of July 2, 1996, child, who was then three-and-one-half months old, was admitted to Oregon Health Sciences University (OHSU) after mother and father noticed that his head was swollen. They told the hospital staff that they believed that the swelling was caused by the circumstances of child's traumatic birth. Although, at first, the doctors indicated that birth trauma was one possible cause of child's condition, they soon concluded that the injuries were nonaccidental. Dr. Zenel, a pediatrician trained in evaluating child abuse injuries and child's primary pediatrician since July 1996, testified that he believed with "medical certainty" that the injuries were nonaccidental, "that this child was battered and on more than one occasion. Battered and shaken." Ultimately, the doctors determined that child's skull was fractured on both sides, that the fractures were very recent, most likely occurring within 24 hours of child's initial examination at OHSU, and that they were direct impact fractures caused by extremely forceful blows to both sides of the child's head. The child also had injuries consistent with having been violently shaken on at least one, and possibly two, occasions two to six weeks before the occurrence of the skull fractures. Dr. Zenel also testified that "[t]here was a bruise underneath [child's] tongue over the anterior salivary gland which would indicate some forceful jabbing or something being pushed hard against the area underneath the tongue."

Mother and father were informed of the diagnosis of multiple incidents of nonaccidental trauma. However, even after that, both mother and father continued to assert that child's condition was the result of birth trauma¹ or of an incident that occurred a day or two before his admission to the hospital, in which a screen door hit his head as mother carried him into the house. Dr. Zenel did consider the screen door as a possible cause of child's injuries. He testified that that incident could only have caused one of the fractures and, even then, it would depend on the type of screen door. Officer Johnson, a Portland police officer assigned at that time to a child abuse team, testified that he went to mother and father's home and examined the screen door. He described it as a "lightweight aluminum structure" with "no return spring * * * but up at the top there was, like, a plastic, elastic used to keep the door from opening all the way or slamming probably against the side of the house." Dr. Zenel testified further that the only accidental trauma he could think of that would cause the type of fractures that child had "would be a situation that, if the child's [lying] on the floor head to the side, and some heavy object falls on top of the head, which would pin the head between the falling object and the hard floor" or "a high speed car accident in which the child is thrown forward, caught between doors slamming or hitting against, getting thrown both—several directions as the car hits impact."

Mother and father have been consistent in their description of the events on the day before child's admission to the hospital. They reported that the three of them, mother, father, and child, were together the entire day except for a short period of less than an hour, during which mother went with a friend, Marie Lange, to get ice cream. Lange testified at the hearing. She said that before they left, child appeared sleepy but that she did not notice anything wrong with him at that time. While mother and Lange were gone, father remained at home alone with child. Father testified that while mother was gone, he picked child up off of the couch where child was sleeping and tucked him into his crib in another room. Mother testified that when she returned from getting ice cream, child was in bed, and because she did not want to wake him, she did not see him until the following morning.² At that time, she noticed that child's head was severely swollen.

When child was released from the hospital, he was placed in a medical foster home. At the time of trial, child was two-and-one-half years old and was still in the same foster home. Initially, after child was placed in the foster home, mother had weekly one-and-one-half to two-hour supervised visits with child at the State Office for Services to Children and Families (SOSCF). In December 1996, when mother moved to Vancouver, her visits changed to weekend visits of approximately five hours, supervised by her ex-mother-in-law, with whom she lived. In addition, child's foster mother testified that, in the first year and a half that she cared for child, he had 20 doctor's appointments and that mother attended all but one. Child's half-brother (S) has been present for most of mother's visits with child. Apparently, the two boys have bonded and developed "a very close relationship."

Mother and father signed a service agreement with SOSCF on September 17, 1996. Under that agreement, they agreed to:

"1. Complete [Volunteers of America] parenting classes

"2. Obtain psychological evaluations and follow all recommendations

"3. Attend all scheduled visits

"4. Participate actively in the child's medical treatment

"5. Keep SCF informed of their current address and phone number[.]"

Mother underwent two separate psychological evaluations that were required by the service agreement. The first evaluation took place in September of 1996. The psychologist who evaluated mother, Dr. Kelleher, concluded that:

"[S]he was a woman who was very attached to her children and very concerned about her children and her parenting, that she showed strong perfectionistic tendencies but was very reluctant—and that these tendencies made her very reluctant to acknowledge any difficult—any difficulties with her or with her family members. She wanted to be the perfect parent.

"She had some failures of insight and clearly demonstrated unresolved and very—still very painful emotional issues from childhood. She also demonstrated submissive attitude in many ways in relation to [father] and a tendency to have emotional outbursts both of anger and of grief."

Kelleher noted that mother

"thought that the bump on the head by the screen door * * * had jostled something and not injured the child but actually stimulated a growth spurt where he began to develop more normally; whereas, before, he had been a more lethargic baby and slow to gain, thrive baby."

Kelleher recommended that mother participate in both individual and couples counseling. In particular, she specified that long-term individual psychotherapy would be most beneficial in helping mother "discern her needs versus her child's needs" and to successfully implement the parenting skills that she already had.

The second psychological evaluation of mother, done by Dr. Deitch, occurred in September 1997. The results of that evaluation are unclear from the record. A summary report to the court dated November 17, 1997, stated that "Dr. Deitch recommended that the parents continue their individual and marital counseling, and that a contract be set up with the family if [child is] to be transitioned home." In addition, under the service agreement with SOSCF, mother attended a series of parenting classes, held over a six-month period. The instructor of the classes reported that despite being angry and defensive about being required to take the classes,³ mother attended and actively participated in all of them. The instructor testified that mother "was receptive to feedback, that she asked questions, that she seemed interested in the material, open to new ideas."

Mother and father were also required to attend family counseling. At their first session, the counselor administered a test to evaluate their relationship and determine if they wanted to make any changes. The counselor testified that

"[t]he result was that the couple felt that they liked things pretty much the way they were and they wanted to pretty much keep things the way they were. As a result of that it was decided not to meet initially doing couples counseling, `cause there wasn't anything to work on.'"

Mother and father later returned to the same therapist and underwent counseling for about four months, until they separated.

In December 1997, mother left father and moved in with her ex-mother-in-law. She testified that she left father because she was no longer happy and she no longer felt safe with him. Mother also testified that while they were living together, father had been overly controlling and had physically abused her on a number of occasions. Mother described some of the abuse, including: an incident in which father pushed her down stairs and then came down after her and shoved her to the ground so that she hit her head and "saw stars"; an incident when father pushed her through the plate-glass window of a...