State ex rel. Juvenile Dept. of Multnomah County v. Herman

• Decision Date: 12 September 1984
• Citation: 687 P.2d 812,69 Or.App. 705
• Parties: In the Matter of Keever, Heather, A Child. STATE of Oregon ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. Peggy HERMAN, Appellant. CA 75,721; CA A30012.
• Court: Oregon Court of Appeals

Page 812

687 P.2d 812

69 Or.App. 705

In the Matter of Keever, Heather, A Child.

STATE of Oregon ex rel. JUVENILE DEPARTMENT OF MULTNOMAH

COUNTY, Respondent, v. Peggy HERMAN, Appellant.

CA 75,721; CA A30012.

Court of Appeals of Oregon.

Argued and Submitted July 9, 1984.

Decided Sept. 12, 1984.

M. Peter Miller, Portland, argued the cause and filed the brief for appellant.

Philip Schradle, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before GILLETTE, P.J., JOSEPH, C.J., and YOUNG, J.

YOUNG, Judge.

Mother appeals the termination of her parental rights in her daughter. The sole issue on appeal is whether the state proved by clear and convincing evidence that integration into the mother's home is "improbable in the foreseeable future due to conduct or conditions not likely to change." ORS 419.523(2); State ex rel. Juv. Dept. v. Chapin, 66 Or.App. 932, 675 P.2d 1117 (1984). On de novo review, ORS 419.561(4), ORS 19.125(3), we determine that the state failed to meet its burden of proof and reverse.

Mother is 27. Heather is four-and-one-half. In the fall of 1981, mother moved in with Frank Herman, who is not Heather's biological father. On January 20, 1982, Frank struck Heather, who was not quite three years old, in the head, causing life-threatening injuries. In a hospital emergency room the doctors diagnosed Heather's head injury and various bruises as the result of child abuse. ¹ The following day, Heather was temporarily committed to Children's Services Division (CSD) by order of a juvenile court referee. On January 22, 1982, a juvenile court counselor filed a petition for an investigation into Heather's condition and circumstances. On March 17, 1982, based on mother's admissions of the allegations contained in the petition, the referee ordered that Heather be made a ward of the court and temporarily committed her to CSD. The referee's order provided in part:

"The mother is ordered to comply with the request of Child Services Division; (a) specifically in submitting to a psychological evaluation, with a signed release of information to the court and Children's Services Division, and with her boyfriend [Frank Herman] also submitting to such psychological examination; (b) that mother and her boyfriend be involved in a parenting skills course by completing the entire course and demonstrating an ability to use the skills; (c) that the mother and her boyfriend be involved in a counseling program designed to assist them in determining what their relationship will be."

In March, 1982, mother and Frank began attending CSD parent training classes. Frank's attendance was interrupted when he was convicted of assault in the second degree and criminal mistreatment in the first degree arising out of the January incident. He began serving a one-year jail sentence in April, 1982. He served nearly six months and was released in September, 1982, on five years' probation. In spite of the interruption, both Frank and mother successfully completed the curriculum in parental training. Mother began therapy with Dr. Scott of Catholic Family Services on April 15, 1982, and continued until the time of the hearing on a weekly basis. Frank maintained the same schedule, starting approximately two to three months after mother. In October, 1982, they were married. On June 15, 1983, CSD filed a petition to terminate mother's parental rights. On September 21, 1983, the trial court granted the petition and ordered that the parental rights be terminated.

ORS 419.523(2) provides:

"The rights of the parent or parents may be terminated as provided in subsection (1) of this section if the court finds that the parent or parents are unfit by reason of conduct or condition seriously detrimental to the child and 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. In determining such conduct and conditions, the court shall consider but is not limited to the following:

"(a) * * *

"(b) Conduct toward any child of an abusive, cruel or sexual nature.

"(c) Addictive use of intoxicating liquors or controlled substances.

"(d) Physical neglect of the child.

"(e) Lack of effort of the parent to adjust the circumstances of the parent, conduct, or conditions to make the return of the child possible or failure of the parent to effect a lasting adjustment after reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected."

The state's contention is that mother is "unfit by reason of conduct or condition seriously detrimental to the child," because she married Frank. We have said that a continuing relationship with a child abuser can be a basis for terminating parental rights. See State ex rel. Juv. Dept. v. Darnell, 49 Or.App. 561, 619 P.2d 1349 (1980); State ex rel. Juv. Dept. v. East, 38 Or.App. 59, 589 P.2d 744, rev. den. (1979). The trial court's concern was that Heather cannot be safely integrated into the home because of Frank's record of child abuse.

Frank's conduct toward the child in January, 1982, which resulted in the life-threatening injury, is reprehensible and inexcusable. However, the fact that mother married him does not in itself support the termination order. The state is required to prove by clear and convincing evidence that...