State ex rel. Juvenile Dept. of Baker County v. Boren

• Decision Date: 13 February 1991
• Docket Number: J-2561-A
• Citation: 806 P.2d 149,105 Or.App. 599
• Parties: In the Matter of Buddy Lee Boren, a child. STATE ex rel JUVENILE DEPARTMENT OF BAKER COUNTY and Children's Services Division, Appellants, v. Bill Loren BOREN, Respondent. ; CA A65501.
• Court: Oregon Court of Appeals

Page 149

806 P.2d 149

105 Or.App. 599

In the Matter of Buddy Lee Boren, a child.

STATE ex rel JUVENILE DEPARTMENT OF BAKER COUNTY and Children's Services Division, Appellants, v. Bill Loren BOREN, Respondent.

J-2561-A; CA A65501.

Court of Appeals of Oregon.

Argued and Submitted Nov. 27, 1990.

Decided Feb. 13, 1991.

Katherine H. Waldo, Asst. Atty. Gen., Salem, argued the cause for appellants. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Steven H. Gorham, Salem, argued the cause and filed the brief for respondent.

Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ.

DE MUNIZ, Judge.

The state appeals from the dismissal of a petition to terminate the parental rights of father. The trial court made findings, to which we give considerable weight, because it had the opportunity to observe the witnesses firsthand. See State ex rel. Juv. Dept. v. Geist, 310 Or. 176, 194, 796 P.2d 1193 (1990). However, our review is de novo, ORS 419.561(4), and we must independently assess and evaluate the evidence.

These facts are undisputed. Father and mother were married when the child was born on January 21, 1984. Father participated in caring for the child until he and mother divorced in March, 1985. The judgment of dissolution awarded mother custody of the child and provided father visitation rights; however, it did not require him to pay child support. Father went to live with his mother in Baker. The child remained in Baker with mother and father saw the child regularly until August, 1985, when mother requested that Children's Services Division (CSD) place the child in foster care. Soon thereafter, the juvenile court placed the child in CSD's custody for placement in foster care. Father gave CSD his mother's address for correspondence to him, and he has continuously refused to give CSD any other address.

Father took a job as a long-haul truck driver about the time that CSD got involved with the child. Father and his mother visited the child at the CSD office on December 24, 1985, and gave him gifts. Father visited the child three times at the CSD office in Baker during 1986, once with the child's mother in May and twice with his own mother in September.

Some time in the latter part of 1985, father was arrested on sodomy and menacing charges. In February, 1986, he was acquitted on the sodomy charge and convicted on the menacing charge. As a result of the conviction, he was sent to jail and later released on probation. He subsequently violated probation and was returned to jail. By early 1987, he had completed his sentence and was released from custody.

In March, 1987, CSD returned the child to mother's care under its supervision. Mother had remarried and moved to Philomath. Father was unemployed or in jail for most of 1986 and the early part of 1987. Father saw the child only two or three times during the year that the child was with mother in Philomath. On each of those occasions, mother brought the child to father while she was visiting her parents in Baker. On all but one of those occasions, the child was asleep in the car and father did not wake him. Father contacted neither CSD nor mother during the time that the child was in Philomath.

Mother returned the child to CSD on March 9, 1988, and released him for adoption on April 14, 1988. She informed father that she had returned the child to CSD. The child was placed in foster care in the Corvallis area, where he remained for three months.

In April, 1988, father got a job in Pasco, Washington, where he worked for about six months. During that time, he lived in his truck in his employer's parking lot. While he was in Pasco, CSD caseworker Okita sent him a letter that inquired whether he would release the child for adoption. If he would not, it outlined the conditions that CSD expected him to meet before he would be considered as a resource to care for the child. The conditions required father to make monthly child support payments; submit to an alcohol and drug use evaluation; undergo treatment for alcohol or drug use, if recommended by the evaluator; commit no further violations of law; attend parenting classes; write the child weekly; and schedule regular visitation.

On May 16, 1988, father telephoned Okita in response to her letter. He told her that he could not afford to make the child support payments and that he would not submit to an alcohol and drug evaluation, because he did not have a problem. He did not mention visitation.

After he contacted Okita, who was in Corvallis, father telephoned another CSD caseworker, Dickison, who was in Baker. Father requested that his mother be allowed to visit the child, but he did not request visitation for himself. Dickison responded that "[CSD] would arrange visits at any time for [father], and that he may bring his mother with him. But that [CSD was] not working with [her]." Dickison also restated the conditions previously outlined in Okita's letter. In June, 1988, the child was placed in foster care with a family in Baker. He has remained with the family since that time.

On March 3, 1989, a juvenile court hearing was set to give "father the opportunity to present a plan for reunification with his son." That court found that "father was served with notice of [the] proceedings and failed to appear[.]" It ordered CSD to "go ahead with their [sic] plans for termination of parental rights."

In April, 1989, Pike, a CSD consultant, sent father a letter. By that time, father was working as a farmhand. Pike inquired whether father would consider voluntarily releasing the child for adoption and outlined several points strongly suggesting that he release the child. He also gave father his telephone number, suggested that father call collect and offered to meet him at a location of his choice if he wanted to discuss the matter. Father never responded.

The petition for termination of father's parental rights was filed on July 31, 1989. In December, 1989, father tried to send two cards and a gift to the child. However, they were not given to the child, because CSD decided that it would not be in his best interests. On February 13, 1990, father's attorney contacted CSD in Baker and requested visitation for father, but CSD denied the request. The hearing on the petition for termination occurred on April 25, 1990.

The allegations in the petition correspond to several different subsections of former ORS 419.523. ¹ The trial court concluded that the state had failed to establish any allegations by clear and convincing evidence, see ORS 419.525(3), and that, even if the state had proven those allegations, "it would be an abuse of discretion to grant the Petition."

The state alleged that father has physically and emotionally neglected the child, has failed to "maintain a suitable or stable living situation for the child so that return of the child to the parent is possible" and has failed to present a viable plan for integrating the child into his home. ² Those allegations correspond to former ORS 419.523(2), which provided, in part:

"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:

" * * * * *

"(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 evidence regarding father's attempts to contact the child and CSD is conflicting. The trial court did not make any findings concerning the credibility of either father or CSD caseworkers who testified. Caseworkers testified that their records would document any attempted contacts by father. CSD records in evidence establish that father did not attempt to contact the child through CSD between September, 1986, and December, 1989. The records also reveal that father contacted caseworkers involved with the care of the child only twice during that period, both times in May, 1988, after Okita's letter to him. Father visited with the child only once during that period, in 1987, when mother brought the child to father. ³ CSD's records and the caseworker's testimony on this issue are more persuasive than father's testimony that, during this period, he attempted numerous contacts and visitations through CSD but was rebuffed or ignored.

Father argues that CSD interfered with his attempts to contact the child and the agency. The court found that CSD

"mishandled [the] case in the following particulars:

"(a) By taking the position that [father's] parental rights should be terminated shortly after CSD was granted the care, custody, and control of [the child] on October 17, 1985.

"(b) By failing to take adequate steps to determine whether [father] could become an adequate resource for [the child]. In April, 1989, CSD attempted to pressure [father] into releasing [the child] for adoption.

"(c) By failing to properly notify [father] of court appearances involving [the child]. [Father] received notices of these court appearances either on the day of the hearing or shortly following the hearing. As a result, [father] was denied his right to be heard on issues involving [the child]."

Notwithstanding those facts, father's neglect cannot be excused. CSD's position that his parental rights should be terminated, Pike's letter to him strongly suggesting that he release the child...