State ex rel. SOSCF v. Mellor

• Decision Date: 29 May 2002
• Docket Number: No. A112004, No. 98-11-28J-03; A112003 Control, No. 98-11-28J-02,98-11-28J, No. Petition
• Parties: In the Matter of Destinee Mae Mellor, a Minor Child. STATE ex rel. STATE OFFICE FOR SERVICES TO CHILDREN AND FAMILIES, Appellant, v. Mendi Jo MELLOR, Respondent. In the Matter of Destinee Mae Mellor, a Minor Child. State ex rel. State Office for Services to Children and Families, Appellant, v. Richard Lee Mellor, Respondent.
• Court: Oregon Court of Appeals

47 P.3d 19

181 Or. App. 468

In the Matter of Destinee Mae Mellor, a Minor Child.

STATE ex rel. STATE OFFICE FOR SERVICES TO CHILDREN AND FAMILIES, Appellant, v. Mendi Jo MELLOR, Respondent.

In the Matter of Destinee Mae Mellor, a Minor Child.

State ex rel. State Office for Services to Children and Families, Appellant, v. Richard Lee Mellor, Respondent.

98-11-28J, Petition Nos. 98-11-28J-02, 98-11-28J-03; A112003 (Control), A112004

Court of Appeals of Oregon, En Banc.

Argued and Submitted March 23, 2001.

Resubmitted May 14, 2002.

Decided May 29, 2002.

Denise G. Fjordbeck, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Theresa M. Kohlhoff, Wilsonville, filed the brief for respondent Richard Mellor.

No appearance for respondent Mendi Jo Mellor.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER, and BREWER, Judges.

Resubmitted En Banc May 14, 2002.

DEITS, C.J.

The State Office for Services to Children and Families (SCF) appeals from judgments denying its petitions to terminate mother's and father's parental rights to their child, D. SCF argues that it presented clear and convincing evidence that mother and father are unfit and that termination is in D's best interest. ORS 419B.504; ORS 419B.500; ORS 419B.521(1). On de novo review, ORS 419A.200(5)(b), we agree and reverse.

We begin by setting out background facts and the facts leading to D being taken into SCF custody. We describe additional facts in connection with the relevant discussion of factors supporting termination. Mother has four children, two with father. Mother's oldest child, A, is in foster care in Washington. At the time of trial in July 2000, a petition for termination of mother's parental rights to A, who was then nine years old, had been filed in Washington. Her second child, C, lives with his biological father, and mother has no contact with him. Her third child, D, and her first with father, is the subject of this termination proceeding and has been in foster care since she was 13 months old. Her fourth child, J—her second child with father—has been in foster care in Washington since October 1999, when he was three months old.

D was born on September 24, 1997. Although mother had had a history of housing instability, she and father lived in the same apartment for approximately two years, including most of the time D was in mother's and father's custody. Mother and father separated briefly beginning in late October 1998. The circumstances of this separation are somewhat obscure. Mother and D went to mother's brother's apartment to drop off some things she had been keeping for her brother. Mother and father had had an argument before mother left for her brother's apartment. When she arrived at her brother's apartment, she met a man, Flannery, who also lived in the apartment. Flannery told mother that her brother had said that father did not treat her well and that he, Flannery, could do better. Mother explained that she decided at that time to move in with Flannery because she felt that father had withdrawn his affection from her in favor of D and that father monopolized child's attention. Mother later explained that "I was being selfish. I wanted my daughter to myself. I didn't want to share her."

Mother lived with Flannery for approximately three weeks. D lived with them for part of the time. Mother's brother and his wife also lived in the apartment. Mother knew that her brother was a convicted sex offender prohibited from having contact with minors. However, brother lived in the apartment while mother and D lived there. Although mother testified that her brother moved out because she and D moved in, the trial court found mother's testimony on this point to be not credible, and so do we.

Shortly after mother moved out, father obtained a restraining order prohibiting mother from having contact with D. In his application for the restraining order, father alleged that mother had hit him and D. At trial, however, father said that there had never been domestic violence in his household. Father explained that he had not filled out the application for the restraining order but had let a friend fill it out and thought that the contents of the application were "none of my business." Father apparently used the restraining order to convince mother to give him custody of D for a few days, but he later agreed to let mother take D with her to live with Flannery again.

On November 9, 1998, father called the Portland Police Department and asked to have D removed from mother's custody and given to him. Officer Hurley responded to the call. Hurley described the neighborhood of the apartment where mother was living as an area that is known to police for drug and gang activity. The apartment complex was subsequently closed down as a chronic crime site. When Hurley arrived at the apartment where mother was living, mother told her that father had had the restraining order dismissed on November 6. Hurley confirmed with the Clackamas County Sheriff's Office that the order had been dismissed, but she testified that she was still concerned about D's safety. Hurley's first concern was about mother's brother's access to D. She was also troubled by D's condition that night. Although it was a very cold night, mother brought D outside for an extended time wearing only a light sleeper. Although Hurley asked mother several times to take D inside out of the cold, mother refused to do so. Later on, mother could find no clean or warmer clothes for D or any diapers. Mother told Hurley that she had brought six diapers when she had taken D back from father three days before and had not bought any more.

D was dirty and her clothes were dirty and smelled bad. Hurley testified that, when she changed D's clothing and diaper later at the police station, she saw that "[h]er feet were so dirty that they were almost black. It was very obvious that this child had not been bathed in a long time. Her face was dirty. Her hands were dirty. * * * She had dirt under her toes and fingernails." Mother gave Hurley a bottle to take with her that appeared to have mildew in it. Hurley contacted SCF and, at the direction of D's caseworker, took D into custody.

Also on November 9, father was arrested in connection with the dismissed restraining order. Father took the position at trial that it was not his idea to try to get D back that night. He said that some of his sister's friends came to his house, saw that he was unhappy, and decided that he needed to get his child back; according to father, he just went along with what they told him.

After D was removed from their custody, both mother and father entered into several service agreements with SCF. Although mother and father did participate in many of the services identified in the agreement, SCF found that mother and father were not making any significant changes as a result of the services. We disagree with the dissent that mother and father "fully" participated in services. 181 Or.App. at 496, 47 P.3d at 35 (Edmonds, J., dissenting). Based on that failure and on a October 1999 psychological evaluation by Dr. Ewell, which we discuss in some detail below, 181 Or.App. at 479-80, 47 P.3d at 35-40, SCF decided to seek termination of mother's and father's parental rights to D. In May 2000, SCF filed petitions to terminate their parental rights. Although the petitions alleged both unfitness, ORS 419B.504, and neglect, ORS 419B.506, SCF pursues only the unfitness ground on appeal.

Our task on de novo review is to determine whether clear and convincing evidence in the record supports the conclusion that mother and father are presently unfit to parent D as a result of conduct or conditions that are seriously detrimental to D and that the integration of D into mother's and father's home is improbable within a reasonable time due to conduct or conditions not likely to change. ORS 419B.504; State ex rel. SOSCF v. Stillman, 333 Or. 135, 145-46, 36 P.3d 490 (2001). The standard of clear and convincing evidence requires a showing that it is highly probable that mother and father are not presently able, and will not be able within a reasonable time, to meet D's physical and emotional needs. State ex rel. Juv. Dept. v. Johnson, 165 Or.App. 147, 156, 997 P.2d 231 (2000). If that standard is satisfied, we must then decide whether termination is in D's best interest. ORS 419B.500; State ex rel. SOSCF v. Hammons, 170 Or.App. 287, 297, 12 P.3d 983 (2000), rev. den. 331 Or. 583, 19 P.3d 356 (2001).

As the Supreme Court explained in Stillman, generally, a court may terminate parental rights for the purpose of freeing a child for adoption if "the court finds that termination is in the best interest of the child." 333 Or. at 144, 36 P.3d 490. The court further observed that the "specific bases" for termination are set out in ORS 419B.502 to ORS 419B.508. Id. One of those statutes, and the statute relevant here, is ORS 419B.504. Under ORS 419B.504, parental rights may be terminated if we conclude that parents are "unfit by reason of conduct or condition seriously detrimental to the child" and that "integration of the child into the home of the * * * parents is improbable within a reasonable time due to conduct or conditions not likely to change." ORS 419B.504 provides a nonexclusive list of factors that the court must consider in determining whether a parent is unfit and in determining whether the circumstances making the parent unfit are unlikely to change. Stillman, 333 Or. at 147, 36 P.3d 490 ("statutory examples [in ORS 419B.504] are just that—examples"). The statutory factors relevant to this case are:

"(1) Emotional illness, mental illness or mental deficiency of the parent of such nature and duration as to render the parent incapable of providing proper care for the child for extended

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