State ex rel. SOSCF v. Wilcox

• Citation: 162 Or. App. 567,986 P.2d 1172
• Parties: In the Matter of Christian Wilcox and Savannah Wilcox, Minor Children. STATE ex rel. STATE OFFICE FOR SERVICES TO CHILDREN AND FAMILIES, Appellant, v. Diana Michelle WILCOX, aka Diane Michelle Locks, Respondent.
• Decision Date: 15 September 1999
• Court: Court of Appeals of Oregon

986 P.2d 1172

162 Or. App. 567

In the Matter of Christian Wilcox and Savannah Wilcox, Minor Children.

STATE ex rel. STATE OFFICE FOR SERVICES TO CHILDREN AND FAMILIES, Appellant, v. Diana Michelle WILCOX, aka Diane Michelle Locks, Respondent.

(96-565CF; CA A101863)

Court of Appeals of Oregon.

Argued and Submitted October 23, 1998.

Decided September 15, 1999.

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.

Laura Graser, Portland, argued the cause and filed the brief for respondent.

Before LANDAU, Presiding Judge, and LINDER and WOLLHEIM, Judges.

WOLLHEIM, J.

The state appeals the trial court's denial of its petition to terminate the parental rights of mother to two minor children. The state contends that the court erred in its consideration of the children's needs in determining whether integration of the children into mother's home "is improbable in the foreseeable future." ORS 419B.504 (1995). We review the trial court's findings de novo, ORS 419A.200, assessing whether there exists clear and convincing evidence for termination. State ex rel. Juv. Dept. v. DeVore, 108 Or.App. 426, 430, 816 P.2d 647 (1991). We reverse and remand.

For four years the State Office for Services to Children and Families (SCF) has worked with mother to reunite this family. During those four years, SCF twice attempted to place the children with mother and both times had to remove them due to mother's alcohol abuse.¹ A third return to mother was imminent in the fall of 1997 before SCF resolved to proceed with the termination of parental rights. Mother has entered numerous service agreements with SCF, all of which have listed mother's abstinence from drugs and alcohol as a prerequisite to the return of her children. Other prerequisites called for mother to provide stable housing, secure stable employment, as well as participate in the children's early intervention programs. SCF also provided parenting classes as well as counseling for mother during part of this four-year process.

Through the four years, mother missed some visitation appointments with her children but by and large exhibited a high level of interest in them and, in various degrees, a willingness to work with SCF for the children's return. Mother, however, has had trouble maintaining sobriety and stable housing. She has been in and out of drug and alcohol treatment for four years and has completed two treatment programs, including a year-long residence and intensive out-patient program, and has relapsed after completing each. At the time of the termination hearing in January 1998, mother was entering yet another treatment program, and the children, ages four-and-a-half and three, were in the protective custody of SCF. We recite the facts in more detail.

SCF's first contact with the family was in late 1993. On Christmas Day 1993, mother returned home from her job to find her 19-month-old son badly beaten. Son was taken to the local hospital where injuries to his face, neck, and feet were treated. Hospital authorities contacted SCF because the injuries appeared to be due to intentionally inflicted trauma. Son had been in the care of mother's boyfriend, Gibson, who had been living with the family for about a month. Son had suffered two to three other injuries while in Gibson's care during that month. However, mother had believed Gibson's explanations for them.² There was evidence that Gibson's mother had warned mother on Christmas Eve that Gibson might have been mistreating son.

SCF took protective custody of son, intending to return him to mother after appropriate services were arranged. Mother severed her relationship with Gibson and cooperated with SCF. In the spring of 1994, she entered a service agreement with SCF and underwent a psychological evaluation. Because mother's history included substance abuse, SCF, in its first service agreement with mother, required mother to seek counseling and to stay "clean and sober."

At the termination hearing, mother admitted to heavy alcohol use after son was removed by SCF, even after she learned she was pregnant with daughter. Son was returned to mother in June 1994, when mother was six months pregnant with daughter. Mother testified that she did not use drugs or alcohol from the time son was returned until the day before daughter's birth in September 1994. Mother admitted taking methamphetamine the day before and drinking alcohol the day of daughter's birth. SCF again responded to the hospital's call based on mother's self-report. SCF took protective custody of son and daughter in the fall of 1994. Daughter exhibited traits of a drug-affected child.

SCF's new service agreement required mother to enter substance abuse treatment. After treatment, relapse, and more treatment, children were returned to mother in June 1995. However, in July 1995, children were returned to protective custody after SCF discovered that mother had consumed alcohol and had reportedly lost housing. After an unsuccessful attempt to settle the children in California foster care, where mother could seek treatment in the company of a family support network, children were returned to Oregon in March 1996. In May, mother also returned to Oregon after withdrawing from her California treatment program due to financial difficulty as well as a desire to be close to her children. In June 1996, at SCF's request, mother underwent a second psychological evaluation and entered a year-long residential and intensive out-patient treatment program. In July 1997, mother suffered another relapse into alcohol use. In October 1997, mother was arrested for driving under the influence of intoxicants (DUII) with a blood alcohol content of 0.23 percent.

SCF repeatedly warned mother that the consequences of her alcohol abuse would be that SCF would proceed with termination proceedings. Indeed, mother was aware that SCF filed the petition for termination of her parental rights in mid-1996. Rather than proceed with the petition, SCF decided to continue to work with mother because she appeared to be making progress toward providing a safe and sober environment for her children. Twice SCF requested that trial dates be postponed because mother appeared to be making progress. However, following the DUII arrest in 1997, SCF decided to proceed with the termination petition.

At the termination hearings in January and February 1998, the court did not grant the petition to terminate mother's rights under ORS 419B.500 and ORS 419B.504 (1995). The trial court found that the state proved by clear and convincing evidence that mother was presently unfit to parent but did not prove by clear and convincing evidence that mother's rehabilitation and integration of children into her home was "improbable in the foreseeable future." ORS 419B.504 (1995).³ The state challenges that latter finding, arguing that the trial court failed to consider the "entire circumstances," which it asserts demonstrate that the children's reintegration into mother's home is improbable in the foreseeable future. State ex rel. SOSCF v. Frazier, 152 Or.App. 568, 598, 955 P.2d 272,rev. den. 327 Or. 305, 966 P.2d 220 (1998) (emphasis in original).

The Oregon Supreme Court has explained that, under the pre-1997 versions of ORS 419B.500 and ORS 419B.504, determining whether termination is warranted is a two step process:

"`Even if a court determines that a child's best interests will be served by a termination of parental rights, it may not be ordered unless the statutory grounds for termination have been established by clear and convincing evidence.'" State ex rel. Juv. Dept. v. Beasley, 314 Or. 444, 452, 840 P.2d 78 (1992) (quoting State ex rel. Juv. Dept. v. Geist, 310 Or. 176, 189 n. 15, 796 P.2d 1193 (1990) (emphasis in original)).

Thus, the court must first examine whether the state has proven by clear and convincing evidence that a parent is unfit to care for a child in the foreseeable future and only if that is established may the court then examine what measures are in the best interests of the children.

ORS 419B.504 (1995) sets forth the statutory grounds for termination applicable here. It authorizes the termination of parental rights on a finding of unfitness. The state must establish by clear and convincing evidence the existence of conditions or conduct, including but not limited to addictive or habitual use of intoxicating liquors, that substantially impairs one's parental ability. See State ex rel. Juv. Dept. v. Randall, 96 Or.App. 673, 675, 773 P.2d 1348 (1989)

. The state must prove that mother is presently unfit to parent the children and then must prove that the present unfitness is unlikely to change, making integration of the children into mother's home improbable in the foreseeable future. State ex rel. Juv. Dept. v. Pennington, 104 Or.App. 194, 201, 799 P.2d 694 (1990),

rev. den. 311 Or. 166, 806 P.2d 1153 (1991); State ex rel. Juv. Dept. v. Herman, 69 Or.App. 705, 709, 687 P.2d 812 (1984).

We review the trial court's decisions de novo, weighing whether the state proved by clear and convincing evidence the elements warranting termination of parental rights. DeVore, 108 Or.App. at 428, 430, 816 P.2d 647. However, we give considerable weight to the trial court's findings, especially those based on witness credibility, because the trial judge, as trier of fact at a hearing, was in the best situation to assess the credibility of the witnesses. State ex rel. Juv. Dept. v. Boren, 105 Or.App. 599, 601, 806 P.2d 149 (1991).

The court found that the state established the first element and that "[m]other has an addictive or habitual use of intoxicating liquor to the extent that her parental ability has been substantially impaired."⁴ We similarly conclude that the state presented clear and convincing evidence that mother's ability to parent was substantially...