State ex rel. State Office for Services to Children & Families v. Frazier

• Decision Date: 25 February 1998
• Citation: 955 P.2d 272,152 Or.App. 568
• Parties: In the Matter of Rose Marie Frazier, a Child. STATE ex rel. STATE OFFICE FOR SERVICES TO CHILDREN & FAMILIES, Respondent, v. Gary FRAZIER and Glenda Kolacki, Appellants. In the Matter of Faith Ann Sparks, a Child. STATE ex rel. STATE OFFICE FOR SERVICES TO CHILDREN & FAMILIES, Respondent, v. Gary FRAZIER and Glenda Kolacki, Appellants. 95-040; 96-294; CA A95571 (Control); CA A95582. . *
• Court: Oregon Court of Appeals

Page 272

955 P.2d 272

152 Or.App. 568

In the Matter of Rose Marie Frazier, a Child.

STATE ex rel. STATE OFFICE FOR SERVICES TO CHILDREN &

FAMILIES, Respondent, v. Gary FRAZIER and Glenda Kolacki, Appellants.

In the Matter of Faith Ann Sparks, a Child.

STATE ex rel. STATE OFFICE FOR SERVICES TO CHILDREN &

FAMILIES, Respondent, v. Gary FRAZIER and Glenda Kolacki, Appellants.

95-040; 96-294; CA A95571 (Control); CA A95582.

Court of Appeals of Oregon,

In Banc. ^*

Argued and Submitted May 29, 1997.

Resubmitted In Banc Nov. 13, 1997.

Decided Feb. 25, 1998.

George W. Kelly, Eugene, argued the cause and filed the brief for appellant Gary Frazier.

Terrance P. Gough, Eugene, argued the cause and filed the brief for appellant Glenda Kolacki.

Erika L. Hadlock, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

DEITS, Chief Judge.

Mother and father appeal from a judgment terminating their parental rights to their two daughters. ORS 419B.500 (1995). On de novo review, ORS 419A.200(5), we affirm.

To terminate parental rights, the evidence in favor of termination must be clear and convincing. ORS 419B.521 (1995). In determining whether the state has met its burden of proof for termination under ORS 419B.504, (1995) ¹ the court must consider all of the factors listed in that statute and any other relevant considerations. See State ex rel. Children's Services Division v. Payne, 323 Or. 1, 4, 912 P.2d 904 (1996) (Graber, J., dissenting) ("ORS 419B.504 allows the trial court to consider any kind of 'conduct or condition detrimental to the child,' when '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.' "); see also State ex rel. Juv. Dept. v. Boren, 105 Or.App. 599, 607-08, 806 P.2d 149 (1991) (consider totality of circumstances). ² We give "considerable weight" to the trial court's findings on issues of credibility, due to the court's ability to see and hear the witnesses. State ex rel. Juv. Dept. v. Geist, 310 Or. 176, 194, 796 P.2d 1193 (1990). However, because our review is de novo, we must independently assess and evaluate the evidence. Boren, 105 Or.App. at 601, 806 P.2d 149.

Here, the trial court concluded that the state had met its burden to terminate the parental rights of both mother and father based on emotional illness, mental illness or mental deficiency of such a nature and duration as to render them incapable of providing proper care for these children for extended periods of time. The court also concluded that due to the parents' lack of effort to adjust their circumstances, conduct, or conditions to make the return of the children possible and their failure 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 under ORS 419B.504(1) and (5). The trial court explained its conclusions:

"[Father] has threatened to kill [mother] on multiple occasions, at least once holding a firearm to her head while she held the child, Rose Marie Frazier. The suggestion that [mother] made these allegations up to get shelter at Womenspace is simply not credible in view of her numerous open disclosures at other times, including two sworn abuse petitions. Moreover, despite his consistent unsworn denials of abuse, [father] did not testify in the trial of these cases. Accordingly, he did not deny the allegations under oath, nor did he subject himself to the rigors of cross examination.

"I also find Dr. Ewell's assessment of [father]'s mental state and outlook persuasive. [Father] is not a viable resource to raise either of these children. The evidentiary record abundantly supports this [finding]. Limited examples include [father]'s electrification of the living room couch, setting roof traps for prowlers, and his unhealthy, threatening relationship towards [mother]. The totality of the evidence supports both a disturbing and pessimistic assessment. The petitioner offered [father] the intensive psychotherapy services discussed by Dr. Ewell. [Father] rejected those services.

" * * * * *

"[Mother]'s circumstances were also credibly assessed by Dr. Ewell. Her parenting skills are weak, her intellect is limited, and she suffers from a personality disorder stemming from an unfortunate combination of causes which impair her chances to ever successfully parent children.

"[Mother] has accepted homemaker and parenting training, but has rejected sexual abuse counseling, and does not comprehend her need to seek the long-term intensive treatment recommended by Dr. Ewell. The most troubling aspect of this case lies in SCF's failure to offer [mother] the intensive, individualized psychotherapy discussed in Dr. Ewell's report after it was received by the agency in April 1995.

" * * * * *

"A significant variety of services were offered to [mother]. She even sought some services on her own. However, she refused one of the most critical services required in her case: sexual abuse treatment. Dr. Ewell's report makes clear that her prognosis for change is poor. [Mother] does not comprehend her need for intensive treatment.

" 'Under the most optimistic scenario, [mother] will probably require a year to two years intensive intervention, followed by long-term monitoring and supervision. * * *.'

"Significantly, when the agency decided to petition for termination, it met with both parents in June 1995. [Father] was adamant that he wished to parent Rose. The agency made it clear that ongoing services would be provided if desired. On the other hand, [mother] was acquiescent, and offered to turn Rose over to [father]. Her wholly inappropriate reaction was not only consistent with Dr. Ewell's assessment, but also highlights the bleak outlook for services to a parent who alternatively alleges, then denies violent abuse, and asserts then withdraws interest in parenting. * * *.

"There was no evidence that [mother] (who did not testify in trial) ever showed interest in therapy, even after she was represented by counsel in these proceedings. Moreover, her absconding with Faith Sparks from May to August 1996, portends ominously. The fact that Faith was found with her mother in the company of a man who [mother] alleges sexually abused her as a minor shows a strong resistance to change which yields to pessimism." (References to the record omitted; emphasis supplied.)

We will first address father's argument that the trial court erred in terminating his parental rights. The petition for termination alleged that father's parental rights as to Rose ³ should be terminated on the following grounds:

"[F]ather is unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into the father's home is improbable in the foreseeable future due to conduct or conditions not likely to change, including, but not limited to the following:

"(a) Addictive or habitual use of intoxicating liquors or controlled substances to the extent that parental ability has been substantially impaired.

"(b) An emotional illness, mental illness, or mental deficiency of such nature and duration as to render the father incapable of providing care for extended periods of time.

"(c) Mental, emotional, or psychological abuse of the child.

"(d) Physical and emotional neglect of the child.

"(e) Lack of effort to adjust the father's circumstances, conduct or conditions to make return of the child to the father possible, or failure 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."

We agree with the trial court that the state proved by clear and convincing evidence that father is unfit on the ground that he suffers from mental deficiencies that render him incapable of providing proper care for the children and that due to lack of effort to adjust his circumstances, conduct, or conditions to make the return of the children possible and his failure to effect a lasting adjustment after reasonable efforts by available social agencies that no lasting adjustment can be made. ORS 419B.504(1) and (5).

The evidence supporting our conclusion is as follows. At the time of trial, September 1996, mother was 21 and father was 51 years old. They are not married, but they began living together when mother was 18. Mother was sexually abused throughout her childhood by her mother's boyfriends. Father told a caseworker that he befriended mother and took her in to get her away from sexual abuse perpetrated by her mother's current boyfriend. Mother and father's first child, Rose, was born in April 1994. She was taken from them in January 1995. Faith was born in May 1996. The state immediately petitioned for termination of mother's parental rights as to Faith and obtained a warrant to seize her from mother. The state located and removed Faith from mother about three weeks before trial. Sometime during the period that father and mother lived together, father suffered a stroke. Mother and father separated for a period of time after Rose was removed. As of the time of the trial, they were once again living together.

Ewell, a psychologist who examined father and mother in April 1995, concluded that father suffers from a delusional disorder. He stated that people with a delusional disorder, who have persecutory delusions, sometimes act on those delusions, "thinking other people are out to harm them, even their spouses, and react physically or in a violent way [toward] them." Ewell said that a delusional disorder was likely to remain with some degree of permanency or rigidity. His prognosis was that father needed "long-term, intensive psychotherapy" before he could become a viable...