State v. Grady

• Decision Date: 02 May 1962
• Citation: 231 Or. 65,371 P.2d 68
• Parties: STATE of Oregon, Respondent, v. Deanna Doreen GRADY, Appellant.
• Court: Oregon Supreme Court

Page 68

371 P.2d 68

231 Or. 65

STATE of Oregon, Respondent, v. Deanna Doreen GRADY, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted April 13, 1962.

Filed May 2, 1962.

James L. Hershner, Eugene, argued the cause and filed briefs for appellant.

Joseph J. Brown, Deputy Dist. Atty., Eugene, argued the cause for respondent. With him on the brief was William F. Frye, Dist. Atty., Eugene.

Before McALLISTER, C. J., and WARNER, SLOAN and GOODWIN, JJ.

WARNER, Justice.

This is a proceeding instituted under ORS 419.525 in the Circuit Court for Lane County, Juvenile Department, at the instance of the Welfare Commission of that county. It seeks to terminate the parental rights of the defendant in her youngest child. From an order permanently terminating such rights, the defendant mother appeals.

At the time of the hearing (August 25, 1961) the defendant was 20 years old. She is the mother of three young daughters. The youngest is the subject of this proceeding and was 10 months old at that time.

The defendant's life since she first left home at the age of 15 with her mother's consent has been crowded with heartache and tragedy, much of it of her own madcap making. In that relatively short time she has been in the custody of juvenile authorities, borne three little girls, two out of wedlock; and been married once, in February, 1958. It was a union which lasted less than two years. Shortly after her divorce, she was convicted of forgery (July 15, 1960) and sentenced to a term of five years, but released on probation. At that time she was carrying the subject child who was born on October 19, 1960. On December 2, 1960, she was taken into custody for violating the conditions of her probation. It appears from the record that she will be considered for parole sometime in June of this year.

We do not condone her conduct, but we do not close our eyes to testimony revealing, as a partial explanation for its pattern, the fact that, when 11 years old, her parents were divorced. Until she left home, she lived with her mother, two younger and two older sisters, and stepfather. In her meanderings from home and various foster homes, she went to her father, in Lane county, but he declined to let her live with him. Her mother described her as a person who felt 'left out' of the family and as one unloved.

The question presented by this appeal is whether the petitioner has established by a preponderance of competent evidence that defendant was unfit to continue the parental relationship by reason of conduct or conditions which were seriously detrimental to the child as required by ORS 419.525(2).

Before parental rights can be terminated without the consent of the parent, the juvenile court must find (a) that the parent or parents are unfit by reason of conduct or conditions seriously detrimental to the child; or (b) that they have abandoned the child. ORS 419.523(2).

The rights of parents are not necessarily terminated as a matter of law because of a parent's incarceration in a penal institution. Indeed, Mr. Viegas, a child welfare worker for the Lane County Juvenile Court and Welfare Commission, and the person who signed the petition for and in behalf of the latter organization, testified that in his opinion he did not believe such a confinement was of itself sufficient to justify a cessation of a parent's rights to a child.

We know that an incarceration does not legally effectuate a parental abandonment of a child so as to waive the necessity for a consent to a proposed adoption. Welker's Adoption, 50 Pa.Dist. & Co.R. 573 (1944); Annotation, 35 ALR2d 662, 693. Nor do we think that such an enforced separation of the parent from a child warrants an inference that the convicted parent, especially a mother of a child of tender age, has suffered any diminution of her natural maternal instincts or desires to resume the custody and care of such infant after her release. The evidence here strengthens our conviction in the righteousness of that conclusion. It shows her continuing interest and inquiry by correspondence in the welfare of her two older daughters, who at the time of the hearing were in the care of defendant's mother. It speaks of her fruitless efforts to locate through the officers of the Welfare Commission the whereabouts of the youngest child. We deem it of no little significance and a display of the depth of her maternal regard that, notwithstanding her penal situation, she elected to contest the effort to take the child away from her forever, and failing in the trial court, initiated this appeal.

In Shrout v. Shrout, 224 Or. 521, 525, 356 P.2d 935 (1960), we affirmed the rule 'that not every act of indiscretion or immorality should deprive a mother of the custody of her...