State v. McMaster
| Citation | 4 Or.App. 112,91 Adv.Sh. 771,476 P.2d 814 |
| Parties | In the Matter of Anna Christine McMaster, a minor child. STATE of Oregon, Respondent, v. Edward McMASTER and Grace Nadine McMaster, natural parents of Anna Christine McMaster, Appellants. |
| Decision Date | 16 November 1970 |
| Court | Court of Appeals of Oregon |
Douglas S. Green, Legal Aid Service, Beaverton, argued the cause and filed the briefs for appellants.
Elizabeth Preston, Deputy Dist. Atty., Portland, argued the cause for respondent. With her on the brief was George Van Hoomissen, Dist. Atty., Portland.
Before SCHWAB, C.J., and LANGTRY and BRANCHFIELD, JJ.
Mr. and Mrs. McMaster appeal from a judgment order of the juvenile department of the Multnomah County Circuit Court, dated September 9, 1969, terminating their parental rights to Anna Christine McMaster under the provisions of ORS 419.523(2)(a).
The child was illegitimately born to Mrs. McMaster on June 16, 1965. On August 1965, on complaint about neglect of the child by neighbors, a petition alleging dependency was filed in the juvenile court by police. The child has been continuously in foster care under supervision of welfare and orders of the court from that time. She was made a ward of the juvenile court in April 1966.
The parents were married on October 11, 1965. The record shows that another child, who remained in their care, was born to them in 1966, and another, born in 1967, lived only two months.
The welfare caseworker assigned to the case testified, '* * * in my caseload this case has probably been given as much or even more attention than any other case * * * home visits, supervision and * * * other community resources such as child guidance, vocational rehabilitation, and so on.'
There was evidence that the parents have visited the child sporadically. One period of 10 months elapsed without a visit. They have talked of releasing the child for adoption, have never paid anything toward the child's support, and they have been continually supported by welfare. Mr. McMaster has borderline intelligence, was once committed to Fairview Home for the mentally retarded. He has had numerous jobs all of which he held for only a few days, usually because he simply didn't show up to continue with them. There have been at least fifty occasions in four years when he has abandoned the home, usually with the welfare money, to return when it was gone. A conservator has been appointed to supervise the spending of their welfare money.
They have moved often. While living in Wasco County, Mrs. McMaster was described as wandering the streets late at night with their other child, seeking someone to take her to Portland to look for her husband. There were complaints from neighbors that their auto court home was a hangout for 'delinquent type' teenagers, and that cars were running in and out late at night. There was testimony of violent quarrels between them.
Their sporadic visits with Anna had a traumatic effect on the child. A physician who attended her after one of the more recent visits testified that he attributed a bowel disorder the child then had to the visitation:
'* * * (T)he reason is a visit by the genetic mother, that is a traumatic thing for the child and she just can't handle it.'
The evidence was much more detailed, but the above re sume demonstrates the evidentiary basis the juvenile court judge had for his decision.
Essentially, the errors asserted are that the statutory authority for the court's order is unconstitutionally vague (invoking the Due Process Clauses of the state and federal constitutions), and that the evidence does not support the judgment.
Pertinent provisions of Oregon's juvenile code provide:
ORS 419.474(2). 'The provisions of ORS 419.472 to 419.587 shall be liberally construed to the end that a child coming within the jurisdiction of the court may receive such care, guidance and control, preferably in his own home, as will lead to the child's welfare and the best interests of the public, and that when a child is removed from the control of his parents the court may secure for him care that best meets the needs of the child.'
ORS 419.476. '(1) The juvenile court has * * * jurisdiction * * * (of a child whose parents have):
'* * *
'(e) * * * failed to provide him with the care, guidance and protection necessary for his physical, mental or emotional well-being * * *.'
ORS 419.523. '(1) The parental rights of the parents of a child within the jurisdiction of the juvenile court * * * may be terminated * * *:
'(2) * * * (I)f the court finds that the parent or parents:
'(a) Are unfit by reason of conduct or condition seriously detrimental to the child.'
In State v. Blum, Or.App., 90 Adv.Sh. 29, 463 P.2d 367 (1970), we construed the latter provision to encompass a situation where a child's only known parent is insane, approving the observation that "the emotional welfare of the child requires that he be integrated as a member of a family." Much that we said in Blum is applicable to the case at bar. We held that the meaning of the 'word 'condition' in ORS 419.523(2)(a), separated by the disjunctive from the word 'conduct,' is clear.' In the case at bar, the juvenile court's decision is based upon the words 'condition or conduct' used together. Facts indicating either condition or conduct, or a combination of both, which justifies termination of parental rights is contemplated by the statute. The defendants contend that the use of these words is vague, and under State v. Hodges, 254 Or. 21, 457 P.2d 491 (1969), the statute leaves the public uncertain as to what may result in termination of parental rights, and judges free to decide without statutory standards. In In Re Adoption of Smith (Simons et ux. v. Smith), 229 Or. 277, 366 P.2d 875 (1961), an adoption case, the court said that where a statute is attacked as violative of due process, a finding that it is unconstitutional for this reason 'should be avoided if possible.' See also State ex rel. Nilsen v. Whited, 239 Or. 149, 154, 396 P.2d 758 (1964). We...
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State v. McMaster
...authorized the Oregon State Public Welfare Commission to place the child for adoption without consent of the parents. Or.App., 91 Adv.Sh. 771, 476 P.2d 814 (1970). Two questions are presented for (1) Whether the trial court erred in overruling a demurrer to the petition to terminate parenta......
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...there is less reason for applying the substantive due process requirements of the criminal law. See State v. McMaster, Or.App., 91 Adv.Sh. 771, 476 P.2d 814 (1970), reversed Or., 92 Adv.Sh. 1563, 1568, 486 P.2d 567 The remand statute sets out the specific criteria for determining whether a ......
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State ex rel. Juvenile Dept. of Multnomah County v. Patton
...unusual circumstances. However, of paramount concern in a proceeding such as this is the welfare of the child. State v. McMaster, Or.App., 91 Adv.Sh. 771, 476 P.2d 814 (1970); State v. Blum, 1 Or.App. 409, 463 P.2d 367 On May 18, 1965, the juvenile court made the child Robert, then age 11 m......