Resubmitted in banc June 12, 1996.
The state and children appeal the trial court's denial of the state's petition to terminate the parental rights of mother and father. The petition alleged that parents were unfit because, inter alia, "father was convicted of cruelty and endangering the health of a
Father and mother have two children: Myrna, born in November 1990, and Paul, born in January 1992. Mother, who is 13 years older than father, was separated from her first husband when she and father began a sexual relationship in February 1990. They married in November 1990, about a month after her first marriage ended in divorce. Mother's four children from her first marriage lived with them at various times, both in California and, later, in Montana. Two of those children are Oliver III, born in November 1975, and Roby, born in April 1984. While living with mother and father in California, Oliver III was adjudicated as a juvenile for the sexual abuse of Roby.
In the spring of 1992, mother and father were living in Butte, Montana, and Roby returned to California to live with her biological father. Roby reported to her father that, when she was living with mother and father in California, father had sexually abused her. On the basis of Roby's allegations, father was arrested on April 13, 1993, in Portland, where he and mother had moved with Paul and Myrna in the fall of 1992. In December 1993, father admitted to a Portland police detective that there had been three incidents of inappropriate touching involving Roby, all of which, according to him, were initiated by her. Father explained Roby's behavior as a result of Oliver's having molested her.
Father was extradited to California to stand trial for the abuse of Roby, charged with one count of lewd and lascivious conduct against a child. Cal Penal Code § 288(a). After a preliminary hearing at which Roby testified, father was held to answer on two counts under § 288 of the California penal code. On September 8, 1993, he entered a no contest plea to the reduced charge of cruelty toward and endangering the health of a child. Cal Penal Code § 273(a)(1). He was sentenced to five years probation, ordered to undergo psychological counseling, and prohibited from residing or working around minors without court permission. Father's probation will end in September 1998.
On January 28, 1993, because of Roby's allegations, CSD placed Myrna and Paul in foster care. The medical examination of Paul was normal except for some head bruises. Myrna, however, was very "fearful and resistive" when her genitals were examined, and the physical revealed an "abnormal" genital area. The child had almost no hymen. The only explanation that the doctor could give for that abnormality was chronic sexual penetration. In March 1994, the children were found to be within the jurisdiction of the juvenile court. The court found that Myrna had been sexually abused while in her parents' care.
In May 1994, seven months after husband's criminal conviction in California, mother decided to move from Portland to California to live with her parents while her children remained in the custody of CSD. Mother's parents live about two hours from where father was then living. The move was against the recommendations of CSD, which was concerned about mother's lack of visitation with the children while she was in California. Nonetheless, mother moved without finalizing arrangements with CSD for visitation or a transfer of the children to California. Mother claimed that the move was necessary because her landlord had raised the rent for her apartment. She also said that living with her parents would allow her to seek vocational training and counseling in preparation for the return of her children. The record shows, however, that mother's rent in Portland increased only $30.00 per month and that she did not adequately explore other options that would have allowed her to stay with her children. Apparently, she did check the YWCA shelter for vacancy, but, upon finding it full, did not
While in California, mother did not contact CSD to request any visitation with her children until the day of the scheduled hearing. At that point, CSD had determined that further visits would be detrimental to the children. Consequently, it told mother that it would not allow visitation and that it had decided to seek termination of her parental rights.
The record also does not show any effort by mother, while in California, to pursue services designed to help her care for her children on an independent basis. There is no evidence that she participated in any social services, individual counseling, or vocational training. Further, there is no evidence of any support by her family in California. No one in her family offered letters of support for mother or indicated in any way that they would serve as custodial resources. In December, after mother had been in California long enough to meet residency requirements, she filed for divorce from father. The termination proceeding was held in April 1995. The trial court denied the petition for termination for both parents.
Appellants assign error to several rulings by the court that excluded evidence relating to father's treatment of Roby or his children.
We first conclude that the state proved by clear and convincing evidence that father is unfit and that integration of the children into his home is unlikely in the foreseeable future. Under ORS 419B.504, the rights of a parent may be terminated "if the court finds that the parent or parents are unfit by reason of conduct or condition seriously detrimental to the child," including "[c]onduct toward any child of [a] sexual nature."
Father first argues that his California conviction should not be considered evidence of inappropriate sexual conduct, because the basis for his California conviction is "unclear" and does not concern either of the children involved in this proceeding. We do not agree. The transcript from the preliminary hearing relating to that conviction shows that father sexually abused Roby on more than one occasion while the family was living together in California. We have clearly held that the conditions that a court may consider in termination proceedings under ORS 419B.504
In addition to evidence that the parents' home was an abusive environment, there is also considerable evidence in the record that father actually was physically abusive to Paul and Myrna. The children's older siblings testified that he routinely smothered the children with pillows and blankets when they cried. They also said that he reacted violently to Myrna's crying, once throwing her to the floor and causing her nose to bleed. The older siblings said that they often took action to protect the younger children from father. There is also overwhelming evidence that Myrna was sexually abused while in the care of mother and father. We conclude that the state has proven by clear and convincing evidence that father is unfit by reason of conduct or conditions that are seriously detrimental to the children.
We also conclude that the record here clearly and convincingly establishes that integration into father's home in the foreseeable future is highly unlikely. Father does not contend that he presently is a custodial resource, and, indeed, until September 1998, the conditions of his probation do not allow him to reside in a home where there is a child under the age of 18. He argues, however, that his parental rights should not be terminated because he intends "to have supervised visitation" with his children. He asserts that the children will be in mother's home and, therefore, they will be integrated into the home of a parent, as required by ORS 419B.504. Father's argument fails, however, because, as we will discuss, we conclude that mother's parental rights should also be terminated.
Moreover, the evidence does not show that father's conduct is likely to change in the foreseeable future. He argues that his cooperation with the social services that have been offered to him and with the conditions of his probation demonstrate his efforts to adjust his behavior to allow return of the children. We are not persuaded. We do not find that the record demonstrates significant progress towards that adjustment. In July 1994, Dr. Rozynko, a clinical psychologist specializing in sex offenders, performed an evaluation of father. He recommended specific behavioral treatment. He found that father has difficulties with excessive anger, impulse control and possible violence. He expressed the opinion that father "will likely have difficulty in recognizing his problems and dealing with them in psychotherapy." The state is correct that the record is "meager" at best as to what treatment, if any, father has obtained subsequent to that evaluation. Father appears to have been involved with some individual counseling, but there is no evidence that any counseling has assisted father in controlling his anger or in resolving tendencies to molest children.
We turn to the question of the termination of mother's parental rights. The state sought to terminate mother's parental rights under ORS 419B.504,
The record is clear that three of mother's children have been subject to severe sexual abuse while in her care. For example, Dr. Thomas, the physician who examined two-year-old Myrna testified that she had almost no hymen. He has examined over 2,000 children for possible sexual abuse, yet, he stated that, "I've never seen a child this young with an examination with that little hymen, and that large of an opening." He testified that it was his opinion that the injury to her hymen was caused by chronic repeated sexual penetration. He estimated that Myrna had been sexually penetrated between 20 and 100 times.
During the time period that Myrna was abused, mother was the primary caretaker of both Myrna and Paul. Yet, she completely denies that the children displayed any unusual behaviors or signs of abuse. This is in stark contrast to the description of the children given by the foster mother, with whom they were placed after being removed from mother's home.
The foster mother testified that she immediately observed very troubling behavior. She said that Myrna masturbates and that when she plays with her dolls she always pulls down their underpants. She also stated that both children were very fearful when they first came under her care. She said that Myrna had an extreme fear of being diapered. Myrna would "uncontrollably cry and squeeze her legs together." Both children would wake up numerous times during the night with nightmares. The foster mother described finding Myrna several times on the floor partially under the bed struggling in her sleep to get away from some invisible foe. Both children were afraid of running water. If Paul heard any sounds of running water, he would start crying and shaking and shivering. Both were also fearful of loud voices. Myrna would freeze when she heard loud voices, and Paul would start shaking and shivering. The foster mother said that the children were "in constant need of knowing if there's food there." Apparently, mother and father kept locks on the cupboards and refrigerator to keep food costs down.
At trial, when mother was asked if the infants had any fears when they were living
Mother's behavior with respect to the abuse of her daughter Roby also demonstrates mother's inability to protect her children. She was completely unable to recognize that her daughter, Roby, was being abused. At the very least, the circumstances should have alerted mother to possible abuse. One of her other children testified that mother was aware of physical abuse of the children by father. The child testified that mother was in the house on at least two occasions when the sexual abuse occurred. Other witnesses testified that Roby was very frightened of father. As noted above, the abuse of Roby was the basis of father's California criminal convictions. Yet, throughout these criminal proceedings, mother was completely supportive of father and angry at Roby.
No one contends that mother was the perpetrator of any of the abuse that occurred. That, of course, makes this case more difficult. We have held, however, that in the appropriate circumstances, a failure to protect a child is sufficient reason to terminate a person's parental rights. Ricks, 118 Or.App. at 572-73, 848 P.2d 630; DeVore, 108 Or.App. at 432-33, 816 P.2d 647. The critical question in a case such as this is whether mother will be able to adjust her behavior so as to protect her children in the foreseeable future. After reviewing the evidence presented here, we are convinced that there is clear and convincing evidence that mother will not be able to adjust her behavior to protect her children in the future.
One reason for reaching that conclusion is that mother has received adequate services to assist her in improving her parenting skills, but she has been unable to benefit from them. The record indicates that after CSD became involved in the case, mother received services ranging from individual counseling to group counseling that addressed domestic violence and child sexual abuse. Although mother did attend the classes and, according to her instructors, seemed to absorb the information, she has shown a consistent inability to apply that information to her own family. Riggs, mother's caseworker for CSD's permanent planning unit, indicated that mother was quite capable of echoing the information that she had been given, but has failed to adjust her underlying belief system. She testified:
Mother did receive some positive reports from the service providers. However, at least two of those reports were based on incorrect information provided by mother. Spohn, mother's caseworker at the YWCA,
With respect to the evidence of Myrna's sexual abuse, Spohn wrote:
When confronted at trial with the fact that mother had provided her false information, Spohn withdrew her support of mother:
"A Yes. Yes.
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LaFrance, the leader of mother's domestic violence group wrote a letter of support for mother on January 12, 1994, in which she stated, "When discussing her children [mother] is able to express her frustration with the [child welfare system] without blaming her children." However, when LaFrance was confronted with conflicting evidence at trial, she also tempered her support of mother:
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"Q Okay. Would you find it concerning that she took the same position in March of this year, in a subsequent psychological evaluation, that she blamed
Probably the most troubling aspect of mother's circumstances is that despite the information available to her, and despite the programs offered to her, even as late as the time of trial, mother was in complete denial of the possibility that father had abused the children. In a letter in January 1994, Carnaghi, a social services specialist, states that, in July 1993, mother was actively participating in services but was "in denial about her children being abused and that [father] presented a threat of harm to her children." Individual counseling was recommended to determine whether mother "was able to internalize what she had learned." Mother enrolled in counseling at the YMCA. However, Carnaghi's report shows that, in January 1994, mother was still in denial in spite of father's conviction related to the sexual abuse of her daughter.
A psychological evaluation of mother in May 1994 by Dr. Volkin, a clinical psychologist, shows continuing denial. Volkin found that mother had a "pattern of dependent relationships with men," and stated that, despite "having been in various kinds of treatment aimed at enhancing her knowledge of offenders and molesting children[,]" and "[d]espite disclosure of molest[ation] by two of her children as well as incriminating medical findings from her younger children concerning [father's] treatment of her younger children, [mother] steadfastly maintains her view of him as having been wrongly accused." Mother explained that father's plea of no contest was made to an allegation of having placed Roby in an unsafe environment, not as to the allegation of sexual abuse. She also blamed Roby for lying about the molestation as a means to break up mother's relationship with father. Volkin stated that mother's plan to divorce father was "motivated solely by her wish to secure the return of her children, rather than by any concern as to [father's] risk of maltreating them."
No fundamental change in mother's denial is reflected in the evaluation of mother by Dr. Vien, a psychologist, which was made in March 1995, shortly before trial. Although Vien found no severe psychopathology, he concluded that mother was passive, subservient and dependent in relationships. She remained equivocal regarding allegations that father sexually and physically abused her children, stated that she did not observe the abuse or any significant changes in her offspring. Her plan to protect her children was to "avoid future heterosexual relationships." Even at the termination hearing, mother continued to confirm her belief that father did not sexually abuse her children and that he was not a risk to them.
Mother relies on the fact that she has filed for a divorce from father as evidence that she is making adjustments in her behavior. However, again based on the evidence presented, we are not persuaded. First, there is some question whether mother really does intend to sever her relationship with father. As Dr. Volkin stated, it was her view that mother's sole motivation in divorcing father was her wish to secure the return of her children and not any concern about the risk father poses toward the children. Mother, herself, testified that concern for her children was not her motivation for divorcing father; rather it was because their relationship had deteriorated.
Mother's actions also belie her intent to separate herself from father. Although her stated reason for moving to California was financial difficulties and the desire to obtain
We conclude that there is clear and convincing evidence that both mother and father are unfit parents by reason of conduct or condition seriously detrimental to the children and that integration of the children into the home of mother or father in the foreseeable future is improbable because of the conduct and conditions that are not likely to change. As the Supreme Court stated in State ex rel Juv. Dept. v. Geist, 310 Or. 176, 189, 796 P.2d 1193 (1990):
It has been shown by clear and convincing evidence that mother and father are unwilling or unable to adjust themselves so as to provide these children with a wholesome and healthful environment and that they have been given a reasonable time to do so. It is in the best interests of the children here that both mother and father's parental rights be terminated now. The trial court erred in denying the petition to terminate mother's parental rights.
Reversed and remanded with instructions to enter judgment terminating the parental rights of father and mother.
De MUNIZ, Judge, concurring in part; dissenting in part.
I agree with the majority that father's parental rights should be terminated. However, the state did not prove that mother abused or neglected her children, and it did not prove that she is returning to a relationship with father. On my review of the record, I cannot agree with the majority that the state proved that mother is unable or unwilling to change so as to make the return of her children improbable. Accordingly, I dissent from the majority's conclusion that mother's rights should be terminated.
The majority acknowledges that the proper inquiry is whether mother can protect her children in the foreseeable future. 143 Or. App. at 46-47, 923 P.2d at 1264-1265. However, it ignores that that determination must be made by clear and convincing evidence that mother is unable or unwilling to change after being offered reasonable social services "for such extended duration of time that it appears reasonable that no lasting adjustment can be effected." ORS 419B.504(5). Rather, the majority relies in large part on events that occurred before services were offered. The majority blames mother for the abuse of Roby when mother "was in the house on at least two occasions when the sexual abuse occurred." 143 Or.App. at 46, 923 P.2d at 1264. It provides details of
Implicit in that discussion and comparison is that mother is responsible for permitting the sexual abuse. However, the standard against which we must measure mother's progress is her ability to change after being offered reasonable social services. I find nothing in this record that shows that, until Roby's allegations precipitated the intervention of CSD in Portland, mother was ever offered any services that might have heightened her awareness to sexually abusive environments or that could have helped her to recognize signs of such abuse and to intervene to prevent it. What the record does show is that the degree of knowledge about sexual abuse that the majority assumes mother should have had is not likely to have existed, given her lack of education and sophistication and her poverty.
Being uneducated, unsophisticated and poor does not excuse mother's behavior, but it does provide the basis from which we assess her ability to change. Unlike the majority, I conclude that the record does show that mother has benefitted from the services offered and is likely to continue to do so. After CSD removed the children from their parents' care in January 1993, mother participated in all the services required of her. Gorrin, the CSD caseworker who received the case in January, testified that, at the time he made his six-month narrative, mother was in full compliance with the service plan. Mother had attended CSD's nonoffending parents group, had completed a psychological evaluation, was in CSD-approved parent-training classes, maintained regular and consistent visitation with the children, cooperated with CSD home visits, maintained contact with her CSD worker, kept CSD informed of her whereabouts and provided requested releases.
Mother received positive reports from the service providers. She was reliable in her attendance at the six-week parent-training course in which, among other things, the class addressed general issues around offenders in the home, such as anger cycles, risk factors, and detecting sexual abuse. Mother impressed the group leader by her ability to work through her fears and become more assertive. She was respectful, active in the group and demonstrated skill in doing behavior management exercises and in understanding child development information. Mother regularly attended a support group for domestic violence for six or seven months. The leader found that mother participated well, was responsive to and supportive of others in the group, and appeared to benefit and learn from the group. The leader found that mother "displays a huge amount of commitment and love toward her children and has worked diligently to regain custody of them."
The majority brushes aside the positive reports that mother received because "at least two of those reports were based on incorrect information provided by mother." 143 Or.App. at 47, 923 P.2d at 1265. It finds that Spohn was "laboring under two serious
The majority also places much importance on mother's return to California. It implies that the reason was to be with father and that mother's stated reasons—financial difficulties and family support—were specious, and that mother did not make sufficient efforts to try to avoid a move. However, I cannot agree that the evidence shows that mother was devious or that her move from Portland indicates that she was unwilling to make efforts to remain near her children. The trial court found that mother had "valid reasons" for the move, and I agree with that finding. Mother had never lived in Portland until shortly before CSD intervened. Despite the majority's contention otherwise, the record does show that mother had family support in California.
The majority also finds it significant that, in California, mother did not show any efforts "to pursue services designed to help her care for her children on an independent basis." 143 Or.App. at 41, 923 P.2d at 1261. However, it is not clear to me what mother could have done in the three months between her move in April 1994 and CSD's decision to staff the case for termination in early July 1994, when CSD made no move to act on her request for an Interstate Compact. In fact, what the record does show is that CSD moved for termination instead of requesting an Interstate Compact, even though the psychological evaluation of mother, done by Volkin and provided to CSD in May 1994, recommended that "the children be moved to a foster home in the state of California where they can be near their mother and have regular visitation with her there." Riggs, the caseworker, testified:
"The whole—My reading of the report, it was instance after instance of [mother] not believing, and blaming the children. And yet, the recommendations are inconsistent with that. That's why I
As does the majority, I find troubling mother's denial of father's sexual abuse. However, unlike the majority, I do not find that mother remains implacable in that denial. When the reports are considered in their entirety, and in the light of the other evidence, I find that mother has progressed in "internalizing" what she has learned about sexual abuse.
That mother would initially refuse to admit any possibility of father's abuse is not an unusual response. Gorrin testified that he had removed children in other instances where there was an allegation of sexual abuse on the part of one parent and that the other parent did not "generally" accept the information "at first blush." The May 1994 report from Volkin does show that mother still did not acknowledge that father was an abuser, but it also shows that mother was gaining an awareness of sexual abuse. Volkin reported that mother recognized that "clues to offender tendencies include being too nice as well as too prone to isolation and controlling behaviors." The March 1995 pretrial report of Dr. Vien, a psychologist, states that mother remains "equivocal" about father's abuse but that mother "was able to verbalize general and specific behavioral signs in abuse victims, demonstrating a level of retention from her prior treatment."
Furthermore, even though mother did not acknowledge father's abuse, neither Volkin nor Vien concluded that mother could not be reunited with her children. Volkin stated that "[i]t is difficult to reach definitive conclusions regarding [mother's] capacity to be protective of her children," but, if mother maintained her separation from father, Volkin recommended "that a plan be developed for reuniting her" with the children. Vien concluded:
We have upheld the termination of parental rights for a parent's failure to protect a child from sexual abuse. In State ex rel Juv. Dept. v. DeVore, 108 Or.App. 426, 816 P.2d 647 (1991), the mother's rights were terminated when she repeatedly allowed her daughter to be alone with people who she knew had abused her daughter and when she continued to associate with people who were harmful to her daughter. Likewise, in State ex rel Juv. Dept. v. Ricks, 118 Or.App. 566, 848 P.2d 630 (1993), the mother's rights were terminated when she continued to associate with the father, who had sexually abused the child, and lied to CSD about separating from him.
In those cases, the mothers remained in abusive environments. Here, the state did not present any evidence that mother is in such an environment. The state presented no evidence to rebut mother's evidence that she was divorcing father. It presented no evidence to rebut the evidence that, even if mother's original reason for the divorce was to "put the children first," the couple has subsequently grown apart. In other words, unlike in DeVore and Ricks, there was no evidence that mother would be returning the children to an abusive environment, and, in fact, Vien's report regarding mother's proximity to her family shows the contrary.
My de novo review of the record, transcripts and exhibits does not convince me by clear and convincing evidence that mother has failed to adjust her conduct after reasonable efforts by available social agencies for such an extended duration of time that no lasting adjustment can be effected. The trial court, which had the opportunity to assess mother's demeanor, refused to terminate
HASELTON, J., joins in this dissent.
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