STATE EX REL. CSD v. Brady

899 P.2d 691, 135 Or. App. 332
CourtCourt of Appeals of Oregon
DecidedJune 28, 1995
Docket93-331 CA A87207
StatusPublished
Cited by1 cases

This text of 899 P.2d 691 (STATE EX REL. CSD v. Brady) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
STATE EX REL. CSD v. Brady, 899 P.2d 691, 135 Or. App. 332 (Or. Ct. App. 1995).

Opinion

899 P.2d 691 (1995)
135 Or. App. 332

In the Matter of Acacia Inez Brady-O'Neal, A Child.
STATE ex rel. CHILDREN'S SERVICES DIVISION, Respondent,
v.
Michelle Marie BRADY, Appellant.

93-331; CA A87207.

Court of Appeals of Oregon.

Argued and Submitted April 20, 1995.
Decided June 28, 1995.

*692 George W. Kelly, Eugene, argued the cause and filed the brief, for appellant.

Harrison Latto, Asst. Atty. Gen., argued the cause, for respondent. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

HASELTON, Judge.

Michelle Brady (mother) appeals from a judgment terminating her parental rights to her daughter (child). ORS 419B.500.[1] We review de novo, ORS 419A.200, and reverse.

The issue here is whether a mentally impaired mother lacks the capacity to care for her special needs child. The specific question is whether Children' Services Division (CSD) has proved by clear and convincing evidence that mother "presently is unable to meet the physical and emotional needs of [child] and that the present inability is unlikely to change 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) (emphasis supplied). See ORS 419B.504.[2]

Child was born two months prematurely on April 21, 1993. She weighed only two-and-a-half pounds at birth and suffered from life-threatening medical conditions, including severe heart and lung problems. Because of those conditions, child spent the first 15 weeks of her life in the neonatal intensive care unit at Sacred Heart General Hospital in Eugene.

Mother was 18 when child was born. She was, and is, a person of low average intelligence, who exhibits certain mental and psychological difficulties, which are addressed below. She was a runaway in her early teens, dropped out of school in the eleventh grade, and experienced a series of abusive relationships, including, most recently, with father. Mother met father in 1990, when she was homeless, and their relationship was volatile and periodically violent.

Despite the instability in her life, mother visited child at the hospital daily, spending hours with her. Mother met with the nursing staff to discuss child's special needs, and expressed her commitment and determination to learn and to be a good parent. Nonetheless, following an altercation between mother and father, which required the intervention of hospital security, hospital staff became concerned that the parents might be incapable of meeting child's needs and, consequently, contacted CSD.

On June 6, 1993, when child was six weeks old, a CSD intake investigator contacted mother and father to determine if they could care for child on her release from the hospital. After the initial interview, the investigator recommended that the couple attend psychological evaluations and CSD-sponsored men's and women's domestic violence groups. CSD did not offer mother any other assistance or training in parenting a special needs child.[3]

*693 At CSD's insistence, Dr. James Ewell conducted a psychological examination of mother on June 22, 1993. In interviewing mother, Ewell learned that she had sustained substantial head injuries, including a contusion to the front part of her brain, in an automobile collision when she was 14. Immediately after that collision, mother had experienced a seizure in the emergency room and had been hospitalized for 11 days. After being released from the hospital, she had continued to experience seizures and was placed on appropriate medication. Nonetheless, mother had continuing problems with concentration, memory, and vision, and had experienced blackouts and anxiety attacks.

Ewell also administered several diagnostic tests, which indicated that mother had low average intelligence and impaired empathy, problem solving, and psychological sensitivity. Based on those results and the interview, Ewell concluded that mother has an irreversible condition known as organic personality syndrome with passive-aggressive features:

"An Organic Personality Syndrome is defined by a persistent personality disturbance involving affective instability, recurrent outbursts of aggression or rage that are grossly out of proportion to any participating psycho/social stressors, markedly impaired social judgment, apathy and indifference. * * *
"Passive-aggressive personality disorder is characterized by * * * pervasive patterns of passive resistance to demands for adequate social and occupational functioning. Individuals with this disorder procrastinate, become irritable or argumentative when asked to do something they do not want to do, and often avoid obligations by claiming some form of deficit."

Ewell concluded that mother lacked the skills to care for child on her release from the hospital:

"In answer to [the CSD investigator's] specific questions, I do not believe [mother's] current psychological condition would allow her to commit to taking adequate care of her daughter. I do not believe she would be able to adequately assess [child's] needs, or respond appropriately in times of emergency. Her learning ability and follow through seem to be impaired. I also doubt that [mother] would be able to adequately manage her anger so that [child] would not be exposed to domestic violence. At the time of this assessment, [mother] had not yet demonstrated an ability to maintain a home setting that would be adequate for her daughter's specialized care.
"In many ways, [mother] must be seen as an adolescent who herself, is still in need of parenting. Her problem-solving abilities, `common sense,' and psychological sensitivities are impaired. She will probably require extended assistance and guidance in establishing herself as an adult. Her ability to parent a `fragile infant, who will require very specialized care' would seem to be severely lacking. I therefore could not recommend that [child] be sent to live with [mother] once the child is released from the hospital.
"Prior to [mother] assuming responsibility for her daughter, I believe she will need to complete anger management classes, parenting classes and additional educational programs designed to increase her skills and abilities. She may also need to live with [child] in a foster home-like setting, wherein an experienced and responsible adult caregiver can provide constant supervision/guidance. Long-term psychotherapy for [mother] would also be indicated at this time." (Emphasis supplied.)

Following Ewell's evaluation, in July 1993, CSD petitioned the circuit court to assume jurisdiction over child.

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