State ex rel. Juvenile Department v. Hayworth

581 P.2d 100, 35 Or. App. 161, 1978 Ore. App. LEXIS 2719
CourtCourt of Appeals of Oregon
DecidedJuly 5, 1978
DocketNo. 25,746A, CA 9463
StatusPublished
Cited by7 cases

This text of 581 P.2d 100 (State ex rel. Juvenile Department v. Hayworth) 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. Juvenile Department v. Hayworth, 581 P.2d 100, 35 Or. App. 161, 1978 Ore. App. LEXIS 2719 (Or. Ct. App. 1978).

Opinion

BUTTLER, J.

This appeal is from an order terminating appellant’s rights as a parent with respect to her daughter, now eleven years of age. The gist of the petition underlying the court’s determination is that the mother suffers from a mental deficiency, as a result of which she is unable to adjust to conditions so as to make the return of her child possible.

On this appeal, the mother raises five assignments of error, each of which will be discussed below.

First, she contends that the court erred in denying her motion to strike subparagraph B(l) of the petition, because the allegation that she suffers from a mental deficiency does not also allege that the deficiency is "of such duration as to render it impossible to care for the child for extended periods of time,” in the language of ORS 419.523(2)(a). She contends the omission is fatally defective.

Assuming, arguendo, that a petition may be subject to a motion to strike, the argument overlooks the clear language of the preceding paragraph, ORS 419.523(2):

"The rights of the parent or parents may be terminated as provided in subsection (1) of this section if the court finds that the parent or parents are unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into the home of the parent or parents is improbable in the forseeable [sic] future due to conduct or conditions not likely to change. In determining such conduct and conditions, the court shall consider but is not limited to the following:
"* * * * *.” (Emphasis added.)

The petition did allege the ultimate fact that the mother is "unfit by reason of conduct and condition seriously detrimental to the child and integration of the child into the home of the mother is improbable in the foreseeable future due to conduct and conditions not likely to change.” The first condition stated is the mother’s mental deficiency.

[164]*164The allegation is sufficiently clear and definite that a person of average intelligence would know what is intended. In a proceeding such as this, that is all that is necessary. State ex rel Juv. Dept. v. Goebel, 26 Or App 251, 254, 552 P2d 281 (1976). No purpose is served by requiring slavish repetition of the statutory language in the petition.

The mother’s second assignment is that the court erred in receiving into evidence the medical records of Fairview Hospital Treatment Center, pertaining to her. When the state sought to introduce the medical records, the mother’s counsel objected on the grounds that ORS 179.505(1) and (5)1 stand for the proposition that "the written account of any persons who are kept in a mental health facility in Oregon can’t be used to substantiate commitment, criminal proceeding or other legal proceedings.” The court, however, relying upon ORS 179.505(2),2 ruled that if the mother were called to the stand and compelled to testify as to her previous commitments, the records would be admissible. Accordingly, that procedure was followed. From the record it is apparent that none of the participants [165]*165in the hearing was aware of the recent amendments to ORS 179.505.3 The mother now argues that under amended ORS 179.505(9)4 her compelled testimony was insufficient to warrant the introduction of the records. We agree, but no prejudice results from the introduction of the records because our review is de novo on the record, and we will ignore the hospital records.5 Cf. State ex rel Juv. Dept. v. Robinson, 31 Or App 1097, 1100, 572 P2d 336 (1977), rev den 281 Or 531 (1978).

The mother contends in her third assignment of error that the court unfairly prejudged her case. After five of the state’s eight witnesses had testified, including the mother as an adverse witness as noted above, and before she presented her case, the court remarked to her counsel:

"If you really think that she is the kind of person with whom her daughter can have a minimally productive relationship, then we should get the full record; but my impression from the outset is that Mrs. Hayworth is non-functional, that the notion that there is a productive relationship which will be measurably more beneficial than any other relationship, no more than I know in the last hour, that notion is untenable.
"If you think you really want to protect and entertain the notion that this is possible, go ahead, and I will not [166]*166criticize you for it; but if you think your duty is to continue to perform your legal function even though you recognize that there is no identifiable, significant relationship that is preservable because that is your professional duty, I would want to relieve you of it because it would appear now that there is no such minimally valuable relationship that she has with [the child] that ought to be preserved.”

As we have noted in another context, "the questioned comment of the judge indicates only a fair appraisal of the evidence, after he has heard it.” State v. Irby, 24 Or App 465, 469, 545 P2d 1399 (1976). (Emphasis in original.) A judge formulates opinions as to the strength of a case as he hears the witnesses and views the evidence, and the fact that he informs counsel of the status of his opinion at a given stage of the proceedings does not indicate prejudgment. Here, the court was very careful not to cut off the presentation of the mother’s case, and in fact she did present her own testimony and the testimony of her current spouse in her own behalf. We are convinced that the court gave careful consideration to the testimony presented by each party, and that his comments did not constitute error. In any event, wé review de novo on the record, and there is no contention that the mother Was prevented from making her record.

Fourthly, the mother contends that the court erred in requiring that she testify, apparently on Fifth Amendment grounds. While noting that the Fifth Amendment to the United States Constitution does not preclude the requirement that a parent testify in termination proceedings, State ex rel Juv. Dept. v. Wade, 19 Or App 314, 527 P2d 753 (1974), rev den, appeal dismissed 423 US 806 (1975), overruled on other grounds 24 Or App 601, 609, 547 P2d 175, rev den (1976), appellant argues

"* * * one of the grounds for termination was the Mother’s alleged neglect of her daughter. ORS 419.523.
"Conduct which constitutes neglect under ORS 419.523

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Bluebook (online)
581 P.2d 100, 35 Or. App. 161, 1978 Ore. App. LEXIS 2719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-juvenile-department-v-hayworth-orctapp-1978.