State Ex Rel. Juvenile Department v. Pennington

799 P.2d 694, 104 Or. App. 194, 1990 Ore. App. LEXIS 1400
Court of Appeals of Oregon·Decided October 24, 1990·No. JV90-0280; CA A64252·Published·Cited by 20 cases

Opinions

[196] EDMONDS, J.

Mother, Lora Pennington, and father, Shannon Simmons, separately appeal the termination of their parental rights to their three children. Our review is de novo, ORS 419.561(4); ORS 19.125(3), giving due regard to the findings of the trial court, which had the opportunity to observe the witnesses. State ex rel Juv. Dept. v. Maves, 33 Or App 411, 576 P2d 826 (1978). We affirm the termination of father’s rights and reverse the termination of mother’s rights.

Our review of the record persuades us that the state has shown by clear and convincing evidence that father’s parental rights should be terminated.

As to mother, Children’s Services Division (CSD) initially became involved with her in 1985, when she had only two children. In 1987, it attempted to provide “parenting” classes for her and early intervention services for her older child, who appeared to be developmentally delayed. Initially, mother did not respond to the offer of services. Later, CSD workers were able to provide some services to her and the children; however, the family moved so often that it was difficult for CSD to maintain services. CSD workers who met with the family expressed concerns regarding mother’s parental skills and the older daughter’s apparent developmental problems. Particularly, they were concerned about mother’s ability to bottle-feed the younger child and her negative interactions with the older child.

In March, 1988, the children were removed from mother’s home in Benton County and placed in CSD’s temporary custody, after allegations that father had sexually abused one of the children. In August, 1988, mother and CSD entered into a service agreement to enable her to regain custody of them. The agreement required mother to visit her children regularly, submit to a psychological examination, obtain services from the local Mentally Retarded Developmentally Delayed (MRDD) program, establish a stable residence and improve her parental skills by working with a CSD homemaker. Mother satisfied several of the requirements of the plan; however, she failed to obtain MRDD services and made minimal progress in improving her parental skills. The children remained in CSD’s custody.

At some point during that time, mother became pregnant. Fearful that CSD would take the newborn child from her [197] custody, she left the state. She returned to Coos Bay several months later and gave birth in March, 1989. Several days later, CSD took the baby into custody.

While mother was in Coos Bay, CSD offered her several services, including parent training classes, individual counseling and homemaker services. She made and kept only one appointment with a counselor and a homemaker; otherwise, she did not use the services. She moved to her father’s home in Douglas County in May, 1989. Between December, 1988, and June, 1989, she had no contact with her two older children. She contacted CSD on June 2, 1989, to arrange a visit with them. CSD arranged four visits from June through August. One of them was postponed because of the children’s illness, and mother canceled another. She kept the other two appointments. On August 24, 1989, CSD filed a petition to terminate mother’s parental rights under ORS 419.523(3) and (4).1

[198] In June, 1989, mother went to the Douglas County Adult and Family Services Division (AFSD) office to obtain food stamps and other assistance. She was referred to the local MRDD program. With the help of her MRDD caseworker, mother obtained her own apartment in December, 1989, and established a regular visitation schedule with her children. She continued to meet with her caseworker and obtained Supplemental Security Insurance benefits, food stamps and a medical card. Shortly before trial in February, 1990, she developed a plan to enable her to regain custody. It would require mother to participate in a Semi-Independent Living Program, to increase her competency in a variety of homemaking skills and to improve her interaction with social service providers.

The two older children have been in foster care since March, 1988, and the third child, since March, 1989. When they were taken into custody, the oldest was four and one-half years old; her speech was nearly unintelligible and she was angry, defensive and seriously lacking in interpersonal skills. She also had a problem with gorging and ruminating her food. The second child, then ten months old, was described as “passive” and “negative.” There was testimony that those two children have improved markedly in the foster homes. The oldest girl has stopped gorging and has improved intellectually, and the second child now is described as “bubbly, sparkly, and extremely bright * * *.” The youngest is said to be a “bright little girl.”

The state argues that mother is unfit to be a parent for her children because she failed to protect them from an environment of abuse and failed to attend to their ordinary and special needs. It asserts that, even with the help of homemaker services and parenting classes, “mother has not made any changes in her life that would enable the children to return to her home in the foreseeable future.” Mother argues that she has substantially changed her conduct and living conditions since June, 1989, and that there now exists a high [199] probability of successful re-integration of her children into her home.

Dr. Mesberg, a psychologist, performed an AFSD employability evaluation during the summer of 1989. At trial, he testified that mother appeared to be “somewhat slow intellectually.” However, he went on to state that, “if she was subjected to training experiences, * * * she would be able to absorb a substantial amount of the material that’s presented to her.” Further, on the basis of interviews that he conducted in February, 1990, he testified that mother’s slow intellect would only “minimally” interfere with her abilities as a parent. Regarding her change in attitude and behavior, Mesberg stated, “She [is] really beginning to understand that she has good access to some real good resources.” He believes that her case is “workable.”

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State Ex Rel. Juvenile Department v. Pennington, 799 P.2d 694, 104 Or. App. 194, 1990 Ore. App. LEXIS 1400 (Or. Ct. App. 1990).

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