State Ex Rel. State Office for Services to Children & Families v. Mellor

47 P.3d 19, 181 Or. App. 468, 2002 Ore. App. LEXIS 852
CourtCourt of Appeals of Oregon
DecidedMay 29, 2002
Docket98-11-28J, Petition Nos. 98-11-28J-02, 98-11-28J-03 A112003 (Control), A112004
StatusPublished
Cited by23 cases

This text of 47 P.3d 19 (State Ex Rel. State Office for Services to Children & Families v. Mellor) 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. State Office for Services to Children & Families v. Mellor, 47 P.3d 19, 181 Or. App. 468, 2002 Ore. App. LEXIS 852 (Or. Ct. App. 2002).

Opinions

[471]*471DEITS, C. J.

The State Office for Services to Children and Families (SCF) appeals from judgments denying its petitions to terminate mother’s and father’s parental rights to their child, D. SCF argues that it presented clear and convincing evidence that mother and father are unfit and that termination is in D’s best interest. ORS 419B.504; ORS 419B.500; ORS 419B.521(1). On de novo review, ORS 419A.200(5)(b), we agree and reverse.

We begin by setting out background facts and the facts leading to D being taken into SCF custody. We describe additional facts in connection with the relevant discussion of factors supporting termination. Mother has four children, two with father. Mother’s oldest child, A, is in foster care in Washington. At the time of trial in July 2000, a petition for termination of mother’s parental rights to A, who was then nine years old, had been filed in Washington. Her second child, C, lives with his biological father, and mother has no contact with him. Her third child, D, and her first with father, is the subject of this termination proceeding and has been in foster care since she was 13 months old. Her fourth child, J — her second child with father — has been in foster care in Washington since October 1999, when he was three months old.

D was born on September 24, 1997. Although mother had had a histoiy of housing instability, she and father lived in the same apartment for approximately two years, including most of the time D was in mother’s and father’s custody. Mother and father separated briefly beginning in late October 1998. The circumstances of this separation are somewhat obscure. Mother and D went to mother’s brother’s apartment to drop off some things she had been keeping for her brother. Mother and father had had an argument before mother left for her brother’s apartment. When she arrived at her brother’s apartment, she met a man, Flannery, who also lived in the apartment. Flannery told mother that her brother had said that father did not treat her well and that he, Flannery, could do better. Mother explained that she decided at that time to move in with Flannery [472]*472because she felt that father had withdrawn his affection from her in favor of D and that father monopolized child’s attention. Mother later explained that “I was being selfish. I wanted my daughter to myself. I didn’t want to share her.”

Mother lived with Flannery for approximately three weeks. D lived with them for part of the time. Mother’s brother and his wife also lived in the apartment. Mother knew that her brother was a convicted sex offender prohibited from having contact with minors. However, brother lived in the apartment while mother and D lived there. Although mother testified that her brother moved out because she and D moved in, the trial court found mother’s testimony on this point to be not credible, and so do we.

Shortly after mother moved out, father obtained a restraining order prohibiting mother from having contact with D. In his application for the restraining order, father alleged that mother had hit him and D. At trial, however, father said that there had never been domestic violence in his household. Father explained that he had not filled out the application for the restraining order but had let a friend fill it out and thought that the contents of the application were “none of my business.” Father apparently used the restraining order to convince mother to give him custody of D for a few days, but he later agreed to let mother take D with her to live with Flannery again.

On November 9, 1998, father called the Portland Police Department and asked to have D removed from mother’s custody and given to him. Officer Hurley responded to the call. Hurley described the neighborhood of the apartment where mother was living as an area that is known to police for drug and gang activity. The apartment complex was subsequently closed down as a chronic crime site. When Hurley arrived at the apartment where mother was living, mother told her that father had had the restraining order dismissed on November 6. Hurley confirmed with the Clackamas County Sheriffs Office that the order had been dismissed, but she testified that she was still concerned about D’s safety. Hurley’s first concern was about mother’s brother’s access to D. She was also troubled by D’s condition that night. Although it was a very cold night, mother brought [473]*473D outside for an extended time wearing only a light sleeper. Although Hurley asked mother several times to take D inside out of the cold, mother refused to do so. Later on, mother could find no clean or warmer clothes for D or any diapers. Mother told Hurley that she had brought six diapers when she had taken D back from father three days before and had not bought any more.

D was dirty and her clothes were dirty and smelled bad. Hurley testified that, when she changed D’s clothing and diaper later at the police station, she saw that “ [h] er feet were so dirty that they were almost black. It was very obvious that this child had not been bathed in a long time. Her face was dirty. Her hands were dirty. * * * She had dirt under her toes and fingernails.” Mother gave Hurley a bottle to take with her that appeared to have mildew in it. Hurley contacted SCF and, at the direction of D’s caseworker, took D into custody.

Also on November 9, father was arrested in connection with the dismissed restraining order. Father took the position at trial that it was not his idea to try to get D back that night. He said that some of his sister’s friends came to his house, saw that he was unhappy, and decided that he needed to get his child back; according to father, he just went along with what they told him.

After D was removed from their custody, both mother and father entered into several service agreements with SCF. Although mother and father did participate in many of the services identified in the agreement, SCF found that mother and father were not making any significant changes as a result of the services. We disagree with the dissent that mother and father “fully’ participated in services. 181 Or App at 496 (Edmonds, J., dissenting). Based on that failure and on a October 1999 psychological evaluation by Dr. Ewell, which we discuss in some detail below, 181 Or App at 479-80, SCF decided to seek termination of mother’s and father’s parental rights to D. In May 2000, SCF filed petitions to terminate their parental rights. Although the petitions alleged both unfitness, ORS 419B.504, and neglect, ORS 419B.506, SCF pursues only the unfitness ground on appeal.

[474]*474Our task on de novo

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dept. of Human Services v. N. H.
520 P.3d 424 (Court of Appeals of Oregon, 2022)
State v. Sanchez
2015 NMCA 84 (New Mexico Court of Appeals, 2015)
Department of Human Services v. K. M. M.
316 P.3d 379 (Court of Appeals of Oregon, 2013)
Department of Human Services v. C. L. C.
268 P.3d 808 (Court of Appeals of Oregon, 2011)
In Re Kjc
268 P.3d 808 (Court of Appeals of Oregon, 2011)
Department of Human Services v. H. L. R.
260 P.3d 787 (Court of Appeals of Oregon, 2011)
Department of Human Services v. K. K. M.
260 P.3d 693 (Court of Appeals of Oregon, 2011)
State ex rel. Department of Human Services v. B. S. I.
182 P.3d 230 (Court of Appeals of Oregon, 2008)
State Ex Rel. Dhs v. Bsi
182 P.3d 230 (Court of Appeals of Oregon, 2008)
State Ex Rel. Juv. Dept. v. Fw
180 P.3d 69 (Court of Appeals of Oregon, 2008)
State ex rel. Juvenile Department v. F. W.
180 P.3d 69 (Court of Appeals of Oregon, 2008)
State Ex Rel. Dhs v. Rnl
180 P.3d 704 (Court of Appeals of Oregon, 2008)
State ex rel. Department of Human Services v. R. N. L.
180 P.3d 704 (Court of Appeals of Oregon, 2008)
State Ex Rel. Dhs v. Jac
172 P.3d 295 (Court of Appeals of Oregon, 2007)
State ex rel. Department of Human Services v. J. A. C.
172 P.3d 295 (Court of Appeals of Oregon, 2007)
State Ex Rel. Department of Human Services v. J. L. N.
158 P.3d 1 (Court of Appeals of Oregon, 2007)
State Ex Rel. Department of Human Services v. Rodgers
129 P.3d 243 (Court of Appeals of Oregon, 2006)
State Ex Rel. Department of Human Services v. Lee
96 P.3d 823 (Court of Appeals of Oregon, 2004)
State Ex Rel. DHS v. Lee
96 P.3d 823 (Court of Appeals of Oregon, 2004)
State ex rel. Department of Human Services v. Ruelas-Reyes
95 P.3d 733 (Court of Appeals of Oregon, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
47 P.3d 19, 181 Or. App. 468, 2002 Ore. App. LEXIS 852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-state-office-for-services-to-children-families-v-mellor-orctapp-2002.