State ex rel. State Office for Services to Children & Families v. Mendez

986 P.2d 670, 162 Or. App. 601, 1999 Ore. App. LEXIS 1568
CourtCourt of Appeals of Oregon
DecidedSeptember 15, 1999
Docket6711J; CA A101560; 6712J; CA A101561; 6713J; CA A101562; 6714J; CA A101563; 6715J; CA A101564; 6716J; CA A101565; 6717J; CA A101566; 6718J; CA A101567; 6719J; CA A101568; 6720J; CA A101569
StatusPublished

This text of 986 P.2d 670 (State ex rel. State Office for Services to Children & Families v. Mendez) 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. Mendez, 986 P.2d 670, 162 Or. App. 601, 1999 Ore. App. LEXIS 1568 (Or. Ct. App. 1999).

Opinion

WOLLHEIM, J.

The state appeals the trial court’s dismissal of its petition to terminate the parental rights of mother and father to three of their minor children. Because the trial court granted mother and father’s motions for dismissal before the close of all the evidence, we review “whether, on the record as a whole, the state introduced sufficient evidence to establish a prima facie case for termination of mother and father’s parental rights.”1 State ex rel SOSCF v. Cox, 152 Or App 756, 763, 954 P2d 1277 (1998). We conclude that the state established a prima facie case and, therefore, reverse and remand for further proceedings.

In December 1997, the State Office of Services for Children and Families (SCF) filed petitions to terminate the parental rights of mother and father to their two-year-old triplets.2 SCF alleged, under ORS 419B.504 (1995),3 that parents were unfit to parent. The petitions regarding mother and father contained substantially the same allegations, that parents were unfit due, among others, to “[pjhysical and emotional neglect of the children,” and

[607]*607“[l]ack of effort to adjust the [parents’] circumstances, conduct or conditions to make return of the children to the [parents] possible, or failure to effect a lasting adjustment after reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected.”

To prove that mother and father’s parental rights should be terminated, the state must establish by clear and convincing evidence that, by virtue of the above conditions or conduct, mother and father are presently unfit to parent their children and that the present inability is unlikely to change, making integration of the children into the parents’ home improbable in the foreseeable future. State ex rel Juv. Dept. v. Pennington, 104 Or App 194, 201, 799 P2d 694 (1990), rev den 311 Or 166 (1991). Once that is established, the state must also prove by clear and convincing evidence that the children’s best interests will be served by termination of parental rights pursuant to ORS 419B.500. State ex rel Juv. Dept. v. Beasley, 314 Or 444, 452, 840 P2d 78 (1992).

Mother and father have seven children. The children subject to this proceeding are the three youngest children of mother. Their oldest children are twins, born in October 1992. Though they lived in foster care with their grandmother for their first four years, the twins were reintegrated into parents’ home in 1996. The five-year-old twins were residing in parents’ home at the time of the termination hearing. In 1993, mother gave birth to a second set of twins, who were released for adoption during the pendency of this appeal after spending all but a few months of their lives in foster care. The children at issue here, the triplets, were bom in June 1995.

Concern for the well-being of the triplets began in March 1996, when their pediatrician, Dr. Dunbrasky, noted a marked decline in the triplets’ growth. Dunbrasky, specially trained in the area of child development, noticed that each of the triplets’ weight was below what was to be expected, based on their own prior performance. The decline was notable for several reasons. The triplets were born premature4 and, at [608]*608five-and-a-half months, Dunbrasky explained that each of the triplets had manifested the kind of excellent growth expected of premature infants. She also explained that children generally begin eating solid foods at four to six months and that the effect on growth of that transition generally manifests itself at nine months. Dunbrasky could identify no medical reason for the decline in growth at nine months but learned that mother and father no longer participated in the Women, Infant, and Children (WIC) program that provides free nutritional information, as well as food vouchers.5 Dun-brasky encouraged parents to return to the WIC program. She began to monitor carefully the children’s weight, height, and head circumference.

Dunbrasky was concerned enough in March to refer county health nurses to mother and father’s home to take monthly weights of the triplets. By June 1996, the growth rate of all three children had declined further. Most disconcerting was the fact that the growth rate of each triplets’ head circumference had also declined. Dunbrasky explained that the lack of expected increase in head circumference, which is a direct reflection of brain growth and development, demonstrated that the triplets were not receiving adequate nutrition to grow. Further medical testimony explained that the human body places a priority on brain growth; thus weight and height will be affected first — it is only when nutritional deficiency is severe that changes in brain growth and head circumference become evident.

In June 1996, Dunbrasky formally diagnosed the triplets with nonorganic “failure to thrive,” a generic term meaning that a child is failing to grow at a normal pace. Causes may be either organic or nonorganic. Organic causes are chronic diseases or other problems prohibiting the absorption of food and calories. The nonorganic cause is lack of adequate nutrition. Consistent with Dunbrasky’s diagnosis, evidence showed that, when the triplets were placed in an environment where they received adequate nutrition, their [609]*609bodies were able to absorb that nutrition and they were able to gain weight.

Dunbrasky notified SCF, who became involved in August 1996. SCF provided a wealth of services, including in-home instruction on nutrition and feeding techniques. Parents have had the assistance of caseworkers, family resource workers, WIC, county health nurses, doctors, Headstart and early intervention programs all with the goal of improving mother and father’s skills at recognizing and providing for the basic needs of the triplets. For example, in September 1997, a family advocate at Headstart began making daily trips to parents’ home to provide intensive instruction and assistance. SCF provided transportation services and other support for the family.

At the termination hearing, the medical experts agreed that the triplets failed to grow at a healthy rate and that their decreased rate of growth in head circumference indicated developmental failure that put them at risk for permanent developmental delay. As early as August 1996, Dun-brasky concluded that “these children are at risk for permanent developmental delay and are unsafe in their current environment.” In October 1997, Dr. Boston, a specialist in children of small stature and in the failure to thrive medical condition, confirmed Dunbrasky’s diagnosis of nonorganic failure to thrive. Boston further emphasized that the principle risk of failure to thrive is decreased brain development that often can never be ftdly remedied. He explained that the children were at risk for impingement on future intelligence, growth problems, and health problems such as increased incidents of minor infections. He was uncertain if the damage to the triplets was irreversible, but he was certain that the triplets had suffered severe damage that, if continued, would become permanent.

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Related

State Ex Rel. Juvenile Department v. Farrell
648 P.2d 401 (Court of Appeals of Oregon, 1982)
State Ex Rel. Juvenile Department v. Farrell
640 P.2d 652 (Court of Appeals of Oregon, 1982)
State Ex Rel. State Office for Services to Children & Families v. Cox
954 P.2d 1277 (Court of Appeals of Oregon, 1998)
State Ex Rel. Juvenile Department v. Beasley
840 P.2d 78 (Oregon Supreme Court, 1992)
State Ex Rel. Juvenile Department v. Pennington
799 P.2d 694 (Court of Appeals of Oregon, 1990)
Schreiber v. Karpow
626 P.2d 891 (Oregon Supreme Court, 1981)
State ex rel. Juvenile Department v. Farrell
642 P.2d 1167 (Oregon Supreme Court, 1982)

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Bluebook (online)
986 P.2d 670, 162 Or. App. 601, 1999 Ore. App. LEXIS 1568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-state-office-for-services-to-children-families-v-mendez-orctapp-1999.