State Ex Rel. Juvenile Department v. DeVore , 108 Or. App. 426 ( 1991 )

EDMONDS, J.

Mother appeals the termination of her parental rights and permanent commitment of her daughter to Children’s Services Division (CSD). ORS 419.523; ORS 419.527(1)(a). On de novo review, we affirm.

Daughter was eight years old at the time of trial. Mother testified that daughter was first sexually abused by daughter's father when she was about two years old, while mother and the father were living together. Mother separated from the father in 1984 and believes that he is dead. Mother first contacted CSD in 1985 when daughter was about three years old. Daughter had a vaginal infection, and mother was concerned about possible sexual abuse by mother’s father (grandfather), who had sexually abused mother when she was between the ages of 10 and 12 and who was later convicted of sexually abusing mother and two of her sisters. The CSD caseworker told mother not to leave daughter alone with the grandfather. Because daughter was too young to identify her abuser, CSD was unable to pursue the matter.

Mother again contacted CSD in March, 1986, when daughter was four and one-half years old. Daughter had just returned from a stay with her grandparents, and mother was concerned that she might have been sexually abused. Daughter told the authorities that she had been abused by the grandfather. CSD advised mother not to leave daughter with the grandfather, because he was an untreated sex offender. No criminal prosecution of grandfather occurred.

At trial, evidence disclosed that daughter complained of being sexually abused between 1986 and 1988 by three other men who were associates of mother. Dr. Williams, a physician, testified that, when daughter told him in 1987 that she had been sexually abused by a man who lived with mother and daughter, he discussed that with mother and she agreed to make sure that daughter would not be left alone with him. In 1988, a known sexual offender was seen meeting daughter at the school bus and visiting in her home. There was evidence that mother was aware that he had sexually abused his nieces. Daughter observed mother engaged in sexual intercourse with him. In addition, mother hired a babysitter whose boyfriend was a convicted sex offender. Mother also associated with some male alcoholics during that period.

Daughter also had other health problems. She first had seizures when she was about three years old. When they recurred in 1987, Dr. Williams suspected epilepsy and prescribed dilantin, an anti-seizure medication. He was concerned that the seizures were caused by stress, because mother had told him that daughter had the seizures when she was going to be left alone with grandfather. Williams referred daughter to CSD and she began therapy in February, 1988. In spring, 1988, daughter began acting out thoughts about suicide. Mother reported to daughter’s teacher that daughter had talked about killing herself and had gone into the kitchen to get a knife. The teacher took daughter and mother to CSD for counseling. On May 13, 1988, CSD removed daughter from mother’s home, and she was placed in a foster home. Shortly thereafter, daughter told a CSD therapist that she wanted to kill herself with a knife or step in front of a car. Dr. Sweet, a psychologist, testified that “you have to be really overwhelmed at that age to want to even consider that kind of [a suicide] idea.” After daughter was placed in the foster home, she was weaned from medication and her seizures ceased.

In June, 1988, mother signed a service agreement with CSD. Mother agreed not to associate with known sexual offenders or alcoholics, to participate in parent training and to continue counseling. She attended parent training classes on a weekly basis for two years. The parent trainer testified that she had not seen substantial improvement by mother and that it was difficult to know how much information mother understood. She believed that daughter would be at risk if she were returned to mother’s custody. Counseling was discontinued after a few months, because the counselor determined that mother was not benefitting from insight-oriented therapy.¹ She said that mother “expressed all the right things” but “didn’t really follow through.” The counselor thought that mother needed a structured approach to behavior management, but she was not aware of any organization that could provide that type of treatment. A CSD caseworker tried individual counseling with mother. However, therapy was discontinued, because mother could not grasp the basic concepts. The caseworker testified that, although mother was making extremely minimal progress in her own personal life, she was not making any progress in being able to protect her daughter. He thought that mother might, after 8 to 10 years of therapy, be able to protect daughter.

In September, 1988, the court ordered mother to comply with certain requirements, including discontinuing her association with known sexual offenders or alcoholics. In October, 1989, CSD filed a petition to terminate mother’s parental rights, because of her lack of progress in therapy and her continued association with known sex offenders and with alcoholics.

To terminate parental rights under ORS 419.523(3),² the state must prove, by clear and convincing evidence, that the parent is presently unfit and that the present unfitness is unlikely to change in the foreseeable future. State ex rel Juv. Dept. v. Herman, 69 Or App 705, 709, 687 P2d 812 (1984); ORS 419.525(3). The state argues that mother is unfit to be a parent for her daughter, because she has a mental illness that renders her unable to protect her daughter from sexual abuse. It asserts that, even with counseling and parent training classes, mother has not made any lasting changes in her behavior pattern and that there is no reasonable likelihood that she will improve to the point that daughter could be returned to her custody in the foreseeable future. Mother argues that she does not suffer from a mental illness and that she has made positive changes in her conduct that would allow her to be reunited with daughter in the foreseeable future.

Sweet testified that mother suffers from a dependent personality disorder,³ that she does not have an adequate understanding of daughter’s developmental needs and that her disorder is “very resistant to change.” As an example, he pointed out that mother allowed the grandfather to have continued access to daughter, even though the grandfather had raped mother when she was a child and had abused daughter on more than one occasion. In his report, Sweet said:

1 ‘ [Mother] is a very dependent, inadequate woman who lacks adequate cognitive skills to effectively and efficiently change her situation. She is likely to continue to engage in inappropriate relationships, which obviously places herself and her daughter at risk. She admits to not understanding how she gets in these situations and I certainly agree with her lack of insight and understanding. She is the type of woman who can be easily led and manipulated by men.”

Although mother participated in CSD’s permanent planning agreement, Sweet testified as to her lack of follow-through:

“In fact, CSD even said that [mother] was cooperating with what they were doing. But her limitation is that whoever she’s hooked up with is essentially going to be making those kinds of decisions for her. And if you pull back that support system, and allow her to again do it on her own, that’s when you are going to run into problems.”

Sweet concluded that mother’s mental disorder rendered her incapable of providing for daughter’s care for an extended period of time and that reintegration of daughter into mother’s home, under a minimally adequate standard of care, would be improbable in the foreseeable future.

Mother’s expert witness, Dr. Dragovich, disagreed with Sweet’s opinion that mother lacked the skills to change her situation. She said that mother showed no signs of a personality disorder. However, Dragovich conceded on cross-examination that, in arriving at her conclusions, she was not aware of all of mother’s associations with known sex offenders. Moreover, she agreed that mother is likely to continue to engage in inappropriate relationships and that “insight-oriented treatment would be of limited value.”

Sweet’s conclusion is supported by mother’s history. From 1983 to 1988, mother allowed daughter to be exposed to actual or possible sex abuse by five different individuals at separate times, despite repeated attempts by CSD workers and others to help her recognize the ramifications of her conduct. The record discloses numerous additional examples that mother is an unfit parent. Mother let daughter, then six years old, be responsible for her own medication. Williams discovered that, on one occasion, it was evident that daughter had not taken any medication, while on another occasion the medication was twice the therapeutic range. In addition to allowing daughter to have contact with sex abusers, mother also allowed her to spend the night with a neighbor who supposedly practiced satanism. Daughter had several seizures during and following contacts with that neighbor, and the CSD therapist testified that daughter was afraid of that person. Dr. Boehm, a pediatric physician, testified it was “very likely” that daughter’s seizures were caused by her environment and said that it was reasonable to believe that daughter’s seizures would resume if she is again subject to stressful situations. His opinion is supported by other testimony, including testimony that shows that daughter felt that it was her responsibility to take care of mother, that she did not like the men that mother associated with and that she was relieved not to be living with mother.

Despite the specter of the termination of parental rights hanging over her head and being told by CSD since 1988 that she needed to avoid inappropriate relationships, mother had not changed her lifestyle at the time of trial in July, 1990. At the time of tried, mother visited two times per week in the home of a witness who employs one of the people who is suspected of sexually abusing daughter. She was also providing care to and living with an individual whose son is a convicted sex offender of a child. There was testimony that mother is occasionally assisted in her employment by a friend who is an alcoholic, and CSD caseworker testified that he had received reports that mother still associated with an alcoholic. One of mother’s friends who testified at trial on her behalf admitted that he was under the influence of alcoholic beverages while testifying.

We conclude that the state has proven by clear and convincing evidence that mother is presently unfit to be a parent for daughter and that that is unlikely to change in the foreseeable future.

Affirmed.

1 The counselor described insight-oriented therapy:

‘ ‘That’s where a person is able to understand what it is they are doing and what has happened to them. And then to make decisions for behavior based on what they have learned about that, and what they understand about what has happened to them. They have some idea of the choices that they have, and the responsibility that they have in making those choices. What the outcome might be of what they do so that a person begins to take responsibility for what they do.”

2 ORS 419.523(3) provides, in relevant part:

“The rights of the parent or parents may be terminated * * * 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 foreseeable 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:

“(a) Emotional illness, mental illness or mental deficiency of the parent of such nature and duration as to render the parent incapable of providing proper care for the child for extended periods of time.

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“(e) Lack of effort of the parent to adjust the circumstances of the parent, conduct, or conditions to make the return of the child possible or failure of the parent 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. ’ ’

3 Sweet testified that a dependent personality disorder is a diagnosable mental illness, characterized by “indecision, high need for affection and attention, [and] getting involved in inappropriate relationships where people end up making decisions for you.”