Kansas has a similar statute to Oregon. I handled a step-parent adoption where the non-custodial parent did not consent, and we noticed her up for the adoption hearing. She had not had contact with the child in over a year. My client had custody through the divorce, and the mother had "reasonable visitation" rights. The mother appeared for the hearing and contested the adoption. We presented evidence that she had not had contact, had apparently not attempted contact, and had not contributed any financial support toward the child for over a year. The court ruled in favor of the adoption over the objection of the mother.
As far as what constitutes "willful desertion," I'm sure the Oregon courts have analyzed the meaning of that phrase several times over, and your attorney could tell you whether it applies in your situation. It certainly sounds as if Mo's father has "deserted and neglected," but I'm not sure whether his mother has. One approach to consider is filing the adoption and noticing up both bio parents. If bio father appears (or even if he doesn't), you present evidence of his desertion and neglect. Mo's mother may appear and consent to the adoption -- if she understands the court will be approving the adoption? Your adoption attorney should be able to guide you here, and ought to be answering these questions for you.
I do have extensive experience in this area having had a career with Child Protection Services, But every state has a different Children's Code body of law. My only recommendation would be to contact whatever passes as Child Protection Agency in Oregon to determine (1) legal custody of the child (2) physical custody of the child and (3) legal guardianship of the child.
I did find this re Oregon children's code
Or. Rev. Stat. Ann. § 419B.506 (WESTLAW through Or. 2003 Legis. Serv., Ch. 396)
The rights of the parent or parents may be terminated if the court finds that the parent or parents have failed or neglected without reasonable and lawful cause to provide for the basic physical and psychological needs of the child or ward for 6 months prior to the filing of a petition. In determining such failure or neglect, the court shall disregard any incidental or minimal expression of concern or support and shall consider but not be limited to one or more of the following:
Failure to provide care or pay a reasonable portion of substitute physical care and maintenance if custody is lodged with others;
Failure to maintain regular visitation or other contact with the child or ward that was designed and implemented in a plan to reunite the child or ward with the parent;
Failure to contact or communicate with the child or ward or with the custodian of the child or ward. In making this determination, the court may disregard incidental visitations, communications, or contributions.
Thank you fishin'. I would LOVE to be able to have your mom to work with on this.
The only contact we've had with the state was about three years ago, after Mo had been here for about six weeks. I thought SOMEBODY ought to know what was happening but they weren't very interested. They told me they would pick him up and put him into foster care if that's what I wanted.
Uh.... No thanks.
Thanks Tico for posting!
What is "noticing up"?
Mo's mother has very minimal contact with him.
She has said that she consents to the adoption as long as there is no chance that bio father could somehow end up with custody if she signed her rights away.
His father's parents maintain more contact with him than just about any of his biological family. They don't even know where to find their son. They would love to see us adopt Mo.
We do have a very good adoption attorney but he is oh-my-God expensive. When his clock starts ticking I want to be sure that I am asking the right questions and have prepared everything I can beforehand.
Once we get the ball rolling I want it to speed along.
Hi dys. Thanks for joining the conversation!
This is good news:
Quote:Or. Rev. Stat. Ann. § 419B.506 (WESTLAW through Or. 2003 Legis. Serv., Ch. 396)
The rights of the parent or parents may be terminated if the court finds that the parent or parents have failed or neglected without reasonable and lawful cause to provide for the basic physical and psychological needs of the child or ward for 6 months prior to the filing of a petition. In determining such failure or neglect, the court shall disregard any incidental or minimal expression of concern or support and shall consider but not be limited to one or more of the following:
Failure to provide care or pay a reasonable portion of substitute physical care and maintenance if custody is lodged with others;
Failure to maintain regular visitation or other contact with the child or ward that was designed and implemented in a plan to reunite the child or ward with the parent;
Failure to contact or communicate with the child or ward or with the custodian of the child or ward. In making this determination, the court may disregard incidental visitations, communications, or contributions.
Our door has always been open to all of Mo's family. In fact, we've held onto an old phone number that we don't use anymore just because it is the phone line that Mo's dad used to call on.
I have kept a very detailed journal listing all contacts with both his mother and father.
boomerang wrote:Thanks Tico for posting!
What is "noticing up"?
Giving notice of the adoption hearing. In the context of the Oregon statute you provided, it appears that would be by serving them with the "show cause" citation described in the statute.
Quote:I have kept a very detailed journal listing all contacts with both his mother and father.
Good. This will be very useful and helpful for refreshing your memory if and when it goes to hearing.
Compare:
2005 Ore. App. LEXIS 863,*;200 Ore. App. 575;
116 P.3d 245
In the Matter of the Adoption of Cloie Anissa Peightal, a Minor Child. DAVID EARL HEATH and NICOLE REA HEATH, Appellants, v. STEPHEN PEIGHTAL, Respondent.
Quote:In its judgment denying the adoption petition, the trial court made the following two factual findings:
"1. [Father] has not maintained contact with child * * * for the year prior to the filing the Petition for Adoption.
"2. While [father] did not pay child support for the year prior to the filing of the Petition, any child support paid was paid by his parents and the Court finds that Respondent's consent is necessary for the adoption and Respondent does not give his consent."
(Emphasis added.) The trial court explained its ruling as follows:
"I just don't see sufficient evidence to require, or mandate an unconsented adoption here given the ultimate payment of child support through some effort of [*5] the father, even though he didn't pay it himself, and should have. He made some efforts which I believe to be a bit more, not a lot more, but a bit more than merely incidental. n2 Many of his efforts which were rebuffed, for what I am prepared to find, were good and understandable reasons."
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 ORS 109.324(2) provides that "in determining whether the parent has willfully deserted the child or neglected without just and sufficient cause to provide proper care and maintenance for the child, the court may disregard incidental visitations, communications and contributions."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
As we understand the import of the trial court's explanation in light of its findings, it exercised its discretion under ORS 109.324(1) to not dispense with the need for father's consent even though it found that father had not maintained contact with child without just cause for the year immediately preceding the filing of the petition for adoption.
As we said in our former opinion, [*6] we review the facts of the case de novo under ORS 19.415 and in light of the legal principles expressed in Eder v. West, 312 Ore. 244, 260 n 25, 821 P.2d 400 (1991). To determine whether father's consent is not required in this case, we review the evidence anew in light of the guidance provided by ORS 109.324(2) and (3) n3 to determine whether the ultimate findings required by ORS 109.324(1) are satisfied. Then, if necessary, we exercise our discretion to determine if father's consent is required. Although we reach the same legal conclusion as did the trial court, our reasoning differs.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 ORS 109.324(3) provides:
"In determining whether the parent has willfully deserted the child or neglected without just and sufficient cause to provide proper care and maintenance for the child, the court may consider, among other factors the court finds relevant, whether the custodial parent has attempted, without good cause shown, to prevent or to impede contact between the child and the parent whose parental rights would be terminated in an action under this section."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*7]
Mother and father's marriage was dissolved in 1995. Under that judgment, they have joint custody of child, although mother has always had physical custody since the divorce. The petition in this adoption proceeding was filed on March 31, 2003. Thus, the pertinent time period under the statute was from March 31, 2002 to March 31, 2003. At the time of the hearing in June 2003, father had not seen child since December 2001, except at a soccer game. Father testified that he was undergoing residential alcohol and drug treatment during the year preceding the filing of the petition, much of it at the Eugene Mission. During that time, both mother and father agree that father personally requested visitation with child on at least one occasion, requests that mother denied. Before she would consent to visitation, mother believed that father needed to prove he was "clean and sober" and to take responsibility for his behavior by making "amends" to child. Mother consistently required a release of information about father's compliance with the conditions of probation and treatment that were mandated by his criminal convictions before she would allow visitation. n4 Also, there is uncontroverted [*8] evidence that the paternal grandmother had requested supervised visits on behalf of father "two or three" times during the relevant period and that her requests, except for one, were denied by mother. Finally, mother testified that father spoke with child on one occasion during the pertinent time period after mother had informed father's parents that stepfather was going to seek to adopt child, and there is some evidence of attempted phone calls but there is no evidence of contact through letters, cards or packages.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 Father testified that he had been convicted of first degree burglary and theft arising out of his theft of personal property from his parents, selling the property and then using it to buy drugs. He served 35 days in the Lane County jail and was placed on probation for three years. At the time of the hearing, he had approximately a year and a half to serve on probation and had been at the Eugene Mission for 15 months.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
We are not persuaded to the requisite degree of certainty required under the [*9] statute that father failed to have contact with child during the pertinent period of time without just and sufficient cause. We agree with mother's exercise of prudence regarding father's attempts to have unsupervised contact with child. There was good reason for mother to be cautious about allowing unsupervised visits between child and father because of his 15-year history of drug and alcohol abuse. But also, we consider relevant the facts that father was seeking treatment for his addictions during that time and was focused on his recovery. Those facts, combined with mother's reluctance to provide visitation, offer some explanation for the limited number of attempts that father made to have contact with child. We are mindful that, to dispense with father's consent, evidence must be clear and convincing, particularly in light of his constitutional right to exercise parental rights involving child. Eder, 312 Ore. at 260, 266. Given all of the above circumstances, we conclude that there is not a sufficient showing by petitioners to find that father neglected without just and sufficient cause to provide proper care and maintenance to child for the year immediately preceding [*10] the filing of the petition for adoption.
2004 Ore. App. LEXIS 199,*;192 Ore. App. 213;
84 P.3d 1101
In the Matter of the Adoption of M. Christopher Sean Ellis, a Minor Child. MELVIN COLLIER ELLIS and KJERSTEN JANEL OQUIST, Appellants, v. ALICIA KRISTICH, Respondent.
A117366
COURT OF APPEALS OF OREGON
192 Ore. App. 213;84 P.3d 1101;2004 Ore. App. LEXIS 199
December 2, 2003, Argued and Submitted
February 25, 2004, Filed
PRIOR HISTORY: [*1] 0108-69096. Appeal from Circuit Court, Multnomah County. Merri Souther Wyatt, Judge.
COUNSEL: Sharon E. Kelly argued the cause and filed the brief for appellants.
No appearance for respondent.
JUDGES: Before Landau, Presiding Judge, and Armstrong and Brewer, Judges.
OPINIONBY: LANDAU
OPINION: LANDAU, P. J.
Father and stepmother petitioned for stepmother's adoption of father's child. They asked that mother's consent be dispensed with on the ground that mother willfully deserted or neglected to provide proper care and maintenance of child without just and sufficient cause for more than a year before the filing of the petition. ORS 109.324. The trial court found that petitioners failed to demonstrate mother's willful desertion or neglect without sufficient cause; the trial court found that petitioners had interfered with mother's efforts to contact child. The court then dismissed the petition on the ground that mother did not consent and that petitioners failed to establish the required basis for proceeding without her consent. Petitioners appeal, arguing that the trial court erred in finding that they failed to establish that mother had willfully [*2] deserted or neglected child for more than a year without sufficient cause. We agree with petitioners and reverse and remand.
We review the facts de novo to determine whether petitioners have established, by clear and convincing evidence, a ground for dispensing with mother's consent. Eder v. West, 312 Ore. 244, 260, 266, 266 n 25, 821 P.2d 400 (1991).
Mother gave birth to child in 1991. Sometime after the birth, mother and father, who apparently were not married, separated. Child remained in mother's care.
In the fall of 1996, when child was five, the state removed child from mother's care on reports that child had been abused by someone with whom mother had left him. The state contacted father. He and stepmother, who was living with father, immediately began visitations with child. Ultimately, father and stepmother were given full custody. Under the terms of the judgment awarding custody, mother was to have visitation with child after she completed a drug treatment program and a parenting class and after she provided documentation of her completion of those classes to father. Mother also was required to pay child support.
Father and stepmother married in 1997 [*3] and lived in Portland. From early 1997 to December 1999, mother did not visit child. She lived in Portland in 1997, but was incarcerated the following year for several months on drug-related charges. She was released in 1999 and ultimately settled in Boring.
Mother met with father and stepmother four times during that approximately two-year period. At the meetings, mother delivered gifts for child. With one exception, the gifts were given to child. The exception was a bicycle that father postponed giving to child until the summer of 1999. Father explained that child was not tall enough to ride the bicycle at the time mother delivered it. Father also told mother that he thought that she was giving child too many gifts and that he preferred that she give no more than one gift at a time. He and stepmother thought that it would be confusing for child to receive so many gifts from someone who never visited. During that time, mother also wrote two letters and two cards to child. The letters were either delivered to father during the periodic meetings or mailed to father's work address. Unbeknownst to mother, father and stepmother did not deliver the cards to child. Again, they did not regard [*4] it as in child's best interests to be receiving mail from someone whom he had not seen for so long.
During the summer of 1999, father and stepmother moved to Fairview. They provided the post office a forwarding address. They also reported their change of address to the State of Oregon child support enforcement services. They did not report their change of address to mother, however. Mother had threatened to kidnap child from their custody, so they were not eager to have mother know their new address.
Father's and stepmother's telephone number remained the same. It was a publicly listed number. Stepmother is self-employed as a classical musician and works primarily out of the home as a music teacher; she needs a published number to maintain her business. There also is an answering machine that always remains connected and in working order. Father and stepmother do not have "caller ID" service, nor do they have any call-blocking capability. Since 1999, father and stepmother have received no telephone calls or messages from mother. Mother testified that she called four times in early 2000, but that no one answered. She also sent a letter to child addressed to father's place of employment [*5] around the same time, but the letter was returned to her. She telephoned father's employer, but learned that he had changed jobs.
In January of 2001, mother was convicted of three felonies and sentenced to a period of incarceration. During her incarceration, mother took parenting classes and enrolled in drug treatment classes.
In August of that same year, father and stepmother filed their petition for adoption. During the trial on the petition, the court limited the evidence to the issues of abandonment and neglect and did not take evidence on the issue of the best interests of child and the ultimate question of whether the adoption should proceed. At the conclusion of the hearing, the trial court found that father and stepmother had failed to sustain their burden of proving that mother willfully abandoned child. The court cited the fact that father had failed to deliver the bicycle to child immediately and the fact that he and stepmother failed to deliver mother's cards and letters during the period from 1997 to 1999. The order dismissing the petition contains that finding and further concludes that adoption would not be in the best interests of child.
On appeal, father and stepmother [*6] assign error to both rulings. We begin with the issue of consent, specifically, whether mother's consent is not required because she abandoned child. ORS 109.324 provides:
"If either parent is believed to have willfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child for one year next preceding the filing of the petition for adoption and such parent does not consent in writing to the adoption, there shall be served upon such parent a citation in accordance with ORS 109.330 to show cause why the adoption of the child should not be decreed. Upon hearing being had, if the court finds that such parent has willfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child for one year next preceding the filing of the petition for adoption, the consent of such parent at the discretion of the court is not required and, if the court determines that such consent is not required, the court shall have authority to proceed regardless of the objection of such parent. In determining whether the parent has willfully deserted [*7] or neglected without just and sufficient cause to provide proper care and maintenance for the child, the court may disregard incidental visitations, communications and contributions. This section does not apply where consent is given in loco parentis under ORS 109.316 or 109.318."
Thus, as pertinent to this case, the issue is whether mother "willfully deserted or neglected" child for a period of one year before the filing of the adoption petition "without just and sufficient cause."
The statute does not define "willful[] desertion or neglect[]." In Eder, however, the Supreme Court explained that the relevant question is whether, during the year preceding the filing of the petition for adoption, the nonconsenting parent "willfully failed to manifest substantial expressions of concern which show that the parent has a deliberate, intentional, and good faith interest in maintaining a parent-child relationship." 312 Ore. at 266.
The statute also does not define what constitutes "just and sufficient cause." We explained in Panter v. Ash, 177 Ore. App. 589, 594, 33 P.3d 1028 (2001), that the question whether there is [*8] just and sufficient cause must be determined by considering the circumstances that caused the neglect. Just and sufficient cause may exist if the neglect results from significant restraints imposed by the custodial parent, such as keeping the child's whereabouts secret, declining child support, or vigorously resisting visits. Id. A lack of visitation, however, cannot be justified simply by asserting that the custodial parent has made or would make visitation difficult, particularly when there has been little contact with the custodial parent. Pizano-Varela v. Gomez, 103 Ore. App. 629, 633, 798 P.2d 724 (1990).
Our decision in Panter illustrates the application of the foregoing principles. In that case, the father of the child contended that, although he had failed to contact the child for several years before the filing of the adoption petition, his lack of contact was justified because of his asserted inability to locate the mother and the child so that he might send them gifts or letters. We rejected that argument. We noted that the mother had had her mail forwarded, that she had picked it up continually, and that her telephone number had remained the same [*9] during the relevant time. The father simply believed that attempted contacts would have been unsuccessful, based on earlier conversations with the mother's parents, who told him that he should provide for the child before contacting him, and a telephone conversation with the mother, who hung up on the father. We concluded that the father's belief that attempted contacts would be unsuccessful was not persuasive. First, we noted that the disagreements with the mother's parents and with the mother occurred more than one year before the filing of the petition. Second, we noted that, in any event, those conversations did not actually interfere with his ability to contact the child. The father, we held, "cannot justify his lack of contact merely by asserting that mother or her family has made or would make visitation difficult; there must be a more significant limitation[] imposed on father's ability to visit or contact child." Panter, 177 Ore. App. at 594-95.
In this case, it is undisputed that mother failed to contact child at all during the year before the filing of the adoption petition. Indeed, mother has not seen child--who was ten years old at the time of the hearing--since [*10] he was five. The judgment awarding father custody of child expressly provided mother the right to visit child as long as she demonstrated that she had complied with the requirement that she complete drug treatment and parenting classes. Mother never complied with the terms of that judgment. The only issue therefore is whether mother's failure to manifest any expression of concern for child was justified under the circumstances.
Mother argued at the hearing that father and stepmother had interfered with her ability to contact child. She cited the failure of father and stepmother to deliver gifts, cards, and letters. As in Panter, however, those incidents occurred well before the relevant time period. Moreover, there is no evidence that mother knew that father and stepmother had failed to deliver the gifts, cards, or letters (in fact, mother did not know that until the hearing) and likewise no evidence that the failure to do so had anything to do with mother's decision not to attempt to contact child in any way during the year before the filing of the petition.
Mother also argued that father and stepmother interfered with her ability to contact child by neglecting to advise her [*11] of the change in their residential address and the change in father's place of employment. Whether or not father's and stepmother's conduct in that regard was well advised, however, there is no evidence that it actually interfered with any attempt to contact father, stepmother, or child. Mother's most recent attempts to contact father, which were in early 2000 and thus before the relevant period, consisted of four telephone calls that simply were not answered. There is no evidence that mother made any other telephone calls or took any steps to learn a current residential or employment address. As in Panter, although father and stepmother did not go out of their way to facilitate contact, neither did they interfere with it.
We find that father and stepmother established that, in the year before the filing of the petition, mother willfully deserted or neglected child without just and sufficient cause and that the trial court erred in finding to the contrary.
Father and stepmother also assign error to the conclusion in the trial court's order that adoption is not in the best interests of child. Ordinarily, if a court finds that, in the year before the filing of the petition, the [*12] natural parent has deserted or neglected the child without just and sufficient cause, the court must then decide whether adoption is in the best interests of the child. Eder, 312 Ore. at 261. In this case, however, the trial court limited the scope of the evidence to the preliminary question whether mother justifiably deserted or neglected child. Thus, although the order does recite a conclusion that adoption is not in child's best interests, there is no evidence in the record on that issue. We therefore decline to address it on appeal and instead reverse and remand for further proceedings.
Reversed and remanded.
Re: I need help re: willfull desertion or neglect of child
boomerang wrote:What I'm trying to figure out right now is -- does willful desertion and neglect apply when a guardian has been appointed?
Yes. Willful desertion and neglect apply.
You have heard nothing from the father for a year and a half. During this entire time, he has made absolutely no effort to contact the child or to maintain a relationship with him. Handing a child over to another party (e.g., guardian) to provide for the child's needs when the parent cannot do so (for whatever reason) does not excuse the parent from making any effort to maintain a relationship with the child. This "father" knows how to contact the child if he wants to do so. You have never interfered with his parental rights; you have not moved or changed your phone number; you have not hidden the child from him. Unless this guy can show he was in a coma for the last year and therefore unable to send one damn card or make one simple telephone call, his unexplained absence in excess of a year is without just and sufficient cause.
Well, maybe he was kidnapped by aliens and has been having his anus probed for a year and a half. Who knows. But the fact remains, you don't know because he has failed to express any concern at all for the child indicating that he cares not one iota about maintaining a parent-child relationship.
Now is the time to petition for adoption.
Wow Debra! Thank you very much. That's a lot of research and I really appreciate it.
I'm going to go back and reread all of that but I think ALL of this really works in our favor.
It is hard to know what is considered "adequate" contact by the court. When we first saw an attorney after Mo had been here for more than a year -- the 90 hours Mo had spent with his dad was considered adequate contact.
I'm still flabberghasted that 4 days of parenting over the course of a year qualifies one as a parent but....
Thanks again. Really.
contested adoption
I've had custody of my nieces baby since the moment she was born. She then said she wanted visitation so the judge gave her visits on Sundays.
Well there were about 7 visits and has not seen her since Jan 2 2005.
We filed for adoption around the first of the year and she is contesting adoption. She said we kept her from her visits. I can promise you I we had kept her away I would have been in court faster then my head could spin. There were times if The Baby had a cold or was sick I had to cancel the visits she had the police at my house. In NJ 120 days no contact the rights should be terminated. I really need help.
Hi BlessedAngle and welcome to A2K.
You filed for adoption at the first of the year and she is contesting it?
When is your court date?
she contested it right away. The attys and judge are having a 2nd confrence on fri
The visitation thing is complicated. We kept careful records of all visitation and any contact within one year was considered too much contact. I'd think that visits scheduled but cancelled by you would probably count as contact.
What about the biological father? Has he signed off or is he contesting the adoption too?
Have you already been through the whole home study process?
I'm sorry that I don't know much as we are learning as we go along and you are further into the process than we are.
Me canceling the visits is when she was coming on a regular basis. Well as regular as 7 visits can be. The no contact no show has been since Jan of 2005. He last visit prior was the week before Jan 2 2005. I've kept track of all the visits. And all that has transpired since that date. The bio dad don't want her and never has.
