Family Law Keyed to Weisberg

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State Ex Rel. Children

Citation. State ex rel. Children’s Servs. Div. v. Brady (In re Brady-O’Neal), 135 Ore. App. 332, 899 P.2d 691, 1995 Ore. App. LEXIS 950 (Or. Ct. App. June 28, 1995)

Brief Fact Summary. Mother gave birth to a child with special needs, and mother’s current mental limitations and situation limited her ability to care for the child. Child services eventually petitioned the court for permanent termination of parental rights.

Synopsis of Rule of Law. The court erred in finding by clear and convincing evidence that the child’s integration into mother’s home was improbable in the foreseeable future due to conditions unlikely to change, even though mother was willing to work towards being a more capable mother and child services failed to provide opportunities for this.

Facts. Appellant Michelle Brady gave birth to her daughter prematurely. Her daughter suffered from life-threatening medical conditions, and was in the neonatal intensive care unit for the first 15 weeks of her life. The mother was 18 at the time, and was of low average intelligence, exhibiting certain mental and psychological difficulties. She was a homeless high school drop out when she met the child’s father, and their relationship was violate and periodically violent. Despite this, mother visited child at the hospital daily and met with the nursing staff to discuss the child’s special needs. Following an altercation between mother and father, hospital staff became concerned and contacted Children’s Services Division (CSD). A CSD investigator contacted the parents and recommended they attend psychological evaluations and domestic violence groups. CSD did not offer any other assistance or training. A psychological evaluation of the mother revealed that she had sustained subs
tantial head injuries during a car accident at 14. She therefore experienced seizures and problems with concentration, memory and vision. Diagnostic tests also revealed that she had low average intelligence and impaired empathy, problem solving, and psychological sensitivity. The psychologist determined that she had organic personality disorder with passive-aggressive features, and concluded that she lacked the skills to care for child on her release from the hospital. CSD therefore petitioned the court to assume jurisdiction. The court did, and placed the child in the care of a foster parent. Mother’s access was limited to two one-hour supervised visits per week, and attended all visitations on time. In October 1993, CSD requested that the parents’ skills and abilities be assessed. The determination was that the parents showed an obvious interest in parenting, but were currently unable to meet the child’s needs. CSD decided to petition for termination of parents’ rights, off
ering neither parent any further assistance or support in acquiring skills needed to care for their special needs child. Mother, nonetheless, undertook a variety of self-help efforts to improve her life and capacity as a parent. At the time of the termination hearing, the child was 18 month old and her medical condition had improved. Mother’s parental rights were terminated, and she appealed.

Issue. Did the court err in determining that mother lacked the capacity to care for her special needs child?

Held. The court erred because the state failed to prove by clear and convincing evidence that the child’s integration into mother’s home was improbable in the foreseeable future due to conditions unlikely to change.
CSD relied almost exclusively on the two evaluations conducted 16 and 10 months earlier. One of the evaluators conceded at the proceedings that she was incapable of rendering an informed decision as to the mother’s ability to care for the child at the time of the hearing or in the foreseeable future. Mother’s counselor disputed the diagnosis that she suffered from organic personality syndrome, and testified that her organizational deficits were related to post-traumatic stress disorder, and were improving and would continue to improve. The child’s pediatrician testified that the child’s medical problems were decreasing, but her developmental needs would increase in the future. He was unable to describe these future needs with particularity. Mother testified simply regarding her child’s special needs and her ability to meet them. CSD did not present any evidence of an imminent, compelling need to terminate mother’s rights rather than continuing foster care. Testimony reveale
d that the potential for adoption of the child was low.

The state must prove by clear and convincing evidence that a parent is presently unable to meet a child’s needs, and that integration of the child into the home of the parent is improbable in the foreseeable future due to conduct or conditions unlikely to change. The question of mother’s present ability is close and difficult, but the state failed to prove the second part of this standard. The mother never had a meaningful opportunity to develop and demonstrate parenting skills. CSD’s principle evaluator acknowledged that with appropriate guidance and training, the mother might ultimately assume primary responsibility for the child. CSD never provided such assistance. Given mother’s commitment to child and her determination to be a good parent, this Court is not satisfied that the conduct and conditions of the mother are unlikely to change.

Discussion. The Court made no determination regarding the mother’s immediate ability to care for her child, but determined that the lower court erred in determining that the child’s integration into mother’s home was improbable in the foreseeable future due to conditions unlikely to change.