E. A. R. v. R. B. E.

614

Argued and submitted May 22, reversed and remanded August 23, petition for

review denied November 2, 2023 (371 Or 511)

In the Matter of the Adoption of E. L. R.,

new name E. L. E., a Child.

E. A. R.

and E. M. E.,

Petitioners-Respondents,

v.

R. B. E. IV,

Respondent-Appellant.

Jackson County Circuit Court

21AP00604; A180312

535 P3d 793

Father appeals from a general judgment of adoption that allowed his five-

year old child to be adopted without his consent. The trial court concluded that

father’s consent was not required because, under ORS 109.324, he had willfully

neglected without just and sufficient cause to provide proper care and mainte-

nance for his child during the year immediately preceding mother and her part-

ner’s filing of the petition for adoption. On appeal, father argues that the trial

court erred in finding that he did not have just and sufficient cause excusing

his neglect and erred in allowing the adoption to proceed without his consent.

Held: Father neglected his child during the relevant statutory period; however,

father had just and sufficient cause excusing his neglect. The Court of Appeals

concluded that father’s incarceration, combined with mother’s actions to rebuff

father’s attempts to maintain contact with their child, constituted just and suffi-

cient cause excusing father’s neglect. Therefore, the trial court erred in allowing

the adoption to proceed without father’s consent.

Reversed and remanded.

Benjamin M. Bloom, Judge.

George W. Kelly argued the cause and filed the brief for

appellant.

Melisa A. Button argued the cause and filed the brief for

respondents.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and

Jacquot, Judge.

JOYCE, J.

Reversed and remanded.

Cite as 327 Or App 614 (2023) 615

JOYCE, J.

In this adoption proceeding, birth father appeals

from a judgment that allowed his five-year old child, E, to

be adopted without his consent. He asserts that the trial

court erred when it found that he had willfully neglected,

without just and sufficient cause, to provide proper care and

maintenance for E during the year immediately preceding

mother and her partner’s filing of the petition for adoption.

See ORS 109.324. Because we agree that father had just and

sufficient cause for his neglect, we reverse.

FACTUAL BACKGROUND

We review the facts de novo, deferring to the trial

court’s demeanor-based credibility finding that “father was

not credible” about his attempts to maintain a relationship

with E. J. W. V. v. J. L. W., 324 Or App 393, 395, 525 P3d

1237 (2023) (holding that we review the facts in adoption

proceedings de novo because termination of parental rights

is part of the proceeding, and, under ORS 19.415(3), we con-

duct de novo review of termination of parental rights).

ORS 109.324(2) provides that if a court finds that a

parent has “willfully deserted the child or neglected without

just and sufficient cause to provide proper care and main-

tenance for the child for one year next preceding the filing

of the petition for adoption,” the consent of the parent is not

required for adoption. Mother and her partner filed the peti-

tion for adoption in May 2021. Thus, we focus on the extent

of father’s contact with E during the year preceding the fil-

ing of that petition—here May 2020 to May 2021. That said,

because many of the events that occurred before that time

are relevant to resolving father’s arguments on appeal, we

describe those events as well.

Mother and father were married in 2016, and mother

gave birth to E in January 2017. Father was deployed to a

military base in Texas in February 2018. Two months later,

father was arrested, and then convicted, in Texas for online

solicitation of a minor. While in prison, father was also con-

victed in Oregon of first-degree online sexual corruption of

a child and second-degree sexual abuse for having sexual

616 E. A. R. v. R. B. E.

contact with a 15-year-old. As a result of all of those convic-

tions, father was sentenced to several years in prison.

Early in his term of incarceration, father main-

tained regular contact with mother and E through phone

calls and letters. Initially, father would call mother multi-

ple times per week, and mother would let father talk with

E. In addition to those phone calls, father regularly sent

letters to mother. Although those letters would mention E,

they mainly concerned the relationship between father and

mother.

While he was incarcerated, father gave mother

access to his bank account, in which he deposited about

$15,000. Father gave mother access to his account to help

her support E (and other nonjoint children). Mother began

withdrawing funds from father’s account in June 2018, and

mother eventually withdrew all of the funds.1

In October 2018, mother filed for divorce. Father

received the petition but did not file a response or participate

in the divorce proceeding.2 Accordingly, the court entered a

default judgment against father, granting full custody of E

to mother, providing no visitation to father, and ordering no

child support.

In December 2018, mother asked father to stop

calling. For some time, father continued to attempt to call

mother every six to eight weeks. However, when father would

call mother, she would not answer the phone, and, due to the

prison phone system, father did not have the ability to leave

voicemails. While in prison, father also did not have access

to the internet, email, or video calls.3 Father continued to

send mother letters, but mother did not respond to father’s

letters.

In addition to letters and phone calls, father also

asked his mother, Vawter, to text and call mother to try to

1

It appears mother withdrew all of the funds by October 2019.

2

Father testified that he did not learn about the divorce until after the

default judgment was entered. The trial court found father’s testimony in that

respect not credible, based on exhibits that reflected that he received personal

service and acknowledged the divorce proceedings in letters to mother.

3

Father testified that he “d[id]n’t have access to internet at all” and there

was no evidence presented to the contrary.

Cite as 327 Or App 614 (2023) 617

maintain contact with E. Vawter tried contacting mother

through messages on Facebook. However, mother blocked

Vawter on Facebook in 2019 because, mother testified, every

message from Vawter was a message from father about his

relationship with mother.

In January 2019, mother moved out of the home in

Medford that she had previously shared with father. Mother

first moved from Medford to Jacksonville. However, a year

later, in January 2020, mother moved back to Medford, but

into a different residence. Both times that mother moved, she

provided a change of address to the postal service, although

the forwarding service expires after one year. Mother did

not inform father either time that she had moved, and she

did not provide father with either updated address. Her

phone number, however, remained the same.

In April 2020, the letters that father sent to mother

began getting returned. Those letters were returned because

it had been roughly a year since mother had moved from

her first address in Medford—the address to which father

had been sending all of his letters—and mother’s change of

address with the post office had expired.

After father’s letters started getting returned, he

asked Ernst, the mother of one of his other children, to hand

deliver a letter to mother with the purpose of reestablish-

ing direct communication with mother. Ernst agreed and

hand delivered a letter to mother in April 2020. According

to mother, that is the last communication she received from

father prior to the filing of the adoption petition. Father

asserted that Ernst hand delivered another letter in May

2020, although mother disputed receiving that letter.

Around October 2020, father signed a power of

attorney for Vawter so that she could retrieve his bank

statements. At least some of the bank statements listed

father’s name but mother’s Jacksonville address (changed

by mother). Vawter did not send father copies of his bank

statements and instead read the information to him over

the phone. There is no evidence that Vawter gave father

mother’s Jacksonville address (which would have still had

an active forwarding order).

618 E. A. R. v. R. B. E.

In May 2021, mother and her partner jointly filed

the adoption petition that initiated this case. The court

appointed counsel for father. Father’s attorney in the adop-

tion case also filed an appearance in the divorce case in

October 2021, seeking to modify the divorce judgment

to obtain parenting time and to order father to pay child

support.

Father was released from prison in February 2022.

After a hearing on the adoption petition in May 2022,

the trial court granted the petition, concluding that during

the one-year period before the filing of the adoption petition,

father had willfully neglected E without just and sufficient

cause. The trial court then entered a judgment terminating

father’s parental rights and concluded that it was in E’s best

interests that the adoption be granted. Father now appeals.

LEGAL ANALYSIS

Because it impacts our legal analysis, we begin with

the trial court’s credibility findings. The trial court “specif-

ically [found] that father was not credible and discount[ed]

his testimony that he attempted to maintain a relationship

with [E].” The court went on to note “its conclusion that

Father was not truthful about his knowledge of the divorce

proceedings” in light of the evidence that father received

personal service of the petition. We defer to the court’s find-

ings to the extent that they are based on the trial court’s

ability to observe father; “we give considerable weight to

the findings of the trial judge who had the opportunity to

observe the witnesses and their demeanor in evaluating the

credibility of their testimony.” Fitts v. Case, 243 Or App 543,

552 n 3, 267 P3d 160 (2011). That said, the deference that we

give the trial court’s credibility findings lessens when the

findings turn on other factors, such as internal consistency,

logic, and corroboration. See In re Schenck, 318 Or 402, 420-

21, 870 P2d 185, cert den, 513 US 871, 115 S Ct 195, 130

L Ed 2d 127 (1994). Thus, to the extent that we can assess

father’s credibility based on documentary evidence—like

letters and legal documents—we do so. As a practical mat-

ter, as we discuss below, most of the evidence that we rely

on regarding father’s attempts to maintain contact with E

Cite as 327 Or App 614 (2023) 619

is corroborated by the testimony of other witnesses, or the

exhibits submitted into evidence.

We turn to the merits. As noted above, ORS

109.324(2) provides that if a court finds that a parent has

“willfully deserted the child 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 peti-

tion for adoption,” the consent of the parent is not required.

In making that determination, courts may “disregard inci-

dental visitations, communications and contributions” and

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 termi-

nated in an action under this section.” ORS 109.324(3)(a), (b).

The burden of proof rests upon the petitioner—here,

mother—to prove by clear and convincing evidence that the

respondent neglected without just and sufficient cause to

provide for the child’s care during the statutory period. Eder

v. West, 312 Or 244, 266, 821 P2d 400 (1991).

A parent can meet that burden by showing that,

during the year preceding the filing of the petition for adop-

tion, the “non-consenting parent willfully fail[ed] to mani-

fest substantial expressions of concern which show that the

parent has a deliberate, intentional, and good faith inter-

est in maintaining a parent-child relationship[.]” Id. at 266.

“Incidental” means “occurring merely by chance or without

intention or calculation; being likely to ensue as a chance

or minor consequence; not receiving much consideration.”

Id. at 266 n 24 (internal citation omitted). If a court finds

that a parent has neglected their child, the next question is

whether just and sufficient cause excuses the neglect. ORS

109.324; see Panter v. Ash, 177 Or App 589, 594, 33 P3d 1028

(2001) (determining whether the father’s neglect was justi-

fied by just and sufficient cause). “[W]hether there is just

and sufficient cause must be determined by considering the

circumstances that caused the neglect.” Panter, 177 Or App

at 594 (citation omitted).

We conclude that father neglected E. During the

one year preceding the filing of the petition—May 2020 to

620 E. A. R. v. R. B. E.

May 2021—father, at most, caused one letter to be delivered

from Ernst to mother. We say at most because mother dis-

putes receiving that letter, and there is no evidence regard-

ing that letter other than the conflicting accounts of mother

and father. But even if mother received that single letter,

one letter during the course of a year is nothing more than

the kind of incidental communication that we may disre-

gard. ORS 109.324(3)(a); T. G. W. v. B. J. V., 295 Or App 717,

723, 436 P3d 85 (2019) (one or two letters over the course of a

year “does not rise to the level of a substantial expression of

concern” (emphasis in original)). Father also did not provide

any kind of financial support to E during this time or send

any gifts. As such, father’s lack of contact with E constitutes

neglect.

The more difficult question is whether father had

just and sufficient cause for that lack of contact. “Neglect, to

be ‘without just and sufficient cause,’ must be ‘intentional,

deliberate or willful.’ That is, the failure to provide support

and care must be voluntary and knowing.” Brown v. Taylor,

22 Or App 219, 224, 538 P2d 1268, rev den (1975) (quoting

Dunne v. McCashum, 13 Or App 66, 70-71, 508 P2d 821 (1973)

(citation omitted)). Incarceration is not just and sufficient

cause, on its own, to excuse neglect. T. G. W., 295 Or App

at 724. Circumstances justifying a lack of contact with a

child may exist where the neglect results from significant

restraints imposed by the custodial parent, such as keep-

ing the child’s whereabouts secret or vigorously resisting

child support or visits. Panter, 177 Or App at 594. However,

just and sufficient cause requires “a more significant lim-

itation[ ] imposed on [the parent’s] ability to visit or contact

[the] child than mere assertions that the custodial parent

has made or would make contact with the child difficult.”

C. R. H. v. B. F., 215 Or App 479, 486, 169 P3d 1286, rev den,

343 Or 690 (2007) (internal quotation marks omitted).4

4

One of father’s probation conditions is not to have contact with minors

until he completes an initial assessment with a sex offender treatment program

and unless he has prior approval from his probation officer. Although we have

previously considered legal prohibition on contact as being just and sufficient

cause, father’s restrictions on contact became effective in February 2022, after

his release from prison. Therefore, father’s probation conditions fall outside of

the relevant time frame for purposes of determining whether father had just and

sufficient cause for neglecting E.

Cite as 327 Or App 614 (2023) 621

Our caselaw does not “precisely delineate the

quantum, or type of neglect which will satisfy the statute.”

Brown, 22 Or App at 224. That said, we have previously

excused a parent’s neglect in a variety of limited circum-

stances. See Eder, 312 Or at 265 (providing an overview

of cases interpreting what constitutes “just and sufficient

cause” under ORS 109.324). More specifically, we have

previously excused a parent’s failure to visit in situations

where the custodial parent prevented visitation. See, e.g.,

Hairston v. Threets, 105 Or App 350, 353-55, 804 P2d 1213

(1991); Brown, 22 Or App at 225. For instance, the custodial

parent in Hairston refused to allow the other parent to visit

the children unless he paid child support, and also denied

him phone contact with the children. 105 Or App at 353-

55. We have likewise found it relevant to consider whether

a dissolution decree provides visitation rights to the non-

custodial parent or requires the noncustodial parent to pay

child support. See Swarthout v. Reeves, 26 Or App 763, 767,

554 P2d 617 (1976); Sayre v. Whitehead, 25 Or App 205, 208,

548 P2d 521 (1976).

We are also mindful of the fact that, in a contested

adoption case, the “liberty interest of parenthood * * * is

at stake. The fact to be established, wilful desertion of, or

neglect or failure to support, one’s own child without just

cause, stigmatizes a parent in a way akin to guilt.” Zockert

v. Fanning, 310 Or 514, 527-28, 800 P2d 773 (1990).

In light of those considerations, we conclude that

mother did not satisfy her burden of proof. Although father’s

incarceration is not alone just and sufficient cause to excuse

his neglect of E, father’s incarceration combined with mother

rebuffing father’s attempts to maintain contact with E con-

stitutes just and sufficient cause to excuse father’s neglect.

As described above, father’s ability to communicate during

the one-year period with E was limited because he was

incarcerated for that year. Father did not have access to the

internet, to email, or to video calls. Father’s options for com-

municating with E were therefore reduced to phone calls,

letters, and third-party assistance.

Father used all three of his available lines of com-

munication to try to contact mother and E. However, mother

622 E. A. R. v. R. B. E.

rebuffed all three of father’s communication options.5 As

described above, in December 2018, mother asked father not

to call her anymore and subsequently she did not answer

father’s phone calls from prison. Furthermore, although

mother did provide a change of address with the post office,

she did not inform father of her updated address either

time she moved. Thus, once mother’s first change of address

with the post office expired, father’s ability to send letters

to E was also cut off.6 Additionally, mother limited contact

with father’s mother, Vawter, when she blocked Vawter on

Facebook in 2019. Vawter testified that her calls and texts

to mother would also go unanswered.

To be sure, many of those actions occurred before the

relevant one-year time frame (May 2020 to May 2021), but

they nonetheless inform why father failed to demonstrate

substantial expressions of concern for E during the one-

year period. That is because, to determine whether a par-

ent had just and sufficient cause for neglecting a child, the

court must consider all of the circumstances that caused the

neglect. Panter, 177 Or App at 594. Here, the circumstances

that caused father to neglect E include mother’s actions to

impede father’s contact with E, including some events that

occurred outside of the relevant one-year period.7

We acknowledge that mother had no obligation to

maintain contact with father or even to facilitate contact

between father and E. The divorce judgment granted full

custody to mother and no visitation rights to father. Mother

was entirely within her rights to not answer father’s phone

5

On appeal, mother argues that she had good cause to impede father’s con-

tact with E; mother did not make that argument to the trial court, and the trial

court did not make any findings on that issue, so we cannot properly address it on

appeal.

6

When Vawter obtained power of attorney from father in October 2020,

Vawter was able to retrieve father’s bank statements. Although some of the bank

statements Vawter acquired listed mother’s Jacksonville address, there is no evi-

dence that Vawter noticed the address and there is also no evidence that she

informed father that she had found the address. Therefore, nothing in the record

indicates that father was aware of this potential avenue for contacting mother or

that he intentionally chose not to pursue it.

7

To the extent that mother argues that father was required to keep trying to

contact E during the one-year period even knowing such efforts would be futile,

we reject that argument. Mother has not identified any requirement in statute or

caselaw that supports such an argument, nor do we perceive any.

Cite as 327 Or App 614 (2023) 623

calls or letters. However, mother cannot create the circum-

stances by which father was unable to successfully maintain

contact with E and then use that lack of contact as grounds

for seeking to have father’s parental rights terminated.

Mother argues that father had other means of

attempting to communicate with E. More specifically, mother

argues that father could have filed a motion to modify the

divorce judgment to seek phone or mail communication with

E (as father eventually did once he had court-appointed

counsel). While filing a motion in the domestic relations case

was one avenue for father to attempt to regain contact with

E, father’s means of doing so were limited, given his impris-

onment and financial circumstances. Furthermore, in pre-

vious contested adoption cases where the nonconsenting

parent was not granted visitation rights, we have not penal-

ized the nonconsenting parent for failing to file a motion to

modify the divorce judgment. See Swarthout, 26 Or App at

766-67 (reasoning that a divorce decree that did not pro-

vide for visitation constituted a constraint imposed by the

custodial parent that established “just and sufficient cause”

that excused the nonconsenting parent’s failure to visit the

child).

In sum, we conclude that mother failed to prove by

clear and convincing evidence that father willfully neglected

without just and sufficient cause to provide proper care and

maintenance for the child for one year before the filing of

the petition. Therefore, the court erred in allowing the adop-

tion to proceed without father’s consent, and, accordingly,

we reverse the trial court’s decree of adoption.

Reversed and remanded.