neglect not shown despite father’s failure to see children for six years before filing of adoption petition
How later courts described this case
- neglect not shown despite father’s failure to see children for six years before filing of adoption petition
Written by the judges who cited it.
The opinion
FOLEY, J.,
dissenting.
ORS 109.324, quoted in the majority opinion, delineates the criteria under which the necessity for noncustodial parental consent for adoption is determined. The necessity for parental consent is obviated, at the discretion of the court, if the natural parent in question has “wilfully 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 trial court found that the father was divorced by the mother of the children May 22, 1968, and the custody of the children was awarded to the mother. Neither the father nor his counsel made any effort to secure specific visitation privileges and no visitation was provided in the decree. At no time subsequent to the divorce did the father attempt to secure visitation privileges through court action or with the assistance of counsel. Although the decree required payment of $50 per month per child by the father, no child support payments have ever been made by the father who, the court found, was well able to pay support for the children. The trial court found that the mother made affirmative efforts to keep the children’s and her location unknown to the father, and communicated threats of bodily harm to him if he attempted to intrude into their lives. She lived in several locations in Portland following her divorce from the father and later lived in Cascade Locks, Hosier and Hood River, all in Oregon. Although the father contends that he made numerous, regular and consistent efforts to determine the whereabouts of his children, his lack of success renders his claimed ef *229 forts questionable. As the trial court said, in announcing its decision:
“* * * Mr. Brown, this is for you — I feel that your efforts to find the children were very very minimal. * * *”
The facts are that Mr. Brown had not seen, visited or communicated with the children for a period of approximately six years — from the date of the decree in 1968 — until the children were brought into court on a habeas corpus proceeding in April 1974.
The children are now approximately 10 and 18% years of age. It is my conclusion from a review of the entire record that the neglect of the father to make a serious effort to locate, visit and provide for his children over a six-year period was so gross that his consent to adoption of the children is not required. I conclude that the requirements of ORS 109.324 are here met. Brooke v. Bosley, 21 Or App 537 , 536 P2d 543 (1975); Moody v. Voorhies, 257 Or 105 , 475 P2d 579 (1970); Mahoney v. Linder, 14 Or App 656 , 514 P2d 901 (1973).
That would then place squarely before the court whether the proposed adoption is in the best interests of the children. While the wishes of the children are only one criteria in making that determination, their strong desire and the basis therefor are entitled to serious consideration.
The trial court talked to the children in chambers in the presence of counsel. After an excellent explanation by the court of the trial court’s difficult role, the court came around to asking the 13-year-old boy what his desires were. The boy firmly and unequivocally stated that he wanted to live with the proposed adoptive parents with whom he and his sister had been living the past year and ten months. When the court asked him why he did not want to *230 live with his father and why he did not like him, he said:
“He beat me and he beat my mom up, he was just cruel to everybody,”
and commenting upon a recent visit in the home of the father and the father’s present wife he said: '
“* * * I hate them.”
The girl, then nine years old, also testified that she wanted to live with the adoptive parents.
Since the trial court found that the father’s consent was necessary to the adoption, the court did not come to a consideration of adoption and the complex questions which arise in determining what is best for the children, having in mind stability and continuity of relationships, surroundings, environmental influence, emotional attachments, and the other factors to be considered in the placement of children of the ages involved here. For the reasons set forth above, I would reverse the trial court and enter an order denying the writ of habeas corpus. I would remand for consideration by the trial court of placement of the children under the guidelines for adoption.