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In re Mack

March 26, 1973

IN THE MATTER OF LINDA FLORINE MACK, KIMBERLY K. MACK, CAROLYN SUE MACK AND DALE EUGENE MACK, JR., CHILDREN. STATE EX REL JUVENILE DEPARTMENT OF MARION COUNTY, RESPONDENT,
v.
MACK ET UX, APPELLANTS



Appeal from Circuit Court, Marion County. Joseph B. Felton, Judge.

John D. Logan, Salem, argued the cause and filed the briefs for appellants.

John W. Jensen, Deputy District Attorney, Salem, argued the cause for respondent. On the brief was Gary D. Gortmaker, District Attorney, Salem.

Foley, Judge. Schwab, Chief Judge. Langtry, Judge, specially concurring.

Foley

This is a proceeding to terminate parental rights in three children*fn1 under ORS 419.523 (2), which provides as follows:

"The rights of the parent or parents may be terminated * * * if the court finds that the parent or parents:

"(a) Are unfit by reason of conduct or condition seriously detrimental to the child; or

"(b) Have wilfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child for one year. In determining whether the parent has wilfully deserted 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."

The petition for termination in this case alleged that the parents, Shirley Louise Mack and Dale Eugene Mack, Sr., were unfit under ORS 419.523 (2) (a) and that they had wilfully neglected their children under ORS 419.523 (2)(b) "[s]ince December 1969, and for more than one year prior to * * * June 8, 1971 * * *." No allegation of desertion was made. After a hearing pursuant to ORS 419.525, the juvenile court found that both of the alleged grounds for termination had been established and it therefore ordered the parents' rights terminated. The parents appeal.

In a proceeding to terminate parental rights the state has the burden of proving, by a preponderance of competent evidence, facts sufficient for termination. ORS 419.525 (2); State ex rel Juv. Dept. v. Wilson, 9 Or App 468, 497 P2d 871 (1972). On appeal the parents contend that the state did not carry its burden as to either of the statutory grounds. For the reasons which follow, we agree, and we therefore reverse the order of the juvenile court.

The parents first assert that the state did not prove by a preponderance of the evidence that they "wilfully * * * neglected without just and sufficient cause" to provide care and maintenance for their children for one year. In State ex rel Juv. Dept. v. Draper, 7 Or App 497, 505-506, 491 P2d 215 (1971), Sup Ct review denied (1972), we said that before parents' rights may be terminated pursuant to that statutory ground, proof is required

"* * * that the parent failed to perform parental duties * * * and that his neglect was voluntary [citations omitted] and ...


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