Appeals from Circuit Court, Marion County. Joseph B. Felton, Judge. First Case: Court of Appeals No. 1492 argued and submitted December 19, 1972. Second Case: Court of Appeals No. 2100 submitted on record and briefs January 30, 1973.
Catherine Zorn, Salem, argued the cause and filed the briefs for appellant.
No appearance for respondent State ex rel Juvenile Department of Marion County.
Hattie Bratzel Kremen, Salem, argued the cause and filed the brief for respondent Emmett Thompson.
Catherine Zorn, Salem, for appellant.
Hattie Bratzel Kremen, Salem, for respondent Emmett Thompson.
Fort, Judge. Schwab, Chief Judge, and Thornton, Judge.
These appeals from the juvenile court are concerned with the custody and welfare of a little girl, the rights of her mother and those, if any, of the child's maternal uncle and aunt.
The child Teresa is the youngest child born of the marriage of Shirley Thompson Marshall and Roy Lester Thompson. Her parents were divorced in Oklahoma in 1968 and the mother was awarded her custody and that of her three older brothers. Following the divorce the mother encountered prolonged periods of economic vicissitudes accompanied by emotional instability. As a result, in 1970 she first asked the father to take and support the three boys. He did so and has had the boys since that time. The boys are not involved in this proceeding and do not live in Oregon.
Subsequently, in September 1970, the mother came to her brother, Emmett Thompson, and his wife, Lillian, in Oregon, and asked them if they would permit her to leave Teresa with them while she sought a satisfactory solution to her economic and emotional problems. The child was then about six years old. They agreed. The mother executed a consent enabling them
to serve as guardians of the child, and thus to place her in the public schools. She has resided with them since that date.
In July 1971, following termination of the school year, the mother, then living in California, believing that her circumstances had improved to the point she could properly care for the child, sought her return. Her brother and his wife refused. Instead, they sought, on July 27, 1971, by petition to have her made a ward of the juvenile court on the ground the mother was "still experiencing extreme instability and mental and emotional problems such as would interfere with the proper care and protection of said child." ORS 419.476 (1)(c). A temporary custody order in the latter proceeding was issued the same day by a judge sitting pro tem in the juvenile court, committing the child to the custody of Emmett Thompson.
This order was, so far as the record discloses, issued ex parte and without notice to the mother.
On July 30, 1971, Emmett Thompson and his wife filed a petition to adopt Teresa. The mother also appeared therein and vigorously resisted this further proceeding.
The trial court consolidated the juvenile court proceeding and the adoption proceedings on August 20, 1971, following the assignment of the adoption matter*fn1 to the juvenile court, and on that date the court entered an order that "the hearing in this matter be continued to September 1, 1971," and "that the said child
continue in the temporary custody of * * * Mr. and Mrs. Emmett Thompson."
Following a hearing held September 1, 1971, the court concluded the "child is within the jurisdiction of the Court, as alleged in the petition," continued the hearing for study 90 days, and, as stated above, awarded temporary custody to the petitioners. The study was to ascertain the circumstances under which the mother was living with her husband, Lee Marshall, in California.
The report from the California Welfare Department dated November 16, 1971, was received in due course. It was positive and recommended the mother, the stepfather, their home and living conditions as fully ...