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In re B. J. V.

Court of Appeals of Oregon

January 16, 2019

In the Matter of B. J. V., Jr. and B. T. V., Children. T. G. W. and R. R. W., Petitioners-Respondents,
v.
B. J. V., Respondent-Appellant.

          Argued and submitted November 20, 2018

          Yamhill County Circuit Court 17AP00677; Cynthia L. Easterday, Judge.

          George W. Kelly argued the cause and fled the brief for appellant.

          Margaret H. Leek Leiberan argued the cause for respondents. Also on the brief was Jensen & Leiberan.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         In this step-parent adoption proceeding, birth father appeals a judgment allowing his two children to be adopted without his consent, assigning error to the trial court's finding that he willfully neglected, without just and sufficient cause, to provide proper care and maintenance for the children in the year preceding mother and step-father's fling of the petition for adoption. Held: Under ORS 109.324, "willful neglect" is indicated by a parent's failure to manifest substantial expressions of concern that show that the parent had a deliberate, intentional, and good-faith interest in maintaining a parent-child relationship. In this case, birth father's attempts at contact with the children were incidental contacts within the relevant one-year time period and demonstrated a failure to manifest the required expressions of concern for the children during that time. Based on the birth father's testimony that he had the highest-paying job available to him during his incarceration, the ability to communicate with his parents via telephone on more than one occasion, and disinterest in waiting in line for email access, the trial court did not err in finding birth father's incarceration for the majority of the relevant time period was not just and sufficient cause [295 Or.App. 718] for his failure to manifest substantial expressions of concern during the relevant time period.

         Affirmed.

         [295 Or.App. 719] JAMES, J.

         In this step-parent adoption proceeding, birth father appeals a judgment allowing his two children to be adopted without his consent, assigning error to the trial court's finding that he had willfully neglected, without just and sufficient cause, to provide proper care and maintenance for the children for the year preceding mother and step-father's filing of the petition for adoption. ORS 109.324. We affirm.

         We review the trial court's legal conclusions for errors of law, but are bound by the court's findings of historical fact so long as there is any evidence to support them. State v. S. T. S., 236 Or.App. 646, 655, 238 P.3d 53 (2010). In this case, the trial court found that mother and birth father were married on January 30, 2010. The marriage produced two children, the subjects of this appeal. Mother and father divorced April 15, 2014. The General Judgment of Dissolution of Marriage awarded sole custody of the children to mother. Birth father was granted restricted, supervised, nonovernight parenting time on Saturday mornings for a specific three-hour period. As part of that same judgment, birth father was required to enroll in a drug and alcohol evaluation program with a "reputable evaluator," comply with all terms of the drug and alcohol evaluation program, including treatment, and have three consecutive, random urinalysis tests. Birth father did not complete those requirements prior to mother filing the petition for adoption.

         Mother relocated to Tillamook, Oregon, in March 2014, to live with her parents. Birth father exercised his supervised visits on three occasions at mother's parents' house in 2014. Birth father has not had physical contact with the children since late June, 2014. In May, 2015, birth father left mother a voicemail informing mother that he would be coming to take his children. Mother contacted the Tillamook County Sheriff's office. She was advised to change her phone number, change her vehicle, and get a post office box for mail. She only changed her cell phone number, and her mailing address remained at her parents' house.

         In November 2015, birth father was arrested on criminal charges in Washington, and spent time in and out of jail from November 2015, through March 10, 2016. He [295 Or.App. 720] was out of custody from March 10, 2016, until June 1, 2016. On June 17, 2016, birth father was convicted of crimes unrelated to his children or ex-wife, and sentenced to 22 months at the Washington Corrections Center. He was transferred to the Clackamas County jail for probation violations in April 2017, where he remained until late May 2017. In July 2016, mother remarried and moved to Carlton, Oregon.

         While birth father was incarcerated in August 2016, he sent a letter to mother's parents' house. The letter was addressed to people in addition to the children, including mother, mother's father, mother's mother, and three other relatives of mother's. Around this same time, in August 2016, birth father sent a request to the State of Washington Division of Child Support, requesting mother's address. Birth father testified that the purpose of the request was to contact the children. The State of Washington Division of Child Support denied birth father's request, explaining that it had information that indicated the release of mother's address may result in emotional or physical harm to either the "other party in the case or to the children." Birth father appealed that denial in October 2016, and the denial was upheld on appeal. In December 2016, birth father sent another letter to mother's parents' home. That letter was addressed to birth father's two children. Birth ...


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