dissenting.
Cases such as this one are in principle disturbing to me, and many of them are heartrending on the facts. Still, the role of this court is to adjudicate applications of the public policy of this state as declared in ORS 419.523(3):
*212"The rights of the parent or parents may be terminated *** if the court finds that the parent or parents have failed or neglected without reasonable and lawful cause to provide for the basic physical and psychological needs of the child for one year prior to the filing of a petition. ***”
The facts are that Debbie’s mother moved to California on March 2, 1977, wilfully and knowingly leaving her behind without making adequate arrangements for her long-term care or for her later to rejoin the family. During the following two months mother made no efforts to contact or provide for the child. On May 2, mother was hospitalized for four days. More than five months later mother began a series of hospitalizations which totalled 75 days by May 10, 1978.
Without doubt mother was seriously ill from May 2 on, and perhaps even from an earlier date. But there is no evidence that her original departure from Debbie (which the trial judge characterized correctly as an abandonment) was due to that illness or that at all times during the year after March 2, 1977, she was incapable of doing anything at all for her daughter. That she may have put her concerns about her condition first (and only) is not, for me, a "reasonable and lawful cause."
The mother will never recover her health. She will never be able to treat Debbie as a child even minimally ought to be treated. She will always have the same excuse, and Debbie will never have a chance. That really disturbs me. What is even more bothersome is the majority’s unspoken interpretation of the statute: A failure or neglect to provide for a child once initiated can never be subjected to the statutory policy if during any substantial period of time afterwards the parent or parents have an excuse for continuing to act as they initially acted — even if there is no evidence that the parent or parents would have acted differently in the absence of the excuse.
I dissent.
Schwab, C. J., and Buttler and Warren, JJ., join in this dissent.