Frederiksen v. Ostermeier
| Decision Date | 15 September 1999 |
| Citation | 986 P.2d 1194,162 Or. App. 430 |
| Parties | Annette M. FREDERIKSEN, aka Annette M. Whitlock, Appellant, v. Fred OSTERMEIER, JR., Respondent. Fred Ostermeier, Jr., Respondent, v. Annette M. Frederiksen, Appellant. In the Matter of the Guardianship of Jeremy Thomas Ostermeier, a Minor Child. Annette M. Frederiksen, Appellant, v. Fred Ostermeier, Jr., Respondent. |
| Court | Oregon Court of Appeals |
Michael S. Evans, Portland, argued the cause for appellant. With him on the brief was Evans & Zusman, P.C.
No appearance for respondent Fred Ostermeier.
Before De MUNIZ, Presiding Judge, and HASELTON and WOLLHEIM, Judges.
De MUNIZ, P.J.
Maternal grandmother (Frederiksen) appeals from a judgment in a consolidated proceeding to establish paternity, guardianship and custody of Jeremy, the three-year-old son of Frederiksen's deceased daughter (Andrea). We review de novo, ORS 19.415, and reverse the judgment as to the guardianship and custody of Jeremy.1
Jeremy was born in 1995. His mother, Andrea, and his father never married. Andrea resided with her mother, Frederiksen, during the latter half of her pregnancy and until her death in 1997.2 Frederiksen is 45 years old, married, and manages an apartment house. She is also a certified day care provider. According to Frederiksen, she essentially "mothered" her daughter Andrea and Andrea's two children, Jordan and Jeremy, until Andrea's death.3
Frederiksen testified that she and Andrea were "joint caretakers" of Jeremy and that she and Jeremy had developed a "very close, loving relationship" before her daughter's death. Even before Andrea's death, Frederiksen regularly fed and bathed Jeremy, took him to the doctor, played with him and took him shopping and other places. During the period between Jeremy's birth and Andrea's death, Frederiksen and Jeremy were separated only briefly when Frederiksen resided out of state for two or three months.
Dr. Birney, a psychologist engaged to evaluate the relationship between Jeremy and Frederiksen, described Jeremy as a "very comfortable child" who was emotionally connected and clearly bonded to Frederiksen. Birney opined that the bonding had occurred before Andrea's death and that, because Frederiksen had also been a primary caretaker, "Andrea's death may not have had as significant an impact on Jeremy as would otherwise be the case." He also testified that Jeremy's bonding with Frederiksen provided a sense of security in Jeremy's life and had served to lessen the traumatic impact of his mother's death. Birney concluded that, "if Jeremy was moved from Frederiksen's home, there was a better than 50% chance that Jeremy's emotional development and adult adjustment would be compromised, in terms of difficulty in forming relationships later in life and in anxiety in the child at the time of disruption."
Until just before Andrea's death, father had not acknowledged paternity of Jeremy and had provided no formal support for the child.4 Father has been arrested for driving while revoked and assaulting a police officer and, at the time of the hearing, was on probation for possession of a controlled substance. Evidence indicated that father used methamphetamine in front of another one of his sons. Father testified that he had been treated for his drug addiction at Serenity Lane and claimed to be "clean and sober" since that treatment.
The testimony about father's contact with Jeremy before Andrea's death is conflicting. Witnesses called by Frederiksen described father's contact as intermittent and indicated that father paid little attention to Jeremy before Andrea's death. Father characterized his relationship with Andrea as a "come and go type thing" and indicated that he spent "an average of 50% of the overnights with Andrea give or take." Father testified that, before Andrea's death, he took Jeremy out "a couple of times." Camberg, the mother of another of father's children, testified that father is "an excellent" father to her son. However, she also recalled an incident in which father "beat her up" in front of that child and had to be taken to jail. Father and his son by Camberg share a room in father's parents' home. Father's testimony did not reveal whether he planned any other living arrangements if he were awarded custody of Jeremy. Father testified that, if given custody of Jeremy, he first planned to take Jeremy on a month-long vacation to Mexico.5 According to father, he hoped to have a "significant other" babysit Jeremy while he was at work.
On appeal, Frederiksen contends that, even under the "compelling reasons" standard, the court erred in awarding custody to father. When she filed her brief in this court, Frederiksen did not assign error to the trial court's use of the "compelling reasons" standard, see Hruby and Hruby, 304 Or. 500, 748 P.2d 57 (1987), in its determination of custody. However, in Sleeper and Sleeper, 328 Or. 504, 982 P.2d 1126 (1999), and Moore and Moore, 328 Or. 513, 982 P.2d 1131 (1999), decided after the trial in this case and after the filing of Frederiksen's brief, the Supreme Court held that the legislature, in amending ORS 109.119(2)(a), intended that courts use the "best interest of the child" standard in resolving custody disputes between a biological parent and a person with child-parent relationship with the minor child whose custody is at issue. Accordingly, because we review de novo, we apply the "best interests of the child" standard in determining whether Jeremy's custody should be with father or with Frederiksen.6
The trial court found that "[Frederik...
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