In re Holt
| Jurisdiction | Oregon |
| Parties | In the MATTER OF Katherine L. HOLT and Terry Holt, Petitioners-Respondents, and Destiny M. Atterbury, Respondent-Appellant, and Bryant A. Coffey, Respondent-Respondent. |
| Citation | 420 P.3d 676,291 Or.App. 813 |
| Docket Number | A162147 |
| Court | Oregon Court of Appeals |
| Decision Date | 16 May 2018 |
George W. Kelly, Eugene, argued the cause and filed the briefs for appellant.
Gina L. Bonomini, Roseburg, argued the cause for respondents Katherine L. Holt and Terry Holt. With her on the brief was Randy C. Rubin Attorney at Law, PC.
No appearance for respondent Bryant A. Coffey.
Before Tookey, Presiding Judge, and Shorr, Judge, and Linder, Senior Judge.
Mother appeals a judgment awarding custody of her child, E, to E’s paternal grandmother and step-grandfather (grandparents) and awarding substantial parenting time to mother. Mother first assigns error to the trial court’s ruling granting grandparents custody of E, contending that the court erroneously concluded that grandparents had established a child-parent relationship with E as defined by ORS 109.119(10)(a). Specifically, mother argues that, because the court did not expressly find the percentage of time that E lived with grandparents before grandparents petitioned for custody, we must either review the record de novo to determine ourselves whether grandparents cared for E on a "day-to-day" basis or remand to the trial court to make that finding expressly. In the alternative, mother asks us to conclude that, even viewing the evidence in the light most favorable to the trial court’s disposition, grandparents did not prove a child-parent relationship with E because "day-to-day" care can only be established by showing that E was being cared for by grandparents "every day of the week and every night of the week," and they failed to make such a showing.
Mother also assigns error to the trial court’s grant of custody to grandparents on the basis that the court erroneously concluded that grandparents had rebutted the presumption under ORS 109.119(4)(b) that mother acts in E’s best interest. Mother argues that the court lacked sufficient evidence to make the factual findings that underpinned that conclusion and erred in weighing the relevant factors under ORS 109.119(4)(b). Both of mother’s arguments are unconvincing. Consequently, we affirm.
We turn to the facts. As noted, mother asks us to review the record de novo . We exercise our discretion to review de novo only in exceptional cases and, as we discuss in more length below, decline to do so here. ORAP 5.40(8). Accordingly, "we view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court’s disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome." Kleinsasser v. Lopes , 265 Or.App. 195, 198, 333 P.3d 1239 (2014) (internal quotation marks omitted).
At the time of trial, E was four years old. He had three older half-brothers and one younger half-sister. His brothers were eight, 10, and 11 years old. His sister was 10 months old.
E’s brothers—especially his youngest brother—have severe mental health and behavioral issues. For instance, E’s brothers often harm themselves by hitting themselves in the head when they become upset and make statements about wanting to kill themselves. E’s brothers’ suicidal statements are not empty threats. Approximately a year before trial, E’s youngest brother, who was seven at the time, wrapped a belt around his neck in an apparent attempt to hang himself at school. That event resulted in E’s brother being hospitalized for approximately a week.
E’s brothers often exhibit violent and aggressive behaviors. E’s brothers’ father described his sons as violent toward each other and noted that their violent behavior has escalated over time. In fact, E’s brothers’ behavioral issues were so serious that their father, who lives with his girlfriend most of the time, maintains a separate residence for when he has parenting time with his sons because his girlfriend believes that her son had begun "to exhibit anger and emotional issues" similar to those that E’s brothers were exhibiting. E’s father, who had lived with mother and the older boys off and on, also believes that E’s brothers are "much more violent than any children that" he had been exposed to and, as an example, pointed to the fact that E’s youngest brother regularly killed lizards.
E’s brothers’ aggressive behavior did not end at home. E’s youngest and eldest brother both have had to be placed on behavior plans at school. While E’s eldest brother’s plan was terminated prior to trial, his youngest brother’s plan was established just one month before trial. That plan included "accommodations and interventions," one of which was a requirement that E’s brother start the day in the special education room to "mak[e] sure he comes in happy and off to a good start" and that he participate in "alternative," structured recess, rather than regular recess. That plan was deemed necessary because E’s youngest brother’s behavior was causing him to be removed from school. For instance, within two months before trial, mother had to miss a meeting regarding E’s eldest brother’s educational plan because she had to remove E’s youngest brother from school because of his behavior instead.
E was born in spring 2011. About a month after E was born, he began living with grandparents. From that point to the point that mother began having him with her for days at a time in September 2014, E spent approximately five to six days a week with grandparents. While E was residing with grandparents, grandparents were responsible for E’s care. That care included taking E to dental and doctor appointments, finding E a Head Start program, and providing food and clothes for E. E had his own room, clothes, and toys at grandparents’ home, as well as a sandbox and swing set.
In September 2014, mother began taking E for multiple days at a time. During that time, mother would not let grandparents talk to E on the phone while she had him. In response, grandparents filed the current action for custody of E.
A status quo hearing was held in October 2014, where grandparents were granted temporary custody of E. A temporary custody hearing was then held in December 2014, at which mother was awarded temporary custody of E subject to father’s parenting time. Mother refused to let father have that parenting time for the first month after that hearing, however, because grandparents, rather than father, picked E up from her home, despite the fact that that was the wish of father.
The custody trial occurred in March 2016. At trial, the custody evaluator appointed by the court, Mazza, testified that he believed that E would likely suffer psychological harm if grandparents were not given custody. As evidence, Mazza pointed to the fact that, between the time that E had begun living with mother and the time that Mazza conducted his evaluation in October 2015, E’s behavior had deteriorated and E had begun to exhibit behaviors that Mazza believed were mimicking his brothers—e.g. , hitting himself in the head and saying that he wanted to kill himself. Mazza further testified that, if mother retained custody of E and, as a result, E continued to have significant exposure to his brothers, it was a "likelihood" rather than a "potential" that E would suffer more psychological harm.
Following trial, the court determined that grandparents had a child-parent relationship with E, that grandparents had rebutted the presumption that mother acted in E’s best interest, and that E’s best interest mandated that grandparents be granted custody of E. As a result, the court entered judgment granting custody to grandparents, subject to mother’s substantial parenting time. Mother appeals.
We turn to the law governing a petition for a change of custody over a child pursuant to ORS 109.119. "[A]ny person * * * who has established emotional ties creating a child-parent relationship * * * with a child may petition or file a motion for intervention with the court having jurisdiction over the custody, placement or guardianship of that child, or if no such proceedings are pending, may petition the court for the county in which the child resides" for custody of the child. ORS 109.119(1). To grant custody to the nonparent, the trial court must "determine[ ] that a child-parent relationship exists" and that the presumption that the legal parent acts in the best interest of the child has been rebutted by a preponderance of the evidence. ORS 109.119(3)(a). As noted, on appeal, mother argues that the trial court erroneously concluded that (1) grandparents had a child-parent relationship with E and (2) grandparents rebutted the presumption that mother acts in the best interest of E. We take each of those arguments in turn.
Here, mother argues that the only element of that definition that...
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