IN THE MATTER OF WINCZEWSKI

• Decision Date: 16 July 2003
• Citation: 188 Or. App. 667,72 P.3d 1012
• Parties: In the Matter of the MARRIAGE OF Eileen WINCZEWSKI, aka Eileen Ordway, Appellant, and Stephen Winczewski, Respondent below, and Oliver Winczewski and Barbara Winczewski, Respondents.
• Court: Oregon Court of Appeals

72 P.3d 1012

188 Or. App. 667

In the Matter of the MARRIAGE OF Eileen WINCZEWSKI, aka Eileen Ordway, Appellant, and

Stephen Winczewski, Respondent below, and

Oliver Winczewski and Barbara Winczewski, Respondents.

C94-1968DR; A112079.

Court of Appeals of Oregon.

Argued and Submitted October 3, 2002.

Resubmitted June 4, 2003.

Decided July 16, 2003.

Carol E. Jones, Hillsboro, argued the cause and filed the brief for appellant.

Darcia Krause argued the cause and filed the briefs for respondents.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER, BREWER, and SCHUMAN, Judges.

Resubmitted en banc June 4, 2003.

PER CURIAM.

Affirmed by an equally divided court.

DEITS, C.J., concurs.

EDMONDS, BREWER, and SCHUMAN, JJ., dissent.

DEITS, C.J., concurring.

Mother appeals from a judgment that awarded custody of two of her children to their paternal grandparents. On de novo review of the facts, ORS 19.415(3); State v. Wooden, 184 Or.App. 537, 57 P.3d 583 (2002), I conclude the following: (1) ORS 109.119 (2001) applies to this case. (2) Grandparents have rebutted the statutory presumption that mother acts in the best interests of the children by demonstrating by a preponderance of the evidence that mother is unable to care adequately for the children and that circumstances detrimental to the children exist if grandparents are denied custody. (3) Because awarding custody to grandparents is also in the children's best interest, grandparents should be awarded custody under ORS 109.119. (4) Further, that application of the statute does not infringe on mother's federal constitutional right to the care, custody, and control of her children because grandparents have demonstrated by a preponderance of the evidence that mother is unable to care adequately for the children and that the children face an undue risk of physical or psychological harm in mother's custody. (5) That constitutional standard does not require that grandparents demonstrate that mother is unfit under the standards in the termination of parental rights statutes or demonstrate circumstances that present similarly grave risks of harm. Accordingly, I would affirm.

I. PROCEDURAL HISTORY

Mother and father, who is now deceased, had two daughters, A and J. Mother and father's marriage was dissolved in 1995. They initially had joint custody of the children, and the children spent their time with father at grandparents' home.

In November 1996, father obtained sole custody. The judgment that awarded father custody of the children stated, in part, that "[m]other has substantial emotional problems that impact her interactions with [father] and his parents, and her parenting[.]"¹ After that judgment was entered, the court restricted mother's contact with the children because, as grandmother testified, mother was showing up inappropriately at the school. After father obtained sole custody in November 1996 and until his death in April 1999, the children lived with him in grandparents' home. During the time that the children lived in grandparents' home, they provided substantial assistance in caring for the children.

In 1998, grandparents intervened in the case involving mother and father's dissolution, the case that is now the subject of this appeal. The trial court's order stated, in part, that "[grandparents] are granted intervenor status in the custody case involving [A] and [J] Winczewski, and shall be treated as parties in any future court proceedings involving these children."

Father died of lymphoma in April 1999. Immediately after father's funeral, which was held several days after his death, mother took the children to live with her and her family. Mother is currently married to Paul Ordway, and they have two children, C and L. Also, after father's death, grandparents sought custody of A and J. The children lived with mother until the time of trial, although the children visited grandparents throughout that time period.

The trial took place in May and July 2000. In her trial memorandum, mother's attorney argued that "[t]he 14th Amendment to the United States Constitution protects a natural parent's interest in the right to the care, custody and management of his/her children" and that

"[a] constitutional application of ORS 109.119 requires more than a finding of `best interests of the children,' it requires a finding of `compelling reasons' or `threat of harm' to the children. Hruby [and Hruby, 304 Or. 500, 509, 748 P.2d 57 (1987)]. Awarding custody to a non-parent, even in the `best interests of the children' is not `appropriate' if it deprives the parent of a basic and substantive right, in the absence of a compelling state interest. It is not a compelling state interest to simply `maximize every child's welfare[.]' [Id. at 511, 748 P.2d 57]."

During her closing argument in July 2000, mother's attorney argued that, under Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), "there has to be * * * a significant showing of harm or a high risk of harm in order for the [s]tate, and therefore, the courts within the state, to interfere with the ordinary decision-making authority of a natural parent."

After the parties' closing arguments, the trial court stated that, if the standard were the best interests of the children, grandparents would prevail. However, the court also indicated that, if it had to find "a level of harm, if not equal to, close to that in which the [s]tate would be intervening, anyway, where the [s]tate would go in as a CSD or SOSCF matter * * * and take control of the children," mother should receive custody. In its judgment, the court stated, in part:

"THE COURT FINDS that a child-parent relationship exists between [A] and [J] Winczewski and their grandparents, Oliver and Barbara Winczewski; that the provisions of ORS 109.119 apply to this case; and that Oliver and Barbara Winczewski are intervenor grandparents under ORS 109.119.

"THE COURT FINDS that it is in the best interests of these children to reside with their grandparents, Oliver and Barbara Winczewski, because the children would receive better emotional support in the Winczewski home; their educational and psychological needs would be better met; their nutritional and health needs would be better met; and in all respects the children would be much better off living with their grandparents. Based on the testimony of Dr. Sabin, the educational and emotional factors overwhelmingly favor placement of these children with the Winczewski grandparents.

"THE COURT ALSO FINDS that the United States Supreme Court case of Troxel * * * can be distinguished from this case, in that the Oregon statute (ORS 109.119) requires the finding of a `child-parent' relationship, while the Washington statute in Troxel did not require such a finding. Thus, Troxel did not require the [c]ourt in this case to make a finding of harm or unfitness on the part of the biological parent before awarding custody to grandparent intervenors. After reviewing the statutes and case law, the [c]ourt finds that the following language in Sleeper and Sleeper, 328 Or. 504 (1999)[,] applies to this case:

"`If the best interests of the child call for custody to the nonbiological parent, then the court must make such award, unless to do so would violate some supervening right belonging to the biological parent.' 328 Or. at 511, 982 P.2d 1126[.] * * *

"Applying the statutes and case law to the facts of this case, the [c]ourt finds that the law requires an order of custody to the Winczewski grandparents."

Since the conclusion of the trial in July 2000, the children have lived with grandparents.

On appeal, mother makes three assignments of error: (1) "The trial court erred in applying a `best interests of the child' standard to a custody dispute between a natural parent and non-parents." (2) "The trial court erred in holding that [grandparents'] status of having a `parent-child relationship' alleviated the requirement that it find more compelling reasons than `best interests of the child' to award custody to them." (3) "The trial court erred in awarding custody to [grandparents] and placing restrictions on [m]other's parental rights when she is a fit parent and when the court found no threat of harm to the children." The gravamen of mother's assignments of error and arguments is the following: Because she has a liberty interest in the care, custody, and control of her children under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, the trial court erred by applying a "best interests" standard and by awarding custody to grandparents without finding that mother is unfit or that there is a risk of harm to the children in mother's custody.

Grandparents counter:

"While this appeal was pending, the Oregon legislature amended ORS 109.119 to include a rebuttable presumption that a legal parent acts in the best interest of his or her child. ORS 109.119(2)(a)[(2001).] That presumption can be overcome by a preponderance of the evidence. If the court finds that the presumption has been rebutted, it is required to make findings of fact in support of the rebuttal. ORS 109.119(2)(b)[(2001).]

"The amended statute allows the court to consider several factors in intervenor custody cases. One of those factors is whether the legal parent is able to adequately care for the child. ORS 109.119(4)(b)(A)[.] A second factor is whether the intervenor has recently been the child's primary caretaker. ORS 109.119(4)(b)(B)[.] A third factor is whether circumstances detrimental to the child would exist if relief is denied. ORS 109.119(4)(b)(C)[.] `Circumstances detrimental to the child' includes circumstances that may cause psychological, emotional or physical harm. ORS 109.119(8)(b)[.]

"In light of changes in the law which have occurred since the time of trial, appellant mother is correct that the trial court should not have based its decision solely on

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