Jensen v. Bevard

• Jurisdiction: Oregon
• Parties: In the Matter of Dana M. JENSEN, Petitioner-Respondent, v. Tori Michelle BEVARD, Respondent-Appellant, and Ricky Wayne Jones, Respondent-Respondent. In the Matter of Tori Michelle Bevard, Petitioner-Appellant, v. Ricky Wayne Jones, Respondent-Respondent.
• Citation: 168 P.3d 1209,215 Or. App. 215
• Docket Number: A129611.,C042721DRB.,C043952DRA.
• Court: Oregon Court of Appeals
• Decision Date: 26 September 2007

168 P.3d 1209

215 Or. App. 215

In the Matter of Dana M. JENSEN, Petitioner-Respondent, v. Tori Michelle BEVARD, Respondent-Appellant, and Ricky Wayne Jones, Respondent-Respondent.

In the Matter of Tori Michelle Bevard, Petitioner-Appellant, v. Ricky Wayne Jones, Respondent-Respondent.

C043952DRA.

C042721DRB.

A129611.

Court of Appeals of Oregon.

Argued and Submitted May 10, 2007.

Decided September 26, 2007.

Margaret H. Leek Leiberan, Beaverton, argued the cause for appellant. With her on the briefs was Mason & Associates.

David N. Hobson, Jr., argued the cause for respondent Dana M. Jensen. With him on the brief were Erika K. Tuenge and Hobson & Angell, L.L.P.

No appearance for respondent Ricky Wayne Jones.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA,^* Judges.

SCHUMAN, J.

In this case, we are called on to resolve a dispute between a woman and her own mother over custody of the woman's child, D. We refer to the parties from the perspective of D, that is, as mother and grandmother. The trial court awarded sole custody to grandmother, gave mother parenting time alternating between two days and one day per week, and ordered mother to pay grandmother $15,514 in attorney fees. Mother assigns error to all of those outcomes.¹ Because we agree with mother that grandmother and D did not have the "child-parent relationship" that stands as a statutory prerequisite to receiving custody, we reverse and remand.

That relationship is defined in ORS 109.119(10)(a):

"`Child-parent relationship' means a relationship that exists or did exist, in whole or in part, within the six months preceding the filing of an action under this section, and in which relationship a person having physical custody of a child or residing in the same household as the child supplied, or otherwise made available to the child, food, clothing, shelter and incidental necessaries and provided the child with necessary care, education and discipline, and which relationship continued on a day-to-day basis, through interaction, companionship, interplay and mutuality, that fulfilled the child's psychological needs for a parent as well as the child's physical needs."

If the court determines that a child-parent relationship exists and that the petitioner is able to overcome the presumption that the legal parent acts in the best interest of the child, the court "shall grant custody, guardianship, right of visitation or other right to the person having the child-parent relationship, if to do so is in the best interest of the child." ORS 109.119(3)(a). If no child-parent relationship exists, the court can in some circumstances grant visitation, but it cannot grant custody. See ORS 109.119(3)(b) (describing circumstances under which a lesser relationship may entitle a person to "visitation or contact rights").

In the present case, the court found that grandmother had a child-parent relationship with D, and then went on to find that grandmother had overcome the presumption in favor of mother's parental rights and that D's best interest would be served by being in grandmother's custody, with limited visitation from mother. Because we base our determination on the threshold question of whether grandmother and D had a child-parent relationship, and we base that determination, in turn, on the determination that grandmother neither had physical custody of D (an undisputed fact) nor "resid[ed] in the same household" as D "on a day-to-day basis," ORS 109.119(10)(a), we recite only the facts relevant to that latter factor. Further, we recite those facts as we find them on de novo review, ORS 19.415(3), although we give considerable weight to the trial court's demeanor-based credibility determinations. O'Donnell-Lamont and Lamont, 337 Or. 86, 89, 91 P.3d 721 (2004), cert. den., 543 U.S. 1050, 125 S.Ct. 867, 160 L.Ed.2d 770 (2005).

Employed as a caregiver in an adult care facility, mother normally worked consecutive 24-hour shifts from 7:00 p.m. on Thursdays until 5:00 p.m. on Mondays. During those weekend shifts, grandmother over the years had taken care of D at her home; D generally stayed in a room set aside for him there from Friday evening through Monday evening. However, six months before grandmother filed this case, mother was involved in a car accident that left her with fractures in an arm, a leg, a foot, her face, and her ribs, as well as massive contusions. She had several surgeries and was hospitalized for four weeks, followed by several weeks in rehabilitation. During that period, mother continued to rely on grandmother for child care on many weekends, but by no means on all of them. Grandmother took a weekend trip to Canada shortly after mother returned from rehabilitation, and she also took a 13-day trip to Europe during mother's recovery. Other people also provided significant amounts of care for D. D's father, from whom mother was separated, spent—according to his uncontradicted testimony—every night for two months at mother's home. D's sister and one of mother's friends also provided child care during that period.

Although mother and grandmother generally agree about those facts, they disagree about whether the facts establish that grandmother resided in the same household as D. The resolution of that disagreement depends on explicating the statutory definition of "child-parent relationship" in ORS 109.119(10)(a). The statute specifies that all or part of the relationship must exist within the six months preceding the filing of the action. In Harrington v. Daum, 172 Or.App. 188, 192 n. 2, 18 P.3d 456 (2001), we rejected the petitioner's argument that "frequent visits and weekend stays [with petitioner in his home] meant that the children resided in his household `in part' during the statutory six-month period. * * * The reference to `in part,' thus, is to when the relationship exists." (Emphasis in original.) Thus, our inquiry does not focus on whether, during the days when D stayed with grandmother, the two resided in the same household; it focuses on whether grandmother, in whose house D frequently stayed for three days per week during the six months preceding the filing of this action, can be said to have resided in the same household as D during that period "on a day-to-day basis."

Beyond clarifying the question, the text of ORS 109.119(10)(a) provides little guidance. To "reside" is "to dwell permanently or continuously," or to "have a settled abode for a time." Webster's Third New Int'l Dictionary 1931 (unabridged ed. 2002). "Day-to-day" means "a day at a time in unbroken succession." Id. at 578. Neither of these definitions directly addresses the crux of this case, that is, whether persons who live together "permanently or continuously" at a "settled abode" for irregularly repeated periods of three successive days per week "reside" in the same household on a "day-to-day" basis. Each three-day stay is an unbroken interval and is continuous—for three days—but none is permanent.

Case law interpreting the phrase "residing in the same household * * * on a day-to-day basis" is sparse. Grandmother's status in this case resembles in many important features the status of the unsuccessful petitioner in Harrington. In that case, a nonparent petitioner sought visitation of children and contended that he had a child-parent relationship with them. We summarized the facts as follows:

"The marriage between father and the children's mother was dissolved in November 1995. The dissolution judgment awarded custody of the children to mother and gave father substantial visitation rights. About a month after the dissolution became final, petitioner met mother, and they began dating. By February 1996, petitioner and mother were seeing each other several times a week, with the children often included. From the summer of 1996 until mother's death in August 1997, mother and petitioner had dinner together most evenings, and mother spent the weekends at petitioner's apartment. The children were included, except when they were with father. Petitioner established a play area in one part of his living room for the children, furnishing it with appropriate toys and stuffed animals. Because he got off work before mother, petitioner usually picked up the children from day care. The children liked petitioner and enjoyed being with him.

"In late August 1997, petitioner took the children on an overnight church outing that was limited to men and boys. That weekend, mother died in an automobile accident. After a short dispute with mother's parents, father took custody of the children and moved back into mother's house, which had been the marital home before the dissolution and had remained the children['s] home thereafter. Petitioner wanted to remain active in the children's life, and father allowed him to see the children several times. * * * Petitioner attended the children's swimming lessons when father was unable to do so because his work shift ended later, and he did not correct the children when they called him `dad.'"

172 Or.App. at 190-91, 18 P.3d 456. Like grandmother, the petitioner in Harrington spent many weekends with the children and adapted his home to their presence. In addition, the children ate at his home frequently, and he was an active participant in their activities. We nonetheless concluded:

"[T]he trial court erred in finding that there was a child-parent relationship. Although petitioner was close to the children before mother's death, and although he, mother and the children spent a significant amount of time at each other's residences, petitioner and mother maintained separate households. Petitioner was never part of the same household as the children."

Id. at 192, 18 P.3d 456.

Because the existence of a child-parent relationship is necessarily a fact-specific inquiry, however, the similarities between the petitioner in Harrington and grandmother in this case, while strongly suggestive, do not necessarily compel similar outcomes....