MARRIAGE OF O'DONNELL-LAMONT

• Decision Date: 20 March 2003
• Citation: 67 P.3d 939,187 Or. App. 14
• Parties: In the Matter of the MARRIAGE OF Rayne Elizabeth O'DONNELL-LAMONT (deceased), Petitioner, and Michael David Lamont, Jr., Appellant, and Christine O'Donnell, Patrick O'Donnell, and Darrell Miller, Respondents.
• Court: Oregon Court of Appeals

67 P.3d 939

187 Or. App. 14

In the Matter of the MARRIAGE OF Rayne Elizabeth O'DONNELL-LAMONT (deceased), Petitioner,

and

Michael David Lamont, Jr., Appellant, and

Christine O'Donnell, Patrick O'Donnell, and Darrell Miller, Respondents.

C98 1284 DR; A112960.

Court of Appeals of Oregon.

Petition for Reconsideration December 16, 2002.

Petition for Reconsideration December 18, 2002.

Petition for Reconsideration (Substituted) December 19, 2002.

Petition for Reconsideration December 20, 2002.

Resubmitted March 5, 2003.

Decided March 20, 2003.

Eli D. Stutsman, Portland, and David L. Heifetz, for petition.

Philip F. Schuster, II, Portland, and Dierking & Schuster, contra. Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER, BREWER, and SCHUMAN, Judges.

On Respondents Grandparents' Petition for Reconsideration December 16, 2002.

On Respondents Grandparents' Motion to Substitute Grandparents' Petition for Reconsideration December 18, 2002.

Respondents Grandparents' Petition for Reconsideration (Substituted) December 19, 2002.

Appellant's Response to Petition for Reconsideration December 20, 2002.

Resubmitted En Banc March 5, 2003.

EDMONDS, J.

Grandparents petition for reconsideration of our decision in this case. O'Donnell-Lamont and Lamont, 184 Or.App. 249, 56 P.3d 929 (2002). All members of the court agree that we should allow the petition and modify our former opinion to state that the 2001 amendments to ORS 109.119 are fully retroactive. Five members believe that we should remand for further proceedings in the trial court; five members believe that we should not remand. We therefore deny the request that we remand by an equally divided court. The effect of this decision is that the previous decision as modified remains the effective decision of the court. This opinion contains the opinion of the court on the first issue and an opinion of the author on the remaining issues.

In our original decision, we reversed the trial court's award of custody of the children to grandparents and remanded with instructions to award custody to father. In doing so we analyzed the parties' rights based on our understanding of the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). We did not consider the effect of the 2001 amendments to ORS 109.119, the statute that now governs the custody rights of persons who are not biological or adoptive parents, because grandparents filed their petition before the effective date of the 1999 version of ORS 109.119. See Williamson v. Hunt, 183 Or.App. 339, 343, 51 P.3d 694 (2002)

.

In Williamson and in our former opinion in this case, we held that the amendments to ORS 109.119 do not apply to cases in which the petitioner first filed the petition before the effective date of the 1999 edition of ORS 109.119. We based that holding on the version of Oregon Laws 2001, chapter 873, section 3 (section 3) that appears in the 2001 edition of the Oregon Revised Statutes. That provision, as Legislative Counsel compiled it in the published statutes immediately after ORS 109.119, reads:

"The amendments to ORS 109.119 by section 1 of this 2001 Act apply to petitions filed under ORS 109.119 or 109.121 (1999 Edition) before, on or after the effective date of this 2001 Act [July 31, 2001]."

(Emphasis added.) The emphasized reference to July 31, 2001, as the effective date of the Act is an insertion that Legislative Counsel made for the reader's convenience; the use of brackets shows as much. What is not clear from the compilation, however, is that the emphasized parenthetical reference to the 1999 edition of the Oregon Revised Statutes as limiting the scope of section 3 is also a Legislative Counsel insertion that does not appear in the statute as the legislature passed it and the governor signed it.¹ We first discovered that the parenthetical phrase was not part of the original statute when grandparents drew our attention to that fact in their petition for reconsideration. Legislative Counsel's certified compilation of the statutes is prima facie evidence of the law. ORS 171.285(2). However, it is not conclusive, and "[w]hen, as here, it appears that the law as the legislature adopted it differs in substance from the law as codified, we must follow the legislature's version." Mitchell v. Board of Education, 64 Or.App. 565, 569, 669 P.2d 356, rev. den., 296 Or. 120, 672 P.2d 1193 (1983). After we delete the reference to the 1999 edition of the statutes, it is clear that the legislature intended in section 3 to make the 2001 amendments to ORS 109.119 applicable to all petitions filed before the effective date of the statute; those amendments therefore apply to this case.² The preceding discussion states the opinion of the court. What follows is the analysis that I believe we should adopt in analyzing the parties' rights in accordance with the version of ORS 109.119 that is presently effective. I then explain my reasons for concurring in the decision, by an equally divided court, to deny grandparents' request for a remand.

ORS 109.119(2)(a) provides that, in any proceeding under the statute, including one to give custody to a nonparent over the legal parent's objection, "there is a presumption that the legal parent acts in the best interest of the child." ORS 109.119(4)(b) then provides:

"In deciding whether the presumption described in subsection (2)(a) of this section has been rebutted and whether to award custody, guardianship or other rights over the objection of the legal parent, the court may consider factors including, but not limited to, the following, which may be shown by the evidence:

"(A) The legal parent is unwilling or unable to care adequately for the child;

"(B) The petitioner or intervenor is or recently has been the child's primary caretaker;

"(C) Circumstances detrimental to the child exist if relief is denied;

"(D) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor; or

"(E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor."

The presumption in ORS 109.119(2)(a), that the legal parent acts in the best interests of the child, is the legislature's statement of the parent's constitutional right that we described in our previous opinion. Two of the nonexclusive criteria in ORS 109.119(4)(b) are directly relevant to the constitutionally required test of whether the legal parent can provide the care that the constitution requires in order for that parent to retain custody. A legal parent who is unwilling or unable to care adequately for the child, ORS 109.119(4)(b)(A), necessarily "cannot or will not provide adequate love and care" for the child. Whether circumstances detrimental to the child will exist if relief is denied, ORS 109.119(4)(b)(C), is closely related to whether placing the child in the legal parent's custody would cause an undue risk of physical or psychological harm to the child. Those statutory criteria thus relate to the threshold issue of whether the nonparent has rebutted the presumption.

I conclude, for the reasons that we stated in our previous opinion, that the application of those statutory factors in this case leads to the same result that we reached in our previous decision under the constitutional tests, and I would therefore adhere to that result.

Judge Landau agrees that the 2001 amendments to ORS 109.119 apply to this case but would remand so the parties can present further evidence. He argues that Troxel, which the Supreme Court decided after the hearing but before the trial court's decision in this case, changed the law in a way that makes the existing record inadequate for our de novo review. For the following reasons, I disagree that a remand is appropriate.

First, although the hearing in this case came before Troxel, the trial court's decision came afterwards and the court discussed that decision in its opinion. The parties did not seek to introduce additional evidence in light of Troxel. In seeking remand, grandparents focus on the difficulty that the trial court had in applying Troxel to the record that the parties made at the hearing; they point out that at the time there were no appellate decisions to assist the court. Grandparents seem to suggest that we should remand so that the trial court can make new findings, primarily on the existing record, that are appropriate under our recent decisions applying Troxel. Their argument that we should remand "for further proceedings to develop the record as is necessary in light of the recent change in the law" appears to refer to that point. In any case, grandparents do not assert that they would seek on remand to present different evidence about the underlying facts from those that they presented at the original hearing, nor do they give any suggestion of what additional facts may exist.

My review of the record indicates that, as is usual in custody cases, both sides presented all of the evidence available to them that might support their competing claims to custody of the children. Grandparents do not suggest that we are missing any evidence concerning father's allegedly questionable actions, the alleged benefits that the children received while they lived with grandparents, or the children's progress in both homes, nor are we aware of any.³ In our previous decision, we reviewed that evidence de novo on the record, ORS 19.415(3), giving careful consideration to the findings that the trial court made; I do not see how any additional findings that it might make on remand would assist us. Although the legal standard changed while the trial court was considering the case, the facts concerning the children's situation and the probable consequences of granting custody to father did not. The present record is adequate for us to review the facts under the correct...