Meader v. Meader

• Decision Date: 30 June 2004
• Citation: 94 P.3d 123,194 Or.App. 31
• Parties: Karen MEADER and Harry Meader, Respondents, v. David MEADER and Alice Meader, Appellants.
• Court: Oregon Court of Appeals

94 P.3d 123

194 Or.App. 31

Karen MEADER and Harry Meader, Respondents, v. David MEADER and Alice Meader, Appellants.

00C-33824, A120628.

Court of Appeals of Oregon.

Submitted on Record and Briefs January 2, 2004.

Decided June 30, 2004.

David Meader and Alice Meader filed the briefs pro se for appellants.

Lance D. Youd, Salem, filed the brief for respondents.

Before HASELTON, Presiding Judge, and LINDER and ORTEGA, Judges.

ORTEGA, J.

Parents appeal from an order denying their request for modification of a judgment awarding substantial visitation to paternal grandparents. Because the trial court determined that there was no substantial change in circumstances to require modification of the original judgment, it did not address the children's best interests. We review de novo, ORS 19.415(3) (2001),¹ and reverse, concluding that the best interests of the children require termination of the visitation.²

We begin with a review of the history of this proceeding, which provides the context for our decision regarding modification. This proceeding involves the three oldest of parents' four children — their daughter, C, who was born in July 1995, and their two sons, T and M, who were born in April 1997 and October 1998, respectively.³ Grandparents' original petition for visitation was heard in April 2001, when C was almost six years old and T and M were ages four and two. Grandmother apparently sought visitation under former ORS 119.121 (1999), repealed by Or. Laws 2001, ch. 873, § 2.⁴ Because grandfather is father's stepparent, he apparently sought visitation under ORS 109.119 (1999).⁵ Grandparents sought weekly eight-hour visits and one overnight visit per month, claiming that they had been regular caretakers of the children and had developed emotional ties with them. They contended that parents had begun denying visits after grandparents became critical of their efforts at parenting. Apparently, on more than one occasion, grandparents had called the sheriff and lodged complaints with the State Office for Services to Children and Families (SCF) — now known as Department of Human Services (DHS) — regarding concerns that parents were mistreating the children. Grandparents claimed that parents slapped the children in the face and pulled their hair, used profanity around them, and locked C in her room when she misbehaved.

Parents admitted to spanking the children but denied slapping them in the face or pulling their hair, and mother explained that she had locked C in her room, in accordance with advice from parenting tapes, when C's behavior was out of control. Parents noted the lack of any evidence of abuse (particularly given the regularity with which grandparents photographed the children), and the record indicates that DHS never took custody of the children despite investigating parents at grandparents' behest. Parents claimed that grandparents undermined them (particularly mother) as parents, including in front of the children, and that C was often defiant and difficult to manage after spending time with grandparents. Parents disputed the extent of grandparents' past contact with the children and contended that they had not denied visits but had merely insisted that any visits must occur in father's presence.

Grandparents' petition was heard several months after the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), in which a majority of the justices agreed that the Due Process Clause of the Fourteenth Amendment to the United States Constitution protects "the fundamental right of parents to make decisions concerning the care, custody, and control of their children." The same justices agreed that, under the circumstances of that case, the state court's decision to override the parent's reasonable choice to limit grandparent visitation merely because that visitation was found to be "in the best interest of the children" impermissibly infringed on that fundamental right. Id. at 67-69, 120 S.Ct. 2054. We addressed the impact of Troxel in Harrington v. Daum, 172 Or.App. 188, 198, 18 P.3d 456 (2001) — also decided before the hearing on grandparents' petition — explaining that "Troxel now establishes that the court must give significant weight to a fit custodial parent's decision" regarding visitation and that a parent's right to make decisions concerning the child's upbringing is "a supervening right that both affects the determination of whether visitation is appropriate and prevents the application of solely a `best interests of the child' analysis."

Although the trial court in the hearing on grandparents' original petition did not conclude that parents were unfit, there is no indication that the court considered Troxel or applied any kind of presumption in favor of parents' decision to limit grandparents to visits under father's supervision. Instead, the court found that parents had denied grandparents a reasonable opportunity to visit with their grandchildren — a finding that was relevant only as to grandmother, because grandfather is father's stepparent⁶ — and found that it was "in the best interest and welfare of the children" that grandparents be awarded "parenting time." Specifically, the court indicated that it would award grandparents two overnight visits per month with the children.

Before entry of the trial court's judgment in May 2001 and without apprising the trial court, parents moved the family to Wyoming. Parents did not appeal the court's judgment. Soon after parents' departure, grandparents obtained an order to show cause why parents were not in contempt of the judgment. The case was reassigned to a new judge; the order was served only on mother and, when she failed to appear, grandparents sought and obtained a warrant for mother's arrest from the judge newly assigned to the case. Mother was arrested and spent three days in jail in Wyoming in late December 2001.

By April 2002, parents had moved back to Oregon and filed a motion to modify the visitation order to terminate grandparents' visits or, in the alternative, to allow only supervised visits. Parents both appeared at a hearing in May 2002 and acknowledged that they were in contempt of the original judgment. At that hearing, father presented by affidavit evidence that, in January 2002, while the family was still in Wyoming, C had disclosed to mother that grandmother had sexually abused her. Father brought C to Salem to be interviewed at Liberty House later in January. During an in-depth interview, C disclosed that, on one occasion when she was five years old, grandmother had touched C's genitals with her hand and instructed her to tell the police that her "grandpa" (apparently indicating C's maternal grandfather) had done it. C reported that grandmother had indicated that she was going to hurt C and give her to the police if she did not listen to grandmother and say what grandmother told her to say. Liberty House staff assessed the interview as credible evidence of sexual abuse and recommended that C be seen by a therapist experienced in treating abused children and that she have no contact with grandmother pending further investigation. On receiving the report from Liberty House, DHS administered a polygraph examination to grandmother, which was inconclusive. A second polygraph administered one week later was reportedly "negative for sexual abuse," and DHS issued an opinion that the sexual abuse claim was "unfounded."

Even though all of this information was before the trial court at the May 2002 hearing, the court ordered that supervised visits be started weekly, specifically noting that supervision was ordered only for the purpose of easing the children's transition, given that they had not seen grandparents since August 2000. Over parents' objection, the court granted grandparents' request that the visits be supervised by grandfather's niece, Michelle Lindemann, who is a social services worker known to the trial judge but who also testified on behalf of grandparents in the hearing on their original petition. At a further status hearing a month later, several more weekly visits were scheduled, half supervised and half unsupervised.

Between the May hearing and a hearing held in late August 2002, the children had weekly supervised and unsupervised visits with grandparents. During that time, C had several sessions with Dr. Cynthia Savoie-Phillips, a child psychologist. In addition to interviewing C and both parents, during her sessions with C, Savoie-Phillips used play therapy, a recognized form of psychotherapy that is designed to assist younger children, for whom verbal expression is difficult, to more naturally express their thoughts, feelings, and experiences. Savoie-Phillips's reports of those sessions are remarkable in several respects.

First, in each session, C's play was characterized by a figure whom she dubbed the "evil queen," who kidnapped or captured little girls and put them into cages or traps. C put 12 to 15 little dolls into cages and would routinely check on them each session to make sure they were still there and would add more. In C's play, occasional efforts to help the little girls or confront the evil queen were always unsuccessful.

Second, in the course of C's play, she would comment about her fears that grandmother would take her away from mother and about threats that grandmother would make to her while taking her aside during visits. She frequently commented that grandmother "tells me to keep secrets," including instructing C not to tell anyone about an incident in which M had burned his finger while at grandparents' house. C reported that grandmother also had told her not to tell "what she did to me" — which C described as grandmother using her finger to rub C's "crotch" inside her underwear for about two minutes. C also frequently commented that grandmother had called mother names and said unkind things about mother. Each week C...