Muhlheim v. Armstrong

• Decision Date: 26 December 2007
• Docket Number: A129926 (Control).,A129927.,051267.,040204.
• Citation: 217 Or. App. 275,175 P.3d 521
• Parties: Meggan Claire MUHLHEIM, Petitioner-Respondent, v. Bradley J. ARMSTRONG, Respondent-Appellant. Todd P. Muhlheim and Robin Muhlheim, Petitioners-Respondents, v. Bradley J. Armstrong, Respondent-Appellant, and Meggan Claire Muhlheim, Respondent.
• Court: Oregon Court of Appeals

175 P.3d 521

217 Or. App. 275

Meggan Claire MUHLHEIM, Petitioner-Respondent, v. Bradley J. ARMSTRONG, Respondent-Appellant.

Todd P. Muhlheim and Robin Muhlheim, Petitioners-Respondents, v. Bradley J. Armstrong, Respondent-Appellant, and Meggan Claire Muhlheim, Respondent.

040204.

051267.

A129926 (Control).

A129927.

Court of Appeals of Oregon.

Argued and Submitted November 27, 2007.

Decided December 26, 2007.

James D. Huffman, St. Helens, argued the cause for appellant. With him on the briefs was Huffman & O'Hanlon.

Russell Lipetzky argued the cause and filed the brief for respondents Todd P. Muhlheim and Robin Muhlheim.

No appearance for respondent Meggan Claire Muhlheim.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.

HASELTON, P.J.

In these consolidated cases, father challenges the award of custody of his daughter, E, to her maternal aunt and uncle pursuant to the psychological parent statute, ORS 109.119.¹ Father contends that the trial court erred in determining that aunt and uncle had established a "[c]hild-parent" relationship with E, ORS 109.119(10)(a), and that aunt and uncle had rebutted the statutory presumption of ORS 109.119(2)(a) that "the legal parent acts in the best interest of the child." Father further contends that the trial court erred in admitting certain evidence and in considering issues not framed by the pleadings. Because we agree with father that aunt and uncle did not rebut the statutory presumption that father acts in the child's best interests, we reverse without reaching father's remaining assignments of error.

We review the facts de novo. Wurtele v. Blevins, 192 Or.App. 131, 84 P.3d 225, rev. den., 337 Or. 555, 101 P.3d 809 (2004). Most of the facts are not disputed, although the inferences to be drawn from them are strongly disputed. E was born in January 2001. Father and mother were not married or living together when E was born, but they voluntarily acknowledged father's paternity.

Mother lived at various times in Portland and Albany. Mother's life apparently was quite chaotic, and she had numerous mental health problems. On occasion, she and E would stay with E's maternal grandparents in Albany during crises. E also saw aunt and uncle, who live in Portland, on holidays and for visits and she stayed with them on occasion when mother was having problems. Father had visits with E both in Albany and in Portland. Mother would bring E to visit father, who lives in St. Helens, on some holidays as well. However, most of father's efforts to share time with the child were unsuccessful because of mother's unreliable and unpredictable behavior.

Mother initiated a custody proceeding in January 2004. In that proceeding, both parents sought custody of E. A temporary order was entered on January 30, 2004, which prohibited both mother and father from hiding or secreting E from the other party or changing E's usual place of residence, which was mother's address in Albany. The temporary order also provided for father to have supervised parenting time up to twice a month. However, despite the temporary order, mother's willingness to follow through with plans for E to spend time with father lessened after the custody case was filed. Attempts to mediate a parenting time plan were not successful. Mother would not allow father to see E at Christmas in 2004.

In January 2005, mother's situation apparently took a turn for the worse.² Father was no longer able to contact her by telephone. Aunt — mother's sister-in-law — testified that mother was experiencing mental health problems, was taking drugs, and was involved in an abusive relationship. In late January 2005, the Department of Human Services (DHS) became concerned about E's welfare after receiving reports about drugs and domestic violence in mother's home. In light of those concerns, a DHS worker, Davis, consulted E's maternal grandparents about possible family resources for E. Grandparents identified aunt and uncle as potential resources. Mother agreed with Davis that E could live with aunt and uncle.

Davis did not contact father or consider him to be a placement resource because mother indicated that father had no relationship with E and had engaged in domestic violence. Davis knew that a custody case was pending between father and mother concerning E, but he was unaware of the order that prohibited moving E from her current address or secreting E from father. Davis placed E with aunt and uncle on January 26, 2005, and instructed them not to contact father.

Father became concerned when he was unable to reach mother, and he left a telephone message for the maternal grandparents, trying to locate E. Father also tried contacting mother's attorney in the custody proceeding but had no success in locating mother. Finally, in early April, father was able to reach mother's boyfriend by telephone and learned that E was with aunt and uncle. Father telephoned uncle and left a message that he wanted to see E. Uncle returned the call several days later and agreed to set up a visit. Shortly thereafter, aunt and uncle filed their petition for guardianship of E.

The custody case was scheduled for trial on May 2, 2005. Mother's lawyer appeared and sought a continuance on the ground that mother was currently hospitalized. Aunt and uncle's lawyer appeared and requested that the guardianship petition be consolidated with the custody proceeding. The court allowed both the continuance and the consolidation. The court scheduled a status check and parenting time hearing for June 15. After the May 2 continuance, aunt and uncle initiated their action pursuant to ORS 109.119 seeking custody of E.

Meanwhile another DHS caseworker, Purcell, had become involved in the case. Approximately a week after father contacted uncle, Purcell contacted father. He told father that E's maternal grandparents had not wanted father to be contacted because they were afraid that he would take custody of E. Father was upset that he had not been contacted earlier and indicated that he wanted to talk with his attorney. Father also contacted the sheriff's office to inquire about getting E removed from aunt and uncle's care, and the sheriff's office called Purcell at DHS. Purcell later told father that he should have contacted DHS rather than the sheriff's office.

Purcell thereafter arranged a "family decision meeting" on May 12 with father, aunt and uncle, maternal grandparents, and paternal grandmother. At that meeting, father inquired why DHS had removed the child from mother's care, and Purcell responded that the reasons were confidential. Father made it clear that he wanted custody of E. At that meeting, father was upset because he discovered that E was referring to her aunt and uncle as "mom and dad" and because aunt claimed that she was the child's mother. The parties, however, managed to reach an agreement that father would be allowed to schedule visits with E. Thereafter, father had a number of successful visits and outings with E at which she appeared to enjoy herself and enjoy father's company.

On June 15, the court held the previously scheduled status check and parenting time hearing. Mother did not appear at that hearing, and the court was informed that her attorney had withdrawn from the case. The court directed that aunt and uncle's new petition under the psychological parent statute be consolidated with the other pending matters, and the case was scheduled for trial the following week. The parties reached an informal agreement that parenting time would continue as it had in the previous months.

The case went to trial on June 21, 2005, approximately five months after E began living with aunt and uncle. Aunt and uncle presented evidence about the circumstances that brought E into their care in January, as recounted above. They also presented evidence about the stability of their home and family, as well as persuasive evidence that E was, in fact, bonded with them, doing well in preschool, involved in a multitude of wholesome activities, and thriving in their care.

Aunt and uncle presented testimony from Dr. Norvin Cooley, a psychologist who evaluated the relationship between E and aunt and uncle in order to provide testimony about the existence of a "child-parent relationship" between them. Cooley did not perform a custody evaluation. He met with E for an hour and with aunt, uncle, and maternal grandparents for two additional hours. Cooley concluded that E was healthy and bonded to aunt and uncle, and that her psychological needs were being met by them. He rendered the opinion that, given that E's life had already been disrupted in the care of her mother, she needed stability, which could be provided in the aunt and uncle's home. Although Cooley had no information about father and had not met him, he further stated that, although E had an attachment with her father, she did not know him well and was not comfortable with him and should be exposed to him only in a safe environment such as aunt and uncle's home. Cooley predicted that removing E from her aunt and uncle's home would cause significant interruption in her development and possibly result in development of an attachment disorder.

Aunt testified that E became anxious before and after seeing father and that, on one occasion, when they were about to meet father at a restaurant, E told aunt that she wanted to go home. Aunt testified that she was concerned about father having custody of E because she had been told that he had "criminal issues related around alcohol and driving" and had not furnished her with any evidence that he had completed a drug and alcohol treatment program.

Uncle testified that he was aware that there was a custody case pending between father and mother when E moved in with them in January, but he did not understand that father wanted custody of E. He acknowledged that father was not informed of E's location between January and April 2005; nevertheless,...