State v. Wooden

• Decision Date: 30 October 2002
• Citation: 57 P.3d 583,184 Or.App. 537
• Parties: STATE of Oregon and Kristin Mayri Emerson, Petitioners, v. De'Onn Wardell WOODEN, Respondent. In the Matter of Dreydon De'Onn Emerson, a Minor Child. De'Onn Wardell Wooden, Appellant, v. Arthur G. Emerson and Jessie R. Emerson, Respondents.
• Court: Oregon Court of Appeals

57 P.3d 583

184 Or.App. 537

STATE of Oregon and Kristin Mayri Emerson, Petitioners, v. De'Onn Wardell WOODEN, Respondent.

In the Matter of Dreydon De'Onn Emerson, a Minor Child.

De'Onn Wardell Wooden, Appellant, v. Arthur G. Emerson and Jessie R. Emerson, Respondents.

C931973DR and J990097; A111860

Court of Appeals of Oregon.

Argued and Submitted January 3, 2002.

Resubmitted July 17, 2002.

Decided October 30, 2002.

William R. Long, Portland, argued the cause for appellant. With him on the briefs was Stoel Rives LLP.

John Chally, Portland, argued the cause for respondents. With him on the brief were Sandra Hodgson and Bouneff & Chally.

Kathy Graham, pro se, filed a brief amicus curiae.

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

Resubmitted En Banc July 17, 2002.

LANDAU, J.

Father appeals a judgment awarding custody of his child (child) to the child's maternal grandparents (grandparents). He argues that the court erred in applying a "best interest of the child" standard. According to father, recent cases replace that standard with one that requires his interests to be given significant weight, amounting to a rebuttable presumption in his favor. That presumption, he argues, has not been rebutted on the record before the court. He therefore concludes that custody must be awarded to him. Grandparents argue that the court applied the correct test and applied it correctly.

We conclude that father is correct that the "best interest" test no longer applies to custody cases between a legal parent and nonparents. We further conclude that, applying the proper standard, legal custody must be awarded to father, subject to a six-month transition period during which father will continue to have visitation as previously ordered by the trial court.

We review the facts de novo. ORS 19.415(3). Child was born on February 10, 1993. His mother, Kristin Emerson, and father never married each other, but father's paternity is not in dispute. Father and mother have not lived together since child was born.

From birth until he was 18 months old, child lived with mother and grandparents in Washington County. During that period, mother worked full time, and grandparents provided substantial amounts of child care. They continued to see child regularly, including weekly sleep-overs, after he and mother moved into a nearby apartment, where they stayed for another year until child was two-and-a-half. At that time, mother and child moved to Seattle. A year later they returned to Oregon, where mother later married a man named Stacy Bryant. The marriage became tempestuous, and, as it did, mother and child spent considerable time with grandparents. On January 25, 1999, Bryant murdered mother and then killed himself. Child was just under six.

Father, meanwhile, maintained sporadic contact with mother and child. Although he was with mother during her pregnancy and at child's birth, mother severed the relationship shortly thereafter. By his own estimate, he visited around 60 times between child's birth and mother's marriage to Bryant; mother, in an affidavit executed during a support dispute before her death, estimated 10 visits. He did not visit at all after mother's marriage. Mother and Bryant opposed any further visitation, and father's church pastor advised him that it would be best to eliminate contact with mother and child. Over the years, father paid approximately $12,000 in child support, roughly two-thirds of his legal obligation.

Father learned of mother's murder from an acquaintance four days after the event, on January 29, 1999. That same day — and without notifying father — grandparents filed an ex parte motion for temporary custody of child.¹ Two days later, father and grandparents met after mother's funeral to discuss custody, but they did not reach an agreement. The next day, February 1, 1999, the Washington County Circuit Court granted grandparents' motion. A week later, after an emergency hearing, the court vacated that order, declared child a ward of the court, and continued physical custody with grandparents. A more thorough custody hearing occurred on May 3, 1999. Dr. Furchner, a court-appointed psychologist, testified that child would be well served to stay with grandparents "for a while" pending development of a father-son relationship. Father, while expressing a preference for an immediate change in custody, acknowledged that a delay would be acceptable. The court agreed and extended grandparents' custody, setting a "review hearing" for the following year. For the interim year, the court allowed father parenting time on alternate weekends, alternate Wednesdays, and for two weeks in July 1999.

Throughout the following year, father was faithful in his visitation with child, despite the fact that he had to take public transportation from Vancouver, Washington to grandparents' home in Washington County. He paid all support obligations, even after having been told by grandparents that such payments were not necessary. By the end of that year, child regarded father as his "dad."

The review hearing occurred on June 20, 2000. The record developed at that hearing is very sketchy. Father relied on the testimony of Furchner, who had testified at the May 1999 hearing as a court-appointed neutral. She testified that she had conducted a home visit with father and child and that she found father to be a "[v]ery decent young man," steadily employed, from a stable family, involved with his church, and sensitive to child's needs. She testified that, over the past year, child and father developed a healthy parent-child relationship and that child would be served best by living with father after a transition of six months to one year.

Grandparents offered the testimony of Dr. Moran, child's private therapist, who met with child 10 times over the course of the nine or 10 months following mother's death. Moran did not prepare a custody evaluation and, indeed, expressly declined to make a custody recommendation. He explained that he did not meet with father, visit father's home, or observe father's interactions with child. He nevertheless concluded:

"I think moving [child] in — like right now, would be devastating and traumatic. I say that because it is just a year ago that he lost his mom, to — and he is now developing a secure base, which was essential for him to be a psychologically healthy person, to create a transition at this juncture is going to effectively restrict his ability to trust, because it won't create a secure base."

The trial court acknowledged "the good motives, exemplary life and efforts" of father, expressed gratitude for the cooperative efforts of all parties, announced that "[t]his is not an easy call," and took the case under advisement. Shortly thereafter, the court ruled in favor of grandparents. The court's opinion recited the following "Conclusions of Law":

"1. Pursuant to Sleeper and Sleeper, 328 Or. 504, 982 P.2d 1126 (1999) * * *, in ORS 109.119 cases, the `best interest of the child' standard applies in resolving custody disputes between a biological parent and non-biological parents. * * *

"2. The best interest of the child analysis strongly favors continuing [child's] custody with [grandparents].

"3. [Child's] continued emotional well being requires that he remain with the [grandparents].

"4. [Child] has a liberty interest in preserving his familial or family-like bonds with [grandparents].

"5. [Father's] biological parentage of [child] standing alongside his just emerging and developing father-son relationship with his child does not equal a supervening right that should override the best interest of this child in remaining with the [grandparents]. [Father] does not have a supervening right that would be violated if custody is granted to the [grandparents]."

The court entered judgment awarding "[f]ull legal and physical custody" to grandparents. The judgment further provides that, "[i]n furtherance of encouraging the continuing development of [father's] and [child's] fatherson relationship," father's parenting time was increased to include two more weeks in summers, five days at Christmas, alternating Thanksgivings, alternating spring vacations, Father's Day, and father's birthday. Father appeals.

To resolve this case, we must understand the interplay between decisions of this court, the Oregon Supreme Court, the United States Supreme Court, and ORS 109.119 (1997).² As relevant to this case, that statute provided:

"(1) Any person * * * who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child, or any legal grandparent may petition or file a motion for intervention with the court having jurisdiction over the custody, placement, guardianship or wardship of that child * * *.

"(2)(a) If the court determines that a child-parent relationship exists and if the court determines by a preponderance of the evidence that custody, guardianship, right of visitation, or other generally recognized right of a parent or person in loco parentis, is appropriate in the case, the court shall grant such custody, guardianship, right of visitation or other right to the person, if to do so is in the best interest of the child. The court may determine temporary custody of the child or temporary visitation rights under this paragraph pending a final order."

In Sleeper, the Supreme Court held that the statute

"requires the court to examine the circumstances surrounding the custody dispute and to determine whether the best interests of the child call for an award of custody to the nonbiological parent. 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. The Supreme Court did not explain what...