Wurtele v. Blevins

• Decision Date: 11 February 2004
• Citation: 192 Or. App. 131,84 P.3d 225
• Parties: Randy WURTELE and Janet Wurtele, Respondents, v. Edgar Errin BLEVINS, Appellant, and Sasha Wurtele, Respondent.
• Court: Oregon Court of Appeals

84 P.3d 225

192 Or. App. 131

Randy WURTELE and Janet Wurtele, Respondents, v. Edgar Errin BLEVINS, Appellant, and Sasha Wurtele, Respondent.

00-3066; A115793.

Court of Appeals of Oregon.

Submitted on Record and Briefs October 3, 2003.

Decided February 11, 2004.

Edgar Errin Blevins filed the brief pro se.

Mark Kramer, Portland, filed the brief for respondents Randy Wurtele and Janet Wurtele.

Sasha Wurtele filed the brief pro se.

Cecil A. Reniche-Smith, Peter Bunch, and Zimmer & Bunch LLC, Portland, filed the brief for child.

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

HASELTON, P.J.

Father appeals from a judgment awarding custody of his daughter, K, to her maternal grandparents. We review the facts de novo under the standards prescribed in ORS 109.119 and our case law construing and applying that statute. See, e.g., Sears v. Sears, 190 Or.App. 483, 79 P.3d 359 (2003), Winczewski and Winczewski, 188 Or.App. 667, 72 P.3d 1012 (2003), rev. pending (2004). We conclude that: (1) grandparents rebutted the statutory presumption that father acts in the best interests of his daughter, ORS 109.119(4)(b), ORS 109.119(2)(a); (2) an award of custody to grandparents is in K's best interest, ORS 109.119(3)(a); and (3) constitutionally "compelling circumstances" militate against an award of custody to father in that such an award would expose K to undue psychological injury. Accordingly, we affirm.

K was born on August 16, 1993. At that time, father was 17 years old, and mother was 16. Father and mother, who were unmarried, lived with mother's parents (grandparents) at their home in Clatskanie for the first two months after K's birth and then moved to Tacoma, Washington, where they lived with father's mother, Brecy. In the spring of 1994, mother and K returned to Clatskanie without father, who joined the Job Corps. After living briefly with grandparents, mother moved with K into her own apartment, and father, who had dropped out of the Job Corps, rejoined them in late 1994. During that period, and until early 1996, mother worked outside of the home; father cared for K when mother was at work; and mother and father shared parenting responsibilities at other times.

In late 1995 or early 1996, father returned to Brecy's home in Tacoma, where he was still living at the time of trial. At about the same time, mother moved with K to Longview, Washington. In the spring of 1996, grandmother visited mother's apartment in Longview. Concerned for K's welfare—and with mother agreeing that she was not ready to assume parental responsibilities—grandmother took K back to grandparents' home. K was then two-and-one-half years old, and she has resided with grandparents, at first in Clatskanie and then, later, in Salem, since that time.

Grandparents, acting in a parental role, provided care, nurturing, and security for K. Grandparents taught K, played with her, comforted her, and tucked her in at night. Grandparents, and only grandparents, interacted with K's teachers and took her to the doctor. The relationship between K and grandparents was, and is, very close, warm, and loving. In the words of expert custody evaluator Patricia Cox, that relationship is the "primary bond" in K's life. Mother, with one exception several years ago, maintained a continuing presence in K's life. Although living separately from grandparents, mother saw K frequently, including after grandparents moved with K to Salem a few months before the trial. Initially, mother acted more as a "big sister" to K, but recently their relationship has changed, with mother assuming a more "parental" role. The relationship between mother and K is affectionate.

Father has also, for the most part, maintained a continuing relationship with K. The parties dispute whether father had any contact with K between late 1995 or early 1996, when he returned to Tacoma, and the spring of 1998, when he attended K's preschool graduation. The more persuasive evidence in the record shows that, even if there was some break in contact when father first returned to Tacoma, he renewed visits with K by no later than the spring of 1997, and, with a break of no more than a few weeks in mid-1999, continued consistent visitation thereafter.

Initially, father came to Clatskanie for day visits, but beginning no later than 1998, K went with father to Tacoma for weekend and holiday visits with his family, staying with father at Brecy's home. In the summer of 1999, K had her first extended visit, a week with father. Father and K had, and have, an affectionate relationship; he would take her on outings, play with her, and, when necessary, discipline her appropriately.¹

Although father maintained consistent contact with K, his financial contributions toward her support were sporadic. The record is not entirely clear, but it appears that, at various times, including in 1997 and 1998, Washington authorities deducted monies from father's paycheck for child support for K. Father also periodically bought K gifts, including clothes, toys, videos, and computer programs. However, and notwithstanding that he was employed, father—acting on the advice of counsel—made no payments towards K's support after January 2000.

Relations between grandparents and father were generally amicable until shortly before grandparents filed their petition in February 2000. The impetus for the petition was that grandfather wanted to add K to his health insurance policy but could not do so unless grandparents had legal custody of K. In their petition, grandparents alleged:

"Petitioners have established a child-parent relationship with the minor child, which has existed within the six months preceding the filing of this action, in which the child resided with petitioners and petitioners supplied the child with food, clothing, shelter, and necessaries, and provided the child with necessary care, education, and discipline. Such a relationship has continued on a day-to-day basis through interaction, companionship, interplay, and mutuality, which has fulfilled the child's psychological needs for a parent, as well as the child's physical needs."

Grandparents' petition acknowledged that both mother and father should be awarded reasonable parenting time, including at least one weekend a month for father.

Father opposed grandparents' petition and filed a cross-petition for custody. Father asserted, inter alia, that he had "until recently been led to believe that [K] was in the care and custody of [mother], who was living with maternal grandparents until the time of this action." Father further asserted that grandparents "should not be allowed any visitation" with K because of

"their unfitness as custodian of the child, in that they do not provide adequate care for the child and they engage in certain activities, such as the use of controlled substances and the practice of the occult which is detrimental to the well-being of the child."

Father also proposed that mother should be allowed only supervised visitation.

Mother filed a response to the petition and cross-petition. She admitted that custody should be awarded to grandparents. Alternatively, she alleged that, if grandparents did not prevail, she should be awarded "sole custody of [K], subject to reasonable and seasonable parenting time" for father.

In February 2000, the court issued a temporary protective order of restraint, maintaining K's residence with grandparents. That order, which was later amended to provide for parenting time with father, remained in effect, with modifications, until the trial in May 2001.

Relations between grandparents and father substantially deteriorated between the filing of the petition and the time of the trial. In December 2000, father, who had found a bruise on K, accused grandparents of whipping K and told grandmother, in K's presence, that he had talked to child protective services. Grandparents denied any abuse, and no action was taken by child protective authorities. In March 2001, father engaged in an angry telephone conversation with grandfather over visitation. According to grandfather, father told him, "You people keep screwing with me and now you're going to have to watch it"; grandfather understood that remark to be a threat. Father denied making that remark but admitted that he was "a little bit out of line" in that conversation.² Finally—and most significantly—in a deposition taken shortly before trial, father testified that, if he were awarded custody, he would oppose any visitation between K and grandparents.

Brecy, with whom father lives, spoke angrily and disparagingly about grandparents in K's presence. As Cox, the custody evaluator, observed, "There's no doubt that [Brecy] feels an enormous amount of hostility towards [grandparents] and does very little to disguise that." Conversely, there is no evidence that grandparents ever disparaged father in K's presence.

The increased tension, even animosity, between father, and his family, and grandparents confused and upset K. She would act out after returning from visits with father and his family. Even more disturbingly, K began biting herself, causing bruises, when she was visiting father.³ After this case was initiated, K began engaging in obsessive hand washing, making her hands "raw." According to Cox, the custody evaluator, the biting behavior is

"just another symptom of that kind of anxiety that this youngster experiences and has demonstrated symptoms that all the people who care about her, including the father and the mother, have expressed concern about, her sensitivity to the situation. It could be related to other things, but I'd stake 31 years [of experience] that it's—that it's related to this animosity and the transitional DMZ that she has to go through every time she spends time with one or the other of these camps."

(Emphasis added.) Father, while acknowledging that behavior, largely discounted it:

"[I]t's a sign that she's unhappy and there's

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