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In re E.K.K.

Court of Appeals of Oregon

August 27, 2014

In the Matter of E.K.K., a Minor Child. RACHEL GAYLE KLEINSASSER, Petitioner-Respondent, and MEGAN ANN LOPES, Respondent-Appellant

Argued and Submitted September 5, 2013

Page 1240

Jackson County Circuit Court. 105739D9. Ronald D. Grensky, Judge.

George W. Kelly argued the cause and filed the briefs for appellant.

Clayton C. Patrick argued the cause and filed the brief for respondent.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 1241

[265 Or.App. 196] NAKAMOTO, J.

This is a child custody proceeding brought by stepmother against mother in the wake of the illness and death of the child's father. When his father died, the child, E, was seven years old and had lived with his father and stepmother for four years. Because stepmother had a parental relationship with E, the trial court was called on to decide whether stepmother had rebutted the presumption provided in ORS 109.119(2)(a) that mother, the legal parent, " acts in the best interest of the child." The trial court concluded that stepmother had rebutted the presumption and awarded both temporary and final custody of E to stepmother in 2011, with parenting time for mother. Mother appeals the judgment, assigning error to the trial court's denial of her motions to dismiss for insufficient evidence under ORCP 54 B(2) and to the court's award of both temporary and final custody to stepmother. We conclude that the record supports the trial court's findings and its resultant conclusions, and we affirm.

Mother asks us to exercise our discretion to review de novo, under ORS 19.415(3)(b), to correct findings made by the trial court that mother asserts are unsupported by the record. We will exercise our discretion to take de novo review only in exceptional cases. ORAP 5.40(8)(c). The trial court made sufficient findings for our review and pointed to testimony in the record on which it relied. We thus decline to engage in de novo review. The parties, however, do not provide us with guidance on our applicable standard of review should we decline to review de novo a trial court's determination of whether the presumption in ORS 109.119(2)(a) has been rebutted--a precise question we have not previously addressed. To answer that question, we review briefly the task a trial court must undertake under ORS 109.119,[1] [265 Or.App. 197] which governs custody disputes between a legal parent, such as mother, and a third party, such as stepmother.

Under that statute, " only persons who have demonstrated a child-parent relationship with the child have the right to seek custody." O'Donnell-Lamont and Lamont, 337 Or. 86, 103, 91 P.3d 721 (2004), cert den, 543 U.S. 1050, 125 S.Ct. 867, 160 L.Ed.2d 770 (2005).

Page 1242

Here, the parties stipulated below, and the trial court independently found, that stepmother had a child-parent relationship with E, and mother does not dispute that finding on appeal.

Once a child-parent relationship is established, the Oregon Supreme Court has described the roadmap that ORS 109.119 provides as follows:

" In such a custody proceeding, the legal parent is presumed to act in the best interest of the child. ORS 109.119(2)(a). That presumption can be rebutted, however, by a preponderance of the evidence, and the statute identifies five nonexclusive factors that the court may consider in [265 Or.App. 198] determining whether the presumption has been rebutted (rebuttal factors). ORS 109.119(3), (4)(b). Finally, the statute provides that, if the evidence rebuts the presumption in favor of the legal parent, the court shall award custody to the person having the child-parent relationship with the child, but only if to do so is in the best interests of the child. ORS 109.119(3)(a)."

O'Donnell-Lamont, 337 Or. at 103-04.

In determining whether the presumption that the legal parent acts in the best interest of the child is rebutted by a preponderance of the evidence, the court's focus " is not on whether one or more of the statutory factors are present, but on whether the evidence as a whole is sufficient to overcome the presumption that the parent acts in the best interest of the child." Id. at 109. That determination is for a court to make, sitting as the trier of fact. See id. at 107 (the legislature " left to the courts as triers of fact the task of deciding whether the nonparents had made that showing in any particular case" ); id. at 108 (" In specific cases, the weight to be given to each of the five statutory factors, to the evidence supporting those factors, and to other relevant evidence, will vary. The statutory touchstone is whether the evidence at trial overcomes the presumption * * *." ). That statutorily prescribed fact determination is analogous to the one a trial court must make in the context of a juvenile dependency proceeding. See Dept. of Human Services v. N.P., 257 Or.App. 633, 639-40, 307 P.3d 444 (2013). Accordingly, unless we exercise our discretion to take review de novo, " we view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome." Id. If the record was legally sufficient to permit the trial court to determine that the statutory presumption was rebutted, we then must determine whether the trial court abused its discretion in awarding custody based on the best interest of the child. Underwood and Mallory, 255 Or.App. 183, 193, 297 P.3d 508 (2013) (" We review a trial court's determination of the best interests of a child for abuse of discretion." ).

With that background in mind, we turn to the facts of this case.

[265 Or.App. 199] I. FACTS

A. Circumstances leading to the custody dispute

E was born in March 2003. Mother is E's biological mother. E's biological father died on November 12, 2010, while E was living with father and stepmother. Father's death precipitated this custody action between mother and stepmother.

When E was born, mother and father were unmarried but living together. Because of father's job, mother provided most of E's caregiving while they lived together. After mother and father separated, E continued to live with mother until June 2006, when E was three years old. At that time, mother left E with father so that she could travel, including to Guatemala. In November 2006, father and stepmother began living together, and they married in May 2009. On mother's return to Ashland, Oregon in February 2007, E continued to live with father and stepmother in Medford. Mother never expressed any objection to E living in the household with stepmother and, based on what she knew, believed that stepmother was a good stepparent for E. Stepmother and father also had a child together, who was born in 2010, a few months before father's death.

Page 1243

Throughout 2007, mother moved in and out of southern Oregon and would visit with E for a weekend or a day when she was in Medford. In November 2007, mother and father entered into a formal parenting plan. They stipulated that E would live with father, who would have " decision-making authority on major decisions, after consulting with [mother]." They further agreed that mother would have parenting time.

Mother did engage in some parenting time with E when she was in southern Oregon; however, from the summer of 2008, up until the day of father's death, November 12, 2010, mother travelled extensively and moved to several different residences, both in and outside of Oregon. When she was in southern Oregon, it was usually for a few days to a week, with the exception of one period of a few months at the end of 2009. Mother's primary reasons for frequently travelling and moving were pleasure and volunteer work. [265 Or.App. 200] However, mother claimed that her absences between June 2008 and September 2009 were because she could not find a job in the area, so she took a job that required her to travel to several different states.

From January 2009 to father's death, mother had exercised 36 of her total 227 allotted overnights of parenting time. From January 2010 to May 2010, mother only spent nine nights with E. From May 2010 to November 2010, mother did not see E at all. Mother testified that, when she was away, she would send E photos and letters, and she would call E. Mother wanted E to travel with her in an arrangement of switching between her ...


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