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In re Holt

Court of Appeals of Oregon

May 16, 2018

In the Matter of Katherine L. HOLT and Terry Holt, Petitioners-Respondents, and Destiny M. ATTERBURY, Respondent-Appellant, and Bryant A. COFFEY, Respondent-Respondent.

          Argued and submitted August 15, 2017

          Douglas County Circuit Court 14DO1302OT William A. Marshall, Judge.

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

          Gina L. Bonomini argued the cause for respondents Katherine L. Holt and Terry Holt. With her on the brief was Randy C. Rubin Attorney At Law, PC.

          No appearance for respondent Bryant A. Coffey.

          Before Tookey, Presiding Judge, and Shorr, Judge, and Linder, Senior Judge.

         Case Summary: Mother appeals a judgment awarding custody of her child, E, to E's paternal grandmother and step-grandfather (grandparents). Mother first contends that the trial court erred in concluding that grandparents had established a child-parent relationship with E under ORS 109.119(10)(a) because, according to mother, grandparents did not prove that E lived with them on a "day-to-day basis." Mother next contends that the trial court erred in concluding that grandparents had rebutted the presumption that mother acts in E's best interest under ORS 109.119(4)(b). Mother argues that the trial court lacked sufficient evidence to make the factual findings that underpinned that conclusion and erred [291 Or.App. 814] in weighing the relevant factors under ORS 109.119(4)(b). Held: First, the trial court did not err in concluding that grandparents had a child-parent relationship with E. Grandparents presented evidence that E lived with them around five to six days a week. That evidence was legally sufficient to establish that E resided with grandparents on a "day-to-day basis" as that term is used in ORS 109.119(10)(a). Next, the trial court did not err in concluding that grandparents had rebutted the presumption that mother acts in E's best interest. The court's findings under ORS 109.119(4)(b) were supported by sufficient evidence, and the court did not legally err in weighing the ORS 109.119(4)(b) factors.

         Affirmed.

          [291 Or.App. 815] SHORR, J.

         Mother appeals a judgment awarding custody of her child, E, to E's paternal grandmother and step-grandfather (grandparents) and awarding substantial parenting time to mother. Mother first assigns error to the trial court's ruling granting grandparents custody of E, contending that the court erroneously concluded that grandparents had established a child-parent relationship with E as defined by ORS 109.119(10)(a). Specifically, mother argues that, because the court did not expressly find the percentage of time that E lived with grandparents before grandparents petitioned for custody, we must either review the record de novo to determine ourselves whether grandparents cared for E on a "day-to-day" basis or remand to the trial court to make that finding expressly. In the alternative, mother asks us to conclude that, even viewing the evidence in the light most favorable to the trial court's disposition, grandparents did not prove a child-parent relationship with E because "day-to-day" care can only be established by showing that E was being cared for by grandparents "every day of the week and every night of the week, " and they failed to make such a showing.

         Mother also assigns error to the trial court's grant of custody to grandparents on the basis that the court erroneously concluded that grandparents had rebutted the presumption under ORS 109.119(4)(b) that mother acts in E's best interest. Mother argues that the court lacked sufficient evidence to make the factual findings that underpinned that conclusion and erred in weighing the relevant factors under ORS 109.119(4)(b). Both of mother's arguments are unconvincing. Consequently, we affirm.

         We turn to the facts. As noted, mother asks us to review the record de novo. We exercise our discretion to review de novo only in exceptional cases and, as we discuss in more length below, decline to do so here. ORAP 5.40(8). Accordingly, "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." Kleinsasser and Lopes, 265 Or.App. 195, 198, 333 P.3d 1239 (2014) (internal quotation marks omitted).

          [291 Or.App. 816] At the time of trial, E was four years old. He had three older half-brothers and one younger half-sister. His brothers were 8, 10, and 11 years old. His sister was 10 months old.

         E's brothers-especially his youngest brother- have severe mental health and behavioral issues. For instance, E's brothers often harm themselves by hitting themselves in the head when they become upset and make statements about wanting to kill themselves. E's brothers' suicidal statements are not empty threats. Approximately a year before trial, E's youngest brother, who was seven at the time, wrapped a belt around his neck in an apparent attempt to hang himself at school. That event resulted in E's brother being hospitalized for approximately a week.

         E's brothers often exhibit violent and aggressive behaviors. E's brothers' father described his sons as violent toward each other and noted that their violent behavior has escalated over time. In fact, E's brothers' behavior issues were so serious that their father, who lives with his girlfriend most of the time, maintains a separate residence for when he has parenting time with his sons because his girlfriend believes that her son had begun "to exhibit anger and emotional issues" similar to those that E's brothers were exhibiting. E's father, who had lived with mother and the older boys off and on, also believes that E's brothers are "much more violent than any children that" he had been exposed to and, as an example, pointed to the fact that E's youngest brother regularly killed lizards.

         E's brothers' aggressive behavior did not end at home. E's youngest and eldest brother both have had to be placed on behavior plans at school. While E's eldest brother's plan was terminated prior to trial, his youngest brother's plan was established just one month before trial. That plan included "accommodations and interventions, " one of which was a requirement that E's brother start the day in the special education room to "mak[e] sure he comes in happy and off to a good start" and that he participate in "alternative, " structured recess, rather than regular recess. That plan was deemed necessary because E's youngest brother's behavior was causing him to be removed from school. For instance, [291 Or.App. 817] within two months before trial, mother had to miss a meeting regarding E's eldest brother's educational plan because she had to remove E's youngest brother from school because of his behavior instead.

         E was born in spring 2011. About a month after E was born, he began living with grandparents. From that point to the point that mother began having him with her for days at a time in September 2014, E spent approximately five to six days a week with grandparents. While E was residing with grandparents, grandparents were responsible for E's care. That care included taking E to dental and doctor appointments, finding E a Head Start program, and ...


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