In the Matter of Katherine L. HOLT and Terry Holt, Petitioners-Respondents, and Destiny M. ATTERBURY, Respondent-Appellant, and Bryant A. COFFEY, Respondent-Respondent.
and submitted August 15, 2017
Douglas County Circuit Court 14DO1302OT William A. Marshall,
W. Kelly argued the cause and fled the briefs for appellant.
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.
appearance for respondent Bryant A. Coffey.
Tookey, Presiding Judge, and Shorr, Judge, and Linder, Senior
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.
Or.App. 815] SHORR, J.
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.
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.
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).
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
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.
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.
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
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 ...