D. R. S., Petitioner-Respondent,
Amy BAKER, aka Amy Campbell, Respondent-Appellant. 296 Or.App. 96
and submitted November 28, 2018
Multnomah County Circuit Court 17PO09810 Patricia L. McGuire,
W. Engle argued the cause and fled the brief for appellant.
appearance for respondent D. R. S.
Powers, Presiding Judge, and Egan, Chief Judge, and Landau,
Senior Judge. [*]
Summary: Respondent appeals an order continuing for one year
a restraining order issued against her under the Elderly
Persons and Persons with Disabilities Abuse Prevention Act
(EPPDAPA), arguing that the trial court erred in fending that
respondent presented an "immediate and present danger of
further abuse" to petitioner, as required by EPPDAPA.
Held: The trial court erred in continuing the
restraining order. Although respondent's actions were
offensive to petitioner, the record lacked evidence that
respondent made recent threats of additional abuse before the
trial court's order. Thus, it was error for the trial
court to find that respondent posed an immediate and present
danger of further abuse to petitioner.
Or.App. 97] EGAN, C. J.
appeals an order continuing for one year a restraining order
issued against her under the Elderly Persons and Persons with
Disabilities Abuse Prevention Act (EPPDAPA), ORS 124.005 to
124.040. Because it is dispositive, we address only the
second of respondent's two assignments of error and
conclude that the record lacks evidence to support a finding
that respondent presents an "immediate and present
danger of further abuse" to petitioner, as required by
EPPDAPA. Accordingly, we reverse.
relevant facts are not in dispute. Petitioner,
respondent's former mother-in-law, filed a petition for a
restraining order under EPPDAPA. ORS 124.010(1)(b) (an
elderly person subject to abuse within preceding 180 days may
petition for relief if abuser presents immediate danger of
further abuse). Petitioner alleged that on a single occasion
within the previous 180 days, while petitioner was traveling,
respondent broke into petitioner's home and disrupted
some of her personal belongings. Petitioner also alleged
that, at an unspecified time more than 180 days before filing
the petition, respondent had verbally abused her. Following
an ex parte hearing on October 9, 2017, the trial
court issued a temporary restraining order under ORS
requested a hearing to contest the order. ORS 124.020(9); ORS
124.015. At the hearing, petitioner testified that the
parties had seen each other on a single occasion in 2017, a
child's soccer game at which the parties did not speak to
each other, and that respondent had not attempted to contact
her during 2017. The trial court found that respondent's
conduct in entering petitioner's home and disturbing her
personal property constituted "abuse" under ORS
124.005(1) and that respondent posed an "immediate and
present danger of further abuse." Respondent appeals.
124.010 provides that "an elderly person * * * who has
been the victim of abuse within the preceding 180 days * * *
may petition the circuit court for relief * * *, if the
person is in immediate and present danger of further abuse
from the abuser." Petitioner has the burden of proving,
by a preponderance of the evidence, that (1) she is an
"elderly person," (2) she was "abused" by
respondent, (3) the abuse [296 Or.App. 98] occurred within
180 days before the initial order, and (4) she is in
immediate and present danger of further abuse. ORS
124.010(2); Doyle v. Rohrback, 257 Or.App. 523, 525,
306 P.3d 789 (2013).
without deciding, that petitioner satisfied her burden of
proof as to having been "abused" within 180 days
prior to the initial order, the record lacks evidence to
support a finding as to an immediate and present danger of
further abuse. "Immediate and present danger,"
under ORS 124.020(4), "includes but is not limited to
situations in which the respondent has recently threatened
the elderly person *** with additional abuse." Although
respondent's actions at petitioner's home were
offensive to petitioner, the lack of evidence that respondent
made recent threats of additional abuse before the trial
court's order does not support a finding that ...