In the Matter of the Marriage of Loredana Elizabeth BOTOFAN-MILLER, Respondent on Review, and Brett Robert MILLER, Petitioner on Review.
and submitted January 18, 2019
review from the Court of Appeals [*] (CC C104720DRA) (CA
A161266) (SC S065723)
Koch, Tonkon Torp LLP, Portland, argued the cause and fled
the briefs for petitioner on review.
W. Kelly, Eugene, argued the cause and fled the brief for
respondent on review.
successfully moved to modify a custody determination made at
the time of dissolution of his marriage to mother, which had
awarded mother sole legal custody of child. On mother's
appeal, the Court of Appeals reversed, holding that custody
modification was not warranted, because, as a matter of law,
there was insufficient evidence in the record to support the
trial court's finding that there had been a material
change in circumstances concerning mother's ability to
parent child. Held: Sufficient evidence in the
record supported the trial court's ruling that father had
proved a change in circumstances, the trial court did not err
in concluding that a change in custody from mother to father
was in child's best interest, and, therefore, the trial
court did not err in modifying custody.
decision of the Court of Appeals is reversed. The judgment of
the circuit court is affirmed.
Or. 505] NELSON, J.
a child custody dispute arising out of father's motion to
modify a custody determination made at the time of the
dissolution of the parties' marriage, which awarded
mother sole legal custody of child. At the conclusion of the
modification proceeding, the trial court found that there had
been a material change in circumstances concerning
mother's ability to parent child and that a change of
custody from mother to father was in child's best
interest, and it awarded sole legal custody of child to
father. On mother's appeal, the Court of Appeals reversed
the judgment of the trial court on the ground that, as a
matter of law, there was insufficient evidence in the record
to support the court's finding of a change in
circumstances and, thus, that custody modification was not
warranted. Botofan-Miller and Miller, 288 Or.App.
674, 406 P.3d 175 (2017). For the reasons that follow, we
hold that sufficient evidence in the record supported the
trial court's ruling that father had proved a change of
circumstances. We also address an issue that the Court of
Appeals did not reach: whether the trial court erred in
concluding that a change in custody was in child's best
interest. We hold that the trial court did not err in so
concluding. Therefore, we reverse the decision of the Court
in an appeal from a suit in equity, as with the instant case,
appellate review of a trial court's findings was de
novo. However, in 2009, the legislature amended ORS
19.415(3) to provide that de novo review in cases
like this one is discretionary. Or Laws 2009, ch 231, §
2. The Court of Appeals in this case declined to exercise its
discretion to review the case de novo.
Botofan-Miller, 288 Or.App. at 675. We also decline to
review the case de novo.
keeping with that approach, we view the facts pertinent to
review of the Court of Appeals' change-in-circumstances
decision in the light most favorable to the trial court's
disposition. That is, we will uphold the trial court's
findings of facts if there is any evidence in the record to
support them. Sea River Properties, LLC v. Parks,
355 Or. 831, 834, 333 P.3d 295 (2014). As part of that
consideration, when we view the record, we accept reasonable
inferences [365 Or. 506] and reasonable credibility choices
that the trial court could have made. State v.
Cunningham, 337 Or. 528, 539-40, 99 P.3d 271 (2004).
Moreover, if the trial court failed to articulate its factual
findings on a particular issue, we assume that the trial
court decided the facts in a manner consistent with its
ultimate conclusions, as long as there is evidence in the
record, and inferences that reasonably may be drawn from that
evidence, that would support its conclusion. State v.
Serrano, 346 Or. 311, 326, 210 P.3d 892 (2009).
Court of Appeals concluded that the trial court erred in
finding a change in circumstances and, for that reason, it
did not reach the question whether the trial court erred in
ruling that custody modification was in child's best
interest. Appellate courts review the trial court's best
interest determination for abuse of discretion. Epler and
Epler, 356 Or. 624, 636, 341 P.3d 742 (2014) (so
holding). That is, the court will uphold the trial
court's best interest determination unless that court
exercised its discretion in a manner that is "clearly
against all reason and evidence." Espinoza v.
Evergreen Helicopters, Inc., 359 Or. 63, 117, 376 P.3d
state the following facts with those standards of review in
parties were married in April 2009, and child was born in
June 2009. The parties separated in October 2010, when child
was about 17 months old. Immediately after the separation,
child spent most of her time with mother. Beginning in
February 2011, child spent about a third of her time with
the dissolution proceedings, there were some signs that
mother was experiencing mental health issues. In 2010, mother
twice reported to police that father was physically abusive
toward her, but the trial court in the original dissolution
proceeding concluded that her allegations were
unfounded. And, in February 2011, mother took child
to a [365 Or. 507] hospital emergency room and reported that
father had been poisoning her and child. According to a DHS
report, mother appeared delusional, and there was no evidence
of poisoning. Mother was hospitalized and given antipsychotic
medications. Mother attributed the psychotic episode to sleep
deprivation and her anxiety about father's extended
parenting time. Mother's medical providers concluded that
mother did not have a psychotic illness and that she was not
at risk for recurring psychotic episodes.
those incidents, at the time of the dissolution proceedings,
father believed that mother and child had a healthy
relationship and that child was flourishing. Father did not
question mother's ability to parent child, and he did not
object to mother's request for legal custody of child.
For that reason, the trial court did not order a custody
evaluation or make any findings about custody in its judgment
of dissolution. The court awarded mother sole legal custody
of child, awarded parenting time to father (including regular
overnight stays), and, for reasons we will next discuss,
ordered that child be immunized on a schedule set by an
agreed-upon pediatrician. The parties' marriage was
dissolved in July 2011, when child was about two years old.
the dissolution proceeding, father learned that mother had
not had child immunized according to the vaccination schedule
set by child's pediatrician, Harper, and mother disclosed
her general resistance to vaccinations to the trial court
during a February 2011 hearing on certain temporary matters.
At the conclusion of that hearing, the court ordered mother
and father to follow Harper's recommendations for
vaccinating child. In April 2011, the trial court entered a
limited judgment in which it found that "[t]here has
been a significant gap in the health care of the minor
child" and ordered the parties to follow the
pediatrician's directions "as to all health care
issues, including vaccinations." About two weeks after
that limited judgment was entered, father remained concerned
that mother was interfering with the directions of the
pediatrician. In an affidavit attached to a motion seeking
certain medical records, father stated that he did not
believe that child had received her scheduled vaccinations
and booster vaccinations.
Or. 508] In a court filing, mother responded that father had
"exaggerated the gap in [child's] medical
care." Mother explained that she had had financial
problems obtaining and maintaining insurance coverage but had
tried to keep child current with her vaccinations. She stated
that, as had been required, she had taken child to Harper,
who had recommended a course of vaccinations. Mother further
explained that, thereafter, she became uncomfortable with
Harper, because Harper had remarked on mother's and
father's tense relationship. Mother decided, therefore,
to begin taking child to another pediatrician, Dr. Thomas.
Mother averred that, as of April 2011, child was caught up
with and was following the vaccination schedule established
2011, the court, as noted, awarded mother legal custody of
child and granted mother sole medical decisionmaking
authority. However, notwithstanding mother's agreement to
continue to follow Thomas's vaccination schedule, and in
light of continuing concerns about mother's general
resistance to vaccinations, the trial court included a
provision in the judgment of dissolution requiring mother to
"confer with [child's] pediatrician to ensure that a
proper vaccination schedule is in place for [child]."
the dissolution judgment was entered, father began to notice
changes in mother's ability to parent child, which
ultimately led him to move for a change in of custody. Those
changes related generally to mother's struggles in making
medical decisions and to certain harmful repercussions to
child of mother's increasing anxieties about child's
instance, father became increasingly concerned about
mother's inability to make medical decisions for child
after child developed an eye condition in 2013 that resulted
in her eyes crossing, giving her double vision. In February
2014, child's ophthalmologist, Dr. Wheeler, began
recommending surgery to address the condition. He explained
that vision therapy probably would not solve the underlying
problem and that delaying surgery risked child's double
vision becoming permanent. Mother resisted scheduling surgery
and sought out opinions on online forums suggesting [365 Or.
509] alternatives to surgery. Mother spent dozens of hours
discussing those opinions with child's doctors and their
staff. She also started taking child to a different
ophthalmologist, Karr, during this time. Karr also
recommended surgery. Mother finally agreed to schedule the
surgery after father informed her that he would be seeking
surgery, which ultimately took place in December 2014, was
successful, and child suffered no long-term consequences to
her vision. However, during the prolonged period of delay,
child suffered balance and coordination problems-for example,
she would fall over while coloring-and she experienced
stomach aches. She also struggled at school academically,
with writing and fine-motor skills, and she struggled
socially. All those problems resolved after the surgery.
the period after the dissolution, father also became aware
that child was again falling behind in her immunizations.
Despite the trial court order directing mother to follow the
pediatrician's vaccination schedule and notwithstanding
mother's assurances that she would continue to do so,
mother chose not to vaccinate child for at least two years,
between January 2012 and January 2014.
addition, after the dissolution, father observed that mother
frequently changed medical providers for child, often seeing
multiple pediatricians and eye-care professionals at once.
Father also became aware that mother was not providing
appropriate dental care to child. She did not take child for
regular dental check-ups, she refused fluoride treatments
(falsely telling the dentist that she was providing fluoride
at home), and she refused x-rays.
after the dissolution, child began having serious emotional
problems while in mother's care. Child began to
experience emotional dysregulation, exclusively in
mother's presence, in which child threw extreme temper
tantrums, bit mother, pulled mother's hair, and dug her
fingernails into mother's skin. Mother sought treatment
for child's behavior from the Morrison Center, which
provides, among other things, mental health treatment for
children. From March 2012 to August 2014, mother and child
participated [365 Or. 510] in three multi-session courses of
treatment at the Morrison Center. Morrison Center staff
reported that mother often was late for appointments and
missed some appointments altogether. All three courses of
treatment ended informally by mother instead of formally by
Morrison Center staff, and the first course ended when mother
simply stopped attending the sessions. Staff concluded that
child had an attachment issue with mother and advised mother
about how to deal with child's emotions, including giving
mother parenting coaching and modeling techniques, but mother
was, essentially, unresponsive to those efforts. Mother
consistently attributed child's problems to father's
parenting and transitions to custody at father's house,
and never attained a level of introspection that allowed her
to recognize her own role in child's behavior.
by the time child was in kindergarten, mother had difficulty
ensuring that child arrived at school on time, and child was
October 2014, father moved the court to modify the custody
determination to give him medical decisionmaking authority.
Specifically, father contended that mother was not meeting
child's medical needs in four areas: vision care, dental
care, provision of timely vaccinations, and the provision of
information to medical providers. Father eventually amended
that motion to seek full legal custody of child. As part of
the modification proceeding, the court appointed a neutral
custody evaluator, Dr. Sabin, to conduct a custody and
parenting time evaluation, and it ordered the parties to
participate in and make child available for interviews,
evaluations, and testing.
issued a lengthy report in which she concluded that custody
of the child should be awarded to father. Her primary
findings all related in some way to her foundational
conclusion that mother had an "anxious attachment"
parenting style. Sabin explained that parents who have an
anxious attachment parenting style generally have difficulty
promoting their children's development as separate
individuals, because they have mixed feelings about their
children's independence. And a child who is overly
enmeshed or anxiously attached may, at times, become angry
with the [365 Or. 511] anxiously attached parent, when the
child is trying to individuate or become more independent.
mother's case, in Sabin's view, mother's anxious
attachment parenting style had a variety of concerning
effects. For instance, it manifested in mother's
difficulty in helping child with emotional regulation;
child's tantrums, which continued until child was five
years old, were extreme and prolonged and occurred only in
mother's home. Additionally, mother's anxious
attachment parenting style caused mother to have trouble
setting clear limits with child, including, for example,