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In re Marriage of Botofan-Miller

Supreme Court of Oregon, En Banc

August 15, 2019

In the Matter of the Marriage of Loredana Elizabeth BOTOFAN-MILLER, Respondent on Review, and Brett Robert MILLER, Petitioner on Review.

          Argued and submitted January 18, 2019

          On review from the Court of Appeals [*] (CC C104720DRA) (CA A161266) (SC S065723)

          Robert Koch, Tonkon Torp LLP, Portland, argued the cause and fled the briefs for petitioner on review.

          George W. Kelly, Eugene, argued the cause and fled the brief for respondent on review.

         Case Summary:

         Father 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.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

         [365 Or. 505] NELSON, J.

         This is 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 of Appeals.

         STANDARD OF REVIEW

         Historically, 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.

         In 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).

         The 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 960 (2016).

         We state the following facts with those standards of review in mind.

UNDERLYING FACTS

         The 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 father.

         During 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.[1] 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.

         Notwithstanding 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.

         During 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.

         [365 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 by Thomas.

         In July 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]."

         After 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 wellbeing.

         For 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 custody modification.

         The 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.

         During 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.

         In 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.

         Moreover, 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.

         Finally, by the time child was in kindergarten, mother had difficulty ensuring that child arrived at school on time, and child was often tardy.

         In 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.

         Sabin 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.

         In 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, ...


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