341 P.3d 175
Or. Ct. App.2014Background
- Petitioner (a child, age 13 at hearing) sought a stalking protective order (SPO) under ORS 30.866; petition filed by her guardian ad litem (maternal grandmother).
- Respondent may be petitioner’s biological father; his parental rights were terminated in 2005. He has a past history of substance abuse and domestic violence but had been sober and rehabilitated for years by the time of the SPO hearing.
- Relevant contacts: limited face-to-face encounters in 2007–2008 (remote by the time of filing) and a series of letters exchanged in Dec 2011–early 2012 delivered via classmates/third parties, plus a birthday gift delivered at school in 2012 despite petitioner’s stated request not to receive contact.
- Letters/gifts contained benign, nonthreatening content (chattiness, signed “Love, [respondent]”); petitioner destroyed many letters and did not recall full contents.
- Petitioner testified she felt scared and ashamed, largely influenced by what she had been told about respondent’s past violence toward her biological mother, but did not specify the nature of the feared harm.
- Trial court granted the SPO; respondent appealed arguing insufficient evidence that contacts caused objectively reasonable apprehension for personal safety.
Issues
| Issue | Petitioner’s Argument | Respondent’s Argument | Held |
|---|---|---|---|
| Whether the unwanted contacts caused objectively reasonable apprehension for petitioner’s or family’s personal safety under ORS 30.866(1)(c) | Petitioner relied on cumulative effect of contacts plus respondent’s violent/drug history (as relayed by her mother) to show reasonable fear for safety | Contacts were benign and remote; no recent threats, aggression, or proximity to support objectively reasonable fear | Reversed: insufficient evidence that contacts caused objectively reasonable apprehension for personal safety |
| Whether speech-based contacts can serve as SPO predicate without being threats | Not argued separately on appeal (petitioner's fear tied to history and conduct) | Respondent noted some contacts involved speech and raised constitutional concerns | Court did not decide constitutional speech issue; resolved case on statutory grounds |
| Whether manner of contacting (third parties, school delivery) makes fear reasonable | Petitioner argued adult’s use of unusual channels to contact a child is relevant to reasonableness | Respondent argued manner alone, without threatening content or recent violent acts, is insufficient | Court: manner of contact is relevant but here insufficient given benign content and no evidence of risk |
| Whether petitioner’s fear can be proven indirectly through parent’s fear | Petitioner initially argued fear was personal; later suggested mother’s fear could suffice | Respondent relied on trial record where petitioner claimed personal fear, not parent-based fear | Court declined to consider mother’s fear because petitioner had not relied on it at trial |
Key Cases Cited
- Ragsdale v. Fleming, 265 Or App 342 (preponderance standard for SPOs)
- Braude v. Braude, 250 Or App 122 (elements of ORS 30.866; speech as predicate contact must be a threat to avoid overbreadth)
- Christensen v. Carter/Bosket, 261 Or App 133 (assess objective reasonableness by cumulative effect)
- Tesema v. Belete, 266 Or App 650 (contrast recent/pervasive violence vs. remote violence in assessing reasonableness)
- Miley v. Miley, 264 Or App 719 (reversing SPO where no history of violence or threats)
- Weatherly v. Wilkie, 169 Or App 257 (contextualizing innocuous contacts against parties’ history)