*1 Argued 3, 2002; 4, by an and submitted October resubmitted en banc June affirmed July 16, 2003 equally divided court Marriage the Matter of the
Eileen WINCZEWSKI,
aka Eileen Ordway,
Appellant, and WINCZEWSKI, Stephen below, Respondent Oliver WINCZEWSKI Winczewski, and Barbara Respondents.
C94-1968DR; A112079
Darcia Krause argued the cause and filed the briefs for respondents. Deits,
Before Chief Judge, Edmonds, Landau, Haselton, Linder, Wollheim, Armstrong, Kistler, Brewer, Schuman, Judges.
PER CURIAM
Affirmed an equally divided court.
Deits, J.,C. concurring.
Edmonds, J., dissenting.
Brewer, J., dissenting.
Schuman, J., dissenting.
DEITS, J., concurring. C. cus-
Mother
from a
that awarded
appeals
judgment
On
of two of her children to their
tody
grandparents.
paternal
19.415(3);
Wooden,
v.
facts,
de novo
ORS
State
review
(2002),
following:
184 Or
I. PROCEDURAL HISTORY had deceased, two father, Mother who is now A J. was dis- marriage and Mother father’s daughters, the chil- They initially custody solved 1995. had joint grand- at dren, and the children their time with father spent home. parents’ 1996, custody. sole
In November father obtained stated, the children custody father judgment that awarded problems other has substantial emotional part, “[m] his parents, her interactions with impact [father] entered, and her After that parenting^]”1 judgment however, according mother, pay support; Mother was also ordered to child against judgment her. been entered she had been in arrears and a default had court restricted mother’s contact because, with the children mother grandmother testified, was showing up inappro- priately the school. After father obtained sole custody November 1996 and 1999, until his death in April chil- dren lived with him in home. the time grandparents’ During that the children lived in home, grandparents’ they provided substantial assistance in caring the children. grandparents intervened in the case involv- mother
ing and father’s dissolution, the case that is now the subject of this The trial appeal. stated, court’s order in part, “[grandparents] granted intervenor status in the case involving Winczewski, [A] [J] and shall be treated as parties in future any court proceedings involving these children.”
Father died of lymphoma 1999. April Immediately after funeral, father’s which was held several days after his death, mother took the children to live with her and her fam- ily. Mother is currently married to Paul Ordway, and they children, two Also, C and L. after death, father’s grand- parents sought of A and J. The children lived with *3 mother until the trial, time of the although children visited grandparents throughout that time period.
The trial took in place May and July 2000. her trial memorandum, mother’s attorney argued “[t]he 14th Amendment to the United States Constitution protects a natural parent’s interest in the care, the of management his/her children” and that
“[a] constitutional application requires of ORS 109.119 more than finding a of children,’ ‘best interests of the it requires finding a of‘compelling reasons’ or ‘threat of harm’ Hruby children. Hruby, 500, [and 509, Or (1987)]. P2d 57 Awarding custody non-parent, to a even the ‘best interests of the children’ is not if it ‘appropriate’ deprives the of a basic and substantive right, the absence of a compelling state interest. It compelling is not a state simply interest every ‘maximize [.]’ child’s welfare [Id. at 511].” During closing argument July 2000, attorney mother’s argued that, under Troxel v. Granville, 57, 530 US 120 S Ct * * * L a (2000), signifi- 147 Ed 2d 49 “there has to be of in order for the showing
cant of harm or risk harm high [s]tate, therefore, state, the within the to interfere courts the of a natural ordinary decision-making authority parent.” trial
After court arguments, the parties’ closing of the chil- that, stated if the standard were the best interests court dren, However, would also grandparents prevail. harm, equal to, if not indicated if it had find “a level intervening, any- to that close in which would be [s]tate in as a or SOSCF mat- way, go [s]tate where the would CSD * * * children,” mother should ter and take control of the stated, judgment, part: receive In its court custody. child-parent relationship “THE FINDS COURT grandpar- [J] exists between and their [A] Winczewski ents, Winczewski; provisions Oliver and Barbara that the case; and that Oliver and apply ORS 109.119 under grandparents Barbara Winczewski intervenor ORS 109.119.
“THE interests of COURT FINDS that it is best Oliver and grandparents, these to reside with their children Winczewski, receive Barbara because the children would home; their support better emotional in the Winczewski met; needs better psychological educational and would be met; and their and health needs would be better nutritional be better off respects in all the children would much testimony living grandparents. with their Based Sabin, emotional factors over- Dr. the educational and with the placement favor of these children whelmingly grandparents. Winczewski States “THE ALSO FINDS the United COURT * ** distinguished can Supreme Court case Troxel 109.119) (ORS case, Oregon
from this in that statute relationship, while finding ‘child-parent’ of a requires the such a require did not Washington statute in Troxel in this case finding. Thus, require [c]ourt Troxel did unfitness part harm on the bio- finding *4 to make custody grandparent to logical parent awarding before law, and case reviewing intervenors. After the statutes Sleeper following language [c]ourt finds 504[, (1999)[,] applies this Sleeper, 1126] 328 Or 982 P2d case:
“ ‘If the best call custody interests of the child nonbiological parent, then the court make such must award, unless to do so wotdd violate supervening some right belonging biological parent.’ 328 Or [at] * * * 511 [.] “Applying the case, statutes and case law to the facts of this [c] ourt requires custody finds that the law an order of grandparents.” Winczewski Since the conclusion of the trial July children have lived with grandparents.
On appeal, mother makes three assignments (1) error: “The trial court erred in a ‘best applying interests of the child’ standard to a between a custody dispute natural (2) parent and non-parents.” “The trial court erred in holding [grandparents’] status a having ‘parent-child relation- ship’ alleviated the that it requirement find more compelling reasons than ‘best interests of the child’ to award (3) them.” “The trial court erred awarding custody to [grandparents] restrictions on placing [m]other’s paren- tal rights when she is a fit and when the court found no threat of harm to the children.” The gravamen mother’s assignments of error and arguments is the following: Because she has a liberty care, interest custody, and control of her children under the Due Process Clause of the Fourteenth Amendment to the United Constitution, States the trial court erred applying “best interests” standard and by awarding custody to grandparents without finding that mother is unfit or that there is a risk of harm to the chil- dren in mother’s custody.
Grandparents counter: “While appeal pending, the Oregon legislature amended ORS 109.119 to include a presumption rebuttable legal parent acts in the best interest of his or her 109.119(2)(a)[ (2001).] child. ORS That presumption can be by preponderance overcome of the evidence. If the court finds that the presumption rebutted, has been it required findings make of fact in support of the rebuttal. ORS 109.119(2)(b)[ (2001).]
“The amended statute allows the court to consider sev- eral factors in intervenor cases. One ofthose factors
672 for the adequately is care legal parent
is whether the
able
109.119(4)(b)(A)[.]
is
A second factor whether
child. ORS
care-
recently
primary
the intervenor has
been the child’s
109.119(4)(b)(B)[.] A
factor is whether
taker. ORS
third
exist
if
circumstances detrimental
child would
109.119(4)(b)(C) [.]
ORS
‘Circumstances
relief
denied.
may
detrimental
to the child’ includes circumstances
psychological,
physical
harm. ORS
cause
emotional
109.119(8)(b)[.]
light
occurred since
changes
“In
in the law which have
trial,
correct that the trial
appellant
the time of
mother is
solely on the best
court should not have based its decision
* * *
interests of
children.
changes during
standard
the course of
legal
“When the
apply
the new
custody appeal,
Appeals
the Court
should
legal
on de
review. Frederiksen
standard to
facts
novo
430,
(1999);
Ostermeier,
App
v.
II. THE APPLICABLE STATUTE court erred I the trial agree mother Thus, of the child standard.” the “best interests applying applicable must determine the standard. involving
We have
decided several cases
recently
parents
nonparents.
between
and
Strome
custody disputes
(2003);
Wooden,
525,
185
Accordingly, necessary to examine between the 2001 interplay amendments to ORS 109.119 and the decisions court, Oregon Supreme Court, of this and the United States Court in Supreme order determine whether mother or custody.3 should receive If I grandparents
2 explained O’Donnell-Lamont, As we on reconsideration in holding 2001, Oregon “[w]e chapter based that on the version of Laws sec- * * * appears Oregon tion in the 2001 edition of the Revised Statutes. provision, Legislative compiled published That Counsel it statutes immediately 109.119, after ORS reads: “ by apply The amendments to ORS 109.119 section 1 of this 2001 Act (1999Edition) petitions before, filed under ORS 109.119 or 109.121 on or ” 31,2001].’ [July after the date of 2001 Act effective this App (emphasis O’Donnell-Lamont; 187 Or at 17 second set of brackets in original). Austin, 720, 726, (2003), applied In Austin and 185 Or 62 P3d we (2001). Austin, stepfather statutory presumption ORS 109.119 In rebutted (2001) should mother and determine ORS 109.119 apply mother’s to address unnecessary it will be custody, receive How- right. constitutional her federal concerning argument that grandparents and determine if I the statute ever, apply to determine necessary it will become custody, should receive on mother’s infringes of the statute the application whether and con- care, custody, to the due process substantive mind, template that analytical her children. With trol of of this case. analysis turn to (2001) 109.119 APPLICATION OF ORS
III. statutory presumption entitlement A. Mother’s (2001) in part: provides, ORS 109.119 “(1) to a related including but not limited Any person, or grandparent[4] parent, stepparent, or nonrelated foster emo marriage, or who has established relative blood relationship ongo or an child-parent creating tional ties file a or may petition a child ing personal relationship with haying jurisdiction with the court motion for intervention wardship of custody, guardianship placement, over the may peti pending, child, proceedings if or no such resides, for county in the child the court for the which tion (3) this for relief under subsection providing an order section.
“(2)(a) section, there is a any under proceeding *7 interest presumption legal parent acts in the best that the child.[5] of the H¡ $
‡ $ “mother has been legal parent showed that the a because the evidence in favor of result, [the child] adequately [the and as a care for and will be unable to child’s] stepfather had well-being jeopardized” physical and because has been stepson biological had a sons and his his and mother’s awarded been case, However, we App in that relationship Or at 728. with his brothers. 185 close statute is parent 2001 version of the not contend that the noted that the “does also Accordingly, by requirements imposed Troxel. inconsistent with constitutional Austin, App n 185 Or at 727 1. not consider that issue.” we do “4 legal parent.” legal parent ORS ‘Grandparent’ of the child’s means the 109.119(8)(c). “5 rights whose ‘Legal parent’ parent in ORS 419A.004 a as defined means 109.119(8)(d). ORS 419B.500 to 419B.524.” terminated under ORS have not been * * * biological of the 419A.004(17), mother parent “the includes ORS Under child!.]” “(c) (a) in paragraph described presumption modify this subsection in an apply proceeding does not a section.[6] granting order relief under this “(3)(a) If the court determines that a rela child-parent tionship pre and exists if the court determines that the (2)(a) sumption described in subsection of this has section evidence, been rebutted aby preponderance of the the court grant custody, shall guardianship, right of visitation or person child-parent other having the relation ship, if do so is in the best of the interest child.”
Here, I understand that the issues are not following (1) in dispute: are the of A and Grandparents legal parents J’s (d). (2) father. See ORS 109.119(1); 109.119(8)(c), ORS Grand- parents have established a child-parent with A relationship 109.119(8)(a). (3) and J. See 109.119(1); ORS ORS Mother is the biological J, mother of A her rights and and have not been terminated pursuant to ORS 419B.500 to 419B.524. See ORS 109.119(8)(d). (4) There a presumption mother acts in 109.119(2)(a). the best interests of A Thus, and J. See ORS (1) the remaining issues in this case whether grandpar- ents have rebutted the statutory favor of presumption a mother preponderance evidence, see ORS (2) 109.119(3)(a); if have rebutted the grandparents pre- sumption, whether them awarding custody is best (3) interests of J, id.; A and see and if should grandparents awarded custody 109.119, under ORS whether that applica- tion of the statute on infringes mother’s fundamental due process right to the care, custody, and control of her children. 109.119(2)(c) contemplates ORS the modification of an award of Lear, 524, 527, 863 (1993), under the statute. Lear v. 124 Or P2d 482 we rea modify soned permanent custody that the court could an award of that had been granted prior though under a version of ORS 109.119 even did statute express procedure include an standard modification. 109.119(8)(a) provides, part: ORS “ ‘Child-parent relationship’ relationship exist, did means that exists or part, preceding filing whole or in within the six months of an action section, person physical custody relationship having under this and which residing of a supplied, child or in the same household as the child or otherwise child, food, clothing, made available to the shelter and incidental necessaries provided care, necessary discipline, the child with education interaction, relationship day-to-day basis, through which continued com- panionship, interplay mutuality, psychological that fulfilled the child’s physical needs for a as well as the needs.” child’s *8 the rebutting The relevant
B. statutory factors presumption
In determining statutory presumption whether 109.119(4)(b), I to which rebutted, has been turn ORS provides: in sub- deciding presumption “In whether the described (2)(a) and whether of this section has been rebutted
section custody, rights other over guardianship to award objection or may factors legal parent, the court consider may to, following, be including, but not limited which by the evidence: shown
“(A) or to care legal parent unwilling The unable child; adequately for the
“(B) has recently is or petitioner The or intervenor primary caretaker; been child’s “(C) if child exist Circumstances detrimental denied;’[8] relief is
“(D) fostered, encouraged or con- legal parent The has peti- relationship between the child and sented intervenor; or or tioner
“(E) lim- legal denied or unreasonably has petitioner ited contact between the child and the intervenor.” a determination
In this all of the factors are relevant case, has rebutted. of whether the been presumption C. The use expert testimony to each stat- the evidence that relates evaluating must decided its I that each case factor, caution
utory dispositive. will be single no fact Generally, own facts. of circumstances determine Instead, totality examine the rebutted. has been presumption whether cus- of child As cases the issue involving in many testimony and includes the the evidence in case tody, testimony Charlene Sabin and the of Dr. reports written “8 to cir is not limited the child’ includes but ‘Circumstances detrimental may physical harm to a psychological, emotional or cause cumstances 109.119(8)(b). ORS child.” mother After Gary MacKendrick, therapist. the children’s her to Sabin, to the selection of the court stipulated appointed *9 She conduct a and evaluation. custody study psychological a and has pediatrician children’s and behavioral physician com- conducting been evaluations since 1983. She custody In 20 evaluations each con- pletes approximately year. this she with all of the adults children ducting study, met and interactions; with involved; observed adult-child consulted teachers, doctor, dentists; and the chil- therapists, reviewed dren’s had done on records; medical and psychological testing all the adults. She and issued in November 1999 report completed a in 2000 after the follow-up May report hearing had been postponed.9
MacKendrick is a who has had therapist extensive involvement with the over family years. five approximately He began working the children when J was three years old and A five years was old. He saw them two to three times week at per and beginning eventually approx- saw them imately two to three He per times month. also had contact with mother, father, and grandparents. Mother apparently discontinued involvement with the children’s therapy with MacKendrick after he testified on father’s behalf in the 1996 custody hearing.10 case, ultimate experts’ conclusions are
stated in terms of the best interests of children. Never- theless, evaluations, in their made conducting experts detailed observations factual findings that are relevant to the issues in this case not dependent are their ultimate conclusion the best interests of the chil- regarding Thus, dren. contrary to the assertions Judge Edmonds’s dissent, expert in this record more testimony contains than subjective conclusions. May being gathered report Sabin viewed information for the con sistent with her earlier recommendations. 10 trial, At MacKendrick issues him was asked describe the that concerned responded about mother children. He that he was concerned that answer
ing question might confidentiality. attorney violate indi mother’s Mother’s any waiving privilege. Consequently, cated that mother not court the trial told violating privilege. question MacKendrick not to answer if it involved resolve, in difficult to cases are
Additionally, to evaluate having are put position because we part knowledge limited fairly on our human behavior based are not physicians, involved. We and circumstances people such of experts, The evaluations therapists. psychologists, decisions making to us case, in this bemay helpful as those inter- for direct have had the opportunity because the experts cases and involved in these with the individuals action mean- allows them to evaluate training had extensive circum- and the particular an individual’s behaviors ingfully determinative, case, certainly although In this stances. findings detailed and MacKendrick’s conclude that Sabin’s evidence. helpful persuasive and observations statutory D. Application of factors of the I examine each mind, those With principles 109.119(4)(b) in this evidence light in ORS factors *10 fac- discuss the however, I do not analysis, ease of case. For After statute. they appear in the order in which tors A and J I conclude that factors, applying grandparents. be awarded to should has recently or interuenor is 1. “The petitioner caretakerfj” ORS child’s primary been the 109.119(4)(b)(B). fostered, “The has legal relationship to the or consented encouraged or inter- the petitioner the child and between 109.119(4)(b)(D). venorfj” par- “The legal ORS contact or limited unreasonably denied ent has or inter- petitioner the child and the between 109.119(4)(b)(E). venor.” ORS in grandparents’ father children lived with period During of time. period for a substantial home with lived trial, the children funeral and father’s between not mother do that she and testified mother. Grandmother and Mother about the children. communication regular between that communication acknowledge grandparents living were the children difficult. While is sometimes them grandparents. children to visit allowed the mother, she with vacation, grandpar- mother allowed Thanksgiving During that grandparents A and J so visit with ents an extended Mother also uncle. to visit their to Denver take them could holi- other during allowed the children to grandparents visit visitation days grand- and with Apparently, school vacations. not Mother testified ordered court. parents and she believes that A and J are attached to grandparents that, if she awarded she like them to visit custody, is “would Thus, regularly.” caring have been involved grandparents Afor and rela- J, continuing and mother has consented between the and has not tionship grandparents children denied children. unreasonably grandparents contact “The 2. is or unable to care legal parent unwilling 109.119(4)(b)(A).
adequately childf.T’ORS for “Circumstances detrimental to the child exist if 109.119(4)(b)(C). is ORS deniedf.J” relief a. The children’s needs mother’s general
emotional limitations The evidence demonstrates that mother is unable to care 109.119(4)(b)(A), adequately children, ORS that circumstances detrimental to the children if grand- exist 109.119(4)(b)(C). are denied parents custody, ORS Specifi- cally, the evidence demonstrates that mother is able to not satisfy A’s and J’s particular needs because of her own emo- tional limitations. Even I focus though my discussion issue of whether mother meet needs, can A’s and J’s much of that evidence also demonstrates detri- circumstances mental to the children if exist grandparents are denied cus- tody.
MacKendrick testified that A’s and J’s for con- need sistency stability because, important basis, “without that psychological container, whether you ego call it an whatever, just simply or self or does *11 grow have a chance to and to achieve develop and the vari- ous through skills and work developmental processes life, opens normal and indeed those children significant and to crises in their lives.” confusion added.) (Emphasis
Sabin also testified that the children all “need need, usual kind of that we all parenting terms struc- ture, security, stability, predictability, regular schedules and However, sleep.” according
consequences, regular places mother for those needs: Sabin, provide general cannot placement with only strength considering “The clear mother, is is and this girls’ biologic [mother] that she symbolic to them. This not out- significance has some does skills, structure, boundaries, weigh their needs for social communication, pos- therapy, emotional support, academic medication, modeling, perhaps role and psychotropic itive that she cannot provide.” added.) Sabin also that the attach-
(Emphasis acknowledged ment is an consideration but that between siblings important health, safety, “not than such attachment is more important education, and emotional Sabin indicated development.” in mother’s home “is not and “is positive” environment “I Additionally, testified, for A J. don’t healthy” and she their mother has relationship [the children’s] feel that with them, that rela- healthy been and I don’t see emotionally in a healthy way [.]” tionship growing testifying general In addition to about the children’s needs, proc- Sabin also testified about mother’s “confusion issues”: understanding emotional essing concern, biggest for these chil- “My my biggest theme dren, development. in the area of emotional probably needs, her difficulty separating [Mother] has her emotional needs, She difficulty promot- from those of children. has even, in development, ing separate physical the children’s difficulty has wanting them. She terms trusting home school family positive to have relation- others outside the ships with children.
“The children related to me a number of conflicts a fire in the lot neighbors, such that the children had set home, neighbor had called near the mother’s department, neighbor angry. [mother] and the And fire angry calling department, [A] her for the fire became ways children this, positive all but the don’t learn recounts conflict; negative way of they learn more this processing being always blaming others and mad.” the children were Sabin testified that Additionally, although them, she testified her last contact with also during calmer reactivity emotional over-focus “[mother’s] *12 certain issues and her inability to look at the children’s needs in a there’s larger way, been no in that” and that change calmness of the children was “not an indicator in terms of their long-term emotional and educational needs met being in that home.”11
Sabin arranged mother, of psychological testing grandparents, The trial court Ordway. admitted Sabin’s statements about “in order for testing [the court] to understand the basis of the The opinion.” court stated that the statements were “not admissible in order to convince [the court] that they are inherently truthful, or for their truth.” Thereafter, Sabin testified that mother’s intellectual poten- tial is in the average range, that personality indicated testing signs of depression and loneliness, and that mother has dif- ficulty with perceptual issues such that she
“would focus on one detail and distort it and upon act it and overwork one detail without looking at the big picture, and * * * that applied also cues, to social and visual that she may react to issues that are not there or miss issues that are present, in terms of social and emotional issues.”
Of significance, Sabin noted mother although has had she is therapy, not a likely candidate for nor therapy is she likely to use therapy change her tech- parenting or niques to better address the children’s emotional needs: “[Mother] has had history of having therapy several times. She has not therapy utilized to deal past with the family of origin issues that continue require her emo- tional energy to contain. She therapy has used to some extent for the crisis of the moment or to ventilate her con- fusion angry feelings about relationships. She is not a based, Sabin noted functioning part, that mother’s limitations are on past experiences: her “[Mother Ordway] clearly functioning they can, as well as under much external functioning entirely and internal stress. Their limitations in are not making, having their own past history, arisen out of their but nevertheless the
Winczewski part ongoing generational children should not have to be of this dysfunction since there are alternatives for them.” available regard past history, With to her mother testified that her father died when she was may nine and grief Additionally, that she have unresolved issues. Sabin testified that she sexually had received information that mother had been abused as a child. now, need sees no of ther-
likely therapy candidate as she her likely change is not apy, therapy and she utilize parenting techniques understanding her children’s emotional needs.” needs particular
b. the children’s Examples inability to meet them mother’s examples contains numerous specific record ability limitations mother’s emotional impact *13 examples A’s J’s I focus on particular, and needs. satisfy (1) of A and J: emotional concerning the needs following (3) (2) needs; well-being; needs to their relating physical (5) (4) needs; social and need for educational and therapy; and need for behavioral boundaries. physical (1) needs The children’s emotional the chil- A number of mother wrote to letters that illness, dren, father’s demonstrate apparently during about A’s lack of and confusion understanding mother’s letters, the children’s and J’s needs. In mother blamed wrote, per- “Daddy for cancer. She Steve’s developing father disease develop choices have it easier for him to sonal made died, A father with to blame.”12 few months before nobody husband, Paul,” “Daddy her home with her promoted mother and it unit from the emotional family because was “a free chronic has a impacts with someone who physical living her to grief and Mother focused on own disabling disease.”13 12 report: following The text of the letter was included Sabin’s [J]
“Dear family “Daddy Mommy that Eileen that fact we are Paul and celebrate gifted beings. human “Daddy judge recog- Mommy that and Eileen celebrate the fact Paul Mommy Eileen, Daddy [AJ, [C], you, sister brother nized the bonds between Paul, Daddy and Steve. per- Daddy “Daddy Mommy recognize the Steve’s Eileen fact that Paul and nobody develop with to made for him to disease sonal choices have it easier blame.” report: following text of letter was included Sabin’s 9,1998 “Dated December [A],
“Dear family “Mommy Daddy from the unit free Paul are blessed to and physical impacts living who has a chronic with someone emotional and disabling disease. readable)” (rest “Love, Paul, Mommy, Daddy names not the exclusion of the children’s She she expe- wrote that grief. grief by “being [her] rienced blamed own by biologic family members for the behaviors inappropriate of another” and father his “watching poor [her] minimize health the emo- tional and and that physical impacts family his unit” has healed.14 grief Finally, mother appeared attempt disrupt children’s relationship She grandparents. wrote that illegal” “[i]t to “state lies about grandparents to other [her] and to “state people” any way they have rights make decisions pertaining you and [A].”15
Grandmother testified the correspondence mail, came registered return receipt requested, approxi- mately three a week times “at some point[, mother] quit sending them, gave them to the kids they when were over there Sabin, visiting.” According ‘letters are con- fusing and were always read to the children at the discre- tion of the Winczewskis.” Mother now acknowledges letters were an awkward and inappropriate attempt to com- municate with the children. testified, She part, “[t]hey following report: The text of the letters was included in Sabin’s *14 9,1999 February
“Dated [A]
“Dear grief being by my biologic “The from blamed own members for the family inappropriate behaviors another has healed. “Love, Mommy, Daddy Paul, [J], [C], [L]. and <<‡ ‡ ‡ ‡ * 12,1998
“Dated December [A],
“Dear watching my grief poor “The from father minimize and the his health emo- physical impacts family and tional on his unit has healed. (last “Love, Daddy Paul, Mommy, [J], [C] line not readable due to copying).” following report: The text of the letter was included Sabin’s “[J]: “Daddy family unique Paul I we of 5 and celebrate the fact that are and
gifted beings human full of life. illegal grandma grandpa “It is for Oliver state lies Barbara and to about people. to other me illegal grandpa any way grandma “It is state in Barbara and Oliver to (The they you rights pertaining [A]. to make decisions to and letter is [C])[.]” Paul, [J], signed Mommy, Daddy [A] Sister sister and and Brother get to awkwardly help, letters to to and myself vainly were some in a situation.” openness very painful reflect they because letters concern with the mother’s communicate inappropriate attempts of their emotional children and respond perception children about adult needs. Mother addressed her young to have focused appears issues adult She using language.16 children, of her her own interests rather than the interests letters, those were who, they at the time received apparently Moreover, father. with the death their dealing impending communicate children with the mother sent the letters J skills. extremely poor reading even had though to be MacKendrick and Sabin The letters caused correspondence concerned. MacKendrick testified that the which he was aware confusing, children, I think injurious
“was and press parent, because it seemed to for the death of that helpful really were not prejudge situations felt all.” comprehend couldn’t really that the children to see Sabin, “are an opportunity the letters According thinking girls’ about [mother’s] some of the confusion consistently address emotional needs. seems to [Mother] issues, language, adult using them about inappropriate with theirs.” her own childhood confusing experience (2) well-being The children’s physical from extensive care, A suffered While in mother’s Paxil, antidepres- A an tooth mother decay; stopped giving pre- had A’s who sant, psychiatrist, without consulting unnecessary J medication; scribed the underwent lim- Mother’s emotional testing medical at mother’s request. needs of her as to the extremely itations and poor judgment relating and decisions children are reflected in her responses to those events. while decay
A suffered from extensive tooth Cain, dentist Dr. A’s mother’s care. Sabin consulted with *15 Breche, her home, and Dr. when she was in grandparents’ 16 only years letters eight when some of the old A was born was 1992. were dated. J was born in dentist when she was mother’s home. Sabin testified to the A saw Cain in following: January 1999 while she was living with Cain grandparents. said that A had had a normal and that he checkup saw no evidence of decay. The hygienist made notes about A’s oral A good moved to mother’s hygiene. home in 1999. When A April saw Breche in November 1999, he found extensive and severe Breche did decay. substantial work on A’s teeth, including work that might be considered root canals an older person. Breche and Cain that it agreed was highly unusual to have such extensive decay in such a short period. Breche attributed problem poor oral hygiene and diet. According Sabin, Breche indicated that “he hadn’t made any specific notes about oral but he hygiene, noticed that [A’s]physical hygiene was less than optimal, that might carry over to difficulty with her oral hygiene.”17 her 2000 report, Sabin indicated: “The issues that have arisen regarding [A’s] dental needs do not indicate that previous neglectful, care was as she by was followed reputable dentist who felt that her hygiene oral good. recently more seen dentist felt that her teeth had deteriorated. This deterioration occurred during the time she was in her mother’s care primarily.”
When Sabin talked with mother about this problem, she blamed it on grandparents, asserting they had neglected A’s dental needs. Mother testified that the decay occurred before the children were in her custody. Sabin also testified that mother expressed concern to her that the rea- son the decay was not detected in prior dental examinations was that grandparents “hadn’t gotten teeth x-rayed [A’s] enough.” As indicated by Sabin’s testimony above, 188 Or mother’s attempt shift the blame is an example of her nonproductive and inappropriate way dealing that, Sabin also testified brought “when my the children couple were office the first times Ordway parents, * *** they dirty hair, had hair clothing or uncombed and their * * * grownup helped didn’t look like a had them choose it. The last time they came, ago, except few weeks it was different than that their hair dirty,
was still together.” but their clothes were more poor hygiene Sabin testified that [A “related to how other children deal with J]” cleanliness, and that hygiene appearance she thinks “sometimes are also metaphors for nurturancef.]” *16 the children’s difficulties and reflects her general unwilling- ness to accept for the children’s responsibility problems.
Additionally, some while MacKendrick was point A, she “seemed to a working develop significant depres- control, sion” and having outbursts, was “explosive losing clearly was depressed, physically, having nightmares, [and] of other A variety symptomatology depression.” psychia- trist was contacted, and, MacKendrick, A according began Paxil in late 1994 or 1995. MacKendrick that taking testified A “seemed to calm, almost and it was a immediately help her during Nonetheless, that after mother took cus- period.” tody death, children father’s and con- following without with the adminis- sulting psychiatrist, mother discontinued Paxil tering because she believed that was not safe.18 it Sabin, that that According psychiatrist believed was bad time for A to stop medication.
In her 1999 Sabin indicated that mother’s report, decision to discontinue A reflected Paxil administering mother’s emotional limitations:
“ anxiety [A]has depression [t] and that benefit ed histor- ically Paxil, from the use of antidepressant which is both an antianxiety and an [Mother] medication. did not choose to Gale, follow advice of Dr. the child psychiatrist. piece information, [Mother] focuses on a small that his- torically difficulty [A]had had that sleeping, and she noted sleeping house, [A]was well at her and she then assumed addition, that the child should not take medication. In way understanding [mother’s] the children’s emotional very limited, needs is understanding and consists of through experiences. her own She that [A] indicates acting ways grieving, [mother] these because she is her- child, self young preado- [had] [a] [A] done as or because I, Gale, clinically anxious, lescent. like Dr. see [A] as likely depressed, and to benefit from medication in modu- lating her affect.” in this case emphasize concerning issue
Paxil is not whether A should or Paxil or any should not take other Instead, medication. the issue is mother’s decision indicating Mother had read Paxil testified she a “fact sheet” about safety pediatric population. its and effectiveness had not been established in the any Paxil to A without administering discontinue abruptly had A treating to confer with the who been persons attempt of discon- to determine the effects advisability possible the medication and effort to understand any without tinuing how the should be discontinued a manner would drug minimize possible effects.
Mother also had J examination undergo vaginal testing blood that concerned Sabin. She testified 1996, the behavior was to the Child Abuse following reported (CARES): and Evaluation Response Services “[J], five, relative, although [a who was who was older door, age], [A] close in were in a bedroom with an open They saw They them. did not have their clothes on. had *17 them,[19] blankets around and wrapped they jumping were [A] on the bed. And related that had wanted [the relative] that, her to do but she hadn’t wanted to.” CARES completed physical and emotional assessments. After reviewing CARES Sabin testified that reports, (1) there was no indication that J had been coerced the rel- by (2) ative, no indication that there was “damage private [J’s] (3) parts,” and no indication that J had been touched by relative. Sabin indicated that CARES’s was “that impression this sexual behavior falls within the spectrum of normal behaviors for children of age.” that, this Sabin also said in her review of the CARES she report, did not find a recommenda- tion that the children not contact unsupervised with the relative but that mother had told her that the recently report contained such that, a recommendation. Sabin indicated based on her records, review of the CARES she would have no concerns I about the contact with that relative. girls having note evaluation, that mother testified after the CARES the court ordered that the relative be around supervised However, children. the trial court did not indicate specifically basis its ruling regard. of the abuse
Despite alleged resolution apparent of J in 1996, later, mother approximately years four examination J requested another undergo vaginal “because about [she] [her] had heard confusion daughters’ thought separate Sabin each child had a blanket. * * * * * * be at his children letting [uncle
their was not who] relative] if [the and Grandpa’s overnight Grandma if [A] [J] be there children] there. But he would let [his very have been “[A] [J] were there” and because 12 months that are within and have not liked unfriendly boys when Sabin, According [the relative’s] age.” throat, for a sore mother took J to the room emergency sexual was concerned about mother “also mentioned that she lack of supervision abuse because she was concerned about doctor talked “[t]he testified that [relative].” Sabin statements wasn’t making [J] [J] and felt that separately But was normal. about and her exam allegations, physical her to the CARES concern, because of the the doctor referred had been unit Even a CARES examination again.” though she canceled scheduled, mother testified appointment: CARES, really struggled with
“I and I was contacted because, said, it’s as I appointment whether or not to do an me, [grand- awkward, just been so unsettled between appoint- I that after made [grandfather] mother] ment, I ahead and I cancelled it.”20 went about the CARES asked whether she was concerned When Sabin appointment, responded: I
“Yes, appointment. the CARES was concerned about have the you you perhaps appoint and asked called [cjourt I felt the children because appoint attorney an because getting disregarded that the children’s needs were issue, and that high level of conflict about and set- issue had been discussed going to CARES after *18 statements, 1996, no new was making [J] tled in and with an abusive situation” added.)
(Emphasis when appointment the CARES Sabin learned about about room doctor emergency talk to the she called to a Paxil level test for have a blood request “[mother’s] [J] were grandparents the Winczewski suspected because she wrote, part, April that it mother We note in a letter to Sabin I could make being grandparents’ care so that “Paul and took the children out of children in our supervised he is around our [the relative] sure was us when added.) (Emphasis home." J’s Paxil on the Before having weekends.” administering any she had taken tested, blood mother did not ask J whether had they Mother also did not ask whether pills. grandparents con- Paxil to either child. When asked whether she was given cerned about the blood Sabin testing, replied:
“[O]bviously a test for a blood is somewhat uncomfortable and, child, lack a better suspicions and it based word, paranoid grandparents [mother] concerns that the would administer medicine without a doctor’s authoriza tion.” added.) the test results indi-
(Emphasis Sabin testified cated that there was no Paxil in J’s blood.
In her 2000 Sabin noted that the unneces- report, sary medical was a testing consequence mother’s emo- tional limitations: way
“The mother’s understanding these children through interpretation the narrow pat- of a few issues is a tern previous seen assessment. This narrow and emotional focus on a potential ignoring few issues leads to of other issues that significant. addition, are also when the narrow focus includes the resurgence of sexual abuse allegations, unnecessary examinations, interviews and to the children and communicates the mother’s harmful mistrust of others to them. responses
“[Mother’s] emotional continue to be out of times, extensively context at and focused perceptions on her past events. These emotional responses help do not integrate clearly new information or to see the children’s needs aside from her own perceptions.” added.) (Emphasis
(3) The children’s need for treatment of their
emotional issues The record demonstrates that A and J need therapy to deal with their emotional grief counseling issues. evidence also demonstrates that mother has not adequately recognized responded to that need.
Since the five, children were three and MacKendrick had been with them in with their working closely dealing
690 from their resulting behavioral and emotional difficulties that, 1996, chaotic lives. MacKendrick testified [A],being “both children suffered from some anxieties. with oldest, symptomatology, seemed to demonstrate more some- always thought [J] of the fact that I was exception difficulties, [A] but regressed, speech what had some clearly child more marked with seemed to be was depression. that I felt came from taking anger [A]
“I saw as or care for trying At times I to comfort [A] mother. would see call a mother, of what we typical her which are indicators child, par- to take care of a trying a child that is parentified the child. ent, taking care of opposed [J], becoming a caretaker and quickly [J] “And with was the conflict that seemed peacemaker, placate in order to to exist at that time.” is “sig- issue MacKendrick,
According parentification because development impaired nificant because the child’s or [his learn and develop that child is not able to play preoccu- so worried and is] own because or she pace her] [he parent.”21 about a pied particular the children’s died, mother terminated After father he However, MacKendrick. personal therapy program father’s death. after their did see the children a few times their father died the week after MacKendrick testified children again He saw the “both the were girls regressed.” a great had gained “[A] and testified that September I felt both regressed. much more [J] deal of was weight.[22] report, In her 1999 Sabin also noted mother, parentified child. She has family [A] as a “[i]n with her acts healthy identity. younger identity taking This is not a care of children. some actually filling acting parental a need the fam- was I saw her she The times children, feeling that she ily caretaking younger as well as regarding the doing getting attention for so.” was more added.) (Emphasis for A and that MacKendrick, weight gain an issue According had not been alarming it consistent, because somewhat “[s]he’d but this was been rather issues, eat, food weight, will have gain children will was a considerable control, try to they soothe they life is out of anxious or when feel when feel way.” they way can do it no other in some when calm themselves overweight.” reported January that A “was not as By MacKendrick deal of distress.” me a great suggested situations 2000 and tes in January also saw the children MacKendrick tified using a lot regressed, to be much more
“[J] seemed *20 — talk, I had seen her at the time of the death baby and to fend being outgoing being much more and able her father And at this for herself and not be a caretaker to sister. case, really fetal-type almost to a she had kind of returned situation, somebody’s lap at that and needed to be held point.[23] * * * outgoing, eager and was
“[A] was much more clearly had things working other she was on. She show me had domineering, but that controlling become more in therapy. off and on that we had worked on been a trait really meeting, think it was more of a point But at this therapy just to do as much as to see how the chil- trying know, doing, evaluate, you over dren were and to be able to period happened of time what had to them since I had contact.” stopped regular therapeutic knowledge Based on his with experience children, MacKendrick testified that ongoing
“both children have an need to be seen some professional, highly mental health and I would recommend that, certainly they’ve through, that everything gone with weekly they person period see such a on a basis for carefully years, family next several and that situations be monitored.” all children need or whether therapy
When asked whether A therapy, there is a reason that and J need special MacKendrick responded: therapy
“I that I think all children need as much don’t know children do, but their life has been rel- or structure as these divorce, chaotic, by and a a con- atively separation virtue of custody situation, ongoing bat- temptuous contentious it needs to be resolved tles that have embroiled them. And MacKendrick, suggested According response J’s abandonment, separa- age “[rlesponse critical where to loss. She was at that * * * age. anxiety, up fairly significantly I felt that for a child her tion fears rise adjust- simply removing that she had trouble herself from a situation she ing to.” they go so that can lives. The children are the with their victims here.” above,
As noted other than some mother grief counseling, discontinued the children’s completely personal therapy. Or 690.
The children did receive from Izetta grief counseling Smith Smith. Sabin three times. Sabin noted spoke that, resolved, if the are not “it creates grief children’s issues risk as and for those they get resolving older depression issues other ways through inappropriate relationships behavior.” testified self-injurious according Sabin Smith, really grief
“[the children’s] issues have not been dealt with they’re going because of their where to live. anxieties about “She was all the adults— trying help parents—or learn them how to reassure them and how to not involve issues, with the adult talk to them about the how to not grownup problems. *21 [mother]
“She felt that difficult for than it was was more her parenting figures for the other because it’s hard for to herself, her emotional issues and stop feelings, it was hard for her to contain many [mother] herself has historical this, [mother] that kind of overflow into and has trouble children’s emo- separating her emotional issues from tional issues. making pro- [mother is]
“She can’t tell whether or not not, do gress [mother] and she feels that would better unlikely. with individual made before.” that seems She’s therapy, but therapy individual the recommendation about Sabin also testified that Smith had recommended the chil- that mother to grandparents participate allow dren in their issues grief groups grief two because counseling However, mother did not are similar to the children’s issues. allow that to mother happen. accompanied Apparently, children to one and grief counseling group, grandparents Sabin indicated the children to a second accompanied group. the chil- wanted to wdth Smith, go to mother according her father, dren was for grieving “because she herself grandpar- for not the Winczewski having her reason that was * * go, (Emphasis of* Smith’s recommendation.” in spite ents added.) mother significant whether it was When asked counseling to grief the children accompany would want to issues, replied: their Sabin her understand order to help * ** grief, and she very interested “Well, [mother] them. She said she go help say didn’t she wanted parental her grief of her own about go wanted to loss, because * * * I more con- related to me. So was is what Smith needs, to fol- opposed going her for her own cerned about therapist when the therapist the direction of the lowing if the went. grandparents said it would be better think under- “Q might help [mother] that it You don’t grief if she understands her own issues? stand her children resolve Yes, would, think it but I think she needs to “A grief or in her own therapy that in the context ofindividual work, opportunity let the children have their own grief separately.” their resolve own
(4) The educational and social children’s
needs that J has significant The evidence demonstrates to her vision problems, that are unrelated learning problems that both chil- speech, that she has developmentally delayed following from school excessively tardy dren were absent has home, plans mother’s and that mother the move to also demonstrates home school the children. That evidence disregard- on certain issues while that mother’s narrow focus others for the children’s to blame tendency others and ing addressing her from adequately problems prevented the children’s problems. She was behind in school. considerably
J struggled sec- repeat to have subjects going in all academic educa- qualify special tested but did not ond J was grade. was consistent her low achievement tion services because *22 but the experts problem, with her J does have vision ability. Further, the school that her is severe. problem do not feel was the problem not believe that the vision did psychologist Nevertheless, although learning problems. cause of J’s was not that J’s vision aware of the assessment mother was convinced mother was difficulties, learning of her the cause mistaken and assessment of J’s intellect was problems. were due to her vision her difficulties learning J’s vision was Mother also asserted that the problem mother At one by neglect. point, caused grandparents’ in both eyes” that J had a “severe vision problem believed under the disability she have a might thought qualifying dis- if J’s condition were Disabilities Act” and “Federal that mother check $1,400 Security Social abling, monthly increase. children would receiving for the presently was in J’s times, problem to J’s vision At mother referred a child is “concerned about Sabin indicated that she presence. when disability, that she has a message physical getting indicated, As Sabin is not a in that disability way.” her vision self-esteem, [the child’s] such comments “affects by parent It may self-fulfilling prophecy. and sometimes it becomes a It longer. may more on the parent the child keep dependent decrease the child’s confidence.” mother hired school, to J’s difficulties response J to also worked with Ordway J. Mother and
a tutor to assist homework. her with her helped improve reading the effective- evaluate However, it difficult for Sabin to “release the refused to because mother tutoring ness of the sched- tutoring Sabin noted that [her].” tutor to talk with hours each one-half each week for one and days ule of four unusual.” extremely “sounds day delayed, J’s is
Additionally, speech developmentally her 1999 report, in school. In and she receives speech therapy Sabin indicated: of this Ordways are aware the Winczewskis and the “Both interventions issue, appropriate facilitate the and can interventions school, appropriate there are also but facilitating. difficulty Ordways that the will have the home * * * chaotic noise and Ordway life seems full of The home [J] herself. making much noise
emotionally [J] is not when at times coping as a mechanism further withdraws herself allows She overwhelming faced with the stimuli. presence. in her mother’s managed [A] to be situ- and home likely be in social are more Winczewskis responded listened speech [J’s] ations where appropriately.”
695 a serious problem also Excessive was absenteeism Immediately mother’s home. the children after moving and did not tardy A often absent and move, after the was However, had before. her homework as she always complete school following A did to have those appear problems not 1998-99 last trimester of the year. Additionally, during when school attendance good after had year, having school 28 tardy J was absent she was living grandparents, absences of 44 The excessive days.24 and one-half out days absent 16 when J was year continued the next school through two of those absences However, only and 23 days tardy days. J’s regarding school sent a letter to mother occurred after the absenteeism and tardiness attendance. The excessive poor in school difficulty concern because J was having particular in the thing and her first speech therapy generally morning. of the absences
Mother at trial that some explained death, had father’s the transition during occurred after occurred because J was homes, between and that others for the explanation reluctant to school. Mother’s other go grandpar- tardiness and absences was to blame father and to the children ents for too much assistance having given she and for school. Mother getting ready explained these 8- and they had a different wanted Ordway approach; to get children “to do some and 10-year-old self-starting” themselves going morning. to the children’s educa- response
Mother’s other home school the children even tional needs was her plan told no in education. She though training she had apparently now if were doing grandparents Sabin that she would possibility down her neck.” Sabin saw this “breathing for these children: inappropriate needs that aren’t
“Well, they I think both have extensive think home, I that the home envi- going to be met in the ronment here creates its own culture that’s isolated insulated from the hope- larger culture that these children fully I think that home education will come to live in. don’t immediately A after father’s death. J was few of the absences occurred through April live April mother took the children to absent from school before with her.
would prepare getting them for social interactions and for along with others.
“[J] does have very special needs in terms of her educa- tion, and think, even a well-educated have a parent, would home, hard time all providing [mother] that at has no special training or education in education.”
(5) The children’s need for physical
behavioral boundaries Finally, the children need and behavioral physical boundaries. The evidence that mother’s emo- demonstrates *24 tional limitations her from that need. prevent meeting
The lack of boundaries for the children con- physical cerns the Accord- sleeping arrangements at mother’s house. ing Sabin, the children need “to have their own bed and [to] know where that, should be J told Sabin they sleeping.” have their although they home, own beds at mother’s they “ ” ‘never use them because there’s stuff on them.’ There was evidence that had in the same bed with J. Ordway slept When asked whether mother Ordway denied occurred, had Sabin responded: fact, philosophy parenting [mother’s]
“No. No. In about sleeping together, any- she wasn’t sure that there was thing wrong arrangement with the casual of whose bed is parents sleeping whose and the with the children.” Sabin testified that those are sleeping arrangements healthy developing structure, predictabil-
“not in terms of room, ity, my space, my boundaries. ‘This is own own bedtime, my things, my these are own this is this is own belong.’ emotionally boundary issue, espe- where I It’s cially these, think, for children that are as old I to be not as knowing you’re going sleep tonight.” where Sabin indicated that she did not have
Although concern about safety sleeping issue of the children’s she arrangements, did serious concerns about express emotional boundary issue its reflection of mother’s limitations: physical
“Poor boundaries in the home an additional development. issue emotional related these children’s arrangement sleeping The children have n<3consistent two, one, with usually sleep home, they but mother’s their parents in the same bed. family members three other sleeps with but rather each together, usually sleep do not children well as the [] The mother various children. sleep- own having not see one’s this. The mother does report This the children. need for space developmental as a ing chil- that she sees the ongoing ways issue is related from aside companionship her needs for fulfilling dren as needs.” developmental their own from learned Sabin
In her evaluation follow-up arrange- sleeping had the Ordway “they mother and [L], with structured, sleep where would [A] ments more [C].” would with sleep [J] mother’s continued general with
Consistently for the children’s diffi- unwillingness accept responsibility for the culties, Ordway grandparents mother and blamed asserted that the grandpar- Mother sleeping arrangements. therefore, children, and, they ents had with the sleeping been tes- had no choice but to continue the practice. Grandparents them. Grand- tified that the children had not slept mother child had her own bedroom and testified that each that, times, she in with wouldn’t probably go [A]. “would with her. I down with her till she went sleep might [lie] Grandmother also testified sleep.” home, daybed, a lit- slept [father] [J]
“when first came on a *25 youth bed, just room because it [father’s] tle that was sleeping together and in the [J] [A] didn’t work out with bedroom. I had to same bed. And then we made give my second [J] for—so that could up office for a second bedroom really very about good [J] have her own bedroom. And was somebody during the time sleeping. just She needed after he died she had— hospital, was in the and [father] anxiety, why we sat with her until would have and that’s she sleep.” went to times that the children
Sabin indicated that there were home, “but would an adult in the Winczewski sleep with Sabin Additionally home[.]” that’s not the tradition in their testified:
“Q [the Winczewski] you appropriate Did see it as home, yet Ordway in the home? inappropriate and commenting that was inappropriateness
“A I believe the don’t that these children Ordway in the home is the fact on in a dif- bed, sleep and these children they feel that have a home, every night. And in the Winczewski place ferent their bed come into were times the children would there impending loss grieving the illness and and related to appropriate may times when that’s their father. There chil- not, for always appropriate it’s but it’s and times when they should be bed and know where dren to have their own sleeping.” unable to set behav- also noted that mother is
Sabin for the children: ioral boundaries way. the children in an active does not
“[Mother] on her words, and not act slowly, to use talk She tends powerless to feeling herself as portrays instructions. She Although when behavior in some areas. influence their par- individually appropriate can describe interviewed she those inter- interventions, did not demonstrate enting she talking more my girls report and the presence, ventions in intervention. any parental sort of yelling and than other * * * chaotic home, there is a I have called her Any time the noise of background, yelling of children noise times powerless [mother] Because feels playing. children with them.” children, angry she can become
E. Conclusion and grandparents no doubt that mother
There is A and J are attached J, A and A and J love them. love has not Mother half-siblings. and to their both families a case involv- Nevertheless, this is not her children. abused for A and J. homes adequate between two a choice ing unable to mother demonstrates Instead, the evidence circum- children and care adequate provide care. As the in her to the children exist stances detrimental A’s and J’s expe- in this case have explained, based on experts met for must be needs that riences, they particular and, emotional problems to avoid serious them physical be unable limitations, she will emotional because of mother’s “emo- mother’s needs. Sabin discussed the children’s to meet certain issues and her over-focus reactivity tional way” larger children’s in a needs look at the inability to *26 understanding mother’s and emo- processing “confusion Sabin, “emotional According tional issues.” to mother’s information or to responses help integrate do not her new aside own clearly see the children’s needs from her percep- not tions.” Sabin indicated that mother’s home “is positive” J, “is healthy” for A and that the children’s relation- with mother has not “been ship emotionally healthy,” that she see the does not “as relationship growing healthy way.” Sabin described various behaviors and plans of harmful, mother as and based on inappropriate, mother’s “suspicions.” As Sabin mother expressly indicated, is not Moreover, A’s and needs. capable meeting J’s Sabin noted last during children, her contact there had been no in mother’s “emotional change reactivity” that mother is likely not a candidate for therapy help to learn to better address the children’s needs.
As I have each is fact already explained, specific case and the of circumstances must be totality examined iden- the particular needs of tify the child involved and the circum- stances of Here, I have reviewed the entire parent. record and, on review, de novo I consistently find the facts with the I experts’ findings. have described detail great several examples of the children’s particular needs and mother’s ina- bility them. See satisfy 188 Or at 682-98. There is not one circumstance event here that the result. compels Rather, taken that I have together, (1) examples described illustrate that mother is unable understand the needs (2) children; part, the most she is unwilling (3) accept difficulties; for the children’s responsibility she ability has exhibited limited that is take action very help- ful rather than harmful to the children. For all of potentially reasons, the above I that grandparents conclude dem- onstrated that mother by preponderance of evidence unable to care for A and J and circumstances adequately Thus, detrimental to the children exist her care. grandpar- ents statutory have overcome mother presumption acts best interests of the children.
Because have rebutted grandparents presump- tion, must interests of children. determine the best ORS 109.119(3)(a) (“If the court determines child-parent the pre- determines exists and if the court
relationship (2)(a) this section has described in subsection sumption *27 evidence, the court by preponderance been rebutted ** * child- having to the custody person grant shall of the in the best interest if to do so is relationship, dis- child.”). factors statutory After all considering case, I conclude in this of the evidence light above in cussed children’s best is in the custody grandparents that granting (2001) results 109.119 of ORS application interests. Because I must determine in custody grandparents, an award substantive due on mother’s whether result infringes her children. control of care, to the right custody, process ANALYSIS IV. CONSTITUTIONAL standard A. The constitutional Wilson, Wooden, Strome, recent Newton, and non- parents between involving custody disputes
cases 109.119, a statute of ORS we versions applied prior parents, federal constitu- that we had interpreted incorporate fundamen- effect to a parent’s tional presumption gives of his or and control care, custody, right tal due process the federal case, incorporate In this I did not her children. of ORS my interpretation into principles constitutional (2001). However, principles the constitutional 109.119 instructive cases are identified in our earlier we (2001) ORS 109.119 application whether determining right. fundamental on mother’s infringes my asserts dissent, Judge Edmonds In his engi- us into social would turn of those principles application is in of what our determination decide custody neers who articu- However, I have not interests of the child. the best Instead, as I will the child standard. lated a best interests of case law prior our the standard articulated explain, must nonparent custody, to obtain order requires ade- not provide cannot or will that a parent demonstrate in the par- of the child placement love and care or that quate of physical undue risk child an would cause the ent’s Edmonds’s Judge contrary Also harm. psychological not equivalent of that standard assertion, my application the best will make about who judgment to a value personal Rather, as in parents. just many cases, other includ- types termination ing our is to parental rights, responsibility determine whether the legal standard has been satisfied based the facts of the case. With that understanding, summarize established constitutional before principles to their turning this case. application
The Due Process Clause of the Fourteenth Amend-
ment to the United States Constitution
“the funda-
protects
mental
right of
to make
parents
decisions
concerning
care, custody, and control of their
Troxel,
children.”
with his
parental
and declares that he
be entitled to assert
rights
grasps
opportunity
‘[i]f
accepts
responsi
he
that
some measure of
bility for the child’s future.’
As we have reasoned in our recent exist, we take determining guid- whether reasons compelling ance from a case in which Hruby, expressly nonparents
“[t]he compelling could establish court noted custody proving reasons to obtain without parent Rather, inquiry the whether was unfit. proper ‘ custody parent “highly with the would be detri- welfare, parent’s fit- regardless mental” to ness,’ child’s 508]; custody nonparent Or at whether with the [304 compelling necessary protect ‘to the children from some was threat to their 509; and well-being,’ or future id. at present reasons, place ‘good ‘cogent’ whether there was cause’ or nonparent, the child with the id. at 510.” for the Wooden, core, Hruby 184 Or at 551. At its stands between custody In a following proposition: dispute nonpar- to a and a the court award nonparent, may do not rights for termination of grounds parental ent where must “some com- protected exist but where the child from well-being.” or future pelling present [his her] threat Or 509. Hruby, 304 Or rel v. Lauffenberger,
In State ex
Juv. Dept.
Court,
analogous
in an
(1989),
777 P2d
Supreme
dis-
context,
its
understanding
reaffirmed
*29
rea-
the “compelling
between
and
putes
parents
nonparents,
to the standard
equivalent
standard from
is not
Hruby
son”
In
rights.
parent’s parental
to terminate
a
necessary
due
a
of the court
had become ward
the child
Lauffenberger,
Divi-
Services
Thereafter,
the Children’s
neglect.
to parental
(CSD)
rights
parental
filed
to terminate the
petitions
sion
a later dispos-
denied. After
petitions
both
The
were
parents.
commit-
the child’s
the trial court vacated
hearing,
itional
over
CSD,
jurisdiction
ment to the
retained its own
custody
703
“
child,
‘care,
in
and con-
custody
the
the child
the
placed
” maternal
The
trol’
her
court found that
grandparents.
father was a fit
but that it was in the
best inter-
parent
child’s
est
be in
custody
the
We affirmed.27
grandparents.
The
Court
our
court
Supreme
reversed
decision. The
indi-
cated that it decided
after the trial court had made its
Hruby
decision. It held that
in
the
articulated
parental preference
in
Hruby
that,
that case and
a
applied
Hruby,
noted
under
in
parent
custody
was entitled to
of his
her children
the
However,
absence of compelling reasons.28
the court refused
change
custody,
order
that
will be for
stating
“[t]hat
circuit
the
court
to decide on
new
remand
on a
more
record,
if the father
still
complete
desires custody.”
Hruby’s applicable.” standards were Lauffenberger, “objections court to disconti- Or 167-68.The also noted alone[, decision,] nuity standing original d[id] which served as basis of our preference parental custody.” override Id. at 168.
704 to the the remand the case trial Lauffenberger for court to court to the issue under the stan- Hruby determine of dard the the father’s parental because to terminate petition had had been denied and the court determined rights already he was a “fit” parent. the our standard
Similarly,
application
Hruby
(1996),
Smith,
501,
Fenimore v.
145 Or
later counselor that was afraid she would not do her she hospital kidney failure and died Mother was early but had suffered taken morning.” the next (footnotes omitted). explained Fenimore, The child’s counselor Or at 504 impact circumstances on the child: those “ only person problems [the child] there take ‘One of the is that was every problem that she action. A had reason to believe second that she about; quarrel with little sister must have this because had a caused she paper. people [9-1-1] other instead toilet Another reason is that she called they opportunity to do CPR she which she first. is that offered her Another reason mean, anyhow, had if had tried her mother died declined. she it and ” say have, say tried, that.’ now she can’t even would could at least I but she at 508. Id. case,
she ever known. Under the has circumstances an of custody award to father would cause undue psychological id. at 510. child,” harm to we noted that child Although had expressed preference stepfather, living perceived problem, father have an alcohol and did not feel safe home, father’s we based our should holding stepfather awarded the fact that expert opined “ ” *31 there ‘would be a very risk’ if the child were moved great from stepfather’s home. Id.
In Cerda, we held that were there rea- compelling sons to award to the custody grandparents: found,
“As the trial court difficulty father has had control- anger his ling and has been family abusive toward other members, although of episodes none those involved the chil- tendency dren. Father a demonstrates to minimize his and, problems until he lottery, aptly won the his life was characterized persuaded as unstable. We are not that his newly found necessarily source of income will trigger a change in patterns. those behavior Moreover, the children have lived with their grandparents in a stable and emotion- ally healthy years, for eight environment which is most of their lives. Father accepted arrangement has attempt change made no to custody pressured until pay to Also, an increased amount child support. father does not contradict expert’s] testimony [the children are at a particularly age vulnerable change and that a in their cus- tody would cause regress emotionally, them to academically * * * socially. Because the evidence is that the children unduly would be by changing custody harmed their father, we custody conclude that an grandpar- award ents under ORS 109.119 appropriate with vis- reasonable by itation both father and mother.”
Cerda,
With those principles care, cus- Mother has due process a fundamental Thus, the in this case tody, and control of her children. issue is whether have demonstrated grandparents preponder- provide ance of the mother cannot or will not evidence that *32 for or of the chil- adequate placement care A and J whether risk of dren in mother’s would cause them an undue custody I For that have or harm. the reasons physical psychological a demonstrated discussed, by have already grandparents (1) and J’s of that based on A’s the evidence preponderance that must be met they particular have needs experiences, and problems them to avoid serious and emotional physical (1997), Wilson, con conclusion that ORS 109.119 we reiterated our right Harrington, identi strued in not violate the fundamental constitutional did Wilson, Harrington, “salvagfed] fied in we in our decision in we Troxel. As noted interpretation constitutionality by integrating of of Troxel” into the the statute Wilson, Thereafter, Strome, App 218. we stated: statute. Or at proved by preponderance grandmother a of the evi- “The issue is whether has provide adequate and care for the chil- dence that father cannot or will love custody of placement dren or of in his will cause an undue risk that them physical Encompassed psychological within that burden or harm to them. proof statutory presumption that in favor of father is a and constitutional grandmother must overcome.” constitutionally adequate App Thus, it is Or we determined that 527. have parent preponderance the evidence. presumption to rebut the in favor of the understanding. I to continue adhere (2) limitations, because of mother’s emotional which reflected in her her children’s needs inability understand and her limited to take action that rather than ability helps them, potentially harms and because of her inabil- apparent ity to she is unable to for the chil- improve, adequately care dren they will face an undue risk physical psycho- logical Thus, harm in her custody.31 an award grandparents under the statute on mother’s does not inflinge federal constitutional right. I
Accordingly, now turn to the dissenting opinions. Edmonds Judge contends that he is not a strict applying scrutiny standard; however, effect, the standard that he is applies that, strict scrutiny. Edmonds also contends Judge in order to satisfy his “compelling standard, state interest” nonparent must clearly demonstrate that the is unfit under the standards in the termination of parental rights statutes or demonstrate circumstances present similarly grave risks harm. Brewer Although Judges and Schuman have dissented separately, they both contend I although have articulated the correct legal standard, the facts case do not demonstrate that standard has been satis- fied.
In his dissent, Edmonds Judge refers numerous United States Court Supreme cases support proposi- tion that mother has a fundamental constitutional See right. 188 Or at 717-20 (Edmonds, J., do not dis- dissenting). agree with Judge Edmonds that mother has an extremely important right, the fundamental constitutional right care, custody, control of her children.
As I have explained, we already articulated legal standard for in our protecting recent Edmonds, cases. Judge however, disregards those cases undertakes “new” examination to determine the stan- legal dard for determining when a nonparent may be awarded cus- tody consistently parent’s constitutional right. Although his his reasoning lengthy complex, position *33 31We do not decide whether the with constitutional standard is coextensive 109.119(4)(b)(A), providing legal parent unwilling ORS “[t]he that is or unable adequately child!,]” 109.119(4)(b)(C), providing to care for the and ORS that “[cjircumstances denied!.]” detrimental the child exist if relief is (1) be the state can interfere points: reduced two
may of his or her care, custody, a to the and control parent’s right of the is nar- infringement right children if the state’s only a state 188 Or interest, tailored to serve rowly compelling (2) (Edmonds, J., dissenting), legal at 726 n 7 App cases custody standard that we have articulated in our recent needs, (i.e., whether, par- of the child’s particular light for his ent cannot will not love and care provide adequate or cus- parent’s or her or that of the child in the child placement or psy- cause the child an undue risk of tody physical would harm) a demon- that chological requires nonparent clearly strate that is unfit under standards parent termination or circumstances statutes demonstrate of harm.32 I address each present similarly risks grave those in turn. points is Judge position
The Edmonds’s gravamen care, a parent’s right the state cannot interfere with his the state’s and control of or children unless custody, a com- is tailored to serve narrowly of the infringement n 721, 724-25, 726 7 See 188 Or at pelling App state interest. (Edmonds, “strict stan- J., dissenting). scrutiny” From that his state interest” dard, “compelling Edmonds derives Judge is cases between standard that applied Or 726-27 724-25, and a App nonparent. (Edmonds, J., Judge reasoning Edmonds’s dissenting). “com- not adopt flawed because the Court in Troxel did and we have expressly state interest” standard pelling rejected standard. legal that it was not acknowledged in Troxel plurality all the Due Process Clause requires “whether
considering of harm showing statutes include visitation nonparental precedent harm to the child a condition potential it “the defining precise and that was granting visitation” con- in the visitation process right due scope parental J., 73 (O’Connor, plurality opinion). text.” 530 US at Troxel, interest” state Thus, “compelling the Court did not adopt Judge standard Edmonds. asserted 32Although require nonparents Judge demonstrate Edmonds would risk, in our recent that we described clear and undue that is not standard (Edmonds, J., dissenting). Or at 747 cases. See 188
709 Moreover, in our recent we “sal- custody cases, (1997) of incor- vaged] constitutionality” by ORS 109.119 of inter- porating requirements Troxel into the statute’s Wilson, so, we 184 Or at 218. In pretation. App doing Justice expressly rejected standard asserted legal by Thomas in Troxel. Justice Thomas concurred in the judgment in Troxel. He reasoned: KENNEDY,
“The opinions plurality, JUSTICE JUSTICE curi recognize right, [a SOUTER parent’s] but ously them none of articulates the of appropriate standard review. I would to apply scrutiny infringements strict of Here, rights. fundamental the State of lacks Washington even legitimate governmental a say nothing interest—to a one—in fit compelling second-guessing parent’s decision regarding basis, parties. visitation with third On judgment would affirm the below.”33 Troxel, 530 at (Thomas, US 80 J., judg- concurring ment). In we Harrington, expressly the strict scru- rejected tiny standard asserted by Justice Thomas in indi- Troxel and cated that “the plurality opinion the best gives [in Troxel] on the guidance effect of the in constitution this situation.”34 33 justice joined No other in Justice Thomas’s concurrence. 34Judge Edmonds asserts that necessary Harrington “[i]t issue, was not in to address and the concur- language rence reads much too into our in that case. Our statement Harrington, rejection express which the concurrence now characterizes as an view, merely Justice Thomas’s communicated our view of on a continuum plurality concurring which regard opinions and the two could be to rest with said varying might presented to factual circumstances that a court.” App (Edmonds, J., However, dissenting) (emphasis original). 188 Or at 725 when reasoning Harrington context, our is read in it is evident that we concluded that apply by we would not the standard articulated Justice Thomas: Thomas, noting concept party challenged “Justice after that neither process, agreed recognition substantive due parents that the of of a fundamental upbringing direct their Because he children resolved the case. rights subject scrutiny, would have held fundamental strict legitimate governmental because the state lacked even a alone a interest—let compelling visitation, second-guess parent’s regarding one—to a fit decision he joined affirming J., judgment. [Troxel, (Thomas, US] concur- ring judgment]). [in the appears imposed “It that Justice Souter would on fewer restrictions authority plurality, the court’s to award visitation than have the while would Justice would Thomas have made such an award much more Wecon- difficult. plurality opinion gives guidance clude that the the best on the the con- effect opinion emphasizes parent’s stitution in decision this situation. That that a on We also noted under Or at 197. Harrington, the court’s award visi- standard, ability Justice Thomas’s than tation to be more difficult it would be would nonparents Id. Nevertheless, Judge under standard. plurality’s state interest” standard “compelling Edmonds articulates have expressly that he derives from standard that we legal rejected. words, Judge attempting other Edmonds that is far from clean. write anew a slate constitutionally on his Relying required “compelling that I standard, state interest” Edmonds then asserts Judge that is “less err reason” standard applying “compelling *35 188 Or at 736 App than the constitution exacting” requires.35 Edmonds, (Edmonds, J., Judge dissenting). According reason’ need not identical the a be “[although. ‘compelling it must statutes, standards set forth in the termination risks of present similarly grave circumstances that embody significant weight, precisely it the visitation is entitled to but does not describe development case-by- for on a to which it will control. It left that issue extent case basis.” added). Harrington, App (emphasis 172 Or at 197 “compelling particular, Judge the state inter In Edmonds reasons that term defined, pur adequacy,” for equivalent is which he has est” to the term “minimal right parent poses opinion, a “the line between the of of his constitutional compelling permits a child be raise or her own and a state interest that his child par- parent by custody in the exercise ofits from the of or her the state removed his (Edmonds, According patriae J., dissenting). App n ens 188 Or at 738 17 function.” Edmonds, adequacy parental Judge ofminimal also to finds “the constitutional standard Oregon permit implicit expression requirements the in of child when the child’swelfare statutes that the permanent custody parent’s is a at state to take of Edmonds, (Edmonds, J., dissenting). According Judge App Or stake.” 188 at 728 Clause, purposes can substantive difference “for of Due there be no the Process Hruby ‘compelling and the ‘com- the state interest’ standard between federal phrased pelling state or char- reason’ matter how the standard before the state standard. No may acterized, satisfy consti- it must the federal constitution involving tutionally parent’s rights his or her children. interfere set Although ‘compelling identical to the standards forth reason’ need not be statutes, embody present simi- in that the it must circumstances termination parent’s unfit- larly grave either of a risks of harm to a child’swelfare because physical psychological of the The termi- or needs child. ness or because of the state intervention kinds of risks authorize nation statutes illustrate the and therefore are the context of a standard minimal process understanding scope parental helpful due in the of in Ultimately, custody party. it is that to a third award federal parent lawfully adequacy met can of that must be before custody right an of to a third deprived award of his or fundamental party.” (Edmonds, original). J., dissenting) (emphasis App 188 Or at 737 of a unfit- harm to a child’s welfare either because parent’s of or the ness because the needs physical psychological J., dissenting). child.”36 Or How- (Edmonds, ever, of the Edmonds regardless Judge label particular between legal standard, on the the contention places point me legal Edmonds is whether the standard Judge con- custody being we have articulated in our recent cases as of the (i.e., whether, sistent with constitution light needs, provide child’s cannot or will not particular parent adequate love care for his or her child or that placement of the child an parent’s child would cause the harm) undue risk a non- physical or psychological requires to demonstrate is unfit under parent parent standards termination or to cir- statutes demonstrate present cumstances that risks of similarly grave harm. 700-06,
As I 188 Or already explained, App at we have applied the standard in termination cases used to custody cases between parents nonparents. Hruby, Court articulated Supreme determining a standard whether a nonparent had demonstrated that he or she is custody. entitled to As the Court demonstrated in Supreme opinion its reasons Lauffenberger, compelling standard 36Judge equates “compelling Edmonds interest” with the state standard necessary parent’s parental because, practical rights “[flor one to terminate a all purposes, nonparent operates an award to a under ORS 109.119 as a final, nontemporary deprivation to raise his fundamental *36 children, parental rights or her in similar effect to the termination an order of of or permanent guardianship.” App (Edmonds, J., dissenting). 188 Or at 728 n 9 How parent’s parental rights custody ever a are not an award of to a non- terminated parent, parent may participate significantly the be allowed to in continue to Further, custody may App the child’s an life. award of Or be modified. See 188 at 675 n 6. citing Additionally, original opinion opin- to our in O’Donnell-Lamontand our Strome, Wilson, Newton, Judge in ions indicates that Edmonds we “understood governing implicitly requirements that the rule of law those cases embodied the of Clause; parent physical psy- the Due chological the Process unfitness to or an undue risk of or compelling harm are the kinds of that evidence a state circumstances permits deprive constitutionally parent interest that tody a state court to a child cus- (Edmonds, party.” App J., dissenting). in Judge favor of a third 188 Or at 729 appears rely opinions to proposition Edmonds on those for the that the standard equivalent necessary parent’s that we parental rights. is articulated to the standard a to terminate (Edmonds, J., App dissenting). However, 188 Or See at 727-29 in cases, simply equate those standard we did not the that we with standard articulated the necessary rights. parent’s parental to terminate a
712 to standard for the termi- from is not the Hruby equivalent in applied nation of We standard parental rights. Hruby custody Most in our recent importantly, Fenimore and Cerda. (1997) to salvage ORS 109.119 interpreted cases in which we that the standard constitutionality, Hruby its we established has in whether a guidance determining nonparent provides consistently that he she is entitled to custody established or that, and stated in the court Hruby, with the constitution nonparents “noted that could establish expressly compelling custody parent reasons to obtain without proving Wooden, Or we cited unfit,” Additionally, 184 at 551. App Hruby Fenimore and Cerda as of cases examples applying Hruby Thus, already standard. we have determined that standard, as in is consistent Cerda, Fenimore applied with constitutional principles.37 correct, a
If Edmonds were determination Judge are not to termination would rights subject parent’s in in custody parent result in an award of even cases there is uncontroverted evidence because which or the circumstances of the particular child’s needs particular case, custody. the child would suffer harm the parent’s understanding my Edmonds asserts Although Judge could receive his is too narrow because a position nonparent if he she circumstances that custody present demonstrates ter- of harm as as those illustrated grave risks that are statutes, explanation mination he no as when provides to that level. Edmonds Essentially, Judge risk harm rises that the to demonstrate require nonparent would termination, “unfit,” term is used for purposes as that custody. order to obtain Edmonds also asserts that the facts of
Judge justify case do not an award grandparents. Edmonds, the “instances of inattentive Judge According Hruby Lauffenberger helpful Judge notes that “both are Even Edmonds cases, reason,’ understanding why ‘compelling nec phrase used in those essarily App Or at embodies the federal constitutional standard.” 188 J., (Edmonds, dissenting). Additionally, Judge Edmonds reasons that Fenimore Cerda, Hruby applied in which standard and awarded and nonparents, cases we implicitly incorporate process standards.” 188 due “decisions J., distinguishes (Edmonds, dissenting). n He Fenimore and Or However, merely and Cerda are the facts are different. Fenimore Cerda because result in this case. consistent *37 mother, remedial even by by followed measures parenting limitations, when considered with mother’s emotional along do not amount to a state that simply compelling jus- interest tifies from 188 Or at 746 taking custody away App mother.” that (Edmonds, J., assertion, In dissenting). support Judge Edmonds isolated incidents and short points excerpts testimony from as I However, record.38 have discussed in in detail this mother’s and opinion, efforts success have been My limited. de very novo review of the entire record reveals that mother’s actions and her inaction have amounted to much more than is Further, inattentive this not a parenting. such in case as Strome which the father had in inad- engaged for a time equate parenting long period of but then demon- strated remarkable for the 10 improvement months before I As have in hearing. already the evidence this explained, case that A and have indicates J needs of a serious particular that, nature and because of her emotional limitations, mother is unable meet those needs that the children an face undue risk of in harm mother’s custody.
Finally, Judge emphasizes Edmonds that “[n]o witness expert expressly testified that mother is incapable of providing care adequate for the children in the future.”39 188 example Judge approach One that illustrates Edmonds’s concerns A’s seri problems. downplays problems stating ous dental He those that there was no decay. doing so, Judge ignores obvious evidence of tooth that Sabin received from A’s Edmonds the evidence relayed during and that dentists she to the court her testimony. something typical, work The dental on A’s teeth more involved than filling cavity, analogous such as the of a and included work was to a root canal agreed highly in an adult. Both it dentists that was unusual to have such extensive decay period. in poor hygiene such a short Breche attributed it oral diet. Despite many attempts grandparents, mother’s excuses and to blame because this care, may primarily A deterioration occurred while was in mother’s I her and do reasonably Finally, contrary infer this condition due to mother’s care. assertions, Judge repeated depend Edmonds’s outcome of case does not problems. problems simply A’sdental The dental one were illustration mother’s inability adequately they to care undue the children and the risk of harm will suffer her care. 39Although Judge purports expert Edmonds account” “take into testi mony, my experts’ findings. App he criticizes use ofthe 188 Or observations at (Edmonds, J., dissenting). Specifically, the concur he states “because expert experts rence evaluates the themselves did 739 evidence a standard witness under apply, testimony App it Or takes their out context.” 188 at (Edmonds, J., However, dissenting). explained, that I for reasons experts’ findings and detailed observations are relevant to the issues this case provide persuasive Additionally, conducting study, evidence. Sabin spoke many other individuals who had with the and the had contact adults children, and about she testified those individuals’ observations.
n J.,
Or 744 (Edmonds, dissenting) (emphasis origi- nal). stated that mother above, As noted Sabin disagree. unable to meet needs: children’s *38 placement only considering
“The in a with strength clear mother, girls’ biologic and this [mother] is that she is the does not out- to them. This symbolic significance has some skills, structure, boundaries, weigh their social needs for communication, pos- academic emotional support, therapy, medication, psychotropic itive role and modeling, perhaps that she cannot provide.” added.) testified that both Additionally, Sabin
(Emphasis to met in going children “have extensive needs that aren’t be home” and the children’s calm demeanor dur- [mother’s] that “not in terms of her last visit with them was an indicator ing met being educational needs long-term their emotional and reasoning, in I Judge home.” Under Edmonds’s [mother’s] mother’s ina- not on those statements about may rely express to children in the future sup- to care for the bility adequately Edmonds would change custody. apparently a port Judge from an an statement nonparent express require produce in definitely in and future, expert fact or care to the children that provide cannot and love adequate in the par- definitely will be harmed in the children fact That that we have custody. requirement ent’s is Moreover, require- in our decisions. such a imposed previous of common would be As matter completely ment unrealistic. with how a sense, possible certainty it is not to demonstrate pre- in Of we must person necessity, will behave the future. present based on his or her person’s dict a future behavior give we often that making prediction, behavior. past had oppor- to the who have weight assessments experts have who tunity person interact and observe past Mother’s evaluating person’s in behavior. expertise her abil- indicative future present inability conduct and is chil- of harm that ity to care for her children and the risks Cerda, See 136 Or at 109. custody. App dren will face I Edmonds, agrees Brewer Judge Judge Unlike applied articulated standard properly legal See 188 Or nonparents. cases between parents (“[W]e have adhered (Brewer, J., dissenting) at 758 App through is the lens reasons test and that compelling examined the record in the concurrence has properly which case.”). that, based However, Brewer Judge disagrees His case, the facts of this reasons exist. argument compelling (1) reduces to two The most consideration points: significant in this is the attachment to mother case children’s emotional (2) family. and her Even mother has been insensitive though needs, con- children’s emotional evidence of that relates, and, duct directly death, father’s indirectly, reason, heavily evidence cannot be “as weighed the balance would if it [it] involved less stressful circum- stances.” Or (Brewer, J., dissenting). address each his points turn.
Judge Brewer correct the evidence demon- strates that the children are attached to both families and that Sabin testified that there nois “differential attachment” between the children and the two families. However, I under- stand Judge Brewer to assert that attachment to the parent *39 is the significant most issue in custody cases between a par- ent and I nonparent. disagree. A determination that a child is attached ato parent does not preclude determination that compelling reasons exist custody to award to a nonpar- ent. Moreover, and my as conclusion in this case demon- strates, emotional attachment not is more than important health, issues such as safety, education, emotional development. also
Judge Brewer reasons that “the evidence shows that mother has been insensitive to the However, children’s emotional needs. much of evidence to that effect relating, directly involves conduct or indi- rectly, death to the of the children’s father present and the custody dispute. Although that evidence is I do troubling, weigh heavily not it in the balance I it as would if involved less stressful circumstances. It is true also that physical children’s while circumstances in mother’s care optimal. were not In regard, concerning that evidence decay concern, A’s tooth is a cause for but it does not neces- sarily suggest neglect part. sum, serious on mother’s In although mother, much of not the evidence does flatter overall qualify parenting of her is no than worse that own limi- Oregonians struggle
thousands of who with their intervention, succeed, ultimately tations but without state in raising safely.” their children (Brewer, J., 188 Or at 760 App dissenting). case detail,
As I have in this is discussed exhaustive A’s and J’s insensitivity about much more than mother’s Moreover, emotional needs. no related all of mother’s one conduct father’s with custody dispute death this concerns a grandparents. With all due case respect, mother with emotional limitations particular par- reflected in her conduct and two with long-term children arisen, part, ticular at least because of needs their mother cannot determining life In whether experiences. J of A care for A and or whether provide adequate placement risk and J in A and J an undue custody her would cause harm, compare parent- or do not her physical psychological a compar- of other because such ing parenting parents Instead, ison would needs. disregard the children’s particular whether, in light I evaluate mother’s parenting determine needs, provide the children’s mother cannot ade- particular cause an care or whether will quate placement harm. My approach undue risk of physical psychological See 188 approach the same as the that we took Fenimore. case, pro- Or capable at 704-05. the parent child; however, needs of because viding for his physical of her had needs as a result the loss particular child mother, we concluded that an award of harm. would have caused the child undue psychological also dissent, agrees Schuman Finally, Judge his he concludes my analysis. Specifically, legal However, state rule does “compelling apply. interest” *40 justify harm can that “the that Judge Schuman asserts far, far more serious” right must be abridging parental here. 188 Or than have demonstrated grandparents what I disagree. I As have (Schuman, J., at 760 dissenting). of to the dissents already responses Judge explained my have demon- Brewer, Edmonds and Judge grandparents care for A and .J and adequately strated that mother cannot cause an custody in her will placement the children physical psychological For all the rea- undue risk of or harm. agree I above, discussed do not with the dissents an sons custody grandparents infringe on would mother’s award custody, care, federal and control constitutional of her children.
V. CONCLUSION (2001) applies In ORS to this case. sum, 109.119 Grandparents statutory presumption that have rebutted the mother acts in best of the demon- interests children strating by preponderance of the evidence that mother adequately unable care for A J and that circumstances grandparents detrimental to A and J tody. if exist are denied cus- awarding custody grandparents Because is also in grandparents interest, the children’s best should awarded application Further, under ORS 109.119. of the infringe statute does not on mother’s federal constitutional right grandparents custody, to the care, and control ofher children because by preponderance
have demonstrated of the adequately evidence that mother is unable to care for the physical children and that the an children face undue risk psychological custody. or harm in Thus, I would mother’s awarding custody hold that the trial court did err in grandparents. join
Haselton, Linder, Wollheim, JJ., Kistler, concurring opinion. this dissenting.
EDMONDS, J., reasoning The concurrence’s in this case results in infringement an unconstitutional fundamental mother’s right to raise her children under the Fourteenth Amendment opinion, to the United States Constitution. will (1) (2) explore right; discuss, nature extent light right, type of that that must be of circumstances present lawfully deprive parent before the state can of the (3) explain why applica- of his child; tion Due Process this case should Clause to facts of resulted in a decision in favor of mother.
718 OF
I. WHAT IS THE NATURE AND EXTENT IN CASE MOTHER’S LIBERTY INTEREST THIS THE AMENDMENT? UNDER FOURTEENTH is con and child between relationship “[T]he Walcott, 246, 255, 434 US Quilloin v. stitutionally protected.” (1978). S Ct L of 549, personal “[F]reedom 98 54 Ed 2d 511 * * pro in of liberties family choice matters of* life one the the Amend by tected the Due Process Clause of Fourteenth LaFleur, 632, v. 414 US ment.” Cleveland Board Education of (1974). 2d the con 639-40, 791, Although 94 S Ct 39 L Ed 52 case, in this it fails to currence acknowledges principle Supreme it the United States give efficacy the required Court’s jurisprudence. Amend-
The Due Process Clause of the Fourteenth to ment the protects individual children, worship God bring up “establish a home and conscience, gener- his according to the dictates of own ally recognized at common enjoy privileges long those by free orderly pursuit happiness of law essential the men.” L 390, 399, 625, S Ct 67 Nebraska, v. US 43
Meyer
262
Ed.
(1923).1
have a
interest
in
liberty
1042
Consequently, parents
see fit.
raising
they
their children as
of
custody,
“It is
the
care and nurture
cardinal with us that
primary
first
whose
function
parents,
child reside
obligations
the state
preparation
and freedom include
of
recognition
supply
can neither
hinder. And it is
nor
respected
private
[the Court’s]
this that
decisions have
family
realm
life
the state cannot enter.”
which
166,
438,
64
88 L
158,
v.
US
S Ct
Massachusetts,
Prince
(1944).2
Quilloin:
Thus,
Ed 645
Court explained
prohibited
Meyer,
In
Nebraska statute that
the Court held unconstitutional a
eighth
teaching
English
language
to children
school before
other than
liberty
grade.
“[t]he
established doctrine is
Court reasoned that
public
with,
guise
protecting
inter
may
[interest]
under the
not be interfered
arbitrary
est, by legislative
relation to some
or
reasonable
action which is
without
Meyer,
399-400.
purpose
competency
262 US at
within
of the State
effect.”
prohibited
constitutionality
Prince,
upheld
of statute
the Court
newspapers
ages
selling
offering
on streets
children of
from
for sale
certain
combating
public
places.
interest
other
The Court reasoned
the state’s
Process Clause
doubt that
the Due
“We have little
to force the
attempt
‘[i]f
offended
a State were to
would be
par-
family,
objections
a natural
over the
breakup children,
showing
and their
without some
ents
of unfitness
be in the
thought
reason that to do so was
and for the sole
”
children’s best interest.’
Foster
Smith v. Organization
The concurrence’s
offends
analysis
should be
of mother’s children
declaring
of evi-
in the absence
granted
paternal grandparents
circumstances,
dence of
unfitness or
parental
similarly grave
federal constitution requires.
the kind of evidence that
which
109.119,
That
not to
that ORS
the statute under
say
is
unconstitutional;
case,
the concurrence
is
analyzes
rather,
necessarily
lawful
of the statute
any
application
lip
concurrence
Although
gives
due
incorporates
process.
chil-
raise her own
service to mother’s constitutional
the con-
dren,
(Deits,
J.,
Or
at 701-02
C.
concurring),
of what
engages
understanding
currence never
of the facts
constitutional
means
context
requirement
the con-
First,
of this case and the
standard it
legal
imposes.
chil-
satisfy
currence’s conclusions that mother cannot
and that
dren’s needs because of her emotional
limitations
or psycho-
therefore
will face an undue risk of
they
physical
evidence, as
harm in the future
based on attenuated
logical
is
impor-
Equally
will be demonstrated
later
this opinion.
it
because
tant, the concurrence’s
is
incorrect
analysis
legally
* * *
pos-
employment,
especially
public places,
“crippling
effects of child
arising
subject
all diverse influences of the street”
sible harms
from activities
directing
sufficiently compelling
parents
the interest of
overcome
omitted).
(footnotes
Prince,
upbringing of their children.
compelling
“delicate”
it make the
mother, nor does
tion of
from
a par-
between
requires
constitution
accommodation that the
Prince,
the state.
the interests of
ent’s
interest and
liberty
II. WHAT BE A PARENT CAN BEFORE EXIST DEPRIVED OF CUSTODY? CONSTITUTIONALLY interest liberty fundamental Parents have a children: of their directing upbringing State; those who mere creature “The child is not the coupled destiny right, direct have the his nurture him and with the him for addi- prepare duty, recognize high obligations.” tional 571, 69 L 510, 535, 45 S Ct 268 US Sisters,
Pierce v. Society of
(1925)4
hand,
On the other
Ed 1070
interests,
in a democ-
basic
private
“[a]gainst these sacred
the welfare of
society
protect
racy,
the interests of
stand
* * *
itself, and of the
youth
the interest
[.]
children
It is
safeguarded from
be both
community, that children
whole
growth into free
given opportunities
abuses and
*43
citizens.”
men and
independent well-developed
of both interests
accommodation
Prince,
721 articulated, right nature of a parent’s fundamental raise his or her children reflected in meaningfully must be their formulation.
Once a has determined right constitutional been so to be in our as to deeply rooted nation’s and tradition history “fundamental,” be classified as not government may all, interfere right with that “at no matter what is process unless is tailored to provided, infringement narrowly serve a state 292, interest.” Reno v. 507 US compelling Flores, (1993) 302, 113 1439, S Ct 123 L 1 Ed 2d (emphasis origin al).5 Thus, the substantive of the Due Process component Clause provides heightened against government protection interference rights with been to be fun determined damental. v. Washington 702, 719-20, 521 US Glucksberg, (1997). 117 S L 2258, Ct 138 Ed 2d The a parent to direct the upbringing of his or her children such a fun Granville, damental As the right. lead opinion Troxel v. 57, 530 US 120 S Ct 2054, (2000), 147 L Ed said, 2d 49 “the interest of parents care, and control of custody, their children—is perhaps the oldest the fundamental lib erty recognized interests this Court.” Troxel,
In had inval- Washington Supreme Court idated on constitutional grounds state statute author- ized visitation grandparent parent’s child over the objection when court found visitation to be “best interests of the child.” The did grandparents allege, no court found, Troxel, unfit. US at (O’Connor, J., held plurality opinion). state court (1) statute unconstitutional on two grounds: the failure (2) statute to require harm to child the statute’s “any authorization of person” “any at time” to petition to receive visitation rights based the “best interests of the child” standard. Id. 63. Court The United States Supreme granted certiorari. Flores, juveniles custody pending a class alien arrested and held in deportation argued, hearings among things, process due other that substantive required they “responsible be released into while await adults” *44 ing hearings. rights juveniles’ 294. 507 US at The Court that the held fundamental implicated type by
were not the that occurred in case. Id. at 302- detention that 03. O’Connor, for four members the writing
Justice the trial “order was Court, Washington court’s explained the might justify not founded factors any special on [the with Granville’s funda- parent’s] State’s interference rearing the her right concerning mental to make decisions Id. at 68. observed: daughters.” two She parents fit act in the best presumption “[TJhere is a * * * long as Accordingly, interests of their children. so (i.e., fit), is parent cares for his or children adequately no the normally inject there will reason for State to itself private family question into the realm of the to further the ability concerning of that make the best decisions rearing parent’s of that children.” omitted). (citations Id. at 68-69 Justice O’Connor concluded statute, as was an unconstitu- Washington applied, that the on the fundamental parent’s tional infringement concerning care, and control of custody, make decisions her children: the sweeping rest our decision on breadth
“Because we of that Washington application [the statute] broad, case, unlimited we consider power in this do not passed primary question constitutional the Due Process (cid:127)Washington Supreme Court—whether all visitation statutes to requires nonparental Clause child showing of harm harm to the potential include a not, do granting visitation. We precedent a condition not, today scope parental due precise need define respect, context. In this we process right in visitation constitutionality KENNEDY that agree with JUSTICE specific on the any awarding of manner in standard for visitation turns applied that the con- that standard which are best ‘elaborated with stitutional this area protections ” care.’ Id. at 73. He in the would judgment. Souter concurred
Justice on the Court basis Supreme have affirmed the Washington face. He on its was unconstitutional statute explained, part: recognized parent’s that a interest long ‘We have care,
nurture, companionship, upbringing, Clause protected by the Due Process generally children are *45 * ** acknowl- of the Fourteenth Amendment. As we first children,’ edged Meyer, right parents ‘bring up the of to protected and ‘to control the education of their own’ is the Constitution.
“* * * [Washington] it, spe- As the understood court provision cific best-interests allow a the statute would court to award visitation whenever it it could make thought * ** a better parent decision than a child’s had done. cases, true,
“Our it is have not set out exact metes protected bounds to the parent interest of a in the relation ship child, with Meyer’s repeatedly recognized right his but of upbringing encompass would be a sham if it to failed right judicially by ‘any to be free of compelled visitation party’ ‘any at time’ a a “bet judge believed he ‘could make * * * ter” decision’ than objecting parent had done. * ** * * (‘* Pierce, [268 atUS] The child is not the mere State; him creature of the those nurture and direct his who destiny have right, coupled high duty, to rec ognize prepare It obligations.’). him for additional anomalous, then, would be subject any indi * * * judge’s vidual merely judge might choice because the think himself more enlightened parent.” than the child’s (foot- Id. at 77-79 (Souter, J., in the concurring judgment) omitted). notes and some citations
Justice Thomas also judgment. concurred in the part, he wrote:
“I separately argued write to note that has party neither that our process wrongly substantive due cases were decided and that the original understanding of the Due precludes Process Clause judicial enforcement of unenu- merated rights under that As a provision. constitutional result, express matter, I and I no view on the merits of this understand the of plurality as well to leave the resolution day. issue for another
“Consequently, agree plurality with the recognition right parents Court’s of a fundamental direct case. upbringing of their children resolves this * * a fun- *, parents Our decision in Pierce holds that children, damental constitutional rear their includ- right ing to determine educate and socialize who shall KENNEDY, opinions plurality, them. of the JUSTICE curi- recognize right, AND JUSTICE SOUTER such but ously appropriate none of them articulates the standard apply scrutiny infringements review. I would strict Here, lacks rights. Washington fundamental the State legitimate governmental say nothing even a interest—to compelling one[.]” (footnote (Thomas, J., judgment) Id. concurring omitted). the concurrence and I hold
Apparently, significantly different of the Troxel on this opinions views import case. The concurrence its view: explains custody cases,
“[I]n
recent
‘salvag[ed]
our
we
consti
(1997)
tutionality’
by incorporating
of ORS 109.119
interpretation.
requirements of Troxel into the statute’s
*46
Wilson],
[212, 218,
App
[and
Wilson
184 Or
The concurrence’s too both proves in terms of what Wilson and held and in the man- Harrington ner in which it characterizes Justice I Thomas’s opinion. that, in and in agree Wilson we Harrington incorporated rule of Troxel into the statute to its constitutional- preserve However, the concurrence’s that “we ity. expressly assertion in standard asserted Justice Thomas rejected legal in The Troxel” misunderstands what we said dis- Harrington. cussion that follows in more detail what underlies explains our to the Troxel in opinions statements respect Harrington. Souter, and Justice opinion, Justice plurality right in Troxel that the of a raise parent
Thomas all agreed agreement or her children is a fundamental That right. his on the line of cases that is based among opinions Amendment includes described.6 The Fourteenth previously 6 Troxel, (O’Connor, J., plurality opinions at 65 All three cite Pierce. 530 US (Thomas (Souter J., J., concurring judgment); opinion); in the id. at 80 id. at 77
725
from
the government
that forbids
a substantive
component
“at all
interests
liberty
on certain “fundamental”
infringing
* * *
to serve a
tailored
narrowly
is
infringement
unless
Flores,
(emphasis
Moreover,
stan
scrutiny”
Thomas’s “strict
Justice
rejected
expressly
in this
context of the issue
confusing
dard of review is
invalidated
Troxel,
Court
Supreme
the Washington
case. In
statute
on the text of the
based
statute
Washington
to a state
of review applied
standard
scrutiny”
A “strict
alone.
to the usual
is not entitled
means that
the statute
statute
the complain
rather
than
the state
validity;
presumption
nar
regulation
its
tailoring
burden of
heavy
ants carries a
and it must demonstrate
legitimate objectives
to serve
rowly
its
effectuating
drastic means for
it has selected the least
411 US
v. Rodriguez,
District
San Antonio School
objectives.
(1973). I do not contend
L Ed 2d 16
93 S Ct
1, 16-17,
pre
As stated
unconstitutional.
facially
109.119 is
ORS
it
view is that
the concurrence’s
with
viously,
problem
of the
in its
to mother
application
afford due process
does not
to resolve
is no need
view,
there
my
Consequently,
statute.
scrutiny.”
with “strict
ORS 109.119
or not we view
whether
case, the distinction
of this
for purposes
Regardless,
a differ-
without
is a distinction
concurrence draws
are unan-
in Troxel
and the concurrences
The plurality
ence.7
children is
his or her
to
that a parent’s
imous
because of the fundamental
heightened protection
entitled
I assert no other princi-
In this opinion,
of that right.
nature
and the
the concurrences
on by
than that agreed
ple
law
my
the efforts to characterize
Troxel, contrary
plurality
Due Process Clause
Because
differently.8
analysis
suggests that there
Supreme
law that
Court case
7 I
find no United States
can
scrutiny”
applying a “strict
meaningful
law between
nuance in constitutional
is a
compelling
discerning
state
regulation
when a
of review to a state
standard
lib
heightened protection
to a fundamental
afforded
of the
interest exists because
erty interest.
disagree
to articulate
about how
opinions
court in this case
of the
concurrence,
process stan
According
the due
process
proper
standard.
due
appears to be
scrutiny.”
requires
That characterization
propose
“strict
dard that
reluc
my
disagreements
result and the source
“lightning
with
rod” for its
legal
applicable
stan
regarding
agree
me
of the other dissents
tance
employed
the vehicle
scrutiny”
becomes
characterization
dard. The “strict
by a
process
not endorsed
my
as a view
opinion
of the due
concurring
to label
view
along
with the view
it
justices
in an effort
isolate
majority
in Troxel
necessary
being
a view that is not
exception
credited for
Thomas. I take
Justice
*48
have cus-
right
for mother’s
protection
requires heightened
chil-
of her
direct the upbringing
children and to
of her
tody
constitutionally
cannot
right
dren and because that
state
compelling
the absence
the state in
infringed upon
case is
resolved
that must be
interest,
the issue
the state to
here permit
circumstances present
whether
the welfare of the
to protect
patriae power
exercise its parens
to raise
right
mother’s fundamental
children and to override
Supreme
United States
from the
her children.
It is clear
of the children”
a “best interests
that
jurisprudence
Court’s
infringement
sufficient to justify government
standard is not
of his or her chil-
of a
to direct
upbringing
parent’s
(O’Connor, J., plurality
interests ofthe children, parents other or indeed even to the interests * * * themselves.” added). Flores, (emphasis 507 US avoided defining precise The Troxel plurality above due described scope process right of the parental on the breadth holding because it rested its here question statute. We cannot avoid Washington us to con- requires because our de standard of review novo it is Consequently, sider record. evidentiary the state of argu- premise” my analysis. or “straw man” reminiscent of “false Such a tactic is lawyers arguments made to us. I do not when those ments for which we criticize already explain clearly that whatever the words know than I how to more scrutiny, compelling process applicable standard—“strict used to describe the due legal interest,” reasons,” parental adequacy,” “compelling state or “minimal Moreover, satisfy process. consequence I do not in this case do not due of the facts accurately holding use the lan- of Troxel than to know how to more describe reality reasoning guage opinions is that some of the on which its relies. analytical necessary pur- description applicable process standard is of the due standard, say grandparents poses. In I am content to an effort to describe permits compelling them interest before the constitution must demonstrate a state deprive funda- a vehicle to mother of her to use state-sanctioned intervention as liberty parenting mental interest her children. helpful to think about other constitutional exercises parens patriae authority give state’s in our endeavor to defi- my scope right. view, nition to the ofmother’s fundamental adequacy parental the constitutional standard of minimal implicit Oregon expression requirements also finds permit permanent statutes that of a the state to take *49 parent’s e.g., See, child when the welfare is at stake. child’s 419B.365(4) (providing permanent guardianship on ORS for parental grounds required the same rights); rights for the termination of of parental (providing ORS 419B.502 for termination rape, sodomy, abuse, star- because of or sex intentional by parent, or torture of or abuse or vation the child neglect resulting physical injury); in death or serious ORS parental rights (providing 419B.504 of for termination parents illness, ill- because ness, are unfit due to emotional mental deficiency, cruel, or sexual conduct abusive, mental any intoxicating child, toward or addictive or habitual use of liquors parental or controlled substances to the extent that ability integration substantially impaired has been of parent improbable a the child into the home of the is within that are not reasonable time due to conduct or conditions likely parental rights change); (providing for termination of ORS 419B-506 physical provide for the failure to for basic prior psychological for six months needs of the child (providing filing petition); for ter- of the ORS 419B.508 parental rights abandonment of mination of in the event of by parent). the child None of the above kinds of circum- stances exists in this case.9 jurisdic by juvenile court The circumstances outlined the termination and clear, concrete, examples compelling provide cir tion nonexclusive statutes present in this case. cumstances and stand in stark contrast to the circumstances custody nonparent comparison a under ORS of the effect of an award of rights apt parental because of the 109.119 with the effect of the termination of is purposes, consequences rights parent. practical an award to the natural of a For all final, nontemporary custody nonparent operates a as a under ORS 109.119 children, parent deprivation his or her sim of the fundamental of the to raise permanent guard parental rights ilar in to the termination or an order of effect acknowledge comparison pur
ianship.
unwillingness
The concurrence’s
requirement
poses
application
for state
of an
minimal
federal constitutional
See,
App
parental
e.g.,
711 n 36
rights
puzzling.
188 Or
at
interference with
context,
(Deits, C.J.,
statutory
stan
concurring).
the constitutional
No matter the
against
applies
protection
state inter
across the board as a
unconstitutional
dard
merely identify
custody,
whether
with child
and the task should be to
ference
satisfy
requirement.
circumstances relied on
that
before the
believe
due process requires
state is
to invade the
constitutionally
permitted
private
realm of
those outlined in the
family life, circumstances
like
above statutes or other
circumstances
similarly compelling
must be
We have
held that the
present.
previously
applicable
standard in
is whether
parent-nonparent
disputes
is unfit or
parent
whether
the parent’s
presents
"an undue risk of
or
harm in the
physical
psychological
par-
custody.”
Lamont,
ent’s
O’Donnell-Lamont and
184 Or App
249, 256,
(2002),
recons,
persons
parental rights
faced with
crit-
forced dissolution of their
have a more
procedural protections
resisting
ical need for
into
ial
than do those
state intervention
ongoing family
destroy
affairs. When the
moves to
weakened famil-
State
bonds,
provide
parents
fundamentally
procedures.”
it must
the
fair
(Footnote omitted.)
Santosky
The
Court observed
the individual interests at stake in a
when
proceeding
particularly important
state
loss of
of
use ofa
are both
than mere
and more substantial
money,
imposition
private
the balance is struck in favor of the
interest
the
heightened procedural protections.
Consequently,
it
that the
the of his or her children. Id. at 768-70. 730 the I hold dif- concurrence and significantly
Just Troxel, the of it meaning ferent views about we also appears what compelling about constitutes a state interest disagree for of ORS 109.119 and whether there is such an purposes more a disagree- interest in this case. This difference is than ment about whether the evidence suffices meet a standard in Rather, opin- which we both it is a difference agree. about of process requires ion about what due context these and then stan- Discerning proper legal facts. applying necessary analysis is of the evi- predicate any dard It that difference that leads to our disa- ultimately dence. is about of the facts this case. The import greement of that be overemphasized difference cannot importance of because its due process implications. necessity
The concurrence
a
acknowledges
state standards
it
underpinning
constitutional
decisions
uses,
Oregon
and it relies
Court’s
Supreme
(1987),
500,
Or
Illustrative of the flaw in concurrence’s analysis is its claim that I “undertake examination to deter- [ ] ‘new’ mine the standard legal when a determining nonparent may be awarded with the con- custody consistently parent’s stitutional right[,]” (Deits, 188 Or at J., C. concur- App ring), “[i]n we Harrington, expressly rejected the strict scrutiny standard asserted Justice Thomas by Troxel,” 188 Or (Deits, J., at 709 C. App The con- concurring). currence also asserts:
“Judge Edmonds ‘compelling articulates a state interest’ standard that he legal derives from a standard that we have expressly rejected. words, Judge In other Edmonds is attempting to write on a slate that is far clean.” anew from 188 Or (Deits, J., C. concurring). course,
Of the concurrence’s of a implicit disregard “compelling state interest” as shown requirement, by above not correct a matter of quotations, cannot be and is as constitutional law, nor is that what our own cases such as Harrington Wilson hold. No matter how the standard articulated aby law, state rule of or what standard is adopted a state of a child from the basis for the deprivation custody of a in order to to a third party, award the standard must afford federal constitutional heightened
732 to In custody. to the fundamental protection right parent’s words, pres- other there must be a state interest compelling author- ent the state can exercise its constitutionally before ity. faulty premise
The concurrence’s is exacerbated holdings of significance its the misunderstanding Lauffenberger.11 The court Hruby Hruby expressly declined to decide what state of facts will suffice to the permit parent’s par state to natural constitutional usurp right Nonetheless, his Or at ent or her own children. 304 510-11. in understanding both Hruby Lauffenberger helpful reason,” cases, used those why “compelling the as phrase the embodies federal constitutional standard. necessarily in a dissolution Hruby, In the child’s aunt intervened of legal custody parties’ of the marriage proceeding, seeking (1985). the enacted 109.119 recently child under then ORS of to the natural custody The court affirmed the award the not First, grant father. it held that statute “does substan- of custody tive and that a court must rights give custodial are compelling children to their natural there parents unless 304 Or giving custody Hruby, reasons for to another party.” Thus, 502. as court said in “ORS Lauffenberger, later claim who only procedural rights persons 109.119 provides the stat- child; emotional with the specified relationship custodial change ute substantive does establish Or at 163. rights.” 308 fact that
Next, the court commented on the Hruby territorial, governments Oregon’s and state provisional, cen- common law in mid-nineteenth adopted principles determinations, in child tury recognized, custody their to the care and right paramount parents care for inability in the of abuse or an children absence them. court The observed: [,referring implicit recognition from in this “Apart * * * 1880, 2,] of a Oregon
Or
statutes
p
Laws
and other
§
his
custody parent’s
natural
common law
11
(1999),
504, 510-11,
Sleeper
Sleeper,
P2d
328 Or
Supreme
recognized
Hruby “compelling
was based
reason” standard
Court
that the
Urafry
on the
of ORS 109.119 under which
was decided.
version
(and
her) children,
parents
now
custodial
natural
rights under the Fourteenth Amendment
the United
may
parents
States Constitution. Natural
also have custo-
Oregon
dial
unenumerated
See
rights
in the
Constitution.
* * *
I,
Const,
Or
Art
extent to
other per-
[.]
The
which
§
sons, such
those
of ORS
satisfying
requirements
109.119,
have constitutional
of chil-
rights
dren is
Also
unclear.
unclear are
circumstances under
constitutionally
which a
can
give persons
state
than
other
parents
equivalent
natural
custodial
rights
to those
nat-
ural parents.
parties,
from a brief
apart
citation
issues,
brief,
father’s
tion of the
further.”
have not raised these
and our resolu-
unnecessary
makes it
case
for us to discuss them
*53
(some
omitted).
Hruby,
“[CJourts will custody natural of the only protect their children children order to from some compelling present threat to their or future well- being. concerns, Apart from these it is irrelevant to the court’s custody might determination that the children have might better home or greater financial, educational or social opportunities custody in the of another.”12 Id. at 509. after a number
Finally, decisions, of its reviewing the court summarized:
“We conclude from the foregoing ‘princi- under the ples of law equity,’ by leg- common as further developed court, islation and the decisions of parent natural has children, custody to the ofhis her a com- or absent pelling custody for placing reason the children in the another; applicable the ‘best ofthe child’ interests standard custody to disputes parents marriage between natural in a proceeding applicable custody disputes dissolution is not to parents persons. between natural the not use other We do adjective ‘compelling’ provide pre- in an effort to more holding through cision to our the use of that in other word * * * We that in a ‘compelling’ emphasize contexts. use to circumstances, Sleeper, giv (recognizing See 328 Or at also some ing custody might nonparent parent “supervening right rather than violate a belonging parent”). biological and some other
custody dispute parent between a natural attempting person, a court should not concerned with be welfare, determining whether maximize child’s but with from its natu- adequate the child will receive care and love unduly parent ral whether the child will be otherwise by giving custody to harmed, physically psychologically, or the natural parent.” omitted). (citations
Id. at 510-11 was whether the “best the issue Lauffenberger, for a juvenile of the child” was the standard proper interests use if a child should determining placed court to when 161. 308 Or at with the child’s with third parent parties. The child in within the Lauffenberger jurisdiction was of the court due juvenile court and had become a ward its court, exercising parens neglect. juvenile parental authority, its patriae responsibility pursuant statutory of her child, four, then age physical placed over while to retain continuing jurisdiction grandparents, terminate the parental rights her. After denying petitions held a juvenile dispositional court child’s parents, a fit but deter- It found that father hearing. to remain it in the interests of the child mined that was best her Id. at 162. grandparents. affirmed, the best initially holding This court she remain with interests of the child dictated that natural State despite parent. the fitness of her grandparents, *54 642, 646, 746 rel v. 88 Or Lauffenberger, App ex Juv. Dept. (1987). reconsideration, P2d 259 The father for petitioned 93 State ex v. Dept. Lauffenberger, which we allowed. rel Juv. (1988). this court 757, 568 He that argued Or 764 P2d App Hruby’s standard in wrong “compelling the applied light rejected father’s standard. A of this court majority reasons” stan a “best interests” reasoning that not argument, apply the contrary to be to direction and run change dard “would 93 Lauffenberger, App set.” Or legislature course that the has it involved Hruby 762. The because majority distinguished at juvenile the a ward of a rather than private custody dispute disagreed, observing court court. Four members father, parent, preferential the as the natural had rights and that those even under ORS custody chapter (Newman, J., Id. at underpinnings.” had “constitutional It followed that a “best stan dissenting).13 interests” apply was the error, view, dard dissent’s of the fact that light Id. at trial court found that the father fit. (Newman, J., dissenting). review,
On agreed Court with dis- Supreme reversed, sent holding parental preference and the Hruby reason” standard from “compelling The court applied. reasoned: sum,
“In goals juvenile the broad stated in the court law to determine and further the child’s welfare and best inter- rejection ests do not demonstrate legislative long- standing assumptions parental custody about that were * * * Hruby reviewed in assumptions only not were longstanding at time Oregon’s statehood but perhaps thought were to be of magnitude.” constitutional Lauffenberger, 308 Or at 165. The remanded, court then observing: “The record of present proceeding sparse. ** *
[dispositional] hearing largely involved previous doc- uments and oral summaries counsel for the father and [grandparents] say what various witnesses would if they were called.” Id. Further, 166-67. the court noted Hruby,
“[d]eciding the case before the court no spe- made findings respect cific potential harm parental from Hruby for in ordinary private custody called disputes nor with respect any other might factors that play a role juvenile under the court statute.” Lauffenberger, 308 Or at 167. Finally, explained: court
“Under circumstances, although we reverse the decision of the Court of Appeals, change we do not order a custody. That will be for the circuit court on to decide record, remand and complete new and more if the still custody. [The father desires now years child] is nine old 13Quoting sky, Newman, writing Judge from Santo 455 US at for the dis sent, liberty parents “[t]he observed that fundamental interest of natural care, custody, management simply evaporate of their child does not because they parents (Newman, J., Lauffenberger, [.]” been model 93 Or at 768 dissenting).
736 have may in the matter. CSD may opinions
and some 1986; developments of since new recommendations view not objections discontinuity standing to alone do override custody.” preference parental the for at Id. 168. ORS would
The concurrence’s assertion that
109.119
a fail-
an
based on
permit
custody
grandparents
award of
ure to
and care or because
provide adequate
placement
love
the
physical
psycho-
child
cause
child undue
or
would
(Deits,
J., concurring),
C.
logical harm,
Or
at 706-07
App
188
standards,
causes
without adherence to constitutional
made
a
by majority
concurrence
error
repeat
court in
and care” does
love
Lauffenberger.
“Adequate
than
an
risk
harm more
care,
mean
and
“undue”
perfect
In
concurrence’s
just
effect,
risk of harm.
application
and
and
stan-
statutory
case law
Hruby
Lauffenberger
dards
standard
“a com-
without adherence to the federal
state
in a
standard
exacting
interest” results
less
pelling
Hruby
than the federal
As both the
requires.14
constitution
and
acknowledged
above-quoted
courts
Lauffenberger
109.119
material,
ORS
underlying
substantive standard
intent,
necessarily
case
but
is based on
law and legislative
stan-
has
So
state
underpinnings.
long
constitutional
constitution, no con-
dard is not
with the federal
inconsistent
in both
stitutional
issue
the factual situation
arises. That was
14
Smith,
App 501,
P2d 892
cites
v.
145 Or
930
concurrence also
Fenimore
(1996),
den,
(1998),
Cerda,
App
P2d
and
Or
901
rev
In Clause, of the Due Process can there be no substantive difference between the federal “compelling Hruby “compel- state interest” standard ling reason” standard. No matter how the state standard is phrased satisfy characterized, or it must the federal consti- may constitutionally tution before the state interfere a parent’s rights involving Although his or her children. a “compellingreason” need not be identical to the standards set embody forth in the termination statutes, it must circum- present similarly grave stances that of risks harm to a child’s parent’s welfare either because of a unfitness or because of physical psychological of needs termi- child. The nation statutes illustrate of the kinds risks that authorize helpful state intervention and therefore are in understand- ing tody scope parental process due in the context of cus- party. Ultimately, to
award a third it is that federal adequacy standard of minimal that must be violated before lawfully deprived can be of his or her fundamental right by custody party. an award a to third
It is with the federal constitutional standard mind proceed analyze evidentiary that I to record in this case.15 require writing IWhat would in this if I case were for the concurrence is nothing compliance requirements. more than with federal constitutional Nonethe less, that, my analysis, required the concurrence asserts under courts to would parents parent’s award to when “the child would suffer harm in the cus tody,” J., (Deits, concurring), “apparently 188 Or at 712 C. and that I would require nonparent produce express expert an an statement from EVIDENCE IS
III. GRANDPARENTS’ TO PERMIT SUFFICIENT CONSTITUTIONALLY BE DEPRIVED OF MOTHER TO OF HER CHILDREN? CUSTODY part, major is not a dis- In that follows the discussion evidentiary pute record over what the with the concurrence apply Rather, concurrence contains.16 it is the failure disagree. process effect, the due standards with which unwillingness actually apply a con- federal concurrence’s implicit an ack- standard to this case constitutes stitutional nowledgment in this case insufficient the evidence process. requirements The evidence fails meet the of due minimally adequate parent17 and, show that mother is not a support the concur- thus, endorsed does not the result deprived rence: that mother should be objec- following look the facts is an effort to children. *57 tively they appear and then evaluate in the record gravity compelling a state interest whether their that would interest evidences permit infringement on mother’s fundamental keeping parenting children, in in mind her own right. required protection given heightened to mother’s Some germane preliminary to that discussion observations a detailed of the evidence occurs. before evaluation prop- concurrence, court, the trial unlike the
First,
erly recognized
not
to the level that
that the evidence did
rise
hearing
requires.
and
constitution
After
the evidence
future,
provide adequate
parent
definitely
to
in
care and love
and
cannot
fact
par-
definitely
in
or that
will be harmed
the children
children in
fact
(Deits,
J.,
(emphasis
original).
custody,”
concurring)
in
ent’s
Or
at 714
C.
my
“parade of
it wishes to
reason-
The concurrence can ascribe whatever
horribles”
My
ing.
nothing
is
do
than be faithful
to the constitution.
desire
to
more
16Admittedly,
lengthier
what
is much
than
the concurrence’s factual recitation
However, my
could have
has
record for facts that
follows.
effort
been
search the
scrutiny
purposes
due
implications
for
of
under
constitutional’
isolate them
process standards.
adequate”
“minimally
for
opinion,
of this
I have used the term
the context
descriptive purposes
in
line between
an effort to articulate
the constitutional
compelling
right
state interest
of a
to raise his or her own child and a
parent by
in
the state
permits
from the
of his or her
a child to be removed
See,
Flores,
parens patriae
e.g.,
“I think by case is I interpret this driven more what the law by particular be than the facts in If it case. by facts, all driven the best I had to decide is a—what is child, relatively easy
interests the answer reach, clearly me and that is I find that would * * * grandparents prevail. are—would “I necessarily don’t think that that ends my inquiry. really think I need to seeing they look into what meant Sleeper supervening [mother’s that exists. right And may upon counsel] superven- hit and that’s her ing of right being may constitutional nature. It be that the harm, Court will have to that there has to be a level find if would, to, equal close that in which the State be inter- vening, anyway, go where the State would as CSD nowadays SOSCF matter take control the children. be, And that is Iwhat believe the law to then the if * * * answer would be to allow biological mother maintain these children.” added.)
(Emphasis Subsequently, the trial court wrote a let- ter opinion which it ruled that “I do not believe Troxel required this court to find harm or unfitness before awarding custody to non-biological parties.” The court incorporated nearly identical into language the judgment.
Second, major flaw in the concurrence’s reasoning is that it substantially relies on the subjective factual conclu- sions and opinions two witnesses. expert Those witnesses evaluated mother and grandparents and made recommen- dations based on the solely best interests the children. Nec- *58 their essarily, subjective views mother’s psychological state and its effect on by the children is colored the wrong Moreover, lens. because the expert concurrence evaluates the witness evidence under standard that the experts them- selves did not it takes apply, testimony their out of context. For example, concurrence uses Sabin’s statement the children “have extensive needs that aren’t to be met going in [mother’s] home” to its rather support damning conclusion that “mother is unable Or [.]” to meet the children’s needs (Deits, However, context, at 714 C. J., concurring). different and does not have the sig-
Sabin’s testimony quite it: nificance that the concurrence gives [Has mother] discussed educational “[Counsel]: plans for the children? Yes, schooling plan separation “[Sabin]: them she would they issues, that they have
home. She feels that don’t want to be home, they should be
away from and that home-schooled. have tell that she would you And did she
“[Counsel]: year? liked now, the school doing during to be to have Yes, have liked “[Sabin]: she said she would were, now, [grandparents] felt that doing been but she would not have breathing down her neck and quotes, allowed that. schooling you that home would
“[Counsel]: Do think appropriate [J]? be No, schooling’s appropri-
“[Sabin]: I don’t think home ate for either of these children.
“ why And is that? [Counsel]: they have extensive needs Well, “[Sabin]: I think both home, I think that the going to met in the that aren’t environment culture that’s isolated creates its own home children that these larger and insulated from the culture I that home edu- will come to live in. don’t think hopefully and for them for interactions prepare cation would social getting along with others. her educa- very special needs terms of
“[J] does have think, tion, parent, even a well-educated would no home, [mother] has hard all that at providing time in education.” special training or education in an finds itself the concurrence Consequently, trial court as It with the disagrees awkward position. and undue unfitness of the facts import regarding its conclusion on children, and it bases risk of harm to the disapproved that used a standard testimony expert rescue itself In an effort to Supreme United States Court. facts review of the dilemma, its de novo it invokes from this then experts subjective opinions underlying *59 741 own state stan- judgments regarding its value the applies concurring). 188 at 712-13 C. (Deits, J., dards. See Or App analysis There is no exercise so as the problem long a of to minimal constitutional standard care mother’s applies as a performance parent identifies state compelling interest at stake. But the concurrence to unwilling appears embrace such a constraint on its review. The state law stan- dards, love of “inadequate and care” and “undue risk physical or psychological harm,” by are their nature subjective. Any be of minimally adequate parent guilty could found “inade- quate love and care” or of an of creating physical “undue risk or harm” psychological because, merely words Justice Souter, an “enlightened” believes that the care judge given by parent the on a particular occasion is “inadequate” or that risk harm the is “undue.” The constitution requires more, as I We, have said detail.18 as previously great are judges, not “social our engineers”; rather role is to apply law, as it including constitution exists.19
Ultimately then, the of this purpose subsection is to evaluate the evidence solely through eyes of expert witnesses but to examine it objectively in of the consti- light tutional requirement there must be state compelling interest before the children can lawfully be taken from their end, mother’s care. To that I take into account both the expert as testimony described in the concurrence’s and also opinion the evidence that reflects mother’s in a parenting positive to answer the light question of whether to evidence rises 18 dissent, Judge responds my his regarding Brewer to comments the sub jective statutory by stating, standards, nature standards based on those “appearf ]” constitutionally applied. believe the statute cannot be Or App (Brewer, J., dissenting). previously As I have indicated and the above states, Judge assumption statutory discussion so Brewer’s stan incorrect. The constitutionally applied, dards can long statutory so as the of “inade standards quate physical psychological love and care” and “undue risk or under harm” are (or encompass satisfy process my view, compelling stood need a due interest) state standard. “physicians, psychologists, therapists” Nor we are as con the concurrence (Deits, J., concurring). cedes. 188 Or at 678 C. It is difficult how to understand testimony experts, opinions the concurrence could find the who their based id., legal standard, “helpful assuming persuasive,” an incorrect without one drawing “expert” opinion of the above roles its own witness from the “facts” tes experts. tified to from a custody away
the level that state take permits it to third persons. natural and award child- is remarried and works an in-home Mother chil- care She her current husband have two provider. J, subject dren in addition A and the children who are the J to their emotionally A and attached litigation. *60 to and her hus- brother and sister as well as mother younger or history drug and has no band Mother grandparents. alcohol abuse or violence. She has never been in trouble with to the law has not been involved with Services Children or similar state any agency. and Families detail school, to J’s in as described in difficulty Due As mother hired tutor assist J. a by concurrence, the to J significant improve- result the made academic tutoring, J to her husband also worked with ment. Mother and her with homework when helped her improve reading the at some of Mother trial that necessary. explained absences, description described in the concurrence’s (Deits, J., C. occurred facts, concurring), Or that had to be after father’s death and transition during result; J was made as a other absences occurred because go to Mother also introverted and was reluctant school. get up she the children to themselves that wanted explained J had in with the of an alarm clock and that morning help J, A, that task. in contrast hard time accomplishing consistently in As and got nearly straight excelled school. She for the 1999-2000 her homework. A’s teacher completed A was new school noted A’s social year progress. Although end of of friends year, the school that she had group sensitive to other year being the school and was described as children. the children’s also had concerns about
Grandparents care. were under mother’s they while hygiene grooming occasions noted that there were several grade J’s first teacher J came to live with mother when after children went or her hair uncombed. dirty school with her clothes sloppy or first of times that couple also Sabin observed or mother, had they dirty into office with children came She also clothes were mismatched. uncombed hair their had year school that A’s teacher for the 1998-99 noted that, in after the move to mother’s house reported April poor. A clothes school and that her hygiene wore dirty In contrast teachers year, children’s previous the childrens’ year the 1999-2000 school both said that dress grooming, and were hygiene, appropriate.
As the concurrence a dental emphasizes, check-up A in dental November 1999 revealed that she had extensive decay. However, there does not to have been obvious appear evidence of when decay. tooth Grandmother testified done, mother told her that A was to have dental work going she looked but mouth “there wasn’t visible anything [A’s] and, could teeth see,” asked, [she] when A said that her examinations, were her. Earlier one bothering including January 1999 while children lived grandparents, had not shown evidence tooth the dentist decay. Although stated “possible” causes oral poor were hygiene too much drinking soda mother testified that she pop, believed that the decay occurred before A was her custody. Sabin also testified that mother had to her expressed concern reason that the decay was not detected in den- prior tal exams was because no were taken. x-rays
The evidence J’s difficulty school, her subse- *61 academic quent improvement, the children’s poor hygiene and its subsequent improvement, A’s tooth which decay, cannot be clearly attributed to either mother’s or grandpar- ents’ is the custody, hardly kind of evidence that the permits state to intervene into mother’s life. uncontrov- private erted evidence shows that mother has made efforts to change the of her quality parenting. As to J’s academic problems, mother hired tutor and worked with J to her improve per- formance. Further, tutoring improved J’s academic abilities. While it trial, is correct at the of time the J was to going be held grade, back a it is from that unclear the evidence the alone, absenteeism rather than J’s overall ability, academic caused that result. the Although concurrence appears accept Sabin’s conclusions the about cause A’s tooth decay fact, on whole, the record of this case as a that evidence is Further, conflicting. problem discovered, once the mother undertook to have the necessary dental work done. Finally, although mother discontinued the therapy children’s with MacKendrick due to her towards personal animosity counseling grief the
him, continued childrens’ she Those demon- counselor after father’s death. actions another strate mother’s willingness ability to make decisions Although regarding the concurrence her children’s welfare. disagrees it from Troxel and decisions, with mother’s is clear Supreme jurisprudence that constitu- the Court the related protects parents second-guessing tion engaged from the kind of by the concurrence. testimony of
I turn of the now substance appropriate experts, it is to look their mindful that behind they rely to the facts that evaluate conclusions weight expressly given. expert opinions No their should be witness providing incapable of
testified that mother is ade- according quate Rather, for children in the future. care Sabin, of the children that their cus- it is best interests tody difficulty grandparents because mother “has be with separating needs, her her emotional from those needs, Sabin believes that “Winczewski children children.” should not have to be generational dys- part ongoing of this them,” are available function since there alternatives added.) (Emphasis agrees mother’s intellectual Sabin that average range. potential However, suffers, she is causing depression according loneliness, Sabin, from * * * big looking pic- her to “focuson one detail without opine way expert [.]” By contrast, do not ture witnesses mentally or retarded of limited intellectual mother ability psychosis from a or an entrenched she suffers diagnoses personality kinds disorder. The latter deprive proceeding typically a natural in a state arise custody. important is no It is also to note that there wilfully neglected suggestion has that mother ever abused or suggests there are “alterna- Rather, Sabin children. having mother, tives the children remain with available” to parent. “emotionally not a limited” That is constitution- an ally parents appropriate which natural can standard under deprived the state. of their children be knowledge generally said from common Moreover, it can *62 dys- minimally adequate parents many live in at least difficulty may separating environments, functional lonely, may children, needs their be their from the needs depression, may may fail to see suffer from occasional big picture, diagnoses of those constitutes the but none deprive “compelling circumstance” sufficient to mother or any parent custody. Although retaining the children in custody may not mother’s potential, allow them maximize their effectively parent rights just
courts cannot sever parents “because natural are unable to furnish surround- ings up grow which would enable child to we would McMaster, 303, all desire children to do.”State v. 259 Or (1971). P2d 567 par- On hand, the other mother has not been a model Certainly, approve ent. no tone of one would the con- fusing letters that wrote to her their she children while dying, perhaps father mother should faulted for causing undergo having J to blood J test or evaluated for abuse. sexual But the fact remains all of those actions highly emotionally charged “tug occurred in the midst of a improper, war” for the the children. However they concurrence, view the were, those decisions compelling not the kind of actions that create circumstances permit constitutionally the state to intervene and award party. to a third Ultimately, testimony Sabin’s and MacKendrick’s following reduces remaining factors when balanced with (1) relationship evidence: mother’s with the chil- always healthy emotionally dren has not (2) them; been for understanding has mother suffered from confusion in (3) processing issues; emotional mother tends to overfocus on (4) ignore big picture; certain issues A has had seri- (mother decay corrected); problem ous tooth had (5) stopped giving psychotropic drug, Paxil, mother Ato (6) unhealthy she her; because decided it was mother had sys- a blood test if administered to see there was Paxil in J’s asking medication; tem without first J if she had taken (7) therapy mother terminated children’s (but grief therapy MacKendrick seling groups); coun- continued their two (8) mother, in of her the furtherance own counseling grief interests, attended one of the children’s two groups grandparents allowing with them rather than (9) gained custody; weight attend both of A them; in mother’s (10) planned although mother home school the children (11) background training education; she no had mother *63 it to J’s in J’s characterized problem presence,
referred vision severe, problems and blamed it for some of J’s academic in (however, A’s was excellent while performance academic (12) mother’s care); mother’s sleeping arrangements home were not stable and did not establish appropriate (mother in boundaries later made those adjustments (13) mother, activities, her talks parenting arrangements); behav- and feels to influence the children’s slowly powerless (14) ior; from after the children had excessive absences school evidence, those (according the move to mother’s house (15) corrected); and no one dis- eventually were problems for the children. putes deeply mother cares
IV. CONCLUSION by the The interest” standard “compelling imposed Due is Even the concurrence though Process Clause onerous. is little mother’s constitutional there acknowledges right, analysis heightened its it mother the suggestion gives view, its Hruby, is entitled. In protection which she Wilson, Fenimore, Cerda, and other cases Lauffenberger, reasons.” statutory establish a standard of “compelling on standard, concludes Under the concurrence fundamen- facts, these of mother’s heightened protection her has been overcome. parent tal children right There be no less standard exacting applied can No Due case requires. this case than what the Process Clause Oregon Supreme this court or the by decided previously a it to given has from natural Court taken custody this case. of evidence that exists in a third kind person statutory or a evidentiary More presumption than mere custody mother’s implicated by right standard and its make clear predecessors children. Troxel to mother is of custody in favor of “presumption” granting For the to be over- presumption constitutional magnitude. interest come, implicated must be a state compelling there occasions, failed has, on some and not that mother merely of instances in her best interests. evidence act children’s by measures by followed remedial inattentive parenting emotional with mother’s mother, along even when considered inter- to a state compelling do not amount limitations, simply The most mother. custody away from est that justifies taking offenses, the tooth issue decay serious mother’s alleged emo- the failure on occasion to be to the childrens’ sensitive even needs, light tional when viewed in most favorable to do not risk of grandparents, constitute an “undue” harm the constitutional sense.
As as mother is long minimally capable providing (and adequate disprove care the evidence does not that ulti- case) mate fact in this and her does not present (¿.e., risk, rather, clear and undue risk some but just risk) constitutionally significant children, of harm to the state cannot constitutionally interfere with her of her children giving custody to grandparents. *64 sum, the concurrence fails to the required test that is apply under the federal constitution and thereby deprives mother of the of her children in violation of her constitutional rights.
I dissent respectfully for the reasons expressed above.
BREWER, J., dissenting. the
Both concurrence and dissent have eloquently staked out their in this reluc respective positions case. I (1) tantly wade into the for fray two reasons: The opinions so lengthy and that I complex fear will further they discour a age law bench family and bar that craves in clarification an (2) already of confusing vexing law; area the and several legal case, are at principles play the nature including of the child’s interest in the a preservation of child-parent with a relationship nonparent, hope which discuss the that the Oregon will of Supreme Court review oúr accept decision and bring greater to the clarity relationship between (2001) ORS 109.119 and the Supreme United States Court’s decision in Troxel v. Granville, 57, 120 2054, 147 530 US S Ct (2000). L Ed 2d 49
My first concern is Troxel is a poi- fundamental: son pill decision that taints all state nonparent time parenting statutes. Because the various opinions Troxel prevented the Court from a speaking with clear unified voice, its is subject decision to misinterpretation. However, certain core can be principles Although discerned. agreed justices, except state with the Scalia,
all ofthe Justice directly parent’s court the burdened the that visitation order govern- right” of “fundamental her child free undue raise appli- for interference,1 Justice Thomas alone called mental strict-scrutiny usually employed in the cation ofthe standard (Thomas, protection rights. J., See id. at 80 of fundamental oversight; concurring judgment). That omission no justices approach taken least six alternative scrutiny. rejection implicit amounted, fact, to an of strict justices accepted proposition least Instead, at seven parent requires presumption a fit is constitution good his her child.2The same best able to assess what group recognized presumption can rebutted also that the by showing best will not act in child’s pre- primacy parental approach That interests. ascribes rogatives Determining only limits. whether those but within transgressed, inevitably requires in turn, limits have been family—including of consideration the circumstances strength quality preexisting ties between the child nonparent and the contestant. under-
Most of in Troxel the members Court evolving family stood that the structures diversification against rigid analysis. plurality cautions constitutional began analysis by referring “changing its realities of (O’Connor, plurality opin- family,” id. J., American at 64 ion), noting changes past “[t]he demographic cen- tury speak average an American fam- make it difficult to *65 point ily,” Kennedy made the id. at 63. Justices Stevens and urge qualifica- forcefully, some even more and it led them to dissenting); (Kennedy, rights. parental J., tion Id. at 98-99 Kennedy, (Stevens, dissenting). accord, J., at 90 Justice id. example, “principal with the concern” stated his Washington scrutiny analysis was strict court’s 1 (Souter, J., Troxel, (O’Connor, J., plurality opinion); id. 77 530 at See US at 66 (Thomas, J., judgment); concurring judgment); concurring id. in the id. at 80 J., (Stevens, dissenting); J., dissenting). (Kennedy, Justice Scalia at 86-87 id. 95at right of alone burdened no fundamental concluded court-ordered visitation J., (Scalia, dissenting). parents. 92 See id. at Stevens, Kennedy, plurality 2 I and Justices include four-member 77-78, n J., (O’Connor, plurality opinion); id. at at Souter. See id. (Souter, 68-69 J., dissenting); (Stevens, J., judgment); concurring id. 89-90 J., (Kennedy, dissenting). id. at 98 holding proceed assumption “that the seems to from the parents always that the or who resist visitation have third been child’s and that the primary caregivers par- legitimate ties who seek visitation have relationship no established with the child.” J., Stevens,
Id. at 98 Justice (Kennedy, dissenting). turn, warned that variety family
“[t]he almost infinite relationships that pervade our ever-changing society strongly against counsel the creation this Court of a constitutional rule that a biological parent’s liberty treats interest in the care and supervision of her child as an isolated may arbitrarily.” exercised Id. at (Stevens, J., dissenting).
The Court also appeared that child recognize access cases have a greater than most other potential cases to present collisions of Justice intersecting rights. Stevens was the most direct in this as a describing clash of com- potential peting constitutional interests, id. at 88 (Stevens, J., dissent- ing), but Justice Kennedy, too, plainly that a thought par- ent’s prerogative must be balanced against competing interests of other family members. See id. at 100-01 J., (Kennedy, dissenting).
The Court’s emphasis changes family struc- ture, and the insistence of several justices con- multiple stitutional rights at stake in such cases, are inconsistent with the categorical analysis associated ordinarily with strict scrutiny.
“That doctrine essentially entails an categorical analysis. It asks, first, whether the state has upon intruded some con- categorized duct and, so, as a right’; ‘fundamental if public whether the properly interest served is categorized ‘compelling.’ only There is a little room to maneuver here—generally precise gradations jus- of intrusion or This, course, tification are beside the point. largely why strict-scrutiny presumed cases are to be won or lost at the threshold of categorization issue as a ‘fundamental right’ class,’ a ‘suspect any rather than in subsequent balancing state and individual interests.
“Troxel, by contrast, being plainly contemplates cases Moreover, won or lost later in analysis. on outcome depend will categorical so much on a assessment competing interests, particular family finding fact into the nuances of as on the manner in which a
relationships or parent right.’ fact, exercised her In rather ‘fundamental scrutiny, than modern strict seems approach Court’s mushy more reminiscent of the which the Court ‘reasonableness’ standard employed very family-privacy in its first during cases the Lochner era.” David D. Constitutional Meyer, Pragmatism Changing (2001) (footnote
American LJ Family, Rutgers omitted).
When the
of child and
competing rights
parent
other,
each
of interests is
pitted against
balancing
appro-
That notion finds
in the Troxel test. As dis-
priate.
support
cussed, Troxel teaches
cannot
parenting
court
award
time to a
over the
of a fit
based
nonparent
objection
Troxel,
on best
Assuming
argument,
for the sake of
that a
however,
scrutiny analysis
apply
strict
does
109.119,
under ORS
an
only
element of “harm” in the traditional
is not the
sense
compelling state interest at issue where
chil
the welfare of
example,
compelling
dren is concerned. For
the state’s
inter
requiring
restricting
est in
school attendance or
child labor
exclusively
pre
does not derive
from the
state’s interest
venting “harm”; instead, it stems from the state’s broader
parens patriae
well-being
interest
of children. See
Prince v. Commonwealth Massachusetts,
158,
321 US
(1944);
Society
166-67, 64S Ct
L
438, 88 Ed 645
Pierce v.
Sisters
Holy Names, 268
510, 534,
US
571,
45 S Ct
The Maine Court, which follows the view compelling required that a state interest is for the state to nonparent parenting intervene in the context of Maine’s time way: statute, has described the matter this grandparent “The cessation ofcontactwith a whomthe parent may child dramatic, views as a have a and even upon well-being. traumatic, effect State, the child’s urgent, compelling, provid therefore, has an interest in ing grandparents having a forumforthose sucha ‘sufficient existing relationship’ grandchildren. with their Here the [grandparents] parents grandchil have acted as for their may dren, and therefore seek chil continuedaccessto those springs any dren. This interest not from commonlaw grandparent of child’s child, to visitation with the but fromthe significant need to be assured that he or she wdll unnecessarily grandparent lose contact a has with who parent at _, been a to that Troxel, child.See 530US 120 752 (‘There J., (Stevens, dissenting) is at a mini
S Ct at 2071
individual,
implicated
interests
mum a third
every
whose
child.’).
applies—the
case
the statute
to which
‘primary caregiver
has been the
grandparent
“When a
time,
significant period
and custodian’ for a child over a
relationship
grandparent
between the child
parens patriae authority
application
warrants
the court’s
compelling
of the child and
basis for
provides
on behalf
par
fit
family
State’s intervention into an intact
the
ents.
recognized
Recently,
compelling
interest has been
contexts,
upon
reasoning
in several other
based
liberty
fundamental
interest must be balanced
parent’s
continuing
have access to
against
‘[child’s]interest in
only
parent
[the child].’
adult who has acted as a
165,
Ramos,
774,
Youmans v.
(1999);
Mass
NE2d
v. M.J.B.,
539,
A2d
see
V.C.
163 NJ
also
(2000) (holding
intervene to
may
548-49
the State
of a
where
grant
objections
parent
visitation over the
stepped in to assume the
psychological
child’s
“has
unwilling
unable or
legal parent
role
undertake the
Institute,
who has been
*68
American
obligations
parenthood’);
of
Law
Family
Dissolution 2.03
Principles
§
Law
of
of
(Tentative
2000).
4,No.
Draft
“Thus,
compel-
has
it has a
the State
demonstrated that
grandparent,
interest in
forum in which a
ling
providing a
issue,
parent
may
has
the child at
seek
who
acted as
continuing
with
child.”
contact
(footnotes
(2000)
Riendeau,
291,
v.
761
301-02
Rideout
A2d
omitted).
scrutiny
a strict
Thus, even those states that follow
child access statutes
methodology
analyzing nonparent
preser-
existence
a child’s interest
acknowledge the
of
relationship
of a
with a
child-parent
vation
enjoyment
I next consider the dimensions of that interest.
nonparent.
It is
for much of
chil-
true,
sadly so,
history
as
more than a
little
legal system
dren were treated
within the control of their
entirely
biological
form of chattel
.
Norton, Founding
Beth
Mothers
generally, Mary
See
parents.
and the
American
Forming
and Fathers: Gendered Power
of
Child,
Zelizer,
A.
the Priceless
(1996);
Pricing
Viviana
Society
(1985). However,
Children
Changing
Social Value of
disruption
have held that
numerous courts
recently,
more
nonbiological parent
child’s
awith
preexisting relationship
753
can potentially be harmful
to the child and that such a rela
tionship may protected by
court over a fit parent’s
objection. See In re
Howard, Marriage
183, 191
NW2d
(Iowa 2003) (“[W]hen a
has
grandparent
established a sub
stantial
with a
relationship
grandchild,
under
required
our statute, an emotional bond can be
created
if sev
ered, can inflict harm on
child”);
see
Weston,
also Roth v.
(2002)
Moreover, it is now firmly established that children
are persons within the
meaning
the constitution
accordingly possess constitutional
See
rights.
Meldrum v.
(SD 2002)
Novotny, 640 NW2d 460, 470
J., con
(Konenkamp,
(“Children
curring)
are not property. They have
rights
own.”).
their
The United States Supreme Court has held that
“neither the Fourteenth Amendment nor the Bill of Rights is
for adults alone.” In re Gault,
A legal commentator has described the effect of Troxel on children’s constitutional rights theory as follows: Troxel,
“Before it abundantly clear that under the U.S. Constitution possessed children rights equal protection, to process, to due and to privacy variety settings. a wide justices at least six Troxel, appears it After of intimate children’s in protection interest weigh would rights. of constitutional relationships in the balance “* * most vulner- and powerful groups the least As need of most in arguably are persons, children able of rights adults have scheme in which rights. conceptual In a interests too interests, children’s have mere and children rights. notion of by powerful the more trumped often are to view increasingly unwilling and are Judges legislatures ** * Supreme The parents paramount. rights different many recognized rights has children’s Court Troxel, it After juvenile justice to education. settings, from case, properly presented clear that in a seems rights to due children’s expected recognize can be Court context of cus- equal protection, privacy process, (and forjudges) is to tody challenge for scholars as well. in a manner cases acknowledge rights children’s adults, takes treat them like small that does not respects their difference, and that their essential account of identity, nurture, protection, complex needs for connection.” Children’s About Woodhouse, Talking Bennett
Barbara
Decision-Making,
Visitation
in Judicial
Custody
Rights
omitted).
(2002) (footnotes
LQ 105, 113-14
36 Fam
recog
Troxel,
beginning
In the wake of
courts
constitutionally guar
that “a child has an independent,
nize
with whom
a person
to maintain contact with
right
anteed
Webster
relationship.”
developed
parent-like
the child has
(NY Fam Ct
315, 316
86,
189 Misc 2d
729 NYS2d
Ryan,
v.
2001)
visitation).
the court
Specifically,
(addressing right
constitutionally
“is
the child’s right
in Webster that
held
liberty encompassed
because it is a fundamental
guaranteed
the First Amend
right
freedom of association
within the
* *
liberty
*. This
the United States Constitution
ment of
the Fourteenth
Clause of
the Due Process
protected
* *
court
reasoning,
For its
Id. at 316-17.
Amendment
law
First Amendment case
relied on
peace-
speech “guaranteeing the freedom of
associate
a freedom of individuals
ably assemble includes
v.
[Griswold
See
intimate,
relationships.
personal
1678, 14 L Ed 2d
Ct
Connecticut],
US
85 S
Alabama], 357 US
A.C.P. v.
(1965);
Asso.
[National
*70
(1958).
Amend-
449,
1163,
Webster, against unquestionable right funda balanced must be right biological parent to raise the child without mental ofthe undue state interference.
Although specifically relying First not on the right, Amendment as the source of the child’s constitutional principles. the California courts have followed a similar set of (2001), Y., 1274, In In re 92 Cal 4th 1314-15 Santos court held: Supreme
“While the United States court has reserved liberty of the nature of a child’s interests deciding issue family-Kke familial or bonds preserving established (Michael D., 110, 130, S Ct [109 H. v. Gerald 491 US 2345-2346, 105 (1989)), Supreme L Ed 2d Court has 91] our rights— ‘[c]hildren declared that .... have fundamental including right placement the fundamental .... to “have a ’ stable, recognizes permanent.” [and] is California simply belonging par ‘[c]hildren are not chattels to the ent, fundamental of their .... and but have interests own’ these interests are of constitutional dimension. ‘[a]dopt[ed] proposition [has] case that a California law right reasonably child has a to a directed constitutional life, early by unnecessary unmarred and excessive shifts ” custody....’ (Some omitted.) internal citations enjoyment present con-
An of a child’s obstacle to the preservation child-parent right rela- to the of a stitutional pre- nonbiological parent tionship lies in the child’s with a inability which decision as to sumed to make a mature relationships important of are most to the advancement posit regard, that chil- theorists or his welfare. In that dren have the same constitutional subject only some rights have, that adults proviso depending on the nature may enjoyment lawfully right question, deferred its been to that until certain has attained. age According theory: strongest part philosophy government
“At least persons children is justify the classification of could autonomy, which I under- principle of individual moral himself, free person to be govern stand to be the If from to which he has consented. any external control justification moral Consti- part our principle chil- clear should include tution, why then it becomes we *71 Young do have the provisions. dren its children not under the make competence many to make of choices adults systems, they a but will complex basis in social regular Hence, many competencies. years develop in a few these best as a right person the to be treated as is understood this, legiti- it right-in-trust. acknowledge Once becomes we they provided to if complain mate for children are opportunities assuring enjoyment their full conditions they acquire the char- rights of their constitutional when Moreover, chil- classification of persons. acteristics of the right-in-trust only as is not consistent persons dren as during regarded custody as being with their individuals limits minority, their defines of our custodial but it the their provide duties. must them ‘the conditions for We freely are in an individuals who able becoming way prepared to and who are themselves informed choose must responsibility for their choices.’ And we assume enjoyment rights the of their denying refrain children from their necessary protect if this is we cannot show that legitimately dis- autonomy. Only way future in this can we persons.” as charge our custodial duties toward children Three Children’s Concepts D. Lawrence Houlgate, Enjoyment Theory, on the Rights: Constitutional Reflections omitted). (1999) (footnotes 77, 1 U Pa J L Const 93-94 right notion of a child’s constitutional bottom, At relation child-parent of a preservation enjoyment com both parent evolving with a is ship nonbiological right an adult’s right In mirrors plex. respect, one lib associations, which is a fundamental maintain valuable Due of the Four Process Clause erty interest protected limited, is it right the extent teenth Amendment. To fit is presumptive prerogative because of his on behalf of make decisions care and involving Houlgate’s limitation is embodied child. That her minor In a sec rights. children’s constitutional theory enjoyment safe courts, must state, through acting ond respect, a role that sense, in the traditional child from harm guard R., Parham v. J. protection. the child’s implicates (1979). That inter Ed 2d S Ct 61 L 584, 603, US terms due process in substantive est also can be cast no interest, plau there is but liberty a fundamental involving until majority. enjoyment its deferring argument sible minors to protect authority fact, parens patriae the state’s In both conclusion. harm compels opposite from have constitu of the child discussed, the interests respects Court States Supreme the United Although tional stature. an equal interests on of those enjoyment has not placed of fit parents interests liberty with the constitutional footing a particular Troxel decisions, prescribes to make caregiving interest liberty a fit parent’s form of which balancing, that he of a presumption threshold in the form primacy given US at 68 Troxel, 530 act in the child’s interests. or she will is not If the (O’Connor, J., presumption plurality opinion). determination rebutted, the Court must accord the parent’s Id. at 69. How weight. time special or parenting has been ever, presumption if the Court determines that Id. rebutted, paramount. the interests of the child *72 to be appears I turn to what With that background, and Judge concurrence between the principal dispute can be ORS 109.119 dissent, whether namely, Edmonds’s here, to an permit the facts under constitutionally applied, the correctness Although to custody grandparents. award to standards statutory of the concurrence’s application debate, it is far legitimate the facts of this case is subject as itself, the statute about anything less ciear that there is that is unconstitutional. applied, for Troxel template
ORS 109.119 follows literally matters here. cases but a twist parenting-time nonparents custody awards provides That statute also plurality the Troxel discussed, As under certain conditions. test for scrutiny parenting avoided a strict carefully ádopting However, nonparent. involving time disputes intrusion is a far custody greater loss of parent’s because the loss of parenting than is a fundamental interest liberty impose time, it is unclear whether the Court would addi- nonparent tional restrictions on an award of to a imposed nonparent parenting than it in Troxel on time though, “compel- clear, awards. What does seem is that the ling by reasons” test followed the concurrence in this case applied should be sufficient to the statute, save even as custody dispute. compelling expressed
The
reasons test is not
in ORS
require
or,
109.119
for that
matter,
Troxel. It is a holdover
Sleeper
Sleeper,
ment from
504,
Or
position constitutionally that the statute is deficient because “[t]he ‘inadequate standards, state law love and care’ and physical psychological by ‘undue risk of or harm,’ their subjective. Any minimally adequate parent nature could be guilty ‘inadequate creating found love and care’ or of an ” physical psychological ‘undue risk of or harm.’ 188 Or (Edmonds, dissenting). respectfully disagree. at 741 J., 109.119(4)(b)(A) (C),may standards, Those found in ORS imprecise, they any subjective but are not more than regularly apply any custody factors that courts determi- they constitutionally nation. In fact, effectuate the children’s grounded protective rights. parental Moreover, shortcom- ings by compelling covered those factors must be in order to justify nonparent; they an award of to a cannot be tri- fling insignificant.4 circularity standard, above, apparently of the Troxel discussed led the legislature adopt determining identical factors for consideration the court in presumption so, and,
whether the has been rebutted if whether the child’s best *73 by custody nonparent interests would be served an award of to the contestant. 4Judge suggests erroneously pre Edmonds’s dissent also that the statute preponderance, standard, convincing evidentiary scribes a rather than a clear and
759 to whether reduces Accordingly, question that grandpar- reasons to find compelling record here shows so, that the chil- and, if the presumption ents have rebutted of custody an award interests will be served dren’s best that case, in this are framed As the issues grandparents. the children’s consideration of both requires determination their 109.119(4)(b)(B), rights and associational ORS rights, 109.119(4)(b)(A) (C). and harm, ORS from protection very have a shows that the children The evidence MacKendrick, Gary grandparents. close relationship to the children after services who had provided psychological dissolution, grand- opined their and separation parents’ and nur- consistency been the basis of “always had parents evaluator, custody these children.” The turance to both of the relationship concluded that Sabin, Dr. Charlene also children the more stable grandparents between the However, the evidence also shows and nurturing. live their who siblings
children are close to mother and very no “differ- fact, testified that there was her home. Sabin two fami- the children and the ential attachment” between that, record, then, although leaves the impression lies. stand- off, better from a “best interests” children would be attached to they point, custody, equally grandparents’ both families.5 (Edmonds, J., statutory presumption. App n 10 188 Or at 729-30 for rebuttal of the dissenting). See, Marriage proposition. e.g., support In re There is for that (2002) allowed, (holding Harris, (2001), Rptr App 2d 191 4th 499 rev 115 Cal Cal they right parents their children as to care for because the constitutional grand- statutory right protection to visitation of see fit parents, convincing than the is afforded more higher evidentiary appropriate require standard of clear and it is statute); nonparent v. visitation Greer evidence under California’s (2002) den, (2001),
Alexander, Mich 971 App rev 248 Mich 639 NW2d (same). out, appear However, points we to have assumed as the concurrence constitutionally preponderance I that we were sufficient. believe standard arguably convincing would be redun- A evidence standard to do so. clear support compelling ofthe underlying requirement reasons rebuttal dant to the More sub- presumption parent her child’sbest interests. that a fit will act his or rights stantively, discussed, important in actions constitutional as children have weighed the extent that a in the balance. To under ORS heightened parenting that must be 109.119 nonparent proof further barrier to burden of would add a exists, relationship further skew the child-parent it would time where a away parent from the child. family interests toward the delicate balance signifi parent is the most suggest 5 I do not mean to that “attachment nonparent.” 188 Or See between a cant issue cases Rather, company (Deits, J., concurring). part with the concurrence’s at 715 C. reasons, opposed compelling to a “best record shows determination that the grandparents. basis, custody to interests” for an award of *74 to protection, to the children’s rights As pertinent to the has insensitive the evidence shows that mother been the evidence to However, needs. much of children’s emotional indirectly, or relating, directly that effect involves conduct dis- the present the death of the children’s father and I not it as weigh that evidence is do troubling, pute. Although in the balance I if it involved less stressful as would heavily cir- circumstances. It is also true that the children’s physical In that cumstances while in mother’s care were not optimal. cause for the evidence A’s tooth is a concerning decay regard, concern, neglect but it does not serious necessarily suggest does sum, In much of the evidence part. although mother’s is no mother, parenting not flatter the overall quality who struggle than that of thousands of Oregonians worse succeed, without ultimately with their own limitations but safely. children intervention, raising state their factors the evidence to the my view, pertaining (C) does not fur- 109.119(4)(b)(A), (B), described in ORS to award nish one or more reasons compelling It that grandparents children to follows grandparents. for custody purposes, rebutted presumption, mother will act in the children’s best interests. I
Accordingly, dissent. respectfully Landau, J., in this joins dissenting opinion. SCHUMAN, J., dissenting. that our recent cases
I with the concurrence agree 2054, Ct Granville, Troxel v. 530 US 120 S interpreting the state (2000), L 2d 49 stand for the 147 Ed proposition if it interference by violates the Due Process Clause permits care, or con- custody, with a nonparent parent’s right can establish nonparent trol of his or her child unless the cannot of the evidence that preponderance care for the child or will not love and provide adequate undue risk of necessary phys- state interference is to avoid an ical or harm to the child. psychological
However, abridging the harm that can justify what has far, far more serious than parental must with Judge In that respect, agree been demonstrated here. dis- to that I do not subscribe fully Edmonds’s able dissent. uses to Edmonds because of the rule that Judge sent only reach his conclusion—the “fundamental right,” “compelling state interest” rule familiar from federal Fourteenth Amend- ment law. number of cases in which United States Court has held Supreme action survives government this level of heightened review can be counted on probably of two hands. fingers Thus, under Edmonds’s stan- Judge dard, the line between tolerable and intolerable parenting predestined to fall in such way as to make the parental pre- sumption virtually irrebuttable. That could not be what Troxel plurality intended.
I also agree Judge Brewer that the resolution cases involving disputes between and third parents parties a more requires sensitive evaluation of the child’s interest than Troxel appears I do acknowledge. not join Judge Brewer’s dissent because I see only no need to label *75 child’s interest as a free-standing fundamental substantive due process right instead of an interest protected by state as parens patriae. J.,
Armstrong, joins this dissenting opinion.