Pulley v. Herndon

568

Submitted January 8, 2021, reversed and remanded March 15, 2023

Michael Travis PULLEY,

Petitioner-Respondent,

v.

Deborah HERNDON,

Respondent-Appellant,

and

Joan Elizabeth GALLAGHER,

Intervenor-Respondent.

Multnomah County Circuit Court

17DR22553; A172235

527 P3d 19

Mother appeals from a judgment that granted grandmother’s petition for vis-

itation with mother’s young child, over mother’s objection. Mother contends that

the trial court erred in determining that grandmother had rebutted the presump-

tion that mother acts in the best interest of child, as required for the purpose of

awarding visitation under ORS 109.119. Specifically, mother contends that some

of the trial court’s findings in support of the court’s best-interest conclusion are

either erroneous or did not take into account relevant evidence. Mother asks for

de novo review under ORAP 5.40(8)(c), asserting that this case is exceptional.

Held: Because the trial court did not make explicit credibility findings and failed

to directly address some of the factors concerning the required rebuttal of ORS

109.119 best-interest presumption, mother’s case was exceptional and warranted

de novo review. Grandmother did not present clear and convincing evidence

that rebutted the presumption that mother acts in the best interest of child.

Grandmother failed to establish under ORS 109.119 that she was or recently had

been the child’s primary caretaker and that mother unreasonably limited contact

between child and grandmother. Also, grandmother failed to present under that

statute any evidence that circumstances detrimental to child existed if relief was

denied. Although ORS 109.119 factors are not exclusive, on de novo review, the

Court of Appeals was persuaded that grandmother failed to rebut the presump-

tion that mother acts in child’s best interest. Thus, the trial court erred in grant-

ing grandmother’s petition for visitation.

Reversed and remanded.

Xiomara Y. Torres, Judge.

Kimberly A. Quach and Quach Family Law, P.C., filed

the briefs for appellant.

No appearance for respondent Michael Travis Pulley.

Respondent Joan Elizabeth Gallagher filed the brief pro se.

Cite as 324 Or App 568 (2023) 569

Before Ortega, Presiding Judge, and Shorr, Judge, and

Powers, Judge.

ORTEGA, P. J.

Reversed and remanded.

570 Pulley v. Herndon

ORTEGA, P. J.

Mother appeals from a judgment in this domestic

relations proceeding that granted grandmother’s petition

for visitation with mother’s child, T, who was four years old

at the time of the hearing. Several months after mother was

awarded sole custody of T, grandmother (father’s mother)

petitioned the court pursuant to ORS 109.119 to allow

visitations, including overnight visitations, after mother

restricted grandmother’s contact with T and stopped allow-

ing overnight visitations. The trial court granted visita-

tion, concluding that grandmother had presented clear and

convincing evidence to rebut the presumption that mother

acts in the best interest of T. On appeal, mother contends

that the trial court erred in determining that grandmother

had rebutted that presumption, that several of the court’s

factual findings relevant to that determination were erro-

neous, and that to the extent the trial court made implicit

findings regarding some of the factors, the findings did not

take into account significant evidence that was presented.

Mother asks this court to exercise de novo review, asserting

that this qualifies as an “exceptional case” for purposes of

ORAP 5.40(8)(c). As we will explain, we are persuaded that

we should exercise de novo review and conclude, based on

that review, that grandmother did not rebut the presump-

tion that mother acts in the best interest of T. Accordingly,

we reverse the judgment awarding visitation and remand

with instructions to dismiss grandmother’s petition.

Before addressing the standard of review and mother’s

reasons for seeking de novo review, we first describe the rel-

evant statutory context. Under ORS 109.119, a person “who

has established emotional ties creating a child-parent rela-

tionship or an ongoing personal relationship with a child

may petition or file a motion for intervention with the court

having jurisdiction over the custody, placement or guardian-

ship of that child,” and in certain circumstances can “grant

visitation or contact rights to the person having the ongoing

personal relationship.” ORS 109.119(1), (3)(b).1 Before doing

so, however, the court must apply ORS 109.119(2) and (4).

1

The trial court, having made the prior related custody determinations

that ultimately resulted in an award of sole custody to mother pursuant to a

Cite as 324 Or App 568 (2023) 571

ORS 109.119(2) provides, in part:

“(a) In any proceeding under this section, there is a

presumption that the legal parent acts in the best interest

of the child.

“(b) In an order granting relief under this section, the

court shall include findings of fact supporting the rebut-

tal of the presumption described in paragraph (a) of this

subsection.”

ORS 109.119(4)(a), in turn, provides:

“In deciding whether the presumption described in sub-

section (2)(a) of this section has been rebutted and whether

to award visitation or contact rights over the objection of

the legal parent, the court may consider factors including,

but not limited to, the following, which may be shown by

the evidence:

“(A) The petitioner or intervenor is or recently has

been the child’s primary caretaker;

“(B) Circumstances detrimental to the child exist if

relief is denied;

“(C) The legal parent has fostered, encouraged or con-

sented to the relationship between the child and the peti-

tioner or intervenor;

“(D) Granting relief would not substantially interfere

with the custodial relationship; or

“(E) The legal parent has unreasonably denied or

limited contact between the child and the petitioner or

intervenor.”

In concluding that the presumption that mother

acted in T’s best interest had been rebutted by clear and

convincing evidence, the trial court made the following fac-

tual findings:

“1. [Grandmother] established the existence of an

ongoing personal relationship with [T]. [T] lived with

[grandmother] for months as [T]’s parents were trying to

address marital difficulties and were sorting out future

living arrangements. [G]randmother[,] along with her

stipulation by father, therefore had jurisdiction over this petition. It is undis-

puted that grandmother had an ongoing personal relationship with T.

572 Pulley v. Herndon

partner, provided caretaking duties for [T] during the time

[T] lived with them. [Grandmother] later had ongoing vis-

its, including overnights, once [T] resumed living with * * *

mother.

“2. [Mother] consented, encouraged, and facilitated

the ongoing relationship. [She] testified that [grandmother]

and [T] were clearly bonded and the relationship benefitted

[T] psychologically.

“3. The [c]ourt previously ordered that all visits with

[T]’s father, had to be supervised by a professional supervi-

sor. Father does not currently have a professional supervi-

sor and is not currently exercising visiting time with [T].

“4. [Mother] abruptly ended contact between [T] and

* * * grandmother, despite the psychological impact this

would have on [T]. [Mother’s] explanation for the abrupt

end to the contact clearly evidenced her lack of consider-

ation for the [T]’s emotional and psychological well-being in

making this decision.

“5. [Grandmother] presented enough evidence, under

a clear and convincing standard, to rebut the presumption

afforded to a parent pursuant to ORS 109.119(2)(a).”

On appeal, mother disputes some of those findings.

In particular, to the extent that the first finding relates to

the statutory factor concerning whether intervenor “is or

recently has been” T’s “primary caretaker,” mother notes

that the court’s explicit finding that T had lived with grand-

mother for “months,” and its implicit finding that grand-

mother had recently been T’s “primary caretaker,” is not

supported by the record. In addition, mother posits that

grandmother failed to present evidence, much less clear and

convincing evidence, that circumstances detrimental to T

existed if relief was denied which, as case law establishes,

refers to circumstances that “pose a serious present risk

of psychological, emotional, or physical harm to [a] child.”

O’Donnell-Lamont and Lamont, 337 Or 86, 112-13, 91 P3d

721 (2004), cert den, 543 US 1050 (2005) (noting that the

presumption that a parent acts in the best interests of the

child would be almost meaningless if it could be overcome

by evidence of possible rather than actual risk). Mother also

argues that the court failed to adequately address whether

Cite as 324 Or App 568 (2023) 573

granting relief would substantially interfere with her

custodial relationship, and suggests that, to the extent the

court’s findings imply that mother’s limitation of and even-

tual cessation of contact between T and grandmother was

unreasonable, the record does not support such a finding.

In the absence of de novo review, we would “view

the evidence, including all permissible inferences, in the

light most favorable to the trial court’s conclusion.” Kennison

v. Dyke, 280 Or App 121, 122, 376 P3d 301 (2016). And, as

noted, under ORAP 5.40(8), we reserve de novo review for

“exceptional cases.” Before doing so, we require an appellant

to “identify with particularity the factual findings that the

appellant seeks to have the court find anew on the record

and [to] concisely state the reasons why the court should do

so.” ORAP 5.40(8)(b).

We conclude that mother has done so here. Factors

we consider in this context include, among others, whether

the trial court made express “demeanor-based credibility

findings,” whether “the trial court’s decision comports with

its express factual findings or with uncontroverted evidence

in the record” and whether the “finding(s) that the appel-

lant requests” this court to make are “important to the trial

court’s ruling” at issue on appeal. ORAP 5.40(8)(d).

As noted, mother has identified several respects

in which the trial court’s findings are inaccurate or fail to

address the relevant statutory criteria. In that regard, we

conclude that this case is similar to G. J. L. v. A. K. L., 244

Or App 523, 261 P3d 47, rev den, 351 Or 507 (2011). G. J. L.,

like the present case, concerned grandparent visitation.

There, the grandparents appealed an order denying their

petition for visitation and sought de novo review. See id. We

conducted de novo review, stating:

“The trial court’s factual findings are brief and do not

directly address most of the factors that, under ORS

109.119(4)(a), are central to our analysis. Despite differing

accounts from witnesses of some events, the court made

no explicit credibility findings, although it did note that

the witnesses were ‘respectful’ and ‘thoughtful.’ Under the

circumstances, we agree with grandparents that de novo

review is warranted, though we give considerable weight to

574 Pulley v. Herndon

the findings that were made by the trial court, which had

the opportunity to observe the witnesses.”

Id. at 525. Likewise, here, the trial court did not make

explicit credibility findings, and its findings did not directly

address some of the statutory factors concerning the rebut-

tal of the presumption that mother acted in T’s best interest.

Moreover, as noted above, mother has identified inaccuracies

in the court’s findings. See Turner and Muller, 237 Or App

192, 197-98, 238 P3d 1003 (2010), rev den, 350 Or 231 (2011)

(reviewing change-of-custody determination de novo where

the court made express factual findings but they were lim-

ited and did not mirror the relevant statutory factors).

In light of that standard of review, we set forth

the evidence in the record that we deem pertinent to the

analysis, noting where that evidence is essentially undis-

puted, where it is disputed, and where we are giving weight

to the trial court’s explicit or implicit findings in light of that

court’s ability to observe the witnesses. We begin with some

basic background.

Mother and father were not married but lived

together until they split up in late October 2017. T was two

and one-half years old at that time, and for six weeks after

the break-up, T resided with grandmother. In December

2017, the court entered a temporary custody order that

split parenting time between both parents, and T had over-

night visitations with grandmother during father’s parent-

ing time. However, in February 2018, father experienced

a mental health crisis during which he threatened to kill

both himself and T. After police intervention, the trial court

entered in March 2018 a temporary custody and parenting

time order pursuant to ORS 107.097(3), granting mother

custody. That order provided that father’s parenting time

would be “professionally supervised by Safety First or [a]

similar provider.”2

Both before and after the March 2018 order was

entered, mother facilitated visits between T and grand-

mother, including overnight visits, until September 2018.

2

When mother was eventually granted permanent custody, father stipulated

that his parenting time would be supervised.

Cite as 324 Or App 568 (2023) 575

Although the parties presented differing evidence about the

number of those visits, in light of the trial court’s explicit

and implicit findings, we find that those visits occurred on a

regular basis. And although the parties also presented dif-

ferent evidence about the extent to which grandmother and

mother cooperated with regard to T during this period, in

light of the trial court’s explicit and implicit findings, we

find that although mother and grandmother had interper-

sonal difficulties with each other, they did cooperate regard-

ing T’s visitations with grandmother, and grandmother pro-

vided support to enable mother to take classes related to an

eating disorder during the earlier part of this period. And

although T experienced trauma when mother and father

broke up and while T was with father during the February

2018 incident, thereafter, T was generally described as a

happy and playful child who had good, stable relationships

with both mother and grandmother, as well as with his

maternal grandmother with whom mother, T, and T’s half-

sibling lived.3

The situation changed in September 2018 when,

during one of T’s overnight visits with grandmother, grand-

mother allowed father to visit with T at her home without

supervision by Safety First or a similar provider. Mother

then informed grandmother that she would allow no more

overnight visitations. Over the next several months, how-

ever, mother and T did had visits—play dates—with grand-

mother at public venues, and T and grandmother communi-

cated through Facetime.

In early December 2018, grandmother petitioned

the court to order that she be allowed visitation with T. In

a supporting affidavit, grandmother averred that she had

been unaware that father was not to have contact with T

unless supervised by a professional supervisor and that she

had allowed such contact one time. She asserted that she

3

Much of the parties’ evidence at the hearing detailed interpersonal diffi-

culties that mother and grandmother have had. And indeed, much of their brief-

ing on appeal continues to focus on the details of their past disputes. We do not

describe most of those disputes as the details are ultimately not of much signif-

icance to our analysis. Suffice it to say that the disputes generally concerned

grandmother’s criticisms of mother’s parenting and what mother perceived as

grandmother’s interference with the family’s life.

576 Pulley v. Herndon

had a strong relationship with T and provided significant

physical and psychological support to him. She also averred

that because of her problematic relationship with father, the

only way for her to assure ongoing contact with T was to

seek visitation through the court.

During the January 2019 play date, mother, T, and

grandmother met at an indoor play park. At some point,

mother and grandmother had a disagreement about whether

T should be allowed to drink mother’s juice drink. After the

play date, grandmother contacted T’s pediatrician to tell her

that mother had an eating disorder and to express concern

that T was not receiving adequate nutrition and hydration.

Grandmother made a similar report to the Department of

Human Services (DHS), indicating that because she was a

nurse practitioner, she was mandated to report this as sus-

pected child neglect. T’s pediatrician shared with mother

what had happened, and thereafter, no visitations occurred

between T and grandmother between January 2019 and the

date of the hearing on grandmother’s petition in July 2019.

At the start of the hearing, grandmother’s counsel

explained in his opening statement that grandmother did

not expect to be able to see T during father’s supervised par-

enting time given their problematic relationship, and thus

wished to establish her own time with T. Counsel empha-

sized that grandmother and T had a very positive relation-

ship, that grandmother’s relationship with mother had until

recently been positive, and that mother’s resistance to visita-

tion related to mother’s own feelings rather than to T’s best

interest. Mother’s counsel in opening emphasized that under

ORS 109.119, as well as the United States Supreme Court’s

decision in Troxel v. Granville, 530 US 57, 120 S Ct 2054, 147

L Ed 2d 49 (2000), one of the key factors to be considered

was whether “circumstances detrimental to the child exist if

relief is denied” and asserted that that was not a factor that

grandmother’s evidence would be able to satisfy.

The only testimony at the hearing came from

grandmother and mother. Grandmother’s testimony was

generally consistent with the facts recounted above.4 She

4

We note that there was conflicting evidence regarding the unsupervised

visitation with father in September 2018. Grandmother initially indicated that

Cite as 324 Or App 568 (2023) 577

acknowledged that until the events in September 2018, she

had no concerns about the care that T was receiving from

mother. Mother testified that she had not worked outside

the home since 2013 and that her focus had been on par-

enting her two children and on her own physical and men-

tal health. She stated that she suffered from a chronic and

painful bowel disorder that had required surgery and had

led to a diagnosis of atypical anorexia, but that she was

doing well and had maintained her weight for over a year.

Mother also testified that her various disagreements with

grandmother had worsened throughout the summer of 2018,

and that in therapy she had begun to reevaluate her rela-

tionship with grandmother. She indicated that, during their

falling-out in September 2018, grandmother expressed a

significant amount of criticism of mother’s parenting of both

of her children. Mother testified that she felt it was in T’s

best interest to have a mother who was not in an unhealthy

relationship such as the one she had with grandmother, and

that she needed the break from grandmother to feel that she

was in control of what happened with her children because

grandmother had breached her trust.

According to mother, T was happy and healthy and

had met all of his childhood milestones on time or early.

She indicated that they lived in a stable environment with

T’s other grandmother, who was involved in the community.

She agreed that T had a strong relationship with grand-

mother and expressed that she had been hesitant to termi-

nate visitation with grandmother to avoid traumatizing T,

but had concluded that T was fine, and she noted that T

would go for weeks without even mentioning grandmother.

She agreed that she was sure that T missed grandmother

she was unaware that his visitation was required to be professionally supervised.

When asked on cross-examination if she had been aware that father was sup-

posed to have only professionally supervised visitation pursuant to court order,

she responded that she had agreed only to not leaving T alone with father. When

asked specifically about a message mother had sent her indicating that there was

a court order that “says professionally supervised only,” she acknowledged that

the message had been sent to her but indicated that she did not understand what

“professionally supervised” meant and that as a nurse practitioner, she probably

qualified as a professional supervisor. Given the trial court’s ultimate conclu-

sions in this case, we assume that the trial court implicitly found grandmother to

be credible and that she did not understand that father would be in violation of a

court order by visiting T on that occasion.

578 Pulley v. Herndon

but indicated that she believed that T was nonetheless con-

tent. She thought that it was important for T to be with her

to maintain and facilitate the relationship between him

and his disabled half-sibling who also resided with them.

She testified that she and the children had been participat-

ing in weekly family therapy since March 2018. On cross-

examination, when asked how termination of visits with

grandmother benefitted T, mother opined that it benefitted

T because it benefited herself by making her happier and

healthier, and what was best for her was best for the entire

family.

In closing, grandmother’s counsel reiterated the

position that mother’s actions reflected that she acted for

her own benefit and not for T’s benefit with respect to lim-

iting grandmother’s visitation. Counsel acknowledged that

grandmother “overstepped her bounds” in contacting T’s

pediatrician after the January 2019 disagreement, but

described the interpersonal problems as being between

grandmother and mother and opined that they should not

be a barrier to grandmother’s relationship with T.

Mother’s counsel in closing emphasized the factors

set forth in ORS 109.119, which required grandmother to

overcome the presumption with clear and convincing evi-

dence that mother does not act in T’s best interest. Counsel

maintained, as she had in opening argument, that grand-

mother had failed to adduce the required evidence that cir-

cumstances detrimental to T existed if relief was denied.

Father, who participated as a party pro se but did not tes-

tify at the hearing, supported grandmother’s petition and

expressed a belief that she offered a safe environment for T.

The court took the matter under advisement and,

as described above, ultimately made findings in support of

a conclusion that grandmother had demonstrated by clear

and convincing evidence that mother did not act in T’s best

interest. The court ordered visitation with grandmother on

alternating weekends and one overnight visit per month.

The present appeal followed.

As noted, mother’s arguments on appeal focus on

the trial court’s findings and how they relate to the various

factors outlined in ORS 109.119, with specific emphasis on

Cite as 324 Or App 568 (2023) 579

the lack of clear and convincing evidence that circumstances

detrimental to T exist if relief is denied. Grandmother’s

arguments on appeal emphasize the positive nature of her

relationship with T.

To reiterate, in this proceeding, it is undisputed that

grandmother has an ongoing personal relationship with T,

and thus the question before us is whether she demonstrated

by clear and convincing evidence that mother does not act in

T’s best interest. We emphasize at the outset that this deter-

mination is not made by a court simply reasoning whether

it is in a child’s best interest to have visitation with a per-

son with an ongoing personal relationship, then backtrack-

ing from that determination to conclude that the parent’s

decision to disallow that visitation therefore demonstrates

that the parent did not act in the child’s best interest. See,

e.g., Kennison, 280 Or App at 125 (Under ORS 109.119, “the

court shall grant visitation rights only if it first determines

that the legal parent is not acting in the child’s best interest.

Thus, the court must make findings to support that deter-

mination before analyzing whether visitation would be in

the best interest of the child.”). An understanding of why a

simple best-interest analysis does not work becomes clear

through examination of some of the history of ORS 109.119.

The legislature made significant amendments to

the statute in 2001 shortly after the Supreme Court’s deci-

sion in Troxel. Troxel, like this case, concerned grandpar-

ent visitation. The Troxel Court considered the due process

implications of a Washington statute under which a court

could grant visitation over the objection of a custodial par-

ent whenever it found that such “visitation may serve the

best interest of the child.” 530 US at 60. The plurality opin-

ion recognized the fundamental right of fit parents to make

decisions concerning “the care, custody, and control of their

children,” and concluded that the statute allowing a court

to grant visitation over parental objections whenever visita-

tion may serve the best interest of the child was unconsti-

tutional. Id. at 65-67. The plurality noted that the statute

“contain[ed] no requirement that a court accord the parent’s

decision any presumption of validity or any weight whatso-

ever” but instead “place[d] the best-interest determination

solely in the hands of the judge. Should the judge disagree

580 Pulley v. Herndon

with the parent’s estimation of the child’s best interests, the

judge’s view necessarily prevail[ed]” under the Washington

statute. Id. at 67.5

The Oregon legislature responded to Troxel by

amending ORS 109.119, and those amendments were dis-

cussed at length in O’Donnell-Lamont. In that case, the court

undertook de novo review of a trial court’s decision to award

custody of children to the grandparents, over the father’s

objection, and involved a different aspect of the statute—

that is, it involved grandparents who had established a

“child-parent relationship” with the children, and were

seeking custody rather than visitation, both of which dif-

fer from the standards under ORS 109.119 that are at issue

here.6 O’Donnell-Lamont, 337 Or at 89, 102-04. Nonetheless,

O’Donnell-Lamont has provided significant guidance in our

subsequent cases involving the statute at issue in this case.

In O’Donnell-Lamont, after examining the various

opinions in Troxel, the court concluded that “a majority of the

Court strongly indicated that the presumption in favor of a

parent’s decisions was not so strong that it could be overcome

only by a showing that the parent poses a risk of harm to the

child.” Id. at 101. In light of its conclusion that the legisla-

ture in amending ORS 109.119 was attempting to make the

statute align with Troxel, the court indicated that the stat-

utory presumption that a fit parent acts in the best interest

of a child “can be overcome without showing that a parent is

unable to care for the child or will harm the child.” Id. at 107.

It then discussed the rebuttal factors at issue in that case,

some of which are mirrored by those at issue in the present

5

The plurality in Troxel noted that there was no evidence that the custodial

parent was unfit, and that the trial court had presumed that it was “normally

in the best interest of the children to spend quality time with the grandparent”

absent evidence that the grandparents were going to adversely affect the chil-

dren. 530 US at 69. The plurality stated that due process required that the court

“accord at least some special weight to the parent’s own determination,” and that

“the Due Process Clause does not permit a State to infringe on the fundamental

right of parents to make child rearing decisions simply because a state judge

believes a ‘better’ decision could be made.” Id. at 70, 73.

6

In particular, several of the considerations at issue in custody cases do not

apply to visitation questions, and where the intervenor has established a child-

parent relationship with the child, the presumption that the parent acts in the

child’s best interest may be rebutted by a preponderance of the evidence rather

than by clear and convincing evidence.

Cite as 324 Or App 568 (2023) 581

case, and in particular, what was meant by “circumstances

detrimental to the child exist if relief is denied.” Id. at 112.

It noted that “ORS 109.119, by using the present tense of the

verb ‘exist,’ focuses on whether present circumstances cause

present detriment to the child.” Id. (emphases in original).

The court concluded that “ ‘circumstances detrimental to the

child’ ” as used in the statute “refers to circumstances that

pose a serious present risk of psychological, emotional, or

physical harm to a child.” Id. In concluding that the grand-

parents in that case had demonstrated that factor by a pre-

ponderance of the evidence, the court found, based in part on

expert testimony by a child psychologist, that the “father’s

lack of understanding of the children’s emotional and devel-

opmental needs, his difficulty in controlling his own anger,

and his lack of insight, considered together, pose a serious

risk of psychological or emotional harm to the children.”

Id. at 113. The court further noted that the father’s residen-

tial instability reflected not the necessities of life but that

“he wanted to leave behind problems or conflicts with other

people,” and that his moves “were [often] abrupt and under-

taken with minimal planning or consideration of the inter-

ests of the children.” Id. at 114.7

Our case law subsequent to O’Donnell-Lamont has

likewise addressed the statutory factor of whether “[c]ircum-

stances detrimental to the child exist if relief is denied.”

ORS 109.119(4)(a)(B); ORS 109.119(4)(b)(C). In particular,

the parallels between the present case and G. J. L., which

like this case involved grandparent visitation rather than

grandparent custody, are instructive. In that case, the child

7

The O’Donnell-Lamont court also discussed several other factors that are

similarly applicable in the present case—whether the grandparents were or had

recently been the primary caretaker, whether the father had consented to the

relationship between the grandparents and the children, and whether the father

had unreasonably denied or limited contact between the grandparents and the

children. 337 Or at 111, 115-16. There, the children had lived with the grand-

parents for a significant portion of their lives. Id. at 111. Regarding the factor

of whether the father had consented to the relationship between the grandpar-

ents and the children, the court found that he had, but concluded that no weight

should be accorded to this factor because it did “not indicate in any way that he

does not act in the best interests of the children.” Id. at 115-16. As for whether

the father had unreasonably limited or denied contact with the grandparents,

the court noted that the father had, in fact, left the state with the children “in

violation of a court order, in breach of his promise to the trial judge, and without

notice to [the] grandparents or the court.” Id. at 116.

582 Pulley v. Herndon

was removed from his parents’ home and placed in foster

care with the grandparents when he was 10 months old and

remained with his grandparents for 14 months. G. J. L., 244

Or App at 526-27. Some months after the parents regained

custody, they cut off contact with the grandparents, who

then sought visitation pursuant to ORS 109.119. Id. at 525-

26. The grandparents presented evidence, through their

testimony and that of daycare providers, that their rela-

tionship with the child was strong and that “being cut off

from them would be detrimental to him.” Id. at 528. The

mother, by contrast, believed that she should make all deci-

sions concerning the child’s welfare, that he needed time to

reconnect with her and the father, and that the focus should

be on their relationships with him, not the grandparents’

relationship with him. Id. The trial court denied visitation,

concluding that the presumption had not been rebutted by

a preponderance of the evidence,8 noting that the child was

developing normally and was bonded to his parents, and

although the grandparents had contributed significantly to

his positive development, a “significant[ly] unhealthy rela-

tionship” existed between the mother and the grandparents

that had a negative impact on the child. Id. at 528-29.

This court affirmed. First, we noted that although

the grandparents had been primary caretakers for the child

for 14 months, the mother had been the primary caretaker

for 16 months, including the six months prior to the hear-

ing, and thus accorded that factor little weight. Id. at 531.

Regarding whether the mother had fostered the relation-

ship between the grandparents and the child, we noted that

she had initially encouraged the child’s placement with the

grandparents and concluded that the grandparents had suf-

ficiently proved that factor. Id. at 533. Similarly, given the

evidence that the mother cut off visitation, we concluded

that the grandparents had established that she had unrea-

sonably denied or limited contact. Id. at 534.9 The primary

8

G. J. L., like O’Donnell-Lamont, involved a situation where the grandpar-

ents had established a child-parent relationship, and therefore the statutory pre-

sumption needed to be rebutted only by a preponderance of the evidence. Compare

G. J. L., 244 Or App at 530, with O’Donnell-Lamont, 337 Or at 109-10.

9

We also considered the extent to which the amount of visitation sought by

the grandparents—49 days per year—would interfere with the mother’s cus-

todial relationship. G. J. L., 244 Or App at 526, 533. Because that part of the

Cite as 324 Or App 568 (2023) 583

difficulty, though, was with the lack of evidence that the

child would “face a serious present risk of harm if [the

grandparents’] petition for visitation [wa]s denied.” Id. at

532. We stated:

“As the trial court found, [the child] is developing normally,

and mother and father are meeting his material and emo-

tional needs. On this record, it appears that [the child]

sometimes becomes upset when he leaves mother’s home

for grandparents’ home and when he leaves grandparents’

home for mother’s home, and it appears possible that, over

the long run, [the child] may suffer from losing relation-

ships. That evidence, however, does not establish the sort

of serious present risk of harm needed to prove detrimental

circumstances under ORS 109.119(4)(a)(B).”

Id. at 532-33. We therefore determined that the grandpar-

ents had not proven the “circumstances detrimental to the

child” factor. Id. at 533.

With those cases in mind, we return to the factors

set forth in ORS 109.119(4)(a) and the trial court’s findings.

Whether grandmother is or recently has been the

child’s primary caretaker. It is not clear precisely how the

trial court weighed this factor. It found that T had lived

with grandmother “for months as [T]’s parents were trying

to address marital difficulties.” The evidence was undis-

puted, however, that T lived with grandmother for six weeks

when mother and father first separated. During that six-

week period, grandmother could be said to have been the

primary caretaker. However, that had occurred over a year

and one-half before the hearing in this case. On this record,

it is clear that mother is and has been T’s primary caretaker

throughout the vast majority of his life. See, e.g., Strome and

Strome, 201 Or App 625, 634, 120 P3d 499, rev den, 339 Or

701 (2005) (evidence that the grandmother was primary

caretaker for four years was “offset by evidence that [the]

father was the primary caretaker in the 10 months prior to

the hearing”); G. J. L., 244 Or App at 531 (where the grand-

parent had been primary caretaker for 14 months, the court

afforded that little weight in light of the amount of time that

analysis has little relevance to the facts of the present case, we do not discuss it

further.

584 Pulley v. Herndon

the mother had been primary caretaker, including the six

months prior to the hearing). We conclude that grandmother

did not establish this rebuttal factor by clear and convincing

evidence.

Whether mother has fostered, encouraged, or con-

sented to the relationship between the child and grandmother.

The trial court explicitly found that mother “consented,

encouraged, and facilitated the ongoing relationship.” We

agree. In light of the trial court’s explicit finding and its

implicit credibility findings, we conclude that prior to

September 2018, mother fostered and consented to the rela-

tionship between T and grandmother, and in fact benefit-

ted from grandmother’s care of T to the extent that it freed

mother to pursue some of her own health-related goals.

Grandmother established this factor by clear and convinc-

ing evidence.

Whether granting relief would not substantially

interfere with the custodial relationship. The trial court did

not make any finding regarding this factor. Grandmother

points out that she is seeking only two visits per month, with

one being an overnight visit. Our case law has not addressed

consideration of this factor in any amount of detail, but we

conclude that it encompasses more than just the number of

days of visitation that a person seeks. It also should take

into consideration the extent to which an intervenor has

substantially interfered, or attempted to interfere, with the

custodial relationship in the past. Here, grandmother facil-

itated a visit between T and father that occurred in viola-

tion of a court order. Cf. O’Donnell-Lamont, 337 Or at 116

(considering the father’s violation of a court order in deter-

mining whether a parent had unreasonably denied contact).

Giving deference to the trial court’s implicit credibility find-

ing that grandmother facilitated this violation of a court

order unwittingly, we nonetheless conclude that it provides

at least some evidence of interference with the custodial

relationship. More importantly though, we find that grand-

mother’s actions in contacting T’s pediatrician to reveal per-

sonal health information about mother and to suggest that

mother was depriving T of food and drink—and making a

similar report to the DHS—demonstrated a willingness to

interfere in mother’s custodial relationship with T. Although

Cite as 324 Or App 568 (2023) 585

we note that grandmother’s counsel at the hearing admitted

that grandmother had “overstepped her bounds” by doing

so, that admission does not undermine the significance of

those actions. The record does not demonstrate, nor in fact

did grandmother endeavor to demonstrate, that mother has

actually deprived T of necessary sustenance or done any-

thing else that called into question her fitness to parent T.

Accordingly, we do not accord this factor any significant

weight in support of grandmother’s assertion that mother

does not act in T’s best interest.

Whether mother has unreasonably denied or lim-

ited contact between T and grandmother. The trial court

found that mother “abruptly ended contact” between T and

grandmother and did so in a manner that the court viewed

as unreasonable. As noted, mother asserts that that find-

ing is not supported by clear and convincing evidence. On

de novo review, we conclude that mother did not “abruptly”

end all contact. In September 2018, after father’s violation

of the court order by visiting T during T’s visit with grand-

mother, mother significantly limited grandmother’s contact

with T, but continued to allow contact through Facetime and

when mother was present. Mother did end all contact after

the January 2019 incident at the play park, but given the

circumstances—in particular, a disagreement about a juice

drink that resulted in grandmother’s subsequent contact

with T’s pediatrician and DHS to complain about mother—

a cessation of contact was, if not the only reasonable option

mother had, at least an understandable one. See Van Driesche

and Van Driesche, 194 Or App 475, 484-85, 95 P3d 262

(2004) (the mother did not unreasonably deny contact with

the stepfather because her denial “appear[ed] reasonable in

light of the acrimonious nature of the parties’ relationship

and [the] child’s exposure to that hostility”). We conclude

that grandmother did not prove by clear and convincing evi-

dence that mother’s limitation and subsequent cessation of

contact between T and grandmother was unreasonable.

Whether circumstances detrimental to the child exist

if relief is denied. This factor is perhaps the most nuanced

of all of the factors, as it can take into consideration a wide

variety of circumstances. The trial court found that when

mother terminated T’s visitations with grandmother, she

586 Pulley v. Herndon

did so “despite the psychological impact this would have on

T.” The court also found that mother’s “explanation for the

abrupt end to the contact clearly evidenced her lack of con-

sideration for [T]’s emotional and psychological well-being

in making this decision.” We understand the trial court’s

conclusion most likely to be based on mother’s testimony

that she terminated contact with grandmother for the ben-

efit of her own mental health, as well as mother’s related

testimony that she believed that what was best for her own

mental health was necessarily in T’s best interests. We fur-

ther note that there was ample evidence that mother was

aware that ceasing visitation with grandmother could be

traumatic for T, although she further testified that after the

visits ceased, she observed no signs of trauma and that T

would go for weeks without mentioning grandmother. From

that evidence, it is possible to conclude, as it appears the

trial court may have done, that mother has selfish tenden-

cies, has discounted the strength of the bond between T and

grandmother, and perhaps has an unhealthy belief that

what is best for her is best for everyone in the family. That

evidence falls far short, however, of being evidence that cir-

cumstances exist that pose “a serious present risk of psycho-

logical, emotional, or physical harm to a child.” O’Donnell-

Lamont, 337 Or at 112.

In O’Donnell-Lamont, the court relied on expert tes-

timony from a psychologist to conclude that a parent’s “lack

of understanding of the children’s emotional and develop-

mental needs, his difficulty in controlling his own anger, and

his lack of insight, considered together, pose a serious risk of

psychological or emotional harm to the children.” Id. at 113.

The O’Donnell-Lamont court also relied, among other evi-

dence in addition to the psychologist’s evidence, on evidence

that the father was unable to identify any potential short-

comings of himself or his partner (a drug user with anger

control problems who had lost custody of her own children),

and that his residential instability involved moves that were

“abrupt and undertaken with minimal planning or consid-

eration of the interests of the children.” Id. at 113-15.

Here, by contrast, the only testimony was from

mother and grandmother, both of whom generally described

T as a happy and well-adjusted child. Mother testified that

Cite as 324 Or App 568 (2023) 587

T has met all of his developmental milestones. Evidence was

presented that mother’s residence has been stable since she

gained full custody of T in March 2018, that she is undergo-

ing individual therapy, and that she and the children have

family therapy on a weekly basis. See G. J. L., 244 Or App at

532-33 (where the child was “developing normally” and the

parents were meeting his “material and emotional needs,”

the grandparents failed to establish a “serious present risk

of harm” if grandparent visitation was denied, even though

it “appears possible that, over the long run, [the child] may

suffer from losing relationships”); see also Van Driesche, 194

Or App at 484 (rejecting an argument that circumstances

detrimental to a child necessarily existed where a child

was separated from his stepfather, the only father-figure

the child had known, noting that the stepfather “presented

no expert testimony to support his view”). In the present

case, the trial court assumed, in the absence of any evi-

dence, expert or otherwise, that mother’s termination of

visitation with grandmother necessarily had a serious and

detrimental psychological impact on T. We cannot make

such an assumption in the absence of any evidence to that

effect, much less in the absence of any clear and convincing

evidence.

The factors set forth in ORS 109.119(4)(a) are not

exclusive, and neither the statute nor the case law con-

cerning it can provide a specific formula as to how much

weight to give any particular factor. Here, however, despite

the strong evidence—indeed uncontradicted evidence—that

grandmother has a good relationship with T and can provide

a stable environment during visits, she has failed to adduce

clear and convincing evidence that mother does not act in

T’s best interest, in light of the considerations set forth in

ORS 109.119(4)(a) as outlined above.

Reversed and remanded.