No. 305 May 8, 2024 519
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Dustin M. McGEEHAN,
aka Dustin M. Hill,
Petitioner,
v.
Misty CUNNINGHAM,
Respondent-Appellant,
and
Judy HILL,
Intervenor-Respondent.
Jackson County Circuit Court
14DR02694; A179522
David G. Hoppe, Judge.
Argued and submitted October 11, 2023.
Rachael A. Federico argued the cause for appellant. Also
on the brief was Legal Aid Services of Oregon.
No appearance by respondent.
Before Aoyagi, Presiding Judge, Joyce, Judge, and
Jacquot, Judge.
JOYCE, J.
Reversed.
520 McGeehan v. Cunningham
JOYCE, J.
Mother appeals from a supplemental judgment that
granted her child’s paternal grandmother visitation and the
right to travel internationally with the child.1 We reverse.
We begin by describing the statutory framework
that governs a trial court’s authority to grant visitation to, as
relevant here, a grandparent who has “an ongoing personal
relationship” with a child. ORS 109.119(1). ORS 109.119(2)
(a) begins by setting forth the “presumption that the legal
parent acts in the best interest of the child.” However, if a
court determines that that presumption has been rebutted
by clear and convincing evidence, a court “shall grant visitation” if doing so is in the best interest of the child. ORS
109.119(3)(b). These determinations are “not made by a
court simply reasoning whether it is in a child’s best interest
to have visitation with a person with an ongoing personal
relationship, then backtracking 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.” Pulley v. Herndon, 324 Or App 568,
579,
527 P3d 19 (2023). Instead, 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 determination before analyzing whether visitation would be in
the best interest of the child.” Kennison v. Dyke,
280 Or App
121, 125,
376 P3d 301 (2016).
To assist courts in making that determination, ORS
109.119(4)(a)(A) to (E) set out a list of non-exclusive factors
that the court may consider:
• The grandparent “is or recently has been the child’s primary caretaker”;
• “Circumstances detrimental to the child exist if relief
is denied”;
• “The legal parent has fostered, encouraged or consented to the relationship between the child” and the
grandparent;
1
Grandmother did not appear on appeal.
Cite as 332 Or App 519 (2024) 521
• “Granting relief would not substantially interfere with
the custodial relationship”; and
• “The legal parent has unreasonably denied or limited
contact between the child” and the grandparent.
Under the statute, then, at the first step of the
analysis, the court must “complete two related tasks: (1)
it must make findings of fact as to the evidence presented
and (2) it must determine whether those factual findings,
when viewed as a whole, constitute clear and convincing evidence that the presumption in favor of the legal parent was
rebutted.” Husk v. Adelman, 281 Or App 378, 382,
383 P3d
961 (2016) (citing ORS 109.119(2)(b), which requires a court
to make “findings of fact supporting the rebuttal of the presumption”). The focus “ ‘is not on whether one or more of the
statutory factors are present, but on whether the evidence
as a whole is sufficient to overcome the presumption that
the parent acts in the best interest of the child.’ ” G. J. L. v.
A. K. L.,
244 Or App 523, 530-31,
261 P3d 47, rev den,
351
Or 507 (2011) (quoting O’Donnell-Lamont and Lamont,
337
Or 86, 109,
91 P3d 721 (2004), cert den,
543 US 1050 (2005)
(footnote omitted)).
With that legal framework in mind, we turn to
the facts and the court’s ruling, mindful of the standard
of review governing these proceedings.2 We first examine
the trial court’s findings of fact and review for any evidence
supporting those findings. Husk, 281 Or App at 383. Then,
“we take the factual findings that are supported by the evidence and assess whether, based on those facts, the court
had a sufficient basis to conclude that the presumption was
rebutted by clear and convincing evidence.”
Id.
The child, C, is 14 years old. After C’s mother and
father separated, they litigated custody and parenting time.
Mother was granted custody of C, and father had visitation
rights. As relevant here, grandmother—while not a party to
that litigation—was permitted to visit with C, in lieu of C’s
father, if father was not available to visit. C’s father died in
2019. Shortly after his death, grandmother moved to intervene in the custody case. The trial court ordered temporary
2
Mother has not requested de novo review.
522 McGeehan v. Cunningham
visitation for grandmother and a custody and parenting
time evaluation.
Dr. Bourg conducted that evaluation. She concluded
that mother is “repeatedly acting in [C’s] best interest.” In
her view, “mother is a very good parent who overwhelmingly acts in [C’s] best interest,” and C was “happy, healthy
and well-adjusted” in mother’s care. Bourg also concluded
that grandmother could provide “high[ ] standards for educational support, broadening cultural exposure and higher
social standards” and could provide him with experiences
like flying and “adventuring.” Bourg observed that C valued his relationship with grandmother and was aware that
mother and grandmother had difficulties getting along. But,
despite that conflict, Bourg observed that C had been “a bit
immune, or kind of Teflon like to some of the negative stuff
he’s been exposed to.” C did not want a set visitation schedule with grandmother; rather, he wanted to visit her when it
was convenient for him and his family.
Bourg also concluded that mother unreasonably
restricted visits between grandmother and C; although
mother sometimes allowed visits, it was inconsistent. Both
mother and grandmother contributed to the negative relationship that they had, and Bourg did not believe that that
relationship dynamic would change. In her view, mother
was not able to make a “neutral decision” about C’s ongoing contact with grandmother. At the same time, Bourg did
not credit grandmother’s concern that mother was adversely
impacting C’s mental health. Bourg ultimately recommended that the court order visitation with grandmother.
The trial court concluded that grandmother had
rebutted the presumption that mother acts in C’s best interest. Its factual findings were limited. It noted, without elaboration, that grandmother “has never been the primary
caretaker of the child” and that “circumstances detrimental
to [C] exist if relief is denied.” It further concluded, again
without elaboration, that the relief that it granted would
not substantially interfere with a custodial relationship and
that mother had unreasonably denied contact between C and
grandmother. The court observed that C seemed “impervious
to the negative things” that the court had observed between
Cite as 332 Or App 519 (2024) 523
grandmother and mother and that he was a “well-adjusted,
mature young man.” Although it concluded that mother
“has been a fit parent and has taken care of” C, “[m]other
hates [g]randma and [g]randma hates [m]other and I have
no hope for that relationship going forward.” The court had
concerns about grandmother’s use of alcohol and Xanax and
concluded that it was in C’s best interest to receive training to recognize when grandmother was under the influence
of either. The court required mother to obtain a passport
for C to enable grandmother to travel internationally with
C. It then granted grandmother one weekend-long visit per
month and two one-week-long visits during summers.
On appeal, mother contends that no evidence in
the record supports the court’s findings that circumstances
detrimental to C existed were grandmother’s request for
visitation to be denied and that awarding grandmother visitation was not a substantial interference with mother’s custodial relationship. She further argues that the record as a
whole is legally insufficient to support the court’s conclusion
that grandmother had proven by clear and convincing evidence that grandmother had rebutted the presumption that
mother acts in C’s best interest.3
We begin with mother’s challenge to the court’s
determination that C would suffer detriment if the court
did not order visitation with grandmother. To show that circumstances detrimental to the child exist if relief is denied,
“ ‘the nonparent must demonstrate that the circumstances
of living with the legal parent pose a serious present risk
of psychological, emotional, or physical harm to the child.’ ”
G. J. L., 244 Or App at 532 (quoting O’Donnell-Lamont,
337
Or at 113); see also ORS 109.119(10)(b) (“ ‘Circumstances detrimental to the child’ includes but is not limited to circumstances that may cause psychological, emotional or physical harm to a child”). Evidence of harm that a child may
suffer from losing relationships with extended family does
not pose the sort of “serious present risk of harm needed
to prove detrimental circumstances,” particularly where a
child is otherwise developing normally and is having their
3
Mother does not contest the court’s finding that mother has unreasonably
denied or limited contact between grandmother and C.
524 McGeehan v. Cunningham
“material and emotional needs” met. G. J. L., 244 Or App at
532-33 (emphasis in original); see also Pulley,
324 Or App
at 587 (grandparent failed to show that circumstances were
seriously detrimental to child where the evidence showed
that the child was happy and well-adjusted, reaching developmental milestones, and mother was meeting his needs).
Cf. O’Donnell-Lamont,
337 Or at 113 (where a parent failed
to understand the children’s emotional and developmental needs, had difficulty controlling his anger, and lacked
insight into his shortcomings in parenting, all of which
created a serious risk of psychological or emotional harm,
grandparents had overcome presumption by preponderance
of evidence in custody dispute). Additionally, particularly in
light of a parent’s constitutional rights to direct the upbringing of their children, “the statutory presumption accords
parents significant freedom to make decisions on behalf of
their children, even when the wisdom of those decisions may
be arguable,” where the record does not contain evidence
that the child is experiencing “imminent” detriment. G. J.
L.,
244 Or App at 534.
Here, the record is devoid of evidence that C would
suffer detriment, i.e., that there was a serious present risk
of psychological, emotional, or physical harm to C if grandmother were not to have visitation. As the trial court found,
C is a “well-adjusted, mature young man,” and mother is a
very good parent. Those findings are consistent with Bourg’s
conclusions. Although the trial court concluded that mother
and grandmother “hate” each other, there is no evidence in
the record that, in the absence of a visitation order, their
contentious relationship presents a risk of harm of the kind
that ORS 109.119(4) requires; to the contrary, C seems to be
“impervious to the negative things.”
We also conclude that the trial court’s finding that
grandmother’s visitation would not substantially interfere
with mother’s custodial relationship is unsupported by the
evidence in the record. This factor includes both the number of visits and the extent to which there is evidence that
the party seeking visitation has substantially interfered,
or attempted to interfere, with the custodial relationship
in the past. Pulley, 324 Or App 584. The court granted
Cite as
332 Or App 519 (2024) 525
grandmother, against mother’s wishes, monthly weekend-long visitation, and two weeks of visits during the summer, including the ability to take C out of the country. See
G. J. L.,
244 Or App at 533 (granting 49 days of visitation
a year substantially interfered with parents’ custodial relationship with the child). It is difficult to view that as anything other than relief that substantially interferes with
mother’s custodial relationship with her son.
Thus, of the five nonexclusive factors that a court
may consider under ORS 109.119(4)(a), only one—that
mother has unreasonably limited contact between C and
his grandmother—weighs in grandmother’s favor. The trial
court did not find, and, as we have explained, the record
does not support, that mother’s decision to unreasonably
limit contact caused C detriment of the type relevant to the
legal issue before us. We appreciate that the factors are not
exclusive, and “neither the statute nor the case law concerning it can provide a specific formula as to how much
weight to give any particular factor.” Pulley, 324 Or App at
587. Ultimately, given all of the circumstances, including
that mother is a very good parent, grandmother has never
been C’s primary caretaker, and C will suffer no legally cognizable detriment in the absence of visitation, we conclude
that the trial court erred in ruling that grandmother had
adduced clear and convincing evidence that mother does not
act in C’s best interest.
Reversed.
