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Botofan-Miller v. Miller
Citations: 446 P.3d 1280; 365 Or. 504Docket: CC C104720DRA (SC S065723)
Court: Oregon Supreme Court; August 15, 2019; Oregon; State Supreme Court
A child custody dispute arose from the father's motion to modify a previous custody determination that granted the mother sole legal custody. The trial court found a material change in circumstances regarding the mother's parenting ability and concluded that it was in the child's best interest to award sole legal custody to the father. Upon the mother's appeal, the Court of Appeals reversed this decision, stating there was insufficient evidence to support a change in circumstances, thereby denying the custody modification. The higher court reviewed the case and determined that there was indeed sufficient evidence supporting the trial court's finding of a change in circumstances. Additionally, the court addressed the Court of Appeals' lack of review regarding whether the change in custody was in the child's best interest, ultimately holding that the trial court did not err in this regard. Therefore, the decision of the Court of Appeals was reversed. The standard of review for such cases has shifted from de novo to discretionary since a 2009 legislative amendment, allowing appellate courts to uphold trial court findings if any evidence supports them. The facts of the case indicate that the parties married in April 2009, had a child in June 2009, and separated in October 2010, with the child primarily living with the mother initially, later spending about one-third of her time with the father beginning in February 2011. During the dissolution proceedings, indications arose regarding the mother's mental health issues, including her reports to police in 2010 accusing the father of physical abuse, which the trial court deemed unfounded. In February 2011, the mother took the child to the emergency room, claiming poisoning by the father; however, a DHS report found her delusional with no evidence supporting her claims. Following hospitalization and treatment with antipsychotic medications, medical professionals concluded she did not suffer from a psychotic illness. Despite these incidents, the father perceived the mother and child’s relationship as healthy and did not contest her request for legal custody. Consequently, the trial court awarded the mother sole legal custody, granted the father parenting time including overnight visits, and mandated a vaccination schedule from an agreed pediatrician. The marriage was dissolved in July 2011, when the child was approximately two years old. The father discovered that the mother had not followed the recommended immunization schedule and expressed concerns about her resistance to vaccinations during a February 2011 hearing. The court subsequently ordered both parents to adhere to the pediatrician's health care recommendations. A limited judgment in April 2011 identified a significant gap in the child's health care, ordering compliance with the pediatrician's directions regarding vaccinations. Following the limited judgment, the father filed an affidavit expressing doubts about the child's vaccination status, while the mother contested his claims, citing financial difficulties in maintaining health insurance but asserting she had tried to keep the child up to date on vaccinations. After expressing discomfort with the initial pediatrician due to perceived bias, the mother began taking the child to another doctor, Dr. Thomas, and claimed the child was current with the vaccination schedule by April 2011. In July 2011, the court awarded the mother legal custody and sole medical decision-making authority but required her to consult with the child's pediatrician about vaccination schedules, reflecting ongoing concerns about her resistance. Following the dissolution, the father observed changes in the mother's parenting capabilities, prompting him to seek a custody modification due to her increasing anxieties affecting the child's wellbeing. Father expressed growing concern over mother's capacity to make appropriate medical decisions for their child following the onset of an eye condition in 2013, which led to double vision. In February 2014, the child's ophthalmologist, Dr. Wheeler, recommended surgery, warning that delaying it could result in permanent vision issues. Despite this, mother resisted scheduling the surgery and sought alternative opinions online, consulting another ophthalmologist, Dr. Karr, who also advocated for surgery. Mother ultimately agreed to the procedure only after father threatened to seek a custody modification. The surgery, performed in December 2014, was successful, alleviating the child's vision problems, but prolonged delays led to balance and coordination issues, stomach aches, and academic and social challenges, all of which resolved post-surgery. After the dissolution of their marriage, father discovered that mother had not complied with court orders regarding the child's immunizations, failing to vaccinate her for two years despite assurances to the contrary. Additionally, mother frequently changed medical providers, neglected dental care, and did not ensure regular check-ups or treatments. The child also exhibited severe emotional problems in mother's presence, resulting in behavioral issues. Mother sought treatment at the Morrison Center from March 2012 to August 2014, but often missed appointments and failed to engage with the staff's recommendations. Staff noted an attachment issue between mother and child, and mother largely blamed father's parenting for the child's difficulties rather than reflecting on her own behavior. By kindergarten, mother struggled to ensure the child arrived at school on time, leading to frequent tardiness. In October 2014, father filed a motion to modify custody, seeking medical decision-making authority due to mother's inadequate management of the child's medical needs in vision care, dental care, vaccinations, and communication with healthcare providers. He later amended the motion to request full legal custody. The court appointed Dr. Sabin as a neutral custody evaluator to assess custody and parenting time. Dr. Sabin concluded that custody should be awarded to the father, primarily based on her findings regarding the mother's "anxious attachment" parenting style. This style hindered the mother's ability to foster the child's independence and emotional regulation, leading to prolonged tantrums that were particularly severe in the mother's presence. The mother struggled to set limits, such as enforcing dental hygiene, and exhibited mistrust towards medical professionals, as evidenced by her refusal to follow a court order for vaccinations. Sabin noted that the mother's anxiety about separation affected her perception of the child's time with the father, contributing to her belief that the child was spending too much time away from her. In her evaluation, Sabin focused on the factors outlined in ORS 107.137 for determining custody in the child's best interest. She identified three relevant factors that favored transferring custody to the father, particularly highlighting the mother's inability to separate her emotional needs from the child's needs. Sabin predicted that the mother's parenting style would increasingly obstruct the child's development of a healthy independent identity over time. The analysis indicates a looming deterioration in the mother's ability to make competent medical decisions without court oversight, as highlighted by concerns regarding her mental health and inconsistent communication. The mother’s history of childhood abuse and her anxious attachment parenting style contribute to her difficulties. In contrast, the father has not exhibited similar parenting issues. The mother’s resistance to allowing significant parenting time for the father further supports a shift in custody. Testimony from an expert, Dr. Poppleton, countered Sabin's assessment, claiming the mother was capable of meeting the child's medical needs and disputed the link between her past abuse and her parenting style. However, the modification court ruled that a substantial change in circumstances warranted a custody change, awarding legal custody to the father. The court noted that the child's medical needs, including necessary surgery, were better addressed through the father's intervention, and expressed concerns about the mother's compliance with vaccination schedules and attendance at therapy sessions. The court ultimately dismissed Dr. Poppleton's conclusions about the mother's parenting style, affirming Sabin’s findings. The court affirmed Dr. Sabin's opinion, grounded in her extensive experience as a pediatrician and psychologist, regarding the care of the child by both parents. The father's attorney requested specific findings of changed circumstances, to which the court noted that at the time of the divorce, no significant issues existed concerning the child's educational or medical care, and the mother managed day-to-day responsibilities effectively. However, over the past four years, as the mother became the primary caretaker, challenges emerged, particularly in implementing a court-ordered vaccination and medical treatment plan. Although there were no reported illnesses due to these delays, the court highlighted concerns about a surgical decision affecting the child's first half of kindergarten. The court observed that the mother struggled with communication and cooperation with healthcare providers, particularly at the pediatric and ophthalmological levels, and had multiple tardies and no-shows at the Morrison Center and kindergarten. There was a noted absence of similar behavioral issues reported by the father. The court expressed concern that as the child ages and her care becomes more complex, these issues may worsen, aligning with Dr. Sabin’s predictions. While the court did not explicitly state that modifying custody was in the child's best interest or reference the statutory best-interest factors, it later confirmed in a written judgment that the circumstances warranted a custody modification to the father, while allowing the mother parenting time. The supplemental judgment reiterated that significant changes in circumstances had occurred since the last judgment, particularly noting the absence of educational concerns and scheduling issues at the time of divorce. The mother did not object to any part of the supplemental judgment. Mother, the custodial parent, has faced challenges in adhering to the vaccination schedule mandated by the court, coordinating with the child's healthcare providers, and maintaining timely attendance for counseling and school. In contrast, Father has not reported similar behavioral issues regarding the child. The court agrees with Dr. Charlene Sabin's concerns that these issues may worsen as the child ages and her care becomes more complex. Consequently, the court determined that it is in the child's best interests for Father to be awarded custody, while also granting Mother parenting time. Mother appealed this decision to the Court of Appeals, which reversed the modification court's ruling. The Court of Appeals highlighted that the burden of proof for a change in custody lies with the parent requesting the modification, and that changes in circumstances must not have been known or considered during the initial custody determination. The court found that many issues identified by the modification court were already known to Father and the trial court at the time of the original custody decision and thus could not be used as grounds for modification. Additionally, the court ruled that normal developmental changes do not constitute unanticipated changes warranting custody modification. The Court of Appeals concluded that Father failed to demonstrate a change of circumstances justifying a custody change, noting that Mother's difficulties with the vaccination schedule were evident prior to the divorce and did not adversely affect the child, who was fully vaccinated by the time of the modification hearing. Furthermore, although the child's eye condition emerged post-dissolution, Mother's struggles with her healthcare decisions were consistent with her previous behavior regarding vaccinations, indicating that these issues were not new developments. The court determined that the behaviors in question did not indicate a change in circumstances warranting custody modification. Specifically, the mother's tardiness to counseling sessions and struggles to deliver the child to school were deemed insufficient as they did not adversely affect the child. Although the child faced academic and social struggles in kindergarten, these were attributed to the mother's decision to postpone necessary eye surgery, not the child's tardiness. The court also found that behavioral issues exhibited by the child in the mother's care did not arise from any change in the mother's parenting abilities, but rather from typical developmental changes and the mother's anxious attachment style, which was present prior to the custody arrangement. The court noted that the mother's anxious attachment and related behaviors were evident before the original custody order and thus could not constitute a new circumstance. Consequently, the Court of Appeals ruled that the factors considered—mother's tardiness for counseling, difficulties delivering the child to school, and the child's behavioral issues—did not collectively meet the legal threshold for a change in custody. As a result, the court did not evaluate whether a custody change would be in the child's best interest. A parent seeking a custody modification must prove two key elements: (1) a change in circumstances affecting the ability of the moving party or the legal custodian to care for the child since the last custody order, and (2) that this change supports the best interests of the child for a custody transfer. The Court of Appeals found that the modification court erred in determining that the father proved a sufficient change in circumstances. However, the higher court concluded that the appellate court's interpretation of relevant evidence was overly restrictive. Evidence of detrimental circumstances for the child should not be disregarded, even if some concerning traits of the mother were apparent at the time of the original custody decision. A 'material' change is defined as one adversely affecting the child's welfare. New developments can justify custody changes if they negatively impact the child or the custodial parent's ability to care for the child. The noncustodial parent cannot rely on known facts from the original custody proceeding for a modification claim, as those facts are considered settled (res judicata). Nevertheless, the modification court may consider both new facts and previously established circumstances in its decision. Changes that adversely influence the custodial parent's behavior or the child's emotional health can also be grounds for modification. Importantly, there is no fixed standard for what constitutes a sufficient change; it varies case by case. The reviewing court affirms the modification court's findings if there is any evidence supporting its decision, viewed in the light most favorable to that decision. The modification court found that there had been a significant change in circumstances justifying a change in custody from mother to father. Initially, at the time of the dissolution, the child was very young, and there were no serious concerns regarding mother's ability to care for her. However, over the four years following the dissolution, a material change occurred in mother's medical decision-making abilities. Evidence showed that while the child was up-to-date on vaccinations and had no eye condition at the time of dissolution, mother's subsequent struggles with medical decisions led to delays in necessary care that adversely affected the child's academic and social development. Additionally, although mother experienced anxiety related to father's increased parenting time, it did not negatively impact the child before the dissolution. The child thrived during that period, and there was no evidence suggesting that mother's anxiety indicated an unhealthy attachment style at that time. The Court of Appeals noted that the child's behavioral issues, which worsened post-dissolution, were normal developmental changes exacerbated by mother's anxious attachment, which the court had not previously considered sufficient to warrant a change in circumstances. However, the modification court was justified in recognizing that mother's anxious attachment style had increasingly detrimental effects on the child’s well-being, particularly as these effects became pronounced with the child's normal development. The modification court took into account the evolution of mother's parenting style and its harmful implications for the child's welfare, concluding that the previously existing issues had become injurious over time. Thus, the court was not bound to overlook these detrimental circumstances simply because they had origins at the time of the dissolution. The Court of Appeals erred by dismissing the mother's refusal to vaccinate against a court order, her prolonged medical decision-making regarding the child's eye condition, and the negative impact of her anxious parenting style as insufficient to support the modification court's finding of a change in circumstances. The Appeals Court overlooked the modification court's acknowledgment that these behaviors stemmed from the mother's inability to separate her emotions from the child's needs, which Sabin identified as detrimental to the child's welfare. The modification court found that the mother's parenting abilities had materially deteriorated since the dissolution, justifying a change in custody if the noncustodial parent can demonstrate that previously non-harmful circumstances have worsened to potentially harm the child. The modification court also determined that the mother's inclination and ability to care for the child had significantly declined, adversely affecting the child. The mother claimed the modification court failed to analyze the statutory best interest factors under ORS 107.137, arguing that this omission invalidated the custody modification. However, she did not preserve this argument at the modification court, as she did not request findings regarding those factors during proceedings. The modification court had asked for clarification on its ruling but did not receive requests for additional findings. Lastly, the modification court awarded attorney fees to the father, which the Court of Appeals later reversed under ORS 20.220(3)(a). If the appellate court reverses a judgment, any award of attorney fees or costs will also be reversed. Following the ruling that reversed the Court of Appeals' decision and affirmed the modification court's custody determination in favor of the father, the appellate court also reversed the Court of Appeals' decision regarding attorney fees. The circuit court's judgment is affirmed. The trial court from the original dissolution is referred to as the "trial court," and the modification court is referred to as the "modification court." Custody modification requires a two-step inquiry: first, assessing whether there are changed circumstances affecting either parent's capability to care for the child; second, determining if the modification serves the child's best interests. In this case, the modification court found that the child had strong emotional ties with both parents and did not indicate potential relationship discontinuation or evidence of abuse by the father. The Court of Appeals had reversed the trial court's custody award to the father, which also led to the reversal of the trial court's order mandating the mother to pay the father's attorney fees. The appellate court reviews custody changes for abuse of discretion, not conducting a de novo review. Evidence of the mother's difficulties in making medical decisions is relevant to the change-in-circumstances analysis but does not conflict with prior rulings. Unlike the Boldt case, where medical decisions were solely custodial authority, the mother in this case lacked full authority over vaccinations, which the court mandated. The evidence indicated that the mother's issues with medical decision-making were symptomatic of an anxious parenting style affecting the child's well-being. Thus, the custody modification was justified based on the mother's ability to care for the child, not merely the father's concerns about her medical decisions. The appellate court declined to perform a de novo review of the modification court's ruling.