Gjl v. Akl

261 P.3d 47, 244 Or. App. 523
CourtCourt of Appeals of Oregon
DecidedJuly 27, 2011
Docket080766876 A143417
StatusPublished

This text of 261 P.3d 47 (Gjl v. Akl) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gjl v. Akl, 261 P.3d 47, 244 Or. App. 523 (Or. Ct. App. 2011).

Opinion

261 P.3d 47 (2011)
244 Or. App. 523

G.J.L., aka G.J.L.; and B. G., Petitioners-Appellants,
v.
A.K.L. and Oregon Department of Human Services, Respondents below, and
C.A.S., Respondent-Respondent.

080766876; A143417.

Court of Appeals of Oregon.

Argued and Submitted July 2, 2010.
Decided July 27, 2011.

Mark Kramer, Portland, argued the cause for appellants. With him on the brief was Kramer & Associates.

No appearance for respondent C.A.S.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and LANDAU, Judge pro tempore.

ORTEGA, P.J.

Petitioners G.J.L. and B.G. (grandparents) appeal from a judgment denying their petition for court-ordered visitation with their grandson, A.L. A.L.'s father (grandfather's son and grandmother's stepson) failed to appear below, but A.L.'s mother appeared and opposed the petition, though mother does not appear on appeal. Grandparents request de novo review pursuant to ORAP 5.40(8)(d).[1] 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, *48 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 the findings that were made by the trial court, which had the opportunity to observe the witnesses. See Turner and Muller, 237 Or.App. 192, 197-98, 238 P.3d 1003 (2010), rev. den., 350 Or. 231, 253 P.3d 1080 (2011) (reviewing de novo where the trial court's express findings were limited and did not mirror the statutory factors and the appellate court could not discern how implied findings may have affected the trial court's ultimate determination); see also O'Donnell-Lamont and Lamont, 337 Or. 86, 89, 91 P.3d 721 (2004), cert. den., 543 U.S. 1050, 125 S.Ct. 867, 160 L.Ed.2d 770 (2005) (noting that the trial court's findings are entitled to considerable weight). Because, on balance, grandparents have not rebutted the presumption under ORS 109.119(4)(a) that mother acts in A.L.'s best interests, we affirm.

A.L. was born in December 2006. When he was an infant, mother and father took A.L. to visit grandparents and other family members in grandparents' home, and those visits were positive. In 2007, when A.L. was 10 months old, the Department of Human Services (DHS) removed A.L. from mother and father's home after mother and father became assaultive while police were executing a search warrant at their home. Shortly afterward, grandparents were certified as foster parents, and DHS placed A.L. with them at the parents' request.

At first, mother and father frequently visited A.L. in grandparents' home, but an argument about the type of formula being provided to A.L. soon led to the cessation of those visits. Since that time, mother and father have cut off communication with grandparents, rejecting grandparents' offers to participate in mediation or counseling. Mother and grandparents also had disputes about cutting A.L.'s hair, which has cultural significance for mother.

A.L. formed a positive relationship with grandparents while he was in their care, and he has good relationships with family members who saw him in grandparents' home. According to grandparents, however, mother and father stated that, after they regained custody of A.L., grandparents would never see him again. Accordingly, in July 2008, grandparents filed a petition seeking visitation every other week, alternating between 24-hour and 48-hour visits, as well as one week in the summer and additional 24-hour visits within one or two weeks of Christmas, Easter, and A.L.'s birthday—a total of approximately 49 days per year. Grandparents also sought the right to contact A.L., including by phone and e-mail, and an order restraining both mother and grandparents from moving more than 60 miles further from the other without 60 days' notice to the other party and the court.

Pursuant to ORS 419B.806, this case was consolidated with the juvenile court case,[2] after which the petition for visitation was stayed. A.L. returned to his parents' physical custody in January 2009, after about 14 months in grandparents' care, and mother testified that A.L. is happy and healthy at home. Grandparents were upset with what they saw as an abrupt transition from their care, and they asked for more time for the transition. Mother, for her part, was upset because she felt that grandparents had tried to delay A.L.'s return to her.

The juvenile court's wardship of A.L. continued apparently until fall 2009. As provided by court order, A.L. had one 24-hour visit with grandparents every two weeks, and *49 those visits went well. The stay on grandparents' visitation petition was lifted in June 2009, about six months after A.L. returned to his parents. The hearing on the petition was held during the two months following entry of the order lifting the stay.[3]

According to grandparents, A.L. enjoys his visits with them and sometimes expresses a desire not to leave at the end of visits. Mother, on the other hand, testified that A.L. is happy to be home with his parents and becomes upset when he has to leave to visit his grandparents. Grandmother testified that she thinks "the transition, both ways, * * * is hard for him."

Although grandparents initially alleged that mother and father have a history of drug use and had engaged in violent behavior in front of A.L., there was no evidence that any such behavior continued at the time of the hearing. Rather, grandparents' present concern is that A.L. will suffer from losing his relationship with them and other family members. Two witnesses—A.L.'s daycare teacher and grandparents' neighbor, who is experienced in prekindergarten education and volunteers at A.L.'s daycare—testified to their belief that A.L. has strong relationships with both grandparents and that being cut off from them would be detrimental to him.

Mother, on the other hand, expressed concern about visitation occurring at this time. Although part of mother's motivation is her feeling that she should make all decisions regarding A.L.'s welfare, she also expressed a belief that A.L. needs time to reconnect with mother and father and with mother's family. In her view, it is in A.L.'s best interest to focus on "feeling stable in our home. I mean, we lost a lot of time with our son, that—that shouldn't have happened, and you need to let our family become whole, and a family unit, again. I think that's the focus, is on our family, and not [grandparents]." According to mother, A.L. needs to feel secure that he will not be removed from the parental home; she observes that having to leave for visits is upsetting and detrimental to him.

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G. J. L. v. A. K. L.
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Bluebook (online)
261 P.3d 47, 244 Or. App. 523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gjl-v-akl-orctapp-2011.