Harris v. Burns

904 P.2d 648, 137 Or. App. 355, 1995 Ore. App. LEXIS 1467
CourtCourt of Appeals of Oregon
DecidedOctober 25, 1995
Docket93-4149-F-0(1); CA A84821
StatusPublished
Cited by3 cases

This text of 904 P.2d 648 (Harris v. Burns) 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
Harris v. Burns, 904 P.2d 648, 137 Or. App. 355, 1995 Ore. App. LEXIS 1467 (Or. Ct. App. 1995).

Opinions

[357]*357DEITS, J.

This is an appeal from a judgment declaring paternity, but denying father and his family any contact with the child. ORS 109.125. We review de novo, ORS 109.135, and affirm.

Father is serving a sentence of life imprisonment without the possibility of parole for murder, rape, and sexual abuse. The petition in this case requests the establishment of his paternity of the child and supervised visitation with the child arranged either through mother or the child’s paternal grandmother. In her answer, mother admitted father’s paternity, but requested that father have no visitation with the child. At hearing, father’s attorney told the trial court that father’s requested relief was that mother furnish him her address so that he could send presents and correspondence to the child, and so that father’s mother could “effect visitation” with the child. We treat father’s petition as having been effectively amended by his counsel’s statements regarding the relief that he was requesting for himself.

Mother testified that she had been continually harassed by father and his family. Concerning father’s conduct, mother testified on direct examination:

“Q. Okay. And what did, did [father] tell you something about what he would do if he didn’t get any visitation?
“A. Yes. He wrote me several letters, and I’m sorry, I don’t have them, I threw them away, and called me and talked to me on the phone several times and said that one way or another he will do anything in his power to get his son if I do not take him up to prison to visit. That he once threatened her that he would do anything in his power to get his son if [mother did] not take him up to the prison to visit.”

On cross-examination, mother testified that the child had visited father in the county jail, and that she had visited with him in the county jail also. Her contact with father stopped when “he started a relationship with his new wife.” Then she said:

“Q. And that [father] has told you that one way or another, he was going to get the child if you didn’t allow visitation?
“A. That’s true, too.
[358]*358“Q. Did he tell you this from prison?
“A. No, he told me this from the County Jail.
“Q. So this was before he was sentenced?
“A. Correct.
“Q. Have you had any contact from him after he’s been sentenced?
“A. No, I haven’t.
“Q. So the whole time that he’s been in the prison, you’ve had no contact from him?
“A. I have received one letter at my old address.”

The paternal grandmother has accused mother of committing the murder for which father was convicted. Mother also testified that father’s nephew pounded on her door in the middle of the night, and that other family members “drove up and down my road and called me names, followed me, harassed me.” As a result, mother moved and apparently her present residence is unknown to father and his family.

After hearing the testimony, the trial court ruled:

“We, of course, must view this as a matter of visitation. While Counsel wants to speak only in terms of a limited nature of visitation, we still view it as a visitation hearing. We do not focus on the rights and interests of the parents and family so much. The issue in these proceedings is what is in the best interests of the child. And in evaluating what’s in the best interest of the child we have to think in terms of what impact upon the child the alternative courses of action might result in.
“[Father’s] guilty of rape, sexual abuse, and murder.
“So what would be the impact of allowing visitation upon the child? Looking to the further aspect of that, what would be the impact on this child of growing up being exposed to that situation, and being reminded through life that this is his origin? I think it almost goes without saying that it would be devastating to the child. I don’t think there’s any way that we can say it would be in his best interest, but I think it can almost automatically [be] said that it would be horrendously against this child’s best interest to grow up with that.
[359]*359“So when we look at what’s the best interest of this child I think we have to conclude that absolute cessation of visitation from [father] or any members of his family are the only thing that could be in the best interest of this child so that this child has the chance to grow up with a normal, healthy mental attitude towards life, parents, and that sort of thing.
“I accordingly order that there be [no] visitation between [father] and the child, direct or indirect, gifts, letters, correspondence of any sort, and also from the members of his family.”

Father argues that under ORS 109.094,1 he is entitled to the same rights as a father who is or was married to the mother of the child, and that such rights include the noncustodial parent’s right to visitation. Although father is correct that he has the same rights as if he were married to the mother, as we said in DeSantis and DeSantis, 109 Or App 76, 79, 817 P2d 769 (1991):

“A non-custodial parent’s right to visitation is not absolute. A primary concern is the best interests of the child. Although [the court is required] to recognize the value of parental contact, the child’s welfare must be accorded greater weight in the balance.” (Citation omitted; emphasis supplied.)

In assessing what is in child’s best interests here, father’s incarceration is, of course, a significant consideration. However, we have held that a parent’s incarceration does not invariably require that visitation be denied. As we explained in our decision in State ex rel Juv. v. Clampitt/Hale, 18 Or App 12, 16, 523 P2d 594 (1974), “Each case must be decided on its own merits and not on the basis of a policy not to allow children to visit their parents at the penitentiary.” We did not hold in ClampittIHale, however, that incarceration can never be a prominent or even the decisive reason for denying all visitation where the particular circumstances make that the appropriate disposition. In fact, in a case decided after Clampitt/Hale, State ex rel Juv. Dept. v. Newman, 49 Or App 221, 227 n 4,619 P2d 901 (1980), rev den [360]*360290 Or 449 (1981), we rejected the father’s argument that 1 ‘incarceration alone cannot be sufficient to warrant termination of parental rights.” (Emphasis supplied.)

In a case such as this, little direct information is available as to the impact of father’s contact with child, because father has been incarcerated for most of child’s life. What we do know is that father is serving a life sentence without parole for a violent crime.

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Related

Strand v. Garvin
492 P.3d 1266 (Court of Appeals of Oregon, 2021)
In re the Marriage of Stewart
302 P.3d 818 (Court of Appeals of Oregon, 2013)
Harris v. Burns
904 P.2d 648 (Court of Appeals of Oregon, 1995)

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Bluebook (online)
904 P.2d 648, 137 Or. App. 355, 1995 Ore. App. LEXIS 1467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-burns-orctapp-1995.