ORTEGA, J.
Parents appeal from an order denying their request for modification of a judgment awarding substantial visitation to paternal grandparents. Because the trial court determined that there was no substantial change in circumstances to require modification of the original judgment, it did not address the children’s best interests. We review
de novo,
ORS 19.415(3) (2001),
and reverse, concluding that the best interests of the children require termination of the visitation.
We begin with a review of the history of this proceeding, which provides the context for our decision regarding modification. This proceeding involves the three oldest of parents’ four children — their daughter, C, who was born in July 1995, and their two sons, T and M, who were born in April 1997 and October 1998, respectively.
Grandparents’ original petition for visitation was heard in April 2001, when C was almost six years old and T and M were ages four and two. Grandmother apparently sought visitation under
former
ORS 119.121 (1999),
repealed by
Or Laws 2001, ch 873, § 2.
Because grandfather is father’s stepparent, he apparently sought visitation under ORS 109.119 (1999).
Grandparents
sought weekly eight-hour visits and one overnight visit per month, claiming that they had been regular caretakers of the children and had developed emotional ties with them. They contended that parents had begun denying visits after grandparents became critical of their efforts at parenting. Apparently, on more than one occasion, grandparents had called the sheriff and lodged complaints with the State Office for Services to Children and Families (SCF) — now known as Department of Human Services (DHS) — regarding concerns that parents were mistreating the children. Grandparents claimed that parents slapped the children in the face and pulled their hair, used profanity around them, and locked C in her room when she misbehaved.
Parents admitted to spanking the children but denied slapping them in the face or pulling their hair, and mother explained that she had locked C in her room, in accordance with advice from parenting tapes, when C’s behavior was out of control. Parents noted the lack of any evidence of abuse (particularly given the regularity with which grandparents photographed the children), and the record indicates that DHS never took custody of the children despite investigating parents at grandparents’ behest. Parents claimed that grandparents undermined them (particularly mother) as parents, including in front of the children, and that C was often defiant and difficult to manage after spending time with grandparents. Parents disputed the extent of grandparents’ past contact with the children and contended that they had not denied visits but had merely insisted that any visits must occur in father’s presence.
Grandparents’ petition was heard several months after the United States Supreme Court’s decision in
Troxel v. Granville,
530 US 57, 66, 120 S Ct 2054, 147 L Ed 2d 49 (2000), in which a majority of the justices agreed that the Due Process Clause of the Fourteenth Amendment to the United States Constitution protects “the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” The same justices agreed that, under the circumstances of that case, the state court’s decision to
override the parent’s reasonable choice to limit grandparent visitation merely because that visitation was found to be “in the best interest of the children” impermissibly infringed on that fundamental right.
Id.
at 67-69. We addressed the impact of
Troxel
in
Harrington v. Daum,
172 Or App 188, 198, 18 P3d 456 (2001) — also decided before the hearing on grandparents’ petition — explaining that
“Troxel
now establishes that the court must give significant weight to a fit custodial parent’s decision” regarding visitation and that a parent’s right to make decisions concerning the child’s upbringing is “a supervening right that both affects the determination of whether visitation is appropriate and prevents the application of solely a best interests of the child’ analysis.”
Although the trial court in the hearing on grandparents’ original petition did not conclude that parents were unfit, there is no indication that the court considered
Troxel
or applied any kind of presumption in favor of parents’ decision to limit grandparents to visits under father’s supervision. Instead, the court found that parents had denied grandparents a reasonable opportunity to visit with their grandchildren — a finding that was relevant only as to grandmother, because grandfather is father’s stepparent
— and found that it was “in the best interest and welfare of the children” that grandparents be awarded “parenting time.” Specifically, the court indicated that it would award grandparents two overnight visits per month with the children.
Before entry of the trial court’s judgment in May 2001 and without apprising the trial court, parents moved the family to Wyoming. Parents did not appeal the court’s judgment. Soon after parents’ departure, grandparents obtained an order to show cause why parents were not in contempt of the judgment. The case was reassigned to a new judge; the order was served only on mother and, when she failed to appear, grandparents sought and obtained a warrant for mother’s arrest from the judge newly assigned to the case. Mother was arrested and spent three days in jail in Wyoming in late December 2001.
By April 2002, parents had moved back to Oregon and filed a motion to modify the visitation order to terminate grandparents’ visits or, in the alternative, to allow only supervised visits. Parents both appeared at a hearing in May 2002 and acknowledged that they were in contempt of the original judgment. At that hearing, father presented by affidavit evidence that, in January 2002, while the family was still in Wyoming, C had disclosed to mother that grandmother had sexually abused her. Father brought C to Salem to be interviewed at Liberty House later in January. During an in-depth interview, C disclosed that, on one occasion when she was five years old, grandmother had touched C’s genitals with her hand and instructed her to tell the police that her “grandpa” (apparently indicating C’s maternal grandfather) had done it. C reported that grandmother had indicated that she was going to hurt C and give her to the police if she did not listen to grandmother and say what grandmother told her to say. Liberty House staff assessed the interview as credible evidence of sexual abuse and recommended that C be seen by a therapist experienced in treating abused children and that she have no contact with grandmother pending further investigation.
On receiving the report from Liberty House, DHS administered a polygraph examination to grandmother, which was inconclusive. A second polygraph administered one week later was reportedly “negative for sexual abuse,” and DHS issued an opinion that the sexual abuse claim was “unfounded.”
Even though all of this information was before the trial court at the May 2002 hearing, the court ordered that supervised visits be started weekly, specifically noting that supervision was ordered only for the purpose of easing the children’s transition, given that they had not seen grandparents since August 2000. Over parents’ objection, the court granted grandparents’ request that the visits be supervised by grandfather’s niece, Michelle Lindemann, who is a social services worker known to the trial judge but who also testified on behalf of grandparents in the hearing on their original petition. At a further status hearing a month later, several more weekly visits were scheduled, half supervised and half unsupervised.
Between the May hearing and a hearing held in late August 2002, the children had weekly supervised and unsupervised visits with grandparents. During that time, C had several sessions with Dr. Cynthia Savoie-Phillips, a child psychologist. In addition to interviewing C and both parents, during her sessions with C, Savoie-Phillips used play therapy, a recognized form of psychotherapy that is designed to assist younger children, for whom verbal expression is difficult, to more naturally express their thoughts, feelings, and experiences. Savoie-Phillips’s reports of those sessions are remarkable in several respects.
First, in each session, C’s play was characterized by a figure whom she dubbed the “evil queen,” who kidnapped or captured little girls and put them into cages or traps. C put 12 to 15 little dolls into cages and would routinely check on them each session to make sure they were still there and would add more. In C’s play, occasional efforts to help the little girls or confront the evil queen were always unsuccessful.
Second, in the course of C’s play, she would comment about her fears that grandmother would take her away from mother and about threats that grandmother would make to her while taking her aside during visits. She frequently commented that grandmother “tells me to keep secrets,” including instructing C not to tell anyone about an incident in which M had burned his finger while at grandparents’ house. C reported that grandmother also had told her not to tell “what she did to me” — which C described as grandmother using her finger to rub C’s “crotch” inside her underwear for about two minutes. C also frequently commented that grandmother had called mother names and said unkind things about mother. Each week C became more anxious about talking to Savoie-Phillips, recounting threats grandmother made to her for “lying” about grandmother. Eventually C disclosed that grandmother had threatened to spank C or “touch” her again if she talked to Savoie-Phillips. C also indicated that grandmother had told her to “say to the judge that I lied to everyone” and to “tell everyone that I lied that she touched me.” When C indicated that she did not understand who the “judge” was, Savoie-Phillips explained to her that the judge is the person who decides who is telling the truth and that the judge “mostly just wants to know if its [sic] safe for you to be
at Gramma’s.” C reportedly looked straight at Savoie-Phillips and said, “He does? Well, it
isn’t
really very safe. It isn’t safe at all.”
Third, mother reported to Savoie-Phillips that, since visits with grandparents had resumed, all three children had begun wetting their pants regularly and were waking up screaming from nightmares and showing signs of extremely high anxiety. Mother also reported that C had been repeatedly provoking and pushing limits with parents and her maternal grandfather (who lived with the family), sometimes screaming, “Hit me! Hit me!” C reportedly would play chase games that would escalate out of control, with C kicking and screaming, until someone (usually C or the older of her brothers) would get hurt. Mother also reported that C was calling her brothers bad names and would report that “Gramma says it.” C affirmed this privately with Savoie-Phillips.
Savoie-Phillips interpreted C’s play as indicating that C did not see a way to escape her feelings of being trapped and under the control of grandmother. She opined that the evil queen in C’s play represented grandmother, consistent with C’s comments in the context of her play. She noted that often the little girls in C’s play would cry out for help from their mothers, but to no avail, indicating C’s feelings of helplessness and futility. In every session C used a Sleeping Beauty figure, asleep in her case. Savoie-Phillips commented that victims who are having dissociative problems often will represent themselves in some way as being asleep and therefore “safe” from the trauma.
Savoie-Phillips opined that C was suffering from post-traumatic stress disorder (PTSD) as well as increasing anxiety and distress as a direct result of the visits with grandmother. She identified the trauma as C’s experience of “the constant, relentless attack on her family, on her mother, her whole sense of security and safety,” along with “feeling that she has to * * * be two different people, one person when she’s with Grandma and then somebody else when she’s at home.” It was evident to her that C did not feel safe with grandmother, and she opined that a sense of safety and security was of primary, critical concern in the treatment of PTSD. She opined that C’s relationship with grandmother
was “very, very toxic to her” and recommended that all visits with grandmother be stopped immediately. She also recommended against the two boys having visits with grandmother because of the likelihood that grandmother would manifest similar destructive behavior with them.
Eventually the supervised visits (still alternating with unsupervised visits) were moved to Family Building Blocks, following C’s reports to Savoie-Phillips that grandmother was taking her aside and threatening her while Lindemann was supervising visits at grandparents’ home. Reports of the visits at Family Building Blocks indicated that C seemed happy to see grandmother and jumped into her arms upon seeing her. A videotape that grandparents submitted of a visit to the zoo indicated similar happiness on the part of the children at seeing grandparents. However, Savoie-Phillips found this to be dissociative behavior very typical of people suffering from PTSD:
“What you see is the child will behave one way when [she’s] with, say, her grandmother, and when she’s away from her grandmother will say, ‘I’m afraid of her, she’s mean.’
“For [C] it’s not safe for her to try to stand up to her grandmother. And so when she sees the grandmother, I think she completely disassociates all of the stress and fear that she has of her grandmother.
“That’s very typical, especially with young children, when they feel like they’re trapped in a dangerous situation.”
Savoie-Phillips rejected the trial judge’s suggestion that the family’s move to Wyoming or the conflict between mother and grandmother were the source of C’s trauma.
Grandparents’ evidence consisted only of testimony that the visits were going well, pictures and a videotape of visits, and further testimony from grandparents regarding their original allegations that parents were abusive toward the children. The record contains no expert evidence to rebut Savoie-Phillips’s testimony that the visits with grandparents were destructive to C and potentially destructive to T and M. Savoie-Phillips found no reason to believe that C had been
“coached” to make allegations against grandmother and rejected suggestions that C’s behavior was attributable to the family*s move to Wyoming or to physical discipline that may have been meted out by parents. Additionally, an attorney appointed to represent the children’s interests recommended that visits with grandparents be terminated.
Nevertheless, the trial court rejected parents’ request for modification of the original visitation judgment. The court’s findings consisted only of the statement that “there is no substantial change in circumstances to require deviation from the original terms and conditions of the Judgment of Visitation.” Parents appeal that ruling.
Before addressing the merits, we must address a preliminary issue regarding reviewability of the trial court’s order. Grandparents, citing prior cases of this court and the Oregon Supreme Court, contend that parents waived
de novo
review by consenting to the trial judge’s interview of the children off the record. The circumstances giving rise to the interviews are not clear from the record, nor is the content of the interviews. In
Rea and Rea,
195 Or 252, 279-80, 245 P2d 884 (1952), the Supreme Court announced that
de novo
review would not be conducted in custody cases if the trial court, with the consent or “informed acquiescence” of the parties, made an independent investigation of the case off the record. The court applied the general rule that
de novo
review could not be conducted unless the reviewing court has before it all of the evidence on which the trial court based its decision and noted that, because “the trial judge, aided by his staff, is in a better position to determine custody than is this court, we see no objection to a procedure whereby parties, in effect, agree that the decision of the trial judge who has had the benefit of testimony in open court, plus independent investigation, shall be final.”
Id.
at 279. That rule has been applied to preclude
de novo
review in custody cases where interviews with children in chambers were not made part of the trial court record.
See Schuyler v. Haggart,
224 Or 530, 356 P2d 955 (1960) (review
de novo
of a change in custody from the mother to the father was waived where the trial court considered a report from a prior case and interviewed the parties’ daughter in chambers with the parties’ consent but neither the report nor a transcript of the interview was
available to the court on appeal);
Lackey v. Lackey,
29 Or App 673, 564 P2d 293 (1977) (review
de novo
of a custody order was waived where the trial judge decided custody after interviewing the parties’ children by stipulation).
The trial court’s interviews of the children in this matter do not preclude our
de novo
review, however. In contrast to the cases cited by grandparents, there is nothing in the record here from which we may imply that the parties consented to use of the interviews to decide the question before the court — that is, whether the best interests of the children require that the original judgment be modified.
The record contains no order or request for interviews by the judge and no indication that parents were notified of the intended scope of the interviews. Rather, the first mention of the interviews — a description by the trial judge — appears in the transcript of the August 2002 hearing, after the interviews had already occurred:
“While we’re here I’ll make the record, I talked with [C] in chambers, with counsel and without counsel because there was a time period where she did not want to speak with the attorneys around.
“And I had my dog in there to try to help make things be a little bit more comfortable for her, and she sat on the couch and I find her to be candid, competent. And then I had the attorneys come back in and had her recite — or I recited to them what she disclosed to me and she either acknowledged that in fact they were true or not, so.
“That’s the first time I’ve ever talked to a child about something like this.
“So anyway, that kind of makes the record with regard to that.
“I did talk to the boys, [M] and [T], they were fine to talk, as I stated earlier. I find them — they were competent. They [inaudible — poor recording] also.
“And so that was the testimony that was given off the record, but in counsels’ presence, or at least having counsel
back. And that could be for whatever it’s worth when we get to the point of assessment of all that.”
Parents contend that they did not understand that the in-chambers interviews were for investigation purposes but rather believed that they were only to assess how the children liked having the visits held at Family Building Blocks — and indeed, the record does indicate that the judge asked C about that topic.
Although the record also indicates that the trial judge asked C about other topics, the scope and content of that discussion is not at all clear.
Moreover, the record does not establish that the trial judge in fact conducted an investigation within the meaning of
Rea.
As we have recognized elsewhere, a trial judge’s independent investigation that has no evidentiary value does not preclude
de novo
review. In
Breuer v. Covert,
47 Or App 225, 228-29, 614 P2d 1169,
rev den,
290 Or 157 (1980), we held that a site view conducted by the trial judge in a land dispute did not prevent
de novo
review where there was no reason to conclude that the site view served any purpose other than to help the judge understand the evidence in the record. The Supreme Court also has recognized that off-the-record interviews of the parties need not prevent
de novo
review where the interviews have no evidentiary value.
Omlie et ux v. Hunt,
211 Or 472, 316 P2d 528 (1957).
Omlie
was an adoption case where the trial judge had interviewed the parties off the record but purported to have rendered his decision based only on evidence in the record. The Supreme Court noted that
Rea
was “strictly limited to cases in which the independent investigation relates to * * * the determination by the court of the welfare of a child who is a ward of the court.”
Id.
at 476-77 (citing
Rea,
195 Or at 257). The record in
Omlie,
by contrast, indicated that the interviews apparently did not have evidentiary value with respect to the dispositive issues and, “[l]ike a view of the premises, * * * could assist the trial court in understanding the evidence, without * * * constituting evidence.”
Id.
Likewise here, the interviews with the children at most may have assisted the trial court in understanding the evidence, but the record does not establish that the judge conducted an investigation yielding evidence on the dispositive issues.
In all events, without an indication that parents were informed that the judge intended to use the interviews with the children to gather evidence for use in deciding the ultimate question of their best interests regarding visitation with grandparents, even the apparent presence of counsel during portions of the interviews does not establish on this record that the parties acquiesced to use of the interviews for that purpose. We decline to imply consent that would constitute a waiver of
de novo
review under these circumstances.
We now turn to the merits. At the time of parents’ motion to modify the judgment, visitation rights of all non-parents, including grandparents and stepparents, were governed by the 2001 amendments to ORS 109.119.
ORS 109.119 contains the legal standards and governing procedures for the
initial
award of visitation by a nonparent, including a “presumption that the legal parent acts in the best interest of the child.” ORS 109.119(2)(a).
However, apart from indicating that the presumption “does not apply in a proceeding to modify an order granting relief under this section,” ORS 109.119(2)(c), the statute does not provide a process or standards to govern modification of visitation.
See Lear v. Lear,
124 Or App 524, 527, 863 P2d 482 (1993)
(holding that a prior version of ORS 109.119 did not address the standards for a
custody
modification). Accordingly, we turn to our case law concerning the modification of a visitation award in a judgment between two parents.
Our case law establishes that changes in visitation between
parents
are governed by an assessment of the best interests of the child, without requiring a showing of change of circumstances. Although a showing of a “substantial change of circumstances” is required before any inquiry into whether the best interests of the child require modification of parental custody,
our decisions do not require such a showing to modify a parental
visitation
order.
The Supreme Court likewise has recognized that modification of parental visitation rights does not require a showing of substantial change in circumstances but, rather, only a showing that the change of visitation will benefit the children.
Ortiz and Ortiz,
310 Or 644, 650, 801 P2d 767 (1990) (addressing whether a visitation order was a “custodial order” for purposes of the change in circumstances rule in a request for modification of custody). We hold that the changes in nonparent visitation likewise are governed by an assessment of the child’s best interests and that a substantial change in circumstances need not be demonstrated.
In this case involving nonparent visitation, the trial court’s determination that a substantial change of circumstances is a necessary prerequisite to the modification of visitation lacks justification under the case law that we have discussed. The trial court determined only that there was no change of circumstances and, accordingly, did not
address the best interests of the children. Although parents did not challenge that error in the trial court’s analysis after it issued its findings, we are obligated to apply the appropriate standard of law to the facts that we find on
de novo
review. We proceed to apply that standard here, as we have done in some other cases,
rather than remanding to the trial court for a “best interests of the child” determination, because the record so overwhelmingly favors parents that, even if the trial court on remand were to find in favor of grandparents, we would reverse and find in favor of parents. Moreover, the record is fully developed and time is of the essence if we are to meaningfully address our clear sense of the children’s best interests. Under these circumstances, remand would serve no purpose.
Based on our careful review of the record, we find considerable and persuasive evidence that continued visits with grandparents are not in the children’s best interests. That evidence includes unrebutted expert testimony, which we find to be persuasive, that C’s relationship with grandmother is “very, very toxic to her,” that she does not feel safe with grandmother, that she experiences visits with grandmother as representing a threat to her relationships with her mother and her immediate family, which has caused her to develop PTSD, and that the visits likewise expose the two younger children to unacceptable risks of harm because grandmother is likely to manifest similar behavior with them. We also find persuasive evidence in the record that all three children are showing signs of distress related to the visits. Finally, we find grandparents’ conduct in the course of
these proceedings to be inconsistent with their expressed concern for the welfare of these children.
Reversed and remanded with instructions to modify visitation judgment to terminate grandparents’ right to visitation.