Harris v. Burns

*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“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“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 *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. We also know that father and his family have a history of harassing and threatening child’s mother, who has custody of child. According to mother’s testimony, father told her that “one way or another he was going to get the child” if she didn’t allow visitation. It might well be feasible to devise a process whereby father corresponds with child through a neutral third party. It is certainly possible that such contact could occur without negatively affecting child. However, there is also a strong possibility that this process would not work, with potentially disastrous results for child. The contacts could have a serious negative impact on child. There is also the risk that the whereabouts of mother and child might be discovered by father or his family and they might again be subject to harassment, which would certainly have an adverse impact on child.

It is our responsibility to decide if it is in child’s best interests to be subjected to these risks. The trial court concluded, without hesitation, that child should not be subjected to these risks and held that it was not in child’s best interest to have contact with father. We agree with the trial court. It is hard to understand how it can be in the best interests of child to receive gifts and letters from a father who is such a threat to the family’s well-being that he cannot even be permitted to know where the family lives and whose correspondence with child must be monitored. Further, if “true-life” means “true-life, ’ ’ child will probably never again even see, let alone enjoy a parental relationship with father. Assessing the impact on child of continued contact with father necessarily involves some speculation. We would err on the side that protects child.2 Father also assigns as error the judgment’s provision *361that his family members have no contact with the child. In particular, he argues that the court was without authority to prohibit contact by family members, because there was no petition pending before the court under ORS 109.121.3 At the hearing, father’s mother (grandmother) testified that she would like visitation. Mother moved to strike the testimony, but the court denied the motion. At closing argument, father said that his only request was for mother’s address. The court questioned counsel about why the grandmother had testified that she wanted visitation with the child. Counsel replied “that [the grandmother] would like to effect visitation as the grandparent.” The court then ruled that there would be no contact with father’s family.

In order to have “standing”4 to appeal a judgment, father must be able to show that he has a substantial interest in the subject matter of the litigation and was aggrieved by the purported error. Larabee v. Mell, Extr’x, 193 Or 543, 546, 239 P2d 597 (1952). Father has not been aggrieved by the provision denying the grandmother any contact with the child, and he has no standing to appeal that error on behalf of the grandmother.5

Affirmed.

ORS 109.094 provides, in part:

“Upon the paternity of a child being established in the proceedings, the father shall have the same rights as a father who is or was married to the mother of the child.”

Judge Edmonds’ dissent questions our “intentions” in rendering the decision that we do. As should be apparent from our discussion in this opinion, our only intention is to apply the law as we understand it. Although Judge Edmonds’ dissent *361chooses to ignore the language of both the statute, ORS 107.105(1)(b), and our case law, see DeSantis and DeSantis, the predominant consideration in a visitation case is the best interests of the child, and that is the standard that we apply.

ORS 109.121 provides for court-ordered visitation for grandparents.

Standing is properly defined as the right to obtain an adjudication of a claim for relief. See Eckles v. State of Oregon, 306 Or 380, 384, 760 P2d 846 (1988).

We express no opinion as to any preclusive effect that the judgment has on the grandmother’s visitation rights under ORS 109.121.