K. E. B. v. Bradley ( 2023 )

No. 361 July 12, 2023 39
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
K. E. B.,
Petitioner-Appellant,
v.
John W. BRADLEY,
Respondent-Respondent.
Multnomah County Circuit Court
16PO02279; A178936
Amy Holmes Hehn, Judge.
Argued and submitted April 20, 2023.
Janet M. Schroer argued the cause for appellant. Also on
the briefs were Taylor B. Lewis and Hart Wagner LLP.
Dean N. Alterman argued the cause and filed the brief
for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Vacated and remanded.
40 K. E. B. v. Bradley
AOYAGI, P. J.
Petitioner obtained a Family Abuse Prevention Act
(FAPA) restraining order against respondent in 2016. It
was renewed in 2017, 2018, 2019, 2020, and 2021. The trial
court denied renewal in 2022, resulting in dismissal of the
restraining order. In her sole assignment of error, petitioner
challenges the denial of renewal, arguing that the trial court
misapplied the renewal standard or, alternatively, that our
description of the renewal standard in J. N. D. v. Dehkordi,
309 Or App 198, 203, 481 P3d 422 (2021) (Dehkordi), is
plainly wrong, such that Dehkordi should be overruled on
that point.1 As explained below, we agree that we misstated
the renewal standard in Dehkordi, as we failed to take into
account a recent legislative amendment to FAPA that indi-
rectly affected that standard. We therefore vacate the order
dismissing petitioner’s restraining order and remand for
further proceedings under the correct legal standard.
The facts underlying the original issuance of the
FAPA restraining order and intervening renewals are
immaterial to the issue on appeal. It is sufficient to say
that petitioner was granted a FAPA restraining order in
2016, which was renewed annually through 2021. In the
2022 contested renewal proceeding, the trial court found
that petitioner continued to be subjectively “very fearful”
of respondent and that such fear was “objectively reason-
able,” but the court nonetheless denied renewal due to the
lack of evidence of “imminent danger.” The court explained
that, under Dehkordi, the “imminent danger” requirement
1
Petitioner did not argue to the trial court that Dehkordi is wrong and should
be overruled. However, petitioner raised the relevant issue in the trial court—the
proper renewal standard for a FAPA order—including arguing for renewal under
Dehkordi. On appeal, she reiterates her argument made below, as well as arguing
in the alternative that we should overrule Dehkordi. Under the circumstances,
petitioner adequately preserved the issue that she raises on appeal. Arguing to
the trial court that Dehkordi is wrong would not have served any meaningful
purpose, as it would not have prompted different development of the record, and
at most the trial court would have stated on the record what it in fact did state on
the record—that it was bound by Dehkordi even if it disagreed with it. In short,
the general issue was raised, and it is only a particular argument that did not
need to be raised, as making that particular argument would have been futile,
and petitioner obtained no “unfair advantage or surprise” in waiting to raise the
issue on appeal. See State v. Merrill, 303 Or App 107, 112-13, 463 P3d 540 (2020),
adh’d to as modified on recons, 309 Or App 68, 481 P3d 441, rev den, 368 Or 402(2021) (very similar circumstances).
Cite as 327 Or App 39 (2023) 41
applies in FAPA renewal proceedings, although it also noted
that it found that aspect of Dehkordi “confusing” given the
legislature’s recent removal of that requirement from FAPA
continuation proceedings:
“[T]he Court of Appeals in Dehkordi has made it clear
that for the fear of a FAPA petitioner to be considered
‘objectively reasonable’ in the FAPA renewal context, the
respondent must present a credible threat to the survivor’s
physical safety. Dehkordi holds further that in the FAPA
renewal context, not only must the respondent present
a credible threat to the petitioner’s physical safety, [but]
the respondent must pose an imminent danger of further
abuse to Petitioner, even though the legislature removed
the requirement of ‘imminent danger’ from the standard
applied for continuing a FAPA restraining order at the con-
tested hearing stage. ORS 716.716(3)(a). The Court finds
this to be confusing. Nevertheless, the Court is bound to
apply the standard articulated in Dehkordi to the fact[s]
of this case. That standard, as the Court understands it,
requires the Court to find that if [petitioner’s] restraining
order is not renewed, it is more likely than not that not only
will [respondent] harm [petitioner] physically, [but] he will
do so imminently.
“Applying that standard, on the evidentiary record
before it, even given the history known to the Court, this
Court is unable to find that this standard has been met.
Given the circumstances as they appear today, and the
potential consequences for [respondent] that could flow
from it, it appears to this Court unlikely that [respondent]
will seek out [petitioner] and harm her physically. It’s pos-
sible that this will happen, but ‘possible’ is not the legal
standard that the Court is required to apply.”
(Emphases in original.)
Given its central role in the trial court’s decision,
we begin our analysis with a discussion of Dehkordi. In
Dehkordi, the trial court renewed a FAPA restraining order,
expressly finding that the petitioner reasonably feared for
her personal safety and that the respondent represented a
credible threat. 309 Or App at 201. The respondent appealed
the renewal order, challenging the court’s factual findings.
Id. We began our analysis by stating the legal standard for
renewal of a FAPA restraining order under ORS 107.725(1),
42 K. E. B. v. Bradley
relying on a 2005 case for the proposition that the renewal
standard essentially requires the trial court to find “that
the reasons for entry of the FAPA order still exist”:
“The requirement for the renewal of a FAPA order—
that the court find that the petitioner has a reasonable fear
of further abuse from the respondent, ORS 107.725(1)—is,
practically speaking, a requirement that the court find
that the reasons for entry of the FAPA order still exist. See
[A. M. E.] v. Biehler, 203 Or App 271, 277, 124 P3d 1256
(2005) (statutory requirements for termination of FAPA
order require court to determine that the bases for entry
of the order—recent abuse or imminent danger of further
abuse—have ceased to exist and the petitioner no lon-
ger has reason to fear the respondent). Thus, in seeking
to renew the FAPA order, petitioner bears the burden to
present evidence that her subjective fear of petitioner is
objectively reasonable—that is, that respondent continues
to pose an imminent danger of further abuse and a credible
threat to petitioner’s physical safety. ORS 107.710(2).”
Id. at 201-02 (emphasis in original; footnote omitted).
Relying on that articulation of the legal standard,
we assumed that the trial court had implicitly found that
the respondent posed an “imminent danger of further
abuse” to the petitioner in Dehkordi, because such a finding
was “necessary for and consistent with the determination to
renew the order.” Id. at 202; see M. A. B. v. Buell, 366 Or 553,
565, 466 P3d 949 (2020) (“When a trial court does not make
express findings of fact, we will presume that the facts were
decided in a manner consistent with the [trial court’s] ulti-
mate conclusion as long as there is evidence in the record to
support those implicit findings.” (Internal quotation marks
omitted.)). We then reviewed the record and concluded that
the evidence was legally insufficient to support an implicit
finding of “imminent danger of further abuse,” citing sev-
eral cases regarding what constitutes “imminent danger of
further abuse” for purposes of continuing a FAPA restrain-
ing order. 309 Or App at 202-03 (citing M. A. B., 366 Or at
559-64; J. K. v. Kargol, 295 Or App 529, 532-33, 435 P3d 814
(2019); and C. M. V. v. Ackley, 261 Or App 491, 494-95, 326
P3d 604 (2014)). On that and other bases, we reversed the
order renewing the restraining order. Id at 202-04.
Cite as 327 Or App 39 (2023) 43
At the time that we decided Dehkordi, it appears
that A. M. E. was the only Oregon appellate opinion describ-
ing the FAPA renewal standard, and we summarily relied
on it as correctly stating the standard. See Dehkordi, 309
Or App at 201. A. M. E. itself involved the denial of a motion
to terminate a stalking protective order (SPO). A. M. E.,
203 Or App at 276-77. However, in deciding the legal stan-
dard to terminate an SPO, we relied heavily on the FAPA
statutory scheme and “the analogous nature of FAPA.” Id.
Regarding FAPA renewal and termination, we stated in
A. M. E.:
“[I]n the FAPA context, a judge may terminate a renewed
FAPA order upon a respondent’s showing that the peti-
tioner lacks a reasonable fear of future abuse. The leg-
islative requirement that the court must find that the
petitioner lacks reasonable fear of future abuse is, practi-
cally speaking, a requirement that the court find that the
reasons for entering the FAPA in the first place—recent
abuse or imminent danger of further abuse—have ceased
to exist and the petitioner no longer has reason to fear the
respondent.”
Id. at 277. We ultimately concluded “that the legislature
intended that the criteria for terminating unlimited dura-
tion SPOs be comparable to the criteria for removing FAPA
restraining orders[,]” i.e., that the order should terminate
when “the criteria for issuing the order * * * are no longer
present.” Id. (emphasis added).
What we failed to take into account in Dehkordi
was that in May 2019, just a few months before the trial
court entered the renewal order at issue—see Dehkordi, 309
Or App at 200 n 1 (noting that the renewal petition was
filed in August 2019)—the legislature had amended FAPA
to lower the standard for continuing a restraining order. See
Or Laws 2019, ch 144, § 1 (amendment). The new lower stan-
dard applies to orders issued on or after May 22, 2019. Id.
§§ 2 - 3 (applicability and effective date). Although the 2019
amendment does not expressly affect the FAPA renewal
standard, it alters the continuance standard in such a way
that our statement in A. M. E. ceased to be good law. We
pause to explain what we mean in more detail.
44 K. E. B. v. Bradley
Prior to 2019, to obtain a restraining order at an
ex parte hearing, the petitioner had to show abuse within
the preceding 180 days, imminent danger of further abuse,
and a credible threat. ORS 107.718(1) (2017); ORS 107.718(1)
(2003). If a restraining order was granted, the respondent
had 30 days to request a contested hearing, after which
the court would decide whether to continue or dismiss the
restraining order. ORS 107.716(3), (5) (2017); ORS 107.718(10)
(2017); ORS 107.718(1), (4) (2003); ORS 107.718(8) (2003).
The statute was silent as to what needed to be proved at a
contested hearing to support continuance, see ORS 107.716
(2017); ORS 107.716 (2003), so we and the Supreme Court
understood it to necessarily require the same findings as
an ex parte hearing, including an “imminent danger” find-
ing. See, e.g., M. A. B., 366 Or at 555 (determining whether
evidence was sufficient to prove “imminent danger” for pur-
poses of continuing a restraining order in 2017); W. J. F. v.
Fielder, 211 Or App 688, 691-93, 157 P3d 220 (2007) (same,
as to continuing a restraining order in 2006). If continued,
the restraining order would remain in effect up to one year.
ORS 107.716(6) (2017); ORS 107.716(5) (2003). It also could
be renewed annually, if the court found that “[a] person in
the petitioner’s situation would reasonably fear further acts
of abuse” if the order was not renewed, regardless of whether
any “further act of abuse” had occurred. ORS 107.725(1)(a),
(2) (2017); see also ORS 107.725 (2003) (nearly identical).
In 2019, in response to our decision in M. A. B. v.
Buell, 296 Or App 380, 388-90, 438 P3d 465 (2019), rev’d,
366 Or 553, 466 P3d 949 (2020) (holding that the evidence
at the contested hearing was insufficient to prove “immi-
nent danger of further abuse”), the legislature “relaxed the
requirements” for continuing a FAPA restraining order.
N. F. M. v. Al Khalidi, 315 Or App 668, 669 n 1, 503 P3d 468
(2021), rev den sub nom, M. v. Khalidi, 369 Or 504 (2022).
The legislature did so by adding a new FAPA provision
that allows the trial court to continue the restraining order
issued at an ex parte hearing, after a contested hearing, if
the court finds that:
“(A) Abuse has occurred within the period specified in
ORS 107.710 (1) [which is currently within 180 days preced-
ing the filing of the petition];
Cite as 327 Or App 39 (2023) 45
“(B) The petitioner reasonably fears for the petitioner’s
physical safety; and
“(C) The respondent represents a credible threat to the
physical safety of the petitioner or the petitioner’s child.”
Or Laws 2019, ch 144, § 1; ORS 107.716(3)(a) (codified).2
The 2019 amendments to FAPA did not alter the
requirements for obtaining a restraining order at an ex parte
hearing—the petitioner still must show abuse within the
preceding 180 days, imminent danger of further abuse, and
a credible threat. ORS 107.718(1). If a restraining order is
granted, the respondent still has 30 days to request a con-
tested hearing, after which the court will decide whether to
continue or dismiss the restraining order. ORS 107.716(3);
ORS 107.718(10). But the standard for continuing the
restraining order has changed. It is no longer necessary
that the trial court find an imminent danger of further
abuse, as previously required at the continuation stage;
it is now enough for the court to find that “[t]he petitioner
reasonably fears for the petitioner’s physical safety.” ORS
107.716(3)(a)(B).
As for renewal of a FAPA restraining order, the
statutory language remains the same as it was before 2019.
The restraining order may be renewed upon a finding that
“[a] person in the petitioner’s situation would reasonably
fear further acts of abuse by the respondent if the order
is not renewed[,]” ORS 107.725(1)(a), regardless of whether
any “further act of abuse” has occurred, ORS 107.725(2).
However, the statutory context for the renewal provision has
substantially changed. Prior to the 2019 amendment, the
legal standard for a FAPA restraining order was the same
at every stage—initial (the ex parte hearing), continuation
(the contested hearing), and renewal. See M. A. B., 366 Or
at 555 (regarding continuation); A. M. E., 203 Or App at
277 (regarding renewal). That is no longer the case after
the 2019 FAPA amendment. There is now a statutorily pro-
scribed step down between the initial stage and the continu-
ation stage as to what must be proved. Moreover, the nature
2
In 2023, the legislature again amended ORS 107.716, ORS 107.718, and
ORS 107.725. Or Laws 2023, ch 130, §§ 1 - 3. However, those amendments are not
yet in effect. Id. § 4 (applicability and effective date).
46 K. E. B. v. Bradley
and purpose of the 2019 amendment make clear that the
legislature intends the “imminent danger of further abuse”
requirement to apply only at the initial stage. It would make
no sense given the overall scheme to construe ORS 107.725
as requiring more for renewal than ORS 107.716 requires
for continuation.
We will “depart from precedent when the statutory
context for a particular decision has substantially changed.”
Farmers Ins. Co. v. Mowry, 350 Or 686, 693, 261 P3d 1 (2011).
Here, in light of the 2019 FAPA amendment, our statement
in A. M. E., 203 Or App at 277, that the standard for renew-
ing or terminating a FAPA restraining order is the same as
the standard “for entering the FAPA in the first place” can
no longer be considered good law. It follows that we should
not have relied on that statement in deciding Dehkordi,
which involved a FAPA renewal order issued a few months
after the 2019 amendment went into effect.
Notably, we were not actually interpreting the
FAPA renewal standard in Dehkordi—we were simply
applying existing case law. Had we been aware of the 2019
amendment to the continuance standard and recognized its
indirect effect on the renewal standard, we almost certainly
would have held—as we do now—that the renewal standard
for a FAPA restraining order is in line with the current stan-
dard for continuing a FAPA restraining order, rather than
the standard for initially obtaining one. We readily conclude
that this is an appropriate circumstance to recognize our
error and correct course.3 See State v. McCarthy, 369 Or
129, 144-45, 501 P3d 478 (2021) (deciding whether to over-
rule a prior opinion requires “an exercise of judgment that
takes all appropriate factors into consideration,” for which
there is “no fixed list,” but one appropriate consideration
is “whether the factual or legal underpinnings of the case
have changed, including whether the case was based on a
3
We note that our mistaken reliance on A. M. E. affected the analysis in
Dehkordi, in that we assumed that the trial court had made an implicit finding of
“imminent danger” and concluded that such finding was unsupported by the evi-
dence. See Dehkordi, 309 Or App at 202. It did not affect the outcome of Dehkordi,
however, because we independently concluded that the “credible threat” finding
was unsupported. Id. at 203.
Cite as 327 Or App 39 (2023) 47
significant assumption that has proven to be erroneous”
(internal quotation marks and footnote omitted)).
In sum, to renew a FAPA restraining order, it is no
longer necessary for the trial court to find an “imminent
danger of further abuse.” Dehkordi wrongly stated that such
a finding was required for renewal, and we therefore over-
rule that portion of Dehkordi.4 See State v. Civil, 283 Or App
395, 405-06, 388 P3d 1185 (2017) (we will overrule existing
precedent if it is “plainly wrong,” which is “a rigorous stan-
dard grounded in presumptive fidelity to stare decisis”).
That brings us to the disposition of this appeal. In
denying petitioner’s 2022 renewal request, the trial court
expressly relied on the FAPA renewal standard articulated
in Dehkordi, particularly the need for an “imminent dan-
ger” finding. We have now overruled Dehkordi insofar as it
required an “imminent danger” finding to renew a FAPA
restraining order. Under the circumstances, we agree with
petitioner that the appropriate disposition is to vacate the
order dismissing the restraining order and remand to the
trial court for further proceedings.5
Vacated and remanded.
4
Because this opinion overrules our existing precedent, the panel specifi-
cally advised all members of the court of the effect of its decision, but neither the
chief judge nor a majority of the regularly elected or appointed judges referred,
under ORS 2.570(5), the cause to be considered en banc.
5
During oral argument, respondent raised an issue regarding how remand
proceedings would be conducted in the event of reversal, given the timing of
FAPA restraining order renewals and the timeline of this case. We agree with
the parties that that issue is best addressed in the trial court on remand.