No. 1070 December 10, 2025 599
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE STATE OF OREGON
K. E. H., Petitioner-Respondent, v. ROBERT FREDERICK RADLOFF, Respondent-Appellant. Clatsop County Circuit Court 23PO13548; A184133
Kirk C. Wintermute, Judge. Argued and submitted on September 10, 2025. Robert Frederick Radloff argued the cause and filed the brief pro se. No appearance by respondent. Before Shorr, Presiding Judge, Powers, Judge, and O’Connor, Judge. O’CONNOR, J. Affirmed.
600 K. E. H. v. Radloff
O’CONNOR, J. Respondent appeals from an order granting an ex parte restraining order pursuant to the Elderly Persons and Persons with Disabilities Abuse Prevention Act (EPPDAPA), ORS 124.005 to ORS 124.040,1 as well as the continuance of that order following a contested hearing. Respondent raises four assignments of error. We affirm for the following reasons. The trial court issued a restraining order under the EPPDAPA, which requires that the petitioner prove “by a preponderance of the evidence, that (1) she is [a ‘disabled] person,’ (2) she was ‘abused’ by respondent, (3) the abuse occurred within 180 days before the initial order, and (4) she is in immediate and present danger of further abuse.” D. R. S. v. Baker, 296 Or App 96, 97-98, 437 P3d 1213 (2019) (citing ORS 124.010(2) and M. E. D. v. Rohrback, 257 Or App 523, 525, 306 P3d 789 (2013)). In his first three assignments of error, respondent argues that the trial court erred in granting and then con- tinuing the restraining order because there was insufficient evidence to support the trial court’s determinations that peti- tioner suffered from a “disability”; that respondent had sub- jected petitioner to “abuse”; and that petitioner was in “imme- diate and present danger of further abuse by respondent.” “We review an order issued under EPPDAPA by accepting the trial court’s findings of fact if they are sup- ported by any evidence in the record.” A. K. F. v. Burdette, 310 Or App 49, 51, 484 P3d 362 (2021). “In the absence of explicit factual findings, we presume that the court found facts con- sistent with its judgment in petitioner’s favor.” Id. “We review the trial court’s legal conclusions for errors of law.” Id.
1 ORS 124.010(1)(a) provides: “Except as provided in subsection (8) of this section, an elderly person or a person with a disability who has been the victim of abuse within the pre- ceding 180 days or a guardian or guardian ad litem of an elderly person or a person with a disability who has been the victim of abuse within the preced- ing 180 days may petition the circuit court for relief under ORS 124.005 to 124.040, if the person is in immediate and present danger of further abuse from the abuser.” (Emphases added.)
Nonprecedential Memo Op: 345 Or App 599 (2025) 601
For the purposes of the EPPDAPA, “[p]erson with a disability” means a person described in ORS 410.040(7) or ORS 410.715. ORS 124.005(9). “[T]o qualify as a ‘person with a disability’ under ORS 410.040(7), a person must demon- strate that they have a physical or mental impairment that restricts one or more major life activities, when viewed in com- parison with most people in the general population.” A. K. F., 310 Or App at 55. In this case, petitioner testified at the ini- tial appearance and at the contested hearing about her dif- ferent physical difficulties and the way those impacted her daily living. That testimony provided sufficient evidence to support the trial court’s finding that petitioner was a “per- son with a disability” under ORS 410.040(7). ORS 124.005(1) defines “abuse” for the purposes of the EPPDAPA.2 Abuse includes the “willful infliction of physical pain or injury.” ORS 124.005(1). At the contested hearing, petitioner testified that soon after she had shoulder surgery, respondent caused her pain by shoving her in the shoulder. Therefore, we conclude that the evidence in the record supports the trial court’s finding that petitioner was subject to “abuse” as defined in ORS 124.005(1). ORS 124.020(4) provides that “[i]mmediate and present danger under this section includes but is not limited to situations in which the respondent has recently threat- ened the person with a disability with additional abuse.” At the ex parte hearing, petitioner testified that respondent had threatened her by stating “you won’t be surprised when you’re—you end up a grease spot” and that her “goose [was] cooked.” Petitioner interpreted these statements to mean that she was “done.” At the contested hearing, petitioner added that she believed that respondent was dangerous 2 ORS 124.005(1) provides, in relevant part, that “ ‘Abuse’ means one or more of the following: “(a) Any physical injury caused by other than accidental means, or that appears to be at variance with the explanation given of the injury. “* * * * * “(d) Willful infliction of physical pain or injury. “(e) Use of derogatory or inappropriate names, phrases or profanity, rid- icule, harassment, coercion, threats, cursing, intimidation or inappropriate sexual comments or conduct of such a nature as to threaten significant phys- ical or emotional harm to the elderly person or person with a disability.”
602 K. E. H. v. Radloff
because he had previously physically assaulted her family members. The evidence permitted the trial court to conclude that petitioner had met her burden to show that she was in immediate and present danger of further abuse. In the fourth assignment of error, respondent argues that the definition of abuse in ORS 124.005(1)(e) is unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution, that it violates Article I, section 20, of the Oregon Constitution, and that is violates the guaran- tee of free expression in Article I, section 8, of the Oregon Constitution.3 Those arguments are unpreserved, as respon- dent acknowledges. Respondent requests plain error review. We conclude that the error is not plain and, even if it were, we would not exercise our discretion to correct it on this record. Therefore, we conclude that the trial court’s find- ings that petitioner had a disability, was abused by respon- dent, and was in immediate and present danger of further abuse were supported by the evidence in the record. Affirmed.
3 At least one incident of abuse in this case involved solely conduct and qual- ified as abuse under ORS 124.005(1)(d), as described above.