Department of Human Services v. B. P.

370 P.3d 536, 277 Or. App. 23, 2016 Ore. App. LEXIS 328
CourtCourt of Appeals of Oregon
DecidedMarch 16, 2016
Docket2005816122; Petition Number 110536; A158684
StatusPublished
Cited by1 cases

This text of 370 P.3d 536 (Department of Human Services v. B. P.) 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
Department of Human Services v. B. P., 370 P.3d 536, 277 Or. App. 23, 2016 Ore. App. LEXIS 328 (Or. Ct. App. 2016).

Opinion

ORTEGA, P. J.

This juvenile dependency appeal by father challenges the juvenile court’s decision to take jurisdiction over his daughter, M.1 He argues that the court’s findings that father neglected M’s educational and grooming needs, and allowed M contact with mother despite a contrary visitation order, were insufficient to support juvenile court jurisdiction. On appeal, neither the Department of Human Services (DHS) nor child defends the merits of the court’s jurisdictional ruling. Rather, both parties contend that father’s appeal should be dismissed because the juvenile court’s decision finding M within the jurisdiction of the court was not made in the form of an appealable judgment and the lack of an appealable jurisdictional judgment precludes our review of the court’s jurisdictional determination.2

For the reasons explained below, we conclude that a judgment entered on January 29, 2015, served to reflect the juvenile court’s concluding decision on jurisdiction, which was first reflected in jurisdictional findings made by the juvenile court in an earlier order that was not appealable. Because father appeals from that judgment, which is the first appealable jurisdictional judgment in this case, father’s challenge to the assertion of jurisdiction by the court is reviewable in this appeal. On the merits, we accept DHS’s concession that the allegations found proven by the juvenile court were insufficient to support jurisdiction over M, and reverse the jurisdictional judgment.3

[26]*26Therefore, the contested issue on appeal is whether, on appeal of the juvenile court’s January 29, 2015, judgment, we can review father’s challenge to the court’s assertion of jurisdiction over M. The dependency proceedings in this case occurred in Multnomah County Circuit Court and a complicating factor below and on appeal is that district’s use of juvenile referees, who also sit sometimes as judges pro tempore, to hear and decide issues in juvenile proceedings. Because it provides important context to the procedural history, we begin by summarizing the statutory authorization for the use of referees in juvenile proceedings.

The juvenile code authorizes the appointment of juvenile referees by the juvenile court judge. ORS 419A.150(1). Moreover, “[t]he judge may direct that any case, or all cases of a class designated by the judge, be processed or heard in the first instance by a referee in the manner provided for the hearing of cases by the court.” ORS 419A.150(2). After a hearing conducted by a referee, the referee “shall transmit” the referee’s findings, recommendations, or order to the juvenile court in writing. Id. Within 10 days of entry of the referee’s order, a party may seek rehearing of that decision by the juvenile court. ORS 419A.150(7). Alternatively, a juvenile court judge may order rehearing on the judge’s own motion. ORS 419A.150(6). Referee orders become immediately effective (subject to rehearing), and if rehearing is not sought or ordered within 10 days, the referee’s findings [27]*27or order becomes “a final order of the juvenile court.” ORS 419A.150(4).

As the Supreme Court explained in State ex rel Juv. Dept. v. J. W., 345 Or 292, 299, 193 P3d 20 (2008), a referee’s decision to take jurisdiction is not appealable because it does not comply with the statutory requirements of a judgment— in particular, it is not signed by a judge as required by ORS 18.038(4)(c).4 In J. W., the court was required to determine the appealability of a document entered by a juvenile referee that was labeled “judgment establishing dependency jurisdiction and disposition.” Id. at 295. The court noted that juvenile court proceedings are governed by ORS chapter 419, and that ORS 419A.200(1) provides that “any person or entity * * * whose rights or duties are adversely affected by a judgment of the juvenile court may appeal therefrom.” ORS 419A.205(1)(a) defines “judgment” for purposes of appeal as including “[a] judgment finding a child or youth to be within the jurisdiction of the court.” Id. at 296. After acknowledging that the referee’s order was a finding that the child was “within the jurisdiction of the court,” the court explained that a “judgment” under ORS 419A.200 and ORS 419A.205(1)(a) and (b) must also comply with statutes in ORS chapter 18 that govern judgments generally. Id. at 298. The court observed that ORS 18.038 contains specific requirements for a document to constitute a “judgment document,” including the signature of a judge. Because the “judgment” entered by the referee did not contain the signature of the judge, and because ORS 18.245 makes compliance with ORS 18.038(4) a jurisdictional requirement, the court concluded that the “judgment” entered by the referee was not appealable. Id. at 298-99.

With that background in mind, we recount the complicated procedural history of this case. In May 2014, DHS took temporary custody of M and filed a dependency petition. On September 2, 2014, mother stipulated to allegations that her mental health prevented her from safely caring for M. Juvenile Referee Hughes entered an order that reflected [28]*28mother’s stipulation and indicated that father was contesting the single allegation against him in the petition—that he had sexually assaulted M. On September 24, 2014, DHS amended its petition, alleging that M was at risk of substantial harm because father (1) had sexually assaulted M; (2) had a pattern of drug use; (3) allowed M to reside in unfit conditions; and (4) was neglectful of M, including failing to enroll M in school for three months in late 2013, failing to ensure M consistently attended school once enrolled, and failing to provide M with clean clothes, routine meals, and appropriate grooming.

To address the allegations in the amended petition against father, Judge Greenlick held a jurisdictional hearing over five days in late September and early October 2014.

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Related

Department of Human Services v. B.P.
381 P.3d 1073 (Court of Appeals of Oregon, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
370 P.3d 536, 277 Or. App. 23, 2016 Ore. App. LEXIS 328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-b-p-orctapp-2016.