State Ex Rel. Juvenile Department v. Charles

810 P.2d 389, 106 Or. App. 628, 1991 Ore. App. LEXIS 574
Court of Appeals of Oregon·Decided April 17, 1991·No. J88-3-4, J88-3-6 CA A62564 (Control), CA A62565·Published·Cited by 11 cases

Opinions

[631]*631RICHARDSON, P. J.

The parents of Charlyn and Elaine Austin appeal an order making the children wards of the court and placing them in the legal and physical custody of CSD. They contend that the court erred by denying their motion to dismiss the amended petition and that neither they nor the children were provided competent counsel. We affirm.

Jamesyn Charles is the mother of three children, Charlyn and Elaine Austin, ages two and three at the time of trial, whose father is appellant Terald Austin, and Jade Charles, age eight, whose father is Dean Charles. Jade was also made a ward of the court, and mother also challenges that order in a separate appeal. State ex rel Juv. Dept. v. Charles, 106 Or App 637, 810 P2d 393 (1991).

On February 28,1988, a deputy sheriff, in response to information from a neighbor, went to parents’ home to check on the children. He was directed by father to a bedroom that was secured by a hook latch. The two children involved in this appeal were locked in the room. They were naked and smeared with human feces and other filth. There were no beds in the room, only two blankets. The walls and floor of the room were covered with feces. Father told the officer that the children were locked in the room to keep them away from food in the kitchen. The third child, Jade Charles, was found in another part of the house. She too had dried human feces on much of her body, including her face and her hair. The children were taken into protective custody.

A preliminary hearing was held on February 29,1988. At that time, one attorney was appointed to represent parents and one to represent all three children. The court determined that temporary custody of all three children would remain with CSD and ordered that a petition be filed to make the children wards of the court. The petition was filed March 3, 1988, but neither the petition nor a summons was served on parents pursuant to ORS 419.486.

Parents were indicted on April 13,1988, for criminal mistreatment of all three children. The charges arose out of the same incident that resulted in the children being taken into protective custody. They were convicted of the charges on December 5, 1988, and sentenced on January 30, 1989. On [632]*632April 7,1989, a different attorney was appointed to represent both parents in this proceeding, and the previous attorney withdrew.

After several postponements, the first jurisdictional hearing on the petition began July 7,1989. Parents moved to dismiss the petition, because CSD had not complied with statutory procedures regarding service of summons and a timely hearing. The state moved for a continuance to file an amended petition to include the facts of parents’ criminal convictions. Parents’ counsel agreed to the filing of the amended petition and agreed to accept service of summons on their behalf. The amended petition was filed and summonses served on July 10, 1989, and the jurisdictional hearing was commenced on July 17,1989. Parents moved to strike the amended petition on the ground that the allegations related to events that had occurred over a year before the date of the petition. The motion was denied, and the court found that the children were within the jurisdiction of the court, made them wards of the court and removed them from parents’ custody.

In their first assignment, parents contend that the court erred by denying their motion to strike the amended petition. They also appear to argue, under this assignment, that the court should have dismissed the original petition, because no summons was served within 60 days, ORS 419.486(1), and no timely hearing was held. Even if it was error not to dismiss the original petition, parents are not entitled to a reversal now. They consented to the filing of the amended petition and were properly served with summonses, and the disposition of the children was based on that petition.

Parents, however, contend that the amended petition was insufficient as a matter of law and cannot be the basis of the court’s jurisdictional decision, because the facts alleged to justify jurisdiction are the same as in the original petition. They argue that, because the criminal convictions were based on the facts alleged in the original petition, recitation of the convictions adds no new factual predicate for jurisdiction. We disagree. An amended petition may be filed at any time. ORS 419.500(1). The court had jurisdiction to order temporary custody. The fact that parents had been found guilty beyond a reasonable doubt of criminal mistreatment of the children [633]*633after the original filing is a compelling reason to allow an amended petition.

In the second assignment, parents argue that the court did not appoint competent counsel for them under ORS 419.498(2).1 They contend that counsel was inadequate, because he “allowed the cases to sit for over one year without any action or request for action.” They were prejudiced, they contend, because the long delay allowed CSD to keep the children for a longer period of time in order to further delay reintegration of them into parents’ home.

The state recognizes that, in State ex rel Juv. Dept. v. Geist, 310 Or 176, 796 P2d 1193 (1990), the court held that a parent could raise adequacy of her counsel on direct appeal, but, it argues, that holding was based on the appointment of counsel in termination cases, ORS 419.525(2), and the special nature of those cases. That rationale, the state posits, is not transferrable to wardship cases, which do not have the same consequences or necessity to avoid delay.

The Supreme Court’s holding in Geist was in large part premised on the conclusion that a constitutional or statutory right to counsel includes a right to adequate counsel. That right was said to be illusory if there were no procedure for review of claims of inadequate representation. In fashioning an appropriate procedure for review, the court noted the potentially drastic results of a termination proceeding for parents and the need to reduce the delay of a final determination so that children would be in limbo for a shorter period of time. Allowing review of counsel’s performance on direct appeal was the procedure suggested by the court to meet the identified goals.

It is true, as the state posits, that the parents’ threatened loss in wardship proceedings is something less than a complete and irrevocable termination of parental rights. However, at the outer reaches of a wardship proceeding, the disposition can be a long-term deprivation of custody and a substantial intervention in the parent-child relationship. Many parental termination proceedings begin with juvenile [634]*634wardships, which can themselves be long term. The possible deprivation for parents in wardship cases is so drastic that they have a similar need for representation as do parents facing termination of their rights to their children. See State ex rel Juv. Dept. v. Grannis, 67 Or App 565, 680 P2d 660 (1984).

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State Ex Rel. Juvenile Department v. Charles, 810 P.2d 389, 106 Or. App. 628, 1991 Ore. App. LEXIS 574 (Or. Ct. App. 1991).

810 P.2d 389 (State Ex Rel. Juvenile Department v. Charles) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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810 P.2d 389 (Court of Appeals of Oregon, 1991)