State Ex Rel. Juvenile Department v. Garcia

44 P.3d 591, 180 Or. App. 279, 2002 Ore. App. LEXIS 469

• Court: Court of Appeals of Oregon
• Decided: March 20, 2002
• Docket: 5854J; A109595
• Status: Published

Opinions

EDMONDS, J.

Youth was initially placed in the legal custody of Oregon Youth Authority (OYA) on August 12, 1999, after having been found to be within the jurisdiction of the court for having committed what would have been a criminal offense, had he been an adult. ORS 419C.478. On February 15, 2000, youth was placed in a youth correctional facility pursuant to ORS 419C.495(1). He appeals from the placement order, and we reverse.

The hearing that youth challenges occurred after youth was terminated from the Parrot Creek Residential treatment program on February 7,2000. On February 9, representatives of OYA undertook to remove youth from the treatment facility. Youth resisted. Armed with a knife, he threatened to harm himself and the staff. After he was subdued, he was taken to a nearby hospital for a mental health evaluation and was hospitalized for five days. When he was released, OYA intended to transport him to a detention facility in Pendleton, pending a hearing in Malheur County. While era route, youth again acted out of control and was lodged in a detention facility in The Dalles. On the afternoon of February 14, 2000, the juvenile court convened a hearing by telephone. Youth was in The Dalles, and his appointed counsel was in Vale. At the request of youth’s appointed counsel, the court continued the hearing until the next morning.

The following day, youth’s counsel told the court:

“As far as what I would like to see is I would like to see a continuance to give him more time to do this as far as the record. I was informed of this case at three o’clock (3:00) yesterday afternoon. Court was at four o’clock (4:00). I received the discovery at approximately ten to four with very little time to review it, but from my review, it looks like a — somewhat of a suicide attempt by my client, and I think he needs a mental evaluation. I received what the State has given you, and much of this is illegible. And I think an evaluation needs to be done to see if he can aid and assist at this time, and in the future time. And I think if we don’t have that evaluation, it’s a denial of effective assistance of Counsel under the Oregon and Federal Constitutions. We also need to determine if — if that mental evaluation will see if he can conform his conduct to the requirements of the law.

“I would also argue that it’s a denial of due process that the — that this hearing is so fast. And I have some exhibits that I’d like to make on that behalf. This is 101. This is the mental evaluation that I received. 102 is a document from Parrot Creek, which I received approximately five (5) or ten (10) minutes ago. 103 is an incident report which was faxed to the Juvenile Department, and I received it within the last ten (10) or fifteen (15) minutes. And then 104, the reports from OYA. I would note that those were — those were faxed to OYA on February 10th, and then they were provided to me yesterday at — -just before four o’clock (4:00).”

The court denied youth’s motion for a set-over. The court explained its ruling:

“As to the request for a continuance, I’m going to deny the request for a continuance. As indicated, this is not an initial adjudication. [Youth] has already been adjudicated. This is simply a review hearing to determine the next placement for [youth]. His psychological status has been reviewed. It’s clear that there — there are no other alternatives available to [youth]. Primarily because of [youth]’s behavior, he has made it impossible to place him anywhere other than in the juvenile institution. So I am going to order, [youth], that — that you be placed in the — the—in a juvenile correctional facility. The actual placement I’ll leave to Oregon Youth Authority.”

Youth makes five assignments of error on appeal, including the assertion that the juvenile court erred “in denying the child’s motion for a reasonable period to enable court-appointed counsel time to prepare the case.” He argues, in part:

“The proceeding at which [youth] was ordered placed in a youth correct [i] on facility for 22 years or until his 25th birthday (IIV2 years) was fundamentally unfair and violated [youth]’s rights under the Fourteenth Amendment to the United States Constitution. The hearing took place only hours after [youth] had been released from a psychiatric hospital where he had spent 5 days after a 45-minute standoff with fourteen armed law enforcement agents whom [youth] had asked to shoot him. [Youth] participated in the hearing by telephone from a detention facility and his counsel had been appointed only one hour before the hearing convened and received the discovery 10 minutes before it began. No witness testified under oath and all of the information the court received was second or third-hand. The substantive portion of the hearing lasted only a few minutes.”

The state counters that many of the due process issues that youth raises on appeal were not preserved below as required by ORAP 5.45¹ and that counsel’s reference to due process in summary fashion was insufficient to put the juvenile court on notice regarding the issues that youth raises on appeal. It concedes that youth’s counsel argued to the juvenile court that he did not have time to prepare for the commitment hearing.

The first issue is whether youth’s appeal is moot. During the pendency of the appeal, youth was released from the youth correctional facility and returned to a residential treatment program. Then, he was returned to the youth correctional facility from that treatment program. Since that time, he has been placed in another residential treatment program. Given those developments, the state argues that we need not reach the merits of youth’s argument on appeal because he is no longer in a youth correctional facility.

Whether a case no longer has justiciable issues so that it will be dismissed as moot depends, in part, on whether the court’s decision can have a practical effect on the rights of the parties. Brumnett v. PSRB, 315 Or 402, 848 P2d 1194 (1993). In Brumnett, the petitioner was committed to the jurisdiction of the Psychiatric Security Review Board (PSRB) and later sought release on the ground that, at that time, he did not suffer from a mental disease or defect. While judicial review was pending, he was released from PSRB’s jurisdiction unconditionally. The state moved to dismiss the case as moot because of the unconditional release. The petitioner argued that the case was not moot because he was still subject to a statutory obligation to pay the cost of his care incurred while under PSRB’s jurisdiction. The court agreed with the state’s argument:

“Petitioner is not presently the subject of any order of the state to pay any of the cost of his care and consequently is not presently subject to any lien. The mere possibility that the state might seek such an order at some future date is not sufficient to make dismissal inappropriate. The state has not said that it intends to seek any reimbursement from petitioner. Rather, one representative of the state has asserted only that it might do so sometime in the future. The moving party has carried his burden to establish that the case is moot.” Brumnett, 315 Or at 407 (emphasis in original).

In Barnes v. Thompson, 159 Or App 383, 977 P2d 431, rev den 329 Or 447 (1999), we followed the court’s holding in Brumnett.” The plaintiff in Barnes petitioned for habeas corpus relief, alleging that, as a result of the Parole Board’s ruling, his parole release date had been impermissibly extended. During the pendency of the appeal, the plaintiff was released on parole. The state argued that his appeal was moot because of his release. He responded that, had he been released earlier, he may have been eligible for an earlier transition from active to inactive supervision while on parole. We held that the mere possibility that the Board may have changed the plaintiffs status from active to inactive at an earlier time was so speculative in nature that it did not save the case from mootness. We pointed out that it was left to the discretion of the Board, based on how the plaintiff had done on active supervision, as to when, if ever he would be transferred to inactive status.

The facts in this case make it qualitatively different from the facts in Brumnett and Barnes. Unlike the appellants in those cases, who were no longer in custody when they appealed, youth is still in the custody of OYA and is subject to an existing and continuing statutory consequence as the result of the commitment order that he challenges.² That effect comes from the interplay between ORS 419C.495(1) and OAR 416-300-0050.³ ORS 4190.495(1) provides:

“A youth offender placed in the legal custody of the Oregon Youth Authority may be placed in a youth correction facility or in a private institution operated as a facility for youth offenders requiring secure custody only when the juvenile court having jurisdiction so recommends.” {Emphasis added.)

Under the statute, an adjudicated youth as to whom the court has not yet recommended placement in a correctional facility is entitled to court review of such a placement before it occurs. For youth offenders who have been previously placed in a youth correctional facility, however, the right to a court recommendation before again being placed in a correctional facility is lost. That is because, after an initial commitment to a youth correctional facility and release on parole, OYA has the authority under ORS 4190.495(1) and OAR 416-300-0050 et seq. to revoke a youth offender’s parole status and return the youth to a secure facility without the court’s recommendation and without a court finding that the youth has committed additional criminal offenses. In this case, youth’s present placement in a residential treatment program is subject to OYA’s authority to return him to a youth correctional facility without the juvenile court’s recommendation.

By its terms, ORS 4190.495(1) embodies a legislative policy decision that Oregon juveniles will not be placed initially in youth correctional facilities without the affirmative recommendation of the juvenile court. The exception to that policy is when there has been a previous recommendation for such placement in the same case. Because of that policy, youth’s challenge to the proceeding that resulted in his placement in a youth correctional facility is not moot merely because he has now been released from that placement; rather, the proceeding deprived him of an important statutory right that he would otherwise have, and it resulted in a condition of parole that would not exist but for the commitment. In other words, the loss of the statutory entitlement to a judicial hearing and an affirmative recommendation by a juvenile court judge are implicit terms of his parole because of the effect of the commitment order. Youth’s existing parole status is in sharp contrast to the plaintiff in Barnes, who had been released on parole, and to the petitioner in Brumnett, who had been released from PSRB’s jurisdiction. As a consequence of those facts, they could only point to the speculative possibility of potential consequences in the future. Because youth is now subject to again being placed in a youth correctional facility without the recommendation of the committing juvenile court, we hold that the “practical effect” requirement of Brumnett and Barnes has been met. Consequently, we turn to the merits of youth’s appeal.

Our standard of review of the court’s denial of youth’s motion for a set-over is for an abuse of discretion. State v. Arnold, 90 Or App 596, 599, 752 P2d 1300, rev den 306 Or 661 (1988). An abuse of discretion occurs when a court acts beyond the boundaries established by law. State v. Rogers, 330 Or 282, 312, 4 P3d 1261 (2000) (“If the trial court’s decision was within the range of legally correct discretionary choices and produced a permissible, legally correct outcome, the trial court did not abuse its discretion.”). One of the boundaries established by law is that counsel must be given a reasonable amount of time to prepare for a hearing that could result in the deprivation of a liberty interest.

“The essence of fundamental fairness is the opportunity to be heard at a meaningful time and in a meaningful manner. See generally Mathews v. Eldridge, 424 US 319, 333, 96 S Ct 893, 901, 47 L Ed 2d 18 (1976). Fundamental fairness emphasizes factfinding procedures. The requirements of notice, adequate counsel, confrontation, cross-examination, and standards of proof flow from this emphasis. McKeiver v. Pennsylvania, supra, 403 US [528, 543, 91 S Ct 1976, 29 L Ed 2d 647 (1985)]. Fundamental fairness is flexible and calls for such procedural protections as the particular situation demands.” State ex rel Juv. Dept. v. Geist, 310 Or 176, 189-90, 796 P2d 1193 (1990).

As to the denial of a motion for a set-over,

“ ‘[t]he matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel * * * Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality * * *. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. * * *’ ” State v. Reese, 25 Or App 231, 234, 548 P2d 998 (1976) (quoting Ungar v. Sarafite, 376 US 575, 589, 84 S Ct 841, 11 L Ed 2d 921 (1964)) (emphasis added).

Here, counsel was not aware of the case until the afternoon before the hearing. He had obtained some of the exhibits that were being offered against his client only five to ten minutes before the hearing, and some of those were illegible. Counsel told the court that he was unable to conduct any investigation on his own and that he was not able to ascertain whether there were additional documents available that he had not been given. He had not yet met with his client face-to-face because they were in different cities, and he told the court that, based on the information that he did have, he had concerns about youth’s mental status. Youth’s mental status could implicate his ability to aid and assist counsel as well as his ability to conform his conduct to the requirements of the law. Moreover, counsel and the court were aware of youth’s attempted suicide. It may be, as the court ruled, that there was no other disposition available except commitment to a youth correctional facility in light of the mental evaluation that had already been done. Nonetheless, youth was entitled through his counsel to a reasonable opportunity to explore alternatives and to obtain evidence to support those alternatives before the court exercised its discretion under ORS 419C .495(1). For the above reasons, the juvenile court abused its discretion when it denied youth’s motion for a set-over.

Reversed and remanded.

1 ORAP 5.45(4)(a) provides, in part:

“Each assignment of error shall demonstrate that the question or issue presented by the assignment of error timely and properly was raised and preserved in the lower court.”

2 This case is similar to Barnes in one respect. Youth remains and Barnes remained under the supervisory authority of the state after the events that purported to moot the controversies. However, the consequence to Barnes was the possibility of a delay in his transfer from active to inactive parole, a consequence that was so speculative that we deemed it not to be of “practical effect.” In contrast, if youth’s parole is revoked, the potential consequence to youth is incarceration.

3 The administrative process for revocation of parole status provides for a preliminary hearing when it is alleged that a youth is in violation of his or her parole. OAR 416-300-0060. At the preliminary hearing, a hearing officer determines if there is probable cause to believe that a violation has occurred. Unlike in a juvenile court hearing, the decision whether to provide counsel to an indigent youth at the state’s expense is at the discretion of OYA and is dependent on OYA deciding that the “circumstances suggest that counsel is necessary to protect the rights of the youth.” The hearing officer reports his or her findings to the superintendent or the superintendent’s designee, who decides whether the youth is an appropriate candidate for revocation. If a revocation hearing is to be held, the youth is returned to the youth care facility. The revocation hearing is held before a committee of three youth correctional facility persons, who determine whether a violation has occurred. OAR 416-300-0100. If the youth has been charged with a law violation that is to be “adjudicated injudicial court, revocation hearing procedures shall be suspended pending the outcome of the court hearing. The youth may request a revocation hearing after the court hearing, if he/she so chooses.” OAR416.300-0100(1). “The youth has a right to consult with an attorney at the youth’s oum expense before deciding whether or not to waive the revocation hearing.” OAR 416-300-0070(2)(c) (emphasis added).