State ex rel. Juvenile Department v. George

862 P.2d 531, 124 Or. App. 257, 1993 Ore. App. LEXIS 1842
CourtCourt of Appeals of Oregon
DecidedNovember 3, 1993
Docket9103-80956A; CA A75703
StatusPublished
Cited by1 cases

This text of 862 P.2d 531 (State ex rel. Juvenile Department v. George) 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
State ex rel. Juvenile Department v. George, 862 P.2d 531, 124 Or. App. 257, 1993 Ore. App. LEXIS 1842 (Or. Ct. App. 1993).

Opinion

ROSSMAN, P. J.

The issue in this appeal is whether the juvenile court’s remand of child to adult criminal court was proper under ORS 419.533. We review de novo and affirm.

On the night of December 8, 1991, child and a companion approached a person on a Tri-Met bus in Portland. Child, then 17 years and nine months old, brandished a knife and ordered the person to hand over his jacket. Child was subsequently arrested and charged with armed robbery. The state moved to remand child to adult criminal court. After a hearing, the juvenile court remanded child to the circuit court for disposition as an adult. Child appeals, claiming that the evidence was insufficient to support the remand order.

ORS 419.476(1)(a) vests the juvenile court with exclusive original jurisdiction of any case involving a person who is under 18 years of age and

“[w]ho has committed an act which is a violation, or which if done by an adult would constitute a violation, of a law or ordinance of the United States or a state, county or city[.]”

The juvenile court may “waive” its original delinquency jurisdiction by remanding, or transferring, the child to adult court if the child was 15 years or older at the time he or she allegedly committed the offense and the offense is of sufficient severity.1 The factors used to determine whether remand is appropriate are set out in ORS 419.533(l)(d).2 The [260]*260burden is on the state to prove by a preponderance of the evidence that remand would best serve the interests of both society and child. ORS 419.533(1)(d); State ex rel Juv. Dept. v. Geigle, 120 Or App 120, 123, 852 P2d 225 (1993).

Applying the statutory criteria, we first consider the child’s amenability to treatment in the juvenile and adult court systems.3 Child, who at the time of the remand hearing was 18 years and two months old, claims that the only evidence offered by the state to show that he could not be adequately treated in the juvenile court system is a general policy of the Multnomah County Juvenile Division not to offer rehabilitative services to juvenile offenders over the age of 18. As child’s juvenile counselor explained at the remand hearing:

“Q. [By the state] [L]et’s assume that * * * the judge denies remand and [the juvenile court retains] jurisdiction of [child]. * * * [W]hat’s going to happen * * * if he is left in the juvenile system?
[261]*261“A. [By juvenile counselor] Essentially nothing.
“Q. Okay.
“A. Very, very minimum. Very minimal. * * * [0]ur department’s policy is that we don’t work with adults.
“Q. And [child is] an adult.
“A. And he’s an adult. We — we don’t set up programs and we don’t enforce programs and we don’t PV[probation violation] 18-year-olds. We don’t bring them back to court for PV’s.
“Q. So -
“A. So we — about all we could do — all we would recommend would be eight days in detention and discharge. But it’s [sic] about it.” (Emphasis supplied.)

Child argues that the juvenile division’s policy cannot be a factor in deciding whether he would be responsive to the rehabilitative efforts of the juvenile system. Although we agree that the policy cannot be considered as a basis for remand,4 we nevertheless conclude, on the basis of a thorough review of the record, that, given child’s age and the techniques, facilities and personnel available to the juvenile system, child’s best chance for rehabilitation is in the adult system.

In making that determination, we have considered numerous factors. Child’s age is one such factor. State ex rel Juv. Dept. v. Geigle, supra, 120 Or App at 123. The closer a juvenile is to the age of 18, the greater the likelihood that we will affirm the remand order. State v. Kent, 31 Or App 1219, 1227, 572 P2d 1059 (1977). In general, remands of juveniles who are 17 years or older have been upheld by this court. 31 Or App at 1227. Child was 17 years and nine months old at the time of the alleged offense and he was 18 years and two months old at the time of the remand hearing. Those facts militate in favor of a remand.

[262]*262The amount of time that child will likely spend at a juvenile facility is also a factor to be weighed in assessing his amenability to treatment. State ex rel Juv. Dept. v. Fox, 51 Or App 257, 263, 625 P2d 163 (1981). As we recognized in State v. Kent, supra:

“Where the evidence indicates that a child will * * * only be exposed to the juvenile system for a short time due to his proximity to age 21, we have upheld the propriety of a remand of the child to adult court.” 31 Or App at 1228.

See also State ex rel Juv. Dept. v. Geigle, supra, 120 Or App at 123. The assistant supervisor at MacLaren Juvenile Detention Center testified that, given child’s age, the nature of the crime committed and the “down-scaling” of the juvenile population,5 he would expect child to spend “a year or less” at MacLaren. That is to be compared with the 34-36 month presumptive sentence that child would serve if he were convicted in adult court. The evidence showed that child has had extreme difficulty in school, has completed only five credits toward a high school diploma, is a gang member and has a history of alcohol and drug abuse. Although it is difficult at this time to predict precisely how long it will take child to respond to rehabilitative treatment, we are convinced that it will take longer than one year.

As an indication that he would respond favorably to the treatment programs in the juvenile system, child points to the fact that he has been voluntarily participating in Portland Impact, a youth services program, since the spring of 1991. A case manager at the Youth in Careers and Culture Project of Portland Impact testified that she has worked “very closely” with child since he first became involved with the program and has “found him to be a responsible, conscientious youth.” However, child’s exposure to the rehabilitative efforts of Portland Impact has produced little or no positive results. Child committed the armed robbery on December 8, 1991, after having been active in Portland Impact for nearly a year. He is also facing charges of criminal mischief for allegedly slashing several car tires earlier that same month. Additionally, the record discloses that in October, 1991, child [263]*263was arrested for writing gang graffiti on public property and was charged with criminal mischief.

The assistant supervisor at MacLaren, child’s juvenile counselor and a parole and probation officer for Multnomah County Community Corrections6

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Related

STATE EX REL JUV. DEPT. v. George
862 P.2d 531 (Court of Appeals of Oregon, 1993)

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862 P.2d 531, 124 Or. App. 257, 1993 Ore. App. LEXIS 1842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-juvenile-department-v-george-orctapp-1993.