State ex rel. Juvenile Department v. Larson

728 P.2d 959, 82 Or. App. 666, 1986 Ore. App. LEXIS 4350
CourtCourt of Appeals of Oregon
DecidedDecember 4, 1986
Docket1300; CA A38612
StatusPublished

This text of 728 P.2d 959 (State ex rel. Juvenile Department v. Larson) 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. Larson, 728 P.2d 959, 82 Or. App. 666, 1986 Ore. App. LEXIS 4350 (Or. Ct. App. 1986).

Opinion

ROSSMAN, J.

Appellant is the mother of two minor children who, under a 1984 order, are within the jurisdiction of the Juvenile Court of Tillamook County. She appeals from a final order by the Juvenile Court, which upholds restrictions Children’s Services Division (CSD) placed on her right to visit her children.

The children were originally found to be within the jurisdiction of the court pursuant to ORS 419.476(1) (e).1 The order declared the children wards of the court and placed them in the legal custody of CSD for care, placement and supervision. ORS 419.507. That order was not appealed, and its continuing validity is not at issue. The oldest of the two children was seven years old when placed in CSD’s custody and currently resides at the Parry Center for Children. The youngest was five and currently resides in foster care. Mother has maintained contact with the children through visitation.

In 1985, CSD learned from the children that mother had become romantically involved with a man named Hill, who had a criminal record and who was often present during mother’s scheduled visitations. Mother was evasive when CSD questioned her about the relationship. Hill, on the other hand, cooperated with CSD and authorized it to acquire a copy of his criminal record, which shows arrests and convictions for burglary and larceny in 1978,1980 and 1981, and an arrest for malicious injury to property in 1984. CSD also learned from Hill that in 1979 he had been diagnosed as having an antisocial and dyssocial personality and that he once broke a friend’s jaw in a fight.

In view of Hill’s past, mother’s evasiveness and her [669]*669tendency to allow herself to be used by other people, as well as the emotional and behavioral problems of the older child, CSD determined that it would be in the best interests of both children if Hill was not present when mother visited them and issued a directive to that effect. Mother filed a motion in the juvenile court to vacate the directive. CSD then issued a second directive that requires mother to sever her relationship with Hill completely as a condition of visitation, and mother challenged both directives.

The court found that the first directive was “appropriate to protect the interests of the children.” With respect to the second, it reasoned that CSD was authorized to impose the restriction under State ex rel Juv. Dept. v. Darnell, 49 Or App 561, 619 P2d 1349 (1980), rev den 290 Or 551 (1981), and State ex rel Juv. Dept. v. East, 38 Or App 59, 589 P2d 744, rev den 286 Or 1 (1979), in which we approved the termination of the mothers’ parental rights in large part because of their refusal to sever relationships with men who had documented histories of child abuse. The court denied mother’s request to vacate the restrictions.

Mother contends that the restrictions unconstitutionally infringe on her parental rights, because the state did not show that they were necessary to further a “compelling state interest.”2 The state contends that the burden is on mother to prove that the restrictions are not necessary and that the court did not err in admitting the documents.

ORS 419.500(1) provides that, before a child may be found to be within the jurisdiction of the juvenile court, the state must show a compelling state interest by establishing facts that show, by a preponderance of competent evidence, that the child is within the jurisdiction of the court under ORS 419.476(1). ORS 419.507(l)(b) provides that, once a child has been found to be within the jurisdiction of the court, the court may make the child a ward of the court and “when the court determines it would be in the best interest and welfare of the child * * * place the child in legal custody of the Children’s Services Division for care, placement and supervision.” ORS [670]*670419.507(1) (b)(F) provides that commitment of a child to CSD does not terminate the court’s continuing jurisdiction to “protect the rights of the child or the child’s parents or guardians.” ORS 419.561 provides that any person whose rights or duties are adversely affected by a final order of the juvenile court may appeal. See State ex rel Juv. Dept. v. East, supra, 38 Or App at 63. The scope of review on appeal is de novo. ORS 419.561(4).

Pursuant to its continuing jurisdiction, the juvenile court maintains the right to exercise its discretion “as to visitation by the parents.” State ex rel Juv. Dept. v. Richardson, 267 Or 374, 378, 517 P2d 270 (1973). It may allow or deny visitation or affirm the visitation established by the Children’s Services Division. In other words, if CSD proposes a visitation schedule or imposes conditions on visitation that are contested, the court may affirm CSD’s schedule or conditions or establish its own. However, it may not act with total disregard of the parents’ rights.

Here, although mother lost her right to care for and control her children in 1984 when they were found to be within the jurisdiction of the juvenile court, her parental rights have not been terminated pursuant to ORS 419.523 to 419.525. They are, therefore, subject to the court’s protection under ORS 419.507(1) (b)(F)3 and may not be further infringed upon, unless that infringement is in the best interests of the children.

The decision as to what is in the best interest of the children does not turn on who bears the burden of persuasion. The court must examine all of the relevant facts, without regard to who may have presented the facts. The court then must determine whether the conditions imposed by CSD are appropriate or whether either more stringent or more lenient conditions are necessary.

On an appeal, we recognize that the trial court, because of its face-to-face involvement with the participants in the hearing, is in a better position than we are to weigh the [671]*671various relevant factors, including the credibility of the witnesses, in determining what is in the best interests of children. Thus, we give deference to the trial court’s judgment in these cases when there is an evidentiary basis for that judgment, but our review is de novo.

Powers, a CSD caseworker, testified that the older child is “the kind of person who will cause people to want to strike out against her” and is a “time bomb” waiting to explode. Hill even testified that she has pushed him close to the point of “flying off the handle.” In view of all the testimony, the judge understandably expressed concern about her safety when Hill was present.

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Related

STATE EX REL. JUV. D. OF MULTNOMAH v. Richardson
517 P.2d 270 (Oregon Supreme Court, 1973)
State Ex Rel. Juvenile Department v. Darnell
619 P.2d 1349 (Court of Appeals of Oregon, 1980)
State ex rel. Juvenile Department v. East
589 P.2d 744 (Court of Appeals of Oregon, 1979)

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Bluebook (online)
728 P.2d 959, 82 Or. App. 666, 1986 Ore. App. LEXIS 4350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-juvenile-department-v-larson-orctapp-1986.