State Ex Rel. Juvenile Department v. Lauffenberger

764 P.2d 568, 93 Or. App. 757

• Court: Court of Appeals of Oregon
• Decided: November 9, 1988
• Docket: 84-024; CA A42206
• Status: Published

Opinions

GRABER, J.

Father petitions for reconsideration of our opinion in State ex rel Juv. Dept. v. Lauffenberger, 88 Or App 642, 746 P2d 259 (1987), which affirmed the juvenile court’s decision to grant custody of his child to the maternal grandparents, subject to father’s right of visitation. He argues that we applied the wrong standard when we stated that “it is in the best interests of the child to remain with her grandparents.” 88 Or App at 646.¹ We grant the petition in order to reconsider our decision in the light of Hruby and Hruby, 304 Or 500, 738 P2d 977 (1987), which was decided after our initial opinion in this case. We adhere to our original opinion.

Our original opinion cited ORS 419.474(2)² as the governing standard and said that the statute imposes a “best interests of the child” test. State ex rel Juv. Dept. v. Lauffenberger, supra, 88 Or App at 645. We hold that ORS 419.474(2) and ORS 419.507(1)³ are the governing law, that those statutes establish a “best interests” standard, and that nothing in Hruby and Hruby, supra, changes those principles. That being so, we need only explain why Hruby does not apply in order to adhere to our former opinion.

Hruby involved a private custody dispute between a parent and a non-parent. In contrast, in the present case, the juvenile court took jurisdiction of the child in 1984 and made her a ward of the court in early 1985. She was committed to the legal custody of CSD, which placed her with her grandparents under supervision by CSD. See generally ORS 419.507. When the juvenile court took jurisdiction, pursuant to ORS 419.476(1)(e),⁴ it found that the child’s physical and emotional needs were not being met.⁵ ORS 419.500. The juvenile court’s decisions to take jurisdiction, to make the child a ward, and to place her in the temporary custody of CSD have not been challenged directly, nor have the findings that underlie those decisions.⁶

Juvenile court jurisdiction, wardship, and CSD custody mean two things. First, they mean that the juvenile court statutes, rather than the common law that was the subject of Hruby, dictate the basis for a custody decision. Second, they mean that, even if the common law is pertinent, the predicate finding that the child’s basic needs were not met by her parents weakens, and perhaps destroys altogether, the “compelling” presumption in their favor on which Hruby rests and on which father relies here. The court in Hruby appeared to recognize both distinctions:

“In child custody disputes between natural parents and other private parties, this court early resolved the tension between the custodial rights of natural parents and the parens patriae power of the state by applying some variant formulation of the rule that a natural parent was entitled to the custody of his or her children unless that parent was unfit or unable to care for the children properly; absent such a threat to the children’s welfare, their interests, much less the interests of nonparents seeking their custody, were of no concern.⁴

“4 Cf. ORS 419.476(1) (definition of children within jurisdiction of juvenile court) * * 304 Or at 506. (Emphasis supplied.)

In other words, after the child has been “removed from the control of the parents,” ORS 419.474(2), and has become a ward of the court, ORS 419.507(1), the presumption in favor of the biological parents ceases to apply. Presumably those events occurred because the child was at risk. See Hruby and Hruby, supra, 304 Or at 510. At a minimum, Hruby left open the question of whether it applies to juvenile proceedings and did not invite the use of “compelling reasons” as the controlling standard in such proceedings.

Moreover, the Hruby court explained that ORS 109.119, the statute that allowed the non-parents in both Hruby and this case to intervene, is procedural only and does not alter the substantive law regarding who should have custody of the child. 304 Or at 515. By contrast, ORS 419.474(2), although general in nature, applies substantively to the “care, guidance and control” of this child. Similarly, ORS 419.507(1) states a substantive rule for placement of a child who is a ward of the court.

Father argues that the phrase “preferably in the child’s own home,” in ORS 419.474(2), creates a preference for him that parallels the common law preference expressed in Hruby. We disagree. The statute suggests continuity for the child, but the phrase in question does not mention the parents.⁷ The child is now eight-and-a-half; since she was two, she has lived in her grandparents’ home continuously, and, even before that, she spent much of her time there. The child’s “own home” is her grandparents’ home.

Two themes permeate ORS chapter 419. First, before the aid of the juvenile court can be invoked, it must be proved that the parents have failed their child. Second, and consequently, the best interests of that neglected or damaged child are the court’s compass in its intervention. The statutes thus reflect a tension between competing values: unity of the nuclear family and welfare of the child. The juvenile court must weigh all appropriate factors — such as the child’s age and sex, the problem that led to the juvenile court proceeding, the level of parental cooperation with treatment plans, and continuity of placement — none of which has a “compelling” priority over other factors. To hold that a “compelling reasons” standard applies, as the dissent urges, would be to change direction and run contrary to the course that the legislature has set.

In summary, Hruby does not apply. ORS 419.474(2) and ORS 419.507(1) do. ORS 419.474(2) directs the juvenile court to promote “the child’s welfare” and to “secure for the child care that best meets the needs of the child.” ORS 419.507(1), which governs placement of children who are made wards of the court, requires the juvenile court to place the child where “it would be in the best interest and welfare of the child.” The juvenile court applied that standard, and so did our original opinion. For that reason, we adhere to that opinion.

Reconsideration granted; former opinion adhered to.

1 In his brief and his petition for review, father also objects to the juvenile court’s failure to hear witnesses. The court acted on the basis of representations by counsel for both parties as to what the evidence would show, as well as exhibits and the pleadings, affidavits, and other documents in the court’s case file. The court did not, as father apparently would have liked, hear witnesses. However, father did not make that objection to the juvenile court. Therefore, we need not address it on appeal.

2 ORS 419.474(2) provides:

“The provisions of ORS 419.472 to 419.597, 419.800 to 419.839 shall be liberally construed to the end that a child coming within the jurisdiction of the court may receive such care, guidance and control, preferably in the child’s own home, as will lead to the child’s welfare and the best interest of the public, and that when a child is removed from the control of the parents of the child the court may secure for the child care that best meets the needs of the child.”

3 ORS 419.507(1) provides:

“A child found to be within the jurisdiction of the court as provided in ORS .419.476(1), may be made a ward of the court. Where a child has been found to be within its jurisdiction, and when the court determines it would be in the best interest and welfare of the child, the court may:

“[Make various placements and direct legal custody of the child.]”

4 ORS 419.476(l)(e) provides:

“(1) The juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and

“(e) Either the person’s parents or any other person having custody of the person have abandoned the person, failed to provide the person with the support or education required by law, subjected the person to cruelty or depravity or to unexplained physical injury or failed to provide the person with the care, guidance and protection necessary for the physical, mental or emotional well-being of the person * *

5 The juvenile court jurisdictional petition alleged in one paragraph that both parents had failed to provide for the child’s physical and emotional needs and in two other paragraphs that mother had failed to provide for those needs. The court found that the jurisdictional allegations of the petition had been proved but did not, and needed not, specify on which ones it relied.

6 Of course, in this proceeding, initiated by CSD pursuant to ORS 419.576, father asked the juvenile court to place the child in his home.

7 This court has not clearly decided whether a “best interests of the child” or a “compelling reasons” standard applies to juvenile court proceedings. Reflow v. Reflow, Seabert, 24 Or App 365, 545 P2d 894, rev den (1976), used “best interests,” while State ex rel. Juv. Dept. v. G.W., 27 Or App 547, 556 P2d 993 (1976), used “compelling reasons.” In each case, however, we awarded custody of the child to the party in whose home the child was living at the time the proceeding was initiated. In Reflow, we expressly noted “that continuity in one unchanging family environment, especially for young children, is probably the most important single element necessary to a child’s wholesome development.” 24 Or App at 373. G. W. also emphasized continuity in its analysis. 27 Or App at 553. In Reflow, the child was living with non-parents, to whom we awarded custody; in G. W., it was the father in whose home the child lived who obtained custody. G.W. is also factually distinguishable from the present case in additional respects; for example, the child’s three siblings had been awarded to the father, and the sole basis for the trial court’s award of custody to an aunt and uncle appears to have been the child’s preference. Our original opinion in this case, similarly, relied on the juvenile court’s explanation that its custody decision “was based on the need for stability and continuity.” State ex rel Juv. Dept. v. Lauffenberger, supra, 88 Or App at 644.