Young v. Alongi

858 P.2d 1339, 123 Or. App. 74, 1993 Ore. App. LEXIS 1470
CourtCourt of Appeals of Oregon
DecidedSeptember 1, 1993
Docket51-92-00624; CA A75684; 16-92-01441; CA A75632
StatusPublished
Cited by2 cases

This text of 858 P.2d 1339 (Young v. Alongi) 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
Young v. Alongi, 858 P.2d 1339, 123 Or. App. 74, 1993 Ore. App. LEXIS 1470 (Or. Ct. App. 1993).

Opinion

DURHAM, J.

This is a consolidated appeal of guardianship and habeas corpus proceedings in which appellant1 seeks to recover custody of her child and objects to the appointment of respondents as “permanent guardians”2 of the child. She petitions for review of our orders denying her motions for court-appointed counsel on her appeals and for a state-paid transcript. We treat her petition as one for reconsideration, ORAP 9.15, allow the petition, and allow her motions, in part.

Appellant contends that the state affords appointed counsel and a state-paid transcript to similarly situated indigent parents who appeal juvenile court orders that terminate or significantly interfere with parental rights and custody. She relies on Zockert v. Fanning, 310 Or 514, 800 P2d 773 (1990), and Article I, section 20, of the Oregon Constitution, which provides:

“No law shall be passed granting to any citizen or class of citizens privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”

The record before us consists of appellant’s motion, her affidavit describing her indigency, the court’s guardianship judgments filed on May 28, 1992, establishing guardianship and dismissing the petition for writ of habeas corpus, and an order for child support and visitation filed on October 30, 1992. We take the facts from the court’s guardianship judgment and support order.

Respondents petitioned for appointment as guardians of appellant’s daughter, Aleta Alongi. ORS 126.070(2). The record does not explain whether any court had modified appellant’s custody over the child before the petition was filed. Appellant, who was represented by counsel, objected to the petition and asked that she be appointed as guardian if the [77]*77court determined that the child needed one. The court appointed respondents as temporary guardians on January 27, 1992, held hearings and, on May 28, 1992, entered its findings and judgment. The court found that the child’s father was in default, had failed to support the child and had had little contact with her for many years. The court found that appellant had abused the child, that the child was in need of protection, that appellant was not fit to be the guardian, that respondents were qualified and that their appointment would serve the child’s best interests. The court denied appellant’s objections and her request to be appointed as guardian, and appointed respondents as guardians.3 The judgment made no provision for visitation by appellant but recited that respondents “have not kept the minor, Aleta Alongi, from communicating or contracting [sic] her mother, but are respecting the desires of Aleta Alongi.” The court ordered appellant to deliver the child’s personal belongings to respondents’ attorney. On October 30, 1992, the court ordered appellant to contribute to the child’s support and awarded her “reasonable and seasonable visitation” with the child.

In her motions to this court, appellant, actingp ro se, sought appointment of counsel and a state-paid transcript, arguing that the judgment effectively terminated her parental rights. Her affidavit confirms that she is indigent. We denied the motions. In her petition for review, she says that she is unable to afford counsel on appeal and has retained her present counsel for the limited purpose of seeking review of her entitlement to court-appointed counsel and a state-paid transcript. She contends that the state affords those privileges to parents facing termination of parental rights or other long-term disruptions of the parent-child relationship by the juvenile court and that Article I, section 20, obligates the state to grant her the same privileges in a guardianship proceeding under ORS 126.070.

We first determine whether appellant has a right, through a non-constitutional source, to the privileges she [78]*78claims. Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 564, 687 P2d 785 (1984). The controlling statutes, ORS 126.060 to ORS 126.095, and case law are silent regarding the right of an indigent parent to appointed counsel on appeal or a state-paid transcript in this context.4 We turn to appellant’s constitutional claim.

The court has authority to appoint a guardian if that will serve the welfare and best interests of the minor. ORS 126.070(2) provides:

“If the court finds that a qualified person seeks appointment, venue is proper, the required notices have been given and the welfare and best interests of the minor will be served by the requested appointment, the court shall make the appointment. In other cases the court may dismiss the proceedings or make any other disposition of the matter that will best serve the interests of the minor.”

Appointment of a guardian has serious consequences, because it may deprive the natural parent of the right to the child’s custody and to control her associations and upbringing. See Bryant v. Dukehart, 106 Or 359, 373, 210 P 454 (1923). “Guardianship actions can significantly affect custodial rights.” Gribkoff v. Bedford, 76 Or App 695, 698, 711 P2d 176 (1985). The powers of a guardian are equal to those of a parent in custody of a child. ORS 126.080(1) provides, in part:

“A guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of the minor and unemancipated child * * *.”

It cannot be gainsaid that a natural parent who participates in a guardianship proceeding regarding her child faces a substantial possibility of the loss, or a long-term deprivation, of custody and a significant interruption of the parent-child relationship.

The juvenile court has authority to make similar significant interventions in parent-child relationships for the [79]*79best interest and welfare of children. We cite several examples. ORS 419.507(1) provides, in part:

‘ ‘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.”

The juvenile court may exercise broad authority to protect a child within its jurisdiction by, for example, depriving the parents of physical custody, restricting child visitation and controlling the child’s associations, occupation and activities. ORS 419.507(l)(a). The juvenile court may grant guardianship of the child to Children’s Services Division, or some suitable person or entity.

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Cite This Page — Counsel Stack

Bluebook (online)
858 P.2d 1339, 123 Or. App. 74, 1993 Ore. App. LEXIS 1470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-alongi-orctapp-1993.