DocketNumber: 2005816122; Petition Number 110536; A158684
Citation Numbers: 277 Or. App. 23, 370 P.3d 536
Judges: Lagesen, Ortega, Wilson
Filed Date: 3/16/2016
Status: Precedential
Modified Date: 9/9/2022
This juvenile dependency appeal by father challenges the juvenile court’s decision to take jurisdiction over his daughter, M.
For the reasons explained below, we conclude that a judgment entered on January 29, 2015, served to reflect the juvenile court’s concluding decision on jurisdiction, which was first reflected in jurisdictional findings made by the juvenile court in an earlier order that was not appealable. Because father appeals from that judgment, which is the first appealable jurisdictional judgment in this case, father’s challenge to the assertion of jurisdiction by the court is reviewable in this appeal. On the merits, we accept DHS’s concession that the allegations found proven by the juvenile court were insufficient to support jurisdiction over M, and reverse the jurisdictional judgment.
The juvenile code authorizes the appointment of juvenile referees by the juvenile court judge. ORS 419A.150(1). Moreover, “[t]he judge may direct that any case, or all cases of a class designated by the judge, be processed or heard in the first instance by a referee in the manner provided for the hearing of cases by the court.” ORS 419A.150(2). After a hearing conducted by a referee, the referee “shall transmit” the referee’s findings, recommendations, or order to the juvenile court in writing. Id. Within 10 days of entry of the referee’s order, a party may seek rehearing of that decision by the juvenile court. ORS 419A.150(7). Alternatively, a juvenile court judge may order rehearing on the judge’s own motion. ORS 419A.150(6). Referee orders become immediately effective (subject to rehearing), and if rehearing is not sought or ordered within 10 days, the referee’s findings
As the Supreme Court explained in State ex rel Juv. Dept. v. J. W., 345 Or 292, 299, 193 P3d 20 (2008), a referee’s decision to take jurisdiction is not appealable because it does not comply with the statutory requirements of a judgment— in particular, it is not signed by a judge as required by ORS 18.038(4)(c).
With that background in mind, we recount the complicated procedural history of this case. In May 2014, DHS took temporary custody of M and filed a dependency petition. On September 2, 2014, mother stipulated to allegations that her mental health prevented her from safely caring for M. Juvenile Referee Hughes entered an order that reflected
To address the allegations in the amended petition against father, Judge Greenlick held a jurisdictional hearing over five days in late September and early October 2014. At the close of the hearing, the court made oral findings that M was within the jurisdiction of the court based on the proven allegations that father (1) neglected M by failing to ensure that she regularly attended school, (2) failed to properly groom her, and (3) allowed M to have unsupervised visits with mother under circumstances inconsistent with a previously entered visitation order.
Subsequently, the parties appeared before Referee Hughes on November 21, 2014, for a “review hearing” and “disposition.” That same day, Referee Hughes entered an order indicating that she was entering “Findings and Orders Regarding Both Parents.” In the section of the order titled “Jurisdiction” Referee Hughes indicated that “Trial was held before Judge Greenlick and findings were made on Oct 10, 2014 order.” As related to disposition, Referee Hughes continued M’s placement in relative foster care, ordered that M be made a ward of the court, and committed M to the legal custody of DHS. Further, she ordered father to participate in services, including, among other things, therapeutic visitation with M, a psychological evaluation, and participation in M’s therapy.
Within 10 days of Referee Hughes’ order, father filed a rehearing request, seeking rehearing on “disposition.”
On January 29, 2015, Hughes, acting in her capacity as a judge pro tempore, entered a document titled “Judgment Establishing Dependency Jurisdiction as to Both Parents” and “Judgment of Disposition.” That document indicated that findings and orders regarding “Father/Dispo” were entered on November 21, 2014, and that, because no party had sought rehearing of that order during the time prescribed, that order was now a final order of the juvenile court pursuant to ORS 419A.150(7).
On January 29, 2015, father filed a notice of appeal of Judge Rurshner’s January 6, 2015, order. This court determined that the January 6, 2015, order was not appealable. On February 20, 2015, father filed an amended notice of appeal indicating that he was also appealing the January 29, 2015, judgment.
Meanwhile, Hughes (acting again as a referee) held a review hearing and signed a “Review Order” on February 19, 2015. No party sought rehearing of that order, and on March 18, 2015, Hughes, returning to her capacity as a judge pro tempore, entered a “Review Judgment,” which incorporated the February 19, 2015, order “in its entirety” into the judgment “as a final judgment of the court.” On April 7, 2015, father filed another amended notice of appeal,
Eventually, father’s request resulted in an order from the Chief Judge of this court. In that order, the Chief Judge concluded that the March 18, 2015, judgment was not appealable because it was simply a judgment that adopted a prior referee order as to which no party had requested a rehearing. In a footnote in the order, the Chief Judge briefly addressed the appealability of the January 29, 2015, judgment, noting that “appellant has not moved for a determination of the appealability of that judgment and the court makes none.”
The parties’ briefing has squarely placed the review-ability of the January 29, 2015, judgment at issue. DHS asserts that, because the juvenile court never entered an appealable jurisdictional judgment, father’s contention that the court erred in asserting jurisdiction over M is not reviewable on appeal of the January 29, 2015, judgment. As for the January 29, 2015, judgment, DHS contends that the court intended only to enter judgment upholding the “disposition” in Referee Hughes’ November 21, 2014, order. DHS acknowledges that the January 29, 2015, judgment is marked as “Judgment Establishing Dependency Jurisdiction,” but contends that that title does not make it a “jurisdictional” judgment, because to construe it that way would conflict with the court’s express intent set out in the body of the judgment document—i.e., to affirm the disposition made in the November 21, 2014, referee’s order. DHS also suggests that “father is not necessarily without a remedy” in this procedural posture, because “if father were to obtain [an appeal-able jurisdictional judgment], he could appeal from it.”
Child generally agrees with DHS, although she makes slightly different arguments. She asserts that father invited Judge Greenlick to enter an unappealable jurisdictional order, as opposed to an appealable judgment. So, to the extent the juvenile court erred by not entering a jurisdictional judgment at that point, see ORS 18.035(2) (in juvenile proceedings, “the judge shall ensure that a judgment document complying with ORS 18.038 and 18.048 is created and
Father counters that he appealed the first appeal-able jurisdictional judgment, and thus, his appeal of the January 29, 2015, judgment, allows us to review the court’s decision to take jurisdiction over M. In essence, father contends that, because Judge Greenlick’s October 14, 2014, order asserting jurisdiction over M was not appealable, the court’s jurisdictional determination in that order can be reviewed on appeal from the first appealable jurisdictional judgment—in this case, the January 29, 2015, judgment.
Accordingly, the dispositive issue is whether the January 29, 2015, judgment is properly characterized as a jurisdictional judgment. The answer to that question requires us to first examine what constitutes a jurisdictional judgment in juvenile proceedings. ORS 419A.205(1)(a) states that, for purposes of being appealed, a judgment includes “[a] judgment finding a child * * * within the jurisdiction of the court.” As the Supreme Court noted in J. W., a “judgment” under ORS 419A.200 and ORS 419A.205(1)(a) and (b)—the relevant statutes governing appeals in juvenile proceedings—must also comply with the statutes in ORS chapter 18 that govern judgments generally. 345 Or at 298. Therefore, we must also examine the relevant statutes in ORS chapter 18 to determine whether the January 29, 2015, judgment is a “judgment finding [M] within the jurisdiction of the court.”
ORS 18.005(8) defines “judgment” as follows:
“‘Judgment’ means the concluding decision of a court on one or more requests for relief in one or more actions, as reflected in a judgment document.”
ORS 18.005(9), in turn, defines “judgment document” as follows:
“‘Judgment document’ means a writing in the form provided by ORS 18.038 that incorporates a court’s judgment.”
As the Supreme Court explained in Interstate Roofing, Inc. v. Springville Corp., 347 Or 144, 152, 218 P3d 113 (2009), “judgment,” as statutorily defined, consists of “two distinct
There is no dispute that the January 29, 2015, judgment is “a writing in the form provided by ORS 18.038.” It was plainly titled as a judgment, ORS 18.038(1); it was separate from any other document in the action, ORS 18.038(3); and it included the name of the court, the file number, the names of the parties, and the signature of a judge, ORS 18.038(4).
The dispositive question is whether the January 29, 2015, judgment substantively expresses a “concluding decision” on jurisdiction over M. DHS and child assert that it does not. As noted, DHS acknowledges that the document is titled in part “Judgment Establishing Dependency Jurisdiction as to Both Parents,”
Interstate Roofing counsels that ORS chapter 18 does not prescribe particular words that must be used to reflect the court’s “concluding decision.” 347 Or at 157. Put another way, “a properly titled judgment need not use particular words of adjudication in the text, as long as the text expresses a concluding decision on the claim.” Id. at 161. Here, we conclude that the court’s January 29, 2015, judgment expresses a “concluding decision” on jurisdiction.
Initially, we conclude that it is significant that the juvenile court labeled the January 29, 2015, judgment explicitly as a jurisdictional judgment. Interstate Roofing
As to the third claim mentioned in the limited judgment (a negligence counterclaim), the court noted some text in the body of the document that reflected the trial court’s intent to render a concluding decision on the negligence counterclaim.
“[b]oth legally and as a practical matter, it is a document in which a trial court, by signing it, reflected its intent to conclusively resolve some but not all of the claims in a particular action. We believe that, in general, the significance of signing such a document is not lost on trial court judges.”
Id. at 162. Similarly, here, we conclude that the juvenile court, by labeling the document a jurisdictional judgment, reflected its intent to “conclusively decide” jurisdiction as to M.
The body of the document explicitly incorporates the November 21, 2014, order, which referenced Judge Greenlick’s jurisdictional findings in the October 10, 2014, order. That is, the document’s incorporation of the November 21, 2014, order “in its entirety” fairly demonstrates that the
We are mindful that the juvenile code does not contemplate a jurisdictional judgment for each parent. Rather, it contemplates a single judgment of jurisdiction based on the totality of the conditions and circumstances of the child. Dept. of Human Services v. W. A. C., 263 Or App 382, 392, 328 P3d 769 (2014). Although mother was a witness in the jurisdictional hearing before Judge Greenlick, she was not represented by counsel and did not participate as a party. Judge Greenlick doubted mother’s credibility as a witness but he did not purport to make a determination about jurisdiction over M considering mother’s circumstances. In this case, when mother stipulated to one of the jurisdictional allegations concerning her on September 2, 2014, but father asked for a trial, Referee Hughes correctly followed the prescription in W. A. C.:
“The proper procedure in those cases is for the court to receive one parent’s admissions and delay making a jurisdictional determination until after the contested hearing [sought by the other parent].”
Id. at 394-95.
Mother participated as a party, represented by counsel, at the November 21, 2014, hearing. The title of the November 21, 2014, order shows that it reflects “findings and orders regarding both parents,” and the January 29, 2015,
In sum, we conclude that, when the title of the January 29, 2015, judgment is considered in conjunction with explicit text in the document that incorporates the November 21, 2014, order, which in turn referred to Judge Greenlick’s order finding facts as to father supporting jurisdiction over M, the January 29, 2015, judgment represents a concluding decision on jurisdiction. Thus, we can appropriately review father’s challenge to the juvenile court’s assertion of jurisdiction.
On the merits, we accept DHS’s concession that the evidence was legally insufficient to demonstrate that M’s conditions or circumstances at the time of the hearing demonstrated a reasonable likelihood of harm to M’s welfare. See ORS 419B.100(1); Dept. of Human Services v. M. Q., 253 Or App 776, 785, 292 P3d 616 (2012) (DHS has burden to establish a nexus between the allegedly risk-causing conduct or circumstances and risk of harm to child, and that the risk of harm is present at the time of the hearing and not merely speculative).
Reversed.
Mother stipulated to allegations that her mental health prevented her from safely caring for M and that she needed the help of the court and the Department of Human Services to address her mental health needs. She is not a party to this appeal.
We note that, although the parties frame their arguments differently in terms of “appealability” and “reviewability,” and to some extent, use those terms interchangeably, they are not the same. “Appealability” usually concerns whether an appeal may be taken at all. State v. Montgomery, 294 Or 417, 420, 657 P2d 668 (1983). And “reviewability” concerns what issues and arguments a court can consider in a case that is appealable. Id. Both DHS and child seem to acknowledge that there is an appealable judgment in the case, but argue that it is not a jurisdictional judgment, rendering father’s assignments of error as to jurisdiction unreviewable. Both DHS and child further argue that the jurisdictional order about which father complains is not an appealable judgment.
Since the events that are at issue on appeal, subsequent juvenile court proceedings have occurred. In short, DHS filed an amended petition in August 2015
ORS 18.038 generally sets forth the requirements for a “judgment document.” ORS 18.038(4)(c), in particular, requires a judgment document to include “[t]he signature of the judge rendering the judgment.”
The court, with the consent of the parties, amended the dependency petition to reflect the allegations that the court had found proven by a preponderance of the evidence.
The juvenile dependency statutes clearly contemplate that jurisdictional and dispositional judgments may be entered separately, and are separately appealable. See State ex rel Juv. Dept. v. J. H.-O., 223 Or App 412, 417, 196 P3d 36 (2008) (noting that the controlling statutory provisions demonstrate that “the legislature anticipated a scenario where a party might challenge a jurisdictional judgment before the disposition has occurred); see also ORS 419A.205(1)(a) (judgment finding a child or youth to be within the jurisdiction of the court is an appealable judgment); ORS 419A.205(1)(b) (“judgment disposing of a petition, including, but not limited to, a disposition under ORS 419B.325” is an appeal-able judgment); ORS 419A.205(2) (appeal of a jurisdictional judgment does not deprive the juvenile court of jurisdiction to proceed with disposition).
Father does not challenge as inappropriate the juvenile court’s assertion of jurisdiction over M in the form of an unappealable order, and given our ultimate conclusion in this case, we need not decide that issue.
Referee Hughes had ordered mother to engage in services on September 2, 2014.
The eheck-the-box form filed by father that requested rehearing had separate boxes for “jurisdiction” and “disposition.” Father checked only the box for “disposition.”
The statement in the judgment that no party had sought rehearing of the November 21, 2014, order is incorrect. Nevertheless, given that our task is to determine whether there was an appealable judgment that would allow us to review father’s jurisdictional challenge, the incorrect statement in the judgment does not have any bearing on our analysis.
As already noted, 277 Or App at 30, the document was also labeled a “Judgment of Disposition.”
The limited judgment stated “as a matter of law, a remedy in Tort is not available.” Id. at 162.