§ 9.1 Conduct of Jurisdictional Trial
Library | Juvenile Law: Dependency (OSBar) (2017 Ed.) |
§ 9.1-1 Fundamental Fairness
Parents have a fundamental liberty interest, under the Fourteenth Amendment to the United States Constitution, in the care, custody, companionship, and control of their children. Stanley v. Illinois, 405 US 645, 651, 92 S Ct 1208, 31 L Ed 2d 551 (1972); Prince v. Massachusetts, 321 US 158, 166, 64 S Ct 438, 88 L Ed 645 (1944); Pierce v. Soc'y of the Sisters of the Holy Names of Jesus & Mary, 268 US 510, 534-35, 45 S Ct 571, 69 L Ed 1070 (1925); Meyer v. Nebraska, 262 US 390, 399, 43 S Ct 625, 67 L Ed 1042 (1923). And "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer, 455 US 745, 753, 102 S Ct 1388, 71 L Ed 2d 599 (1982).
Given the constitutional interests at stake, juvenile-dependency and termination-of-parental-rights proceedings comport with due process only if they are fundamentally fair. See State ex rel. Juv. Dep't of Clackamas Cnty. v. Charles, 106 Or App 628, 633-34, 810 P2d 389, rev den, 312 Or 150 (1991) (extending to dependency proceedings the principles regarding termination proceedings articulated in State ex rel. Juv. Dep't of Multnomah Cnty. v. Geist, 310 Or 176, 189-90, 796 P2d 1193 (1990)); see also Dep't of Human Services v. T.L., 358 Or 679, 693, 369 P3d 1159 (2016) (describing that the adequacy of the father's counsel's performance at a permanency hearing must be determined using a standard of fundamental fairness); State v. N.L., 237 Or App 133, 143, 239 P3d 255 (2010) (concluding that a jurisdictional trial was not fundamentally fair because the father's counsel was inadequate); State ex rel. Juv. Dep't of Multnomah Cnty. v. Burris, 163 Or App 489, 495, 988 P2d 414 (1999) (evaluating whether the failure to provide notice for a preliminary status conference that led to the juvenile court asserting dependency jurisdiction over the mother's children was fundamentally fair).
Further, as a matter of state statutory law under ORS 419B.090(4), all provisions of Oregon's Juvenile Dependency Code must be construed consistently with parents' constitutionally protected liberty interest in the parent-child relationship and principles of due process. See ORS 419B.090(4) (the provisions of ORS chapter 419B, the dependency code, "shall be construed and applied in compliance with federal constitutional limitations on state action" that infringes on a parent's fundamental liberty interest in the parent-child relationship); Dep't of Human Services v. J.R.F., 351 Or 570, 578-79, 273 P3d 87 (2012) (ORS 419B.090(4) "makes clear that the due process rights of parents are always implicated in the construction and application of the provisions of ORS chapter 419B").
"The essence of fundamental fairness is the opportunity to be heard at a meaningful time and in a meaningful manner," and fundamental fairness "emphasizes factfinding procedures" such as "notice, adequate counsel, confrontation, cross-examination, and standards of proof." Geist, 310 Or at 189-90 (citing Mathews v. Eldridge, 424 US 319, 333, 96 S Ct 893, 47 L Ed 2d 18 (1976); McKeiver v. Pennsylvania, 403 US 528, 543, 91 S Ct 1976, 29 L Ed 2d 647 (1971)). However, fundamental fairness is not rigidly applied and, instead, "is flexible and calls for such procedural protections as the particular situation demands." Geist, 310 Or at 190.
§ 9.1-2 Juvenile Dependency Procedural Statutes
The Oregon Rules of Civil Procedure do not apply to dependency proceedings. ORS 419B.800(1). Instead, "procedure and practice" in dependency proceedings are governed exclusively by the juvenile court dependency procedure code set forth in ORS 419B.800 through ORS 419B.929. A juvenile court may "regulat[e] pleading, practice and procedure in any manner not inconsistent" with the procedural statutes of the Juvenile Dependency Code (ORS 419B.800-419B.929). ORS 419B.800(3).
§ 9.1-3 Authority to Adjudicate under the UCCJEA
Dependency proceedings are subject to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which is codified in Oregon as ORS 109.701 to 109.834. See ORS 109.704(4) (dependency proceedings qualify as a "child custody proceeding" and therefore must comply with the UCCJEA); ORS 419B.803(2) ("Juvenile court jurisdiction is subject to [the UCCJEA].").
The UCCJEA "sets forth the rules for determining jurisdiction in custody cases involving multiple jurisdictions." Dep't of Human Services v. S.C.S., 253 Or App 319, 324, 290 P3d 903 (2012), rev den, 353 Or 428 (2013). Those rules include, among numerous others, whether Oregon is the child's "home state" (ORS 109.741(1)(a)), whether a simultaneous proceeding is pending in or a prior custody order was entered by another state (ORS 109.757), and whether Oregon is an appropriate forum for the instant action (ORS 109.761).
NOTE: The UCCJEA also plays an important role in domestic-relations cases involving multiple jurisdictions. For a comprehensive overview, see 1 Family Law § 8.2-2 to § 8.2-2(f) (OSB Legal Pubs 2013).
The UCCJEA authorizes courts in different states to communicate about the issue of jurisdiction, as long as they make a "record" of the communication ("information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form") and grant the parties access to it. ORS 109.731(1), (4)-(5). When the parties are not able to participate in the communication itself, "they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made." ORS 109.731(2); accord Dep't of Human Services v. G.G., 234 Or App 652, 654-55, 229 P3d 621 (2010) (vacating the Oregon juvenile court's order denying the father's motion to transfer the dependency case regarding his child to Montana under the UCCJEA without first giving the parties an opportunity to present evidence and legal arguments related to the juvenile court's communications with the Montana court, during which the two courts "agreed that the Oregon juvenile court should retain jurisdiction").
NOTE: The UCCJEA jurisdictional analysis is separate and distinct from the venue analysis. See Dep't of Human Services v. R.M.S., 280 Or App 807, 810-11, 383 P3d 417 (2016) (vacating jurisdictional judgment when the juvenile court relied on the venue analysis under ORS 419B.118(1) instead of conducting an evidentiary hearing or making findings pertinent to the UCCJEA analysis).
Whether a trial court has authority to adjudicate a matter under the UCCJEA—a question of subject-matter jurisdiction—cannot be waived and may be raised as a defect at any stage of the proceedings (even on appeal) by any party or by a court sua sponte. Campbell v. Tardio, 261 Or App 78, 80, 323 P3d 317 (2014).
PRACTICE TIP: To avoid unnecessary delay, the petitioner should actively investigate whether other proceedings or judgments exist relating to the custody of the child at issue or whether a dependency proceeding in Oregon would otherwise run afoul of another state's jurisdiction over the child, and the petitioner should provide all the pertinent information at the earliest opportunity.
Even when an Oregon court may not have authority to adjudicate a matter and render a child custody determination, the UCCJEA confers limited jurisdiction on the Oregon court to exercise "temporary emergency jurisdiction" to protect a child presently located in Oregon from immediate harm. ORS 109.751(1); accord G.G., 234 Or App at 656 ("One purpose of the UCCJEA is to grant Oregon temporary emergency jurisdiction to protect a child in this state."). Such emergency jurisdiction authorizes an Oregon court only to enter and enforce a temporary order; it does not eviscerate the UCCJEA requirements or confer authority to alter a prior custody determination from another state. See ORS 109.751(2)-(4) (setting forth the particular obligations on an Oregon court exercising temporary emergency jurisdiction depending on the circumstances of the case before it).
§ 9.1-4 Trial Participants
§ 9.1-4(a) Parties
"Parties to proceedings in the juvenile court under ORS 419B.100" are entitled to participate in the jurisdictional trial in a variety of ways, including appearing with counsel and calling and cross-examining witnesses. ORS 419B.875(1)(a), (2)(b)-(c). Parties to a dependency case include the following:
(1) The child or ward at issue in the proceeding. ORS 419B.875(1)(a)(A); see ORS 419B.005(2)(a) (defining child as an unmarried person under the age of 18 years); see also ORS 419A.004(36) (defining ward as a child over whom the juvenile court has already asserted dependency jurisdiction under ORS 419B.100).
(2) The parents or guardians of the child or ward. ORS 419B.875(1)(a)(B); see ORS 419A.004(19), as amended by Or Laws 2017, ch 651, § 41(19) (effective January 1, 2018) (defining parent as the "biological or adoptive mother and the legal parent" of the child or ward); see also ORS 419A.004(15) (defining guardian as referring to guardianship of a person and not of an estate); ORS 419B.365-419B.371 (setting forth the mechanisms by which a juvenile court establishes guardianships over a child under the dependency code); Burk v. Hall, 186 Or App 113, 120-21, 62 P3d 394, rev den, 336 Or 16 (2003) (the juvenile court is the exclusive means of establishing a guardianship over children who are wards of a juvenile court); Kelley v. Gibson, 184 Or App 343, 350, 56 P3d 925 (2002) ("We find no authority in the juvenile code that permits the juvenile court to circumvent the requirements of ORS 419B.365 by acting as a probate court and establishing a guardianship under the grounds in ORS 125.305." (Footnote omitted)). A person is rebuttably presumed to be the child's legal parent by virtue of marriage to the child's mother at the time of birth or, if...
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