Morgan v. MacLaren School, Children's Services Division

• Decision Date: 15 December 1975
• Citation: 543 P.2d 304,23 Or.App. 546
• Parties: Patrick MORGAN, a minor child, Petitioner, v. MacLAREN SCHOOL, CHILDREN'S SERVICES DIVISION, Respondent.
• Court: Oregon Court of Appeals

Page 304

543 P.2d 304

23 Or.App. 546

Patrick MORGAN, a minor child, Petitioner, v. MacLAREN SCHOOL, CHILDREN'S SERVICES DIVISION, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Oct. 22, 1975.

Decided Dec. 15, 1975.

James W. Nass, Marion-Polk Legal Aid Service, Inc., Salem, argued the cause and filed the briefs for petitioner.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen. and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

LANGTRY, Judge.

Petitioner, 16 years old, seeks reversal of an 'Order of Revocation of Foster Care (Parole) Placement' entered by the resident superintendent of the MacLaren School, a department of the state's Children's Services Division (CSD). The proceeding is under authority of the Administrative Procedures Act (APA) (ORS 183.310--180.500). Petitioner contends that the proceedings leading up to the entry of that order failed in several respects to meet the constitutional due process requirements outlined by the Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). As a preliminary matter, CSD has moved to dismiss the appeal because, as it asserts, exclusive jurisdiction in the matter is conferred on the juvenile court which made the commitment of the child.

Both parties agree that the Children's Services Division is not among those agencies exempt from the provisions of the APA by ORS 183.315. Under the terms of ORS 183.480(2) administrative orders arising from 'contested cases' must be appealed directly to this court for judicial review. A juvenile parole revocation proceeding falls within the definition of a 'contested case' under the APA (ORS 183.310(2)). CSD submits nonetheless that a specific statutory policy of retaining jurisdiction in the juvenile courts of All matters affecting the rights of a child committed to the custody of CSD requires dismissal of this appeal.

ORS 419.507(2)(f) provides that

'(c)ommitment of a child to the Children's Services Division does not terminate the court's continuing jurisdiction to protect the rights of the child or his parents or guardians.'

This has been interpreted as extending the authority of the juvenile court to affirmatively participate in all matters affecting the protection of the 'rights of the child or his parents or guardians' if the child has been placed by that court in the custody of the CSD. See State ex rel. Juv. Dept. v. Richardson, 267 Or. 374, 517 P.2d 270 (1973); Children's Services Div. v. Weaver, 19 Or.App. 574, 528 P.2d 556 (1974). The statute has not been interpreted in any context similar to that in this case.

The underlying purpose of the APA is to provide a simple and uniform procedure for review of administrative action. ORS 183.480(1)(b) provides:

'Judicial review of final orders of agencies shall be Solely as provided by ORS 183.480 * * *.' (Emphasis supplied.)

The statutes should be read together, and, if possible, meaning should be given to both. Interpretation of ORS 419.507(2)(f) as requiring the jurisdiction of juvenile courts to encompass appeals from final orders of an administrative agency to which the APA is applicable would conflict with the purpose of the APA and be contrary to what appears to be the clear intent of the legislature. School Dist. No. 48 v. Fair Dis. App. Bd., 14 Or.App. 35, 512 P.2d 799 (1973). Allowing full play of ORS 419.507(2)(f) in matters like those litigated in Richardson and Weaver but restricting its meaning to exclude matters such as that here litigated gives meaning to both statutes. Respondent's motion to dismiss is denied.

Petitioner was 'paroled' from MacLaren School in March 1974 and was placed in Portland with the Youth Progress Association--a group foster home--on April 3, 1975. The activity program--i.e., 'conditions of parole'--required him to remain within the care and control of the Association, to abide by the Association's rules, and to attend a local high school on a regular and full-time basis. The program also prohibited petitioner from traveling from the Portland area without the express permission of the Association's staff and his parole counselor.

On April 14, 1975 petitioner received a 'Notice of Preliminary Hearing' informing him that 'Juvenile Parole authorities' had recommended revocation of his parole on the grounds that he had

'(f)ailed to remain within the care and control of your foster care placement * * * by leaving said facility on or about April 10, 1975 and failing to return voluntarily * * *.'

The notice also indicated that a hearing would be held that same day to determine if there was, in fact, 'probable cause' to believe that he had violated the conditions of his parole in the manner alleged. Although present at the preliminary hearing, petitioner chose to remain silent, neither admitting nor denying the allegation that he had fled from the Youth Progress facility. Based upon the status report introduced by the 'Juvenile Parole Section,' the hearings officer concluded that there was probable cause to believe that a violation had occurred and recommended that a formal revocation hearing be convened.

At the hearing petitioner admitted--by means of a stipulation--that he had left the group home and failed to report to school on April 9 with the intent of leaving the Portland area, all in violation of the conditions of his parole. Petitioner then sought to introduce evidence relating both to mitigating circumstances and to the feasibility of an alternate placement. The hearings committed chairman refused to permit the evidence, holding that:

'* * * (T)he only issue before this committee is that of whether or not the parolee, Patrick Morgan, violated the terms and conditions of the community placement in which he was living * * * in accordance with the allegations that are contained in the notice of this hearing * * * and any evidence relating or alleged to relate to circumstances leading up to the acts that may constitute the grounds for revocation of his parole, whether it is characterized by mitigating evidence or otherwise is not felt to be relevant, nor is it felt by the committee that evidence relating to * * * the future planning for Patrick Morgan--is the function of this committee * * *.' ¹

CSD concedes that the 'Morrissey requirements' are equally applicable where the individual faced with the loss of his or her 'conditional liberty' is a juvenile. See State ex rel. D. E. & Keller, 251 So.2d 703 (Fla.App.1971); People ex rel. Silbert v. Cohen, 29 N.Y.2d 12, 16, 323 N.Y.S.2d 422, 425, 271 N.E.2d 908, 911 (1971) (this case stated that the juvenile is entitled to a hearing with counsel to 'marshal the facts and introduce evidence of mitigating circumstances * * *'); State ex rel. Bernal v. Hersman, 54 Wis.2d 626, 196 N.W.2d 721 (1972). We agree with those precedents.

Discussing the parole system in Oregon, and specifically the parole revocation process subsequent to Morrissey, one commentator has noted that a decision to revoke involves two separate determinations:

'* * * The first is a narrow factual determination that the parolee has committed an act which is a violation of his parole. This determination includes findings regarding the circumstances in which the violation occurred. Generally the Board's factual determination is either admitted or not actively contested by the parolee, because revocation proceedings are seldom initiated unless there has been a clearcut violation. If the parole officer's allegations are disputed, the source of dispute is more likely to concern the circumstances surrounding the charge rather than the violation itself, which often appears on its face to be only a technicality.

'The second determination in the revocation decision is whether the violation and the circumstances in which the violation occurred justify revocation, giving due consideration to the parolee's overall conduct. To decide, the Board must weigh the severity of the parolee's conduct in the situation in which a violation was found against mitigating factors regarding the parolee's overall conduct. This weighing of adverse and mitigating factors is a value judgment involving a prediction of the risk of continued socially prescribed conduct by the parolee.

'The state has the initial responsibility of producing evidence indicating the occurrence of a violation and the presence of surrounding circumstances serious enough to justify revocation. Generally, the...