State ex rel. Juvenile Dept. of Washington County v. Slack

• Decision Date: 21 May 1974
• Citation: 520 P.2d 905,17 Or.App. 57,98 Adv.Sh. 1647
• Parties: In the Matter of David Webb Slack, a child. STATE of Oregon ex rel. JUVENILE DEPARTMENT OF WASHINGTON COUNTY, Respondent, v. David Webb SLACK, a child, Appellant.
• Court: Oregon Court of Appeals

Page 905

520 P.2d 905

17 Or.App. 57

In the Matter of David Webb Slack, a child.

STATE of Oregon ex rel. JUVENILE DEPARTMENT OF WASHINGTON

COUNTY, Respondent, v. David Webb SLACK, a child, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Feb. 21, 1974.

Decided April 1, 1974.

Rehearing Denied May 8, 1974.

Review Denied May 21, 1974.

Richard A. Van Hoomissen, Portland, argued the cause for appellant. With him on the briefs were George J. Cooper, III, and Morrison, Bailey, Dunn, Cohen & Miller, Portland.

Scott McAlister, 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 FORT, Judges.

SCHWAB, Chief Judge.

This is an appeal from an order of the juvenile court remanding David Slack to adult court. Appellant makes two contentions on appeal. (I) The remand order did not state with sufficient specificity the reasons forming the basis for the court's conclusion that Slack should be remanded. (II) The state did not meet its burden of proof that the best interests of the juvenile and of society would be served by remand.

I

The order of remand stated in pertinent part:

'* * * The best interest of society can best be served and the rehabilitation of * * * Slack can best be accomplished in a non-juvenile court setting.'

The appellant correctly states:

'A comparison of the above language with ORS 419.533(1) shows clearly that the Juvenile Court merely copied the provisions of the remand statute without adding a single substantive statement of reason which was based upon evidence received * * *.'

He then goes on to argue that the order does not comply with the due process requirement in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). He bases his conclusion on the following statement from Kent:

'Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions. It must have before it a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts. It may not 'assume' that there are adequate reasons, nor may it merely assume that 'full investigation' has been made. Accordingly, we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that the statutory requirement of 'full investigation' has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specifity to permit meaningful review.' 383 U.S. at 561, 86 S.Ct. at 1057,

and also on our statement in State v. Weidner, 6 Or.App. 317, 325, 484 P.2d 844, 487 P.2d 1385, 1386 (1971), in which we said by way of Dicta:

'The next consideration is defendant's claim that the remand order did not comply with the remand statute nor with the requirements of Kent v. United States, supra. Kent v. United States is interpreted to require the entry of specific findings of fact which will support its decision to remand a child to adult court. Oregon State Bar, Oregon Juvenile Law Handbook, Remand § 4.9 (1970). The remand statute itself provides that the court must make a finding not only that the child is above 16 years of age and is alleged to have committed a criminal offense, but also that 'retaining jurisdiction will not serve the best interests of the child and the public.' In the present case the court did not comply either with Kent or with the remand statute in this regard.'

For the reasons which follow we hold that Kent, in so far as it deals with 'findings of fact,' has no application under the Oregon statutory scheme, and that any implication to the contrary in State v. Weidner, supra, should be disregarded. ORS 419.533(1) provides:

'(1) A child may be remanded to a circuit, district, justice or municipal court of competent jurisdiction for disposition as an adult if:

'(a) The child is at the time of the remand 16 years of age or older; and

'(b) The child committed or is alleged to have committed a criminal offense or a violation of a municipal ordinance; and

'(c) The juvenile court determines that retaining jurisdiction will not serve the best interests of the child and the public.'

This statute sets out the criteria for determining whether a juvenile should be remanded. It does not require written findings to be incorporated in an order.

As we noted in another remand case, State ex rel. Juv. Dept. v. Johnson, 95 Adv.Sh. 1316, 11 Or.App. 313, 323, 501 P.2d 1011, 1016 (1972), Sup.Ct. review denied (1973):

'A juvenile court 'exercises jurisdiction as a court of general and equitable jurisdiction.' ORS 419.474(1). An appeal from its order 'shall be conducted in the same manner as an appeal in an equity suit.' ORS 419.561(4). Our review, therefore, is de novo. Prindel v. Collins, 4 Or.App. 618, 482 P.2d 540 (1971).'

In Hannan v. Good Samaritan Hosp., 4 Or.App. 178, 471 P.2d 831, 835, 476 P.2d 931 (1970), Sup.Ct. review denied (1971), we reviewed in considerable detail the distinction between de novo review and appellate review for error, and concluded:

'Our review of the opinions of the Oregon Supreme Court applying that statute (ORS 19.125(3) ¹) leads us to the conclusion that in Oregon a de novo review is a trial anew in the fullest sense, with the findings of the trial court, subject to one exception, being given no weight. This exception has been enunciated in terms of giving 'great weight' to the tribunal (usually the trial judge) who had the opportunity to see and hear the witnesses and thus be better able to weigh their credibility on disputed issues of fact. In Claude v. Claude, 180 Or. 62, 79, 174 P.2d 179, 186 (1946), the court said:

"On disputed questions of fact it is the rule in this court to give weight to the findings of the trial judge in a suit in equity and not lightly to set them aside. We are not, however, bound by such findings, and, where the evidence is conflicting, we have a duty to examine the record with care for the purpose of determining the truth.'

In Liggett v. Lester, 237 Or. 52, 57, 390 P.2d 351, 354 (1964), the court said:

"* * * We have examined the record independently, as we are required to do in all equity cases * * *.'

In Roberts v. Mariner, 195 Or. 311, 348, 245 P.2d 927, 943 (1952), the court said:

"* * * We recognize the oftenannounced rule that, in equity proceedings, this court will give great weight to the findings of the trial court upon disputed questions of fact, but, as we have also often said, such findings are not binding upon us, And the rule itself is one of expediency only. We have a responsibility in every case such as this to make our own independent study of the record and to arrive at our own conclusions respecting it.' (Emphasis supplied.)' 4 Or.App. at 187--188, 471 P.2d at 835.

As noted in State v. Weidner, supra, the main thrust of Kent was that constitutional due process requires that a juvenile not be remanded to adult court without a hearing. Here we have before us a complete record of a full hearing. That portion of Kent dealing with specific findings was addressing itself to the situation then existing in the District of Columbia, the jurisdiction from which the case arose. At that time there was no District of Columbia statute governing review of remand orders, let alone a provision for de novo review by an appellate court. Findings of fact are frequently helpful and their use is encouraged. Nonetheless, not everything that may be desirable is therefore constitutionally required. If we assume that a remand hearing under ORS 419.533(1) is a 'civil proceeding' as that phrase is used in ORS 17.431(2), ² then by timely request a party can statutorily require the juvenile judge to make findings of fact. That issue is not before us in the case at bar.

II

Turning to the merits, our review of the record leads us to the conclusion that the trial judge was correct in remanding Slack to adult court. These proceedings were instituted on a petition which stated that Slack, at the age of 17 years and 8 months, participated in an armed robbery. Although he had no previous official juvenile record there is evidence of previous deviant behavior which had been dealt with unofficially. A prior formal juvenile record is not a condition precedent to remand. State ex rel. Juv. Dept. v Sage, Or.App., 98 Adv.Sh. 59, 515 P.2d 956 (1973). Suffice it to say that the record discloses a young man of considerable intelligence with the ability to verbalize his responsibilities to society but not actually to accept them. We agree with the trial judge that the services available within the juvenile system for the rehabilitation of an 18-year-old with Slack's background are not as likely to be beneficial to him or society in the long run as those services available in the adult system.

Affirmed.

FORT, Judge (dissenting).

The first question presented on this appeal, in my opinion, is whether or not the court made findings of fact sufficient to support its order of remand. The majority concludes that it did.

Unlike the findings approved in State ex rel. Juv. Dept. v. Johnson, 11 Or.App. 313, 501 P.2d 1011, Sup.Ct. review denied (1973), the findings here are set forth only in the ultimate fact language of the statute.

The court holds 'that Kent, ¹ in so far as it deals with 'findings of fact,' has no application under the Oregon statutory scheme' and then goes on to disapprove of our prior holding in State v. Weidner, 6 Or.App. 317, 484 P.2d 844, 487 P.2d 1385 (1971) in so far as it implies to the contrary. I disagree and would adhere to that opinion.

In State v. Gibbs, 94 Ida. 908, 500 P.2d...