State ex rel. Juvenile Dept. of Clackamas County v. Christy
| Decision Date | 14 January 1972 |
| Citation | 7 Or.App. 608,492 P.2d 476 |
| Parties | In the Matter of Tarraine Reni Christy and Troy Garrett Christy, Children. STATE ex rel. JUVENILE DEPARTMENT OF CLACKAMAS COUNTY, Oregon and Paula Barbisan, Respondents, v. Frank J. CHRISTY, Appellant. . Department 2 |
| Court | Oregon Court of Appeals |
Francis F. Yunker, Portland, argued the cause and filed the brief for appellant.
J. Ross Cravens, Deputy Dist. Atty., Oregon City, argued the cause for respondents. With him on the brief was Roger Rook, Dist. Atty. for Clackamas County, Oregon City.
Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.
This is an appeal by the father from an order of the Clackamas County Juvenile Court which declared Tarraine Reni Christy, age 11, and Troy Garrett Christy, age 9, wards of the juvenile court and further ordered '* * * that the physical care and custody * * * be vested in their mother * * * with supervision of said children to be provided by the Clackamas County Juvenile Department.'
Several years prior to the juvenile court proceedings the parents had obtained a divorce in Multnomah County and custody of the children was awarded to the father. Christy v. Christy, 244 Or. 575, 419 P.2d 425 (1966). In recent years the children had been living with their father in Clackamas County, Oregon. The mother had remarried and was living in Lane County, Oregon.
During the interval since the divorce decree the mother has filed two motions to change the custody provisions. Both motions have been denied.
The events which led to the juvenile court proceedings occurred on September 1, 1970. On that date the girl asked the housekeeper to take her and her brother to Lake Oswego, Clackamas County, so that the children could go shopping. The girl's real purpose was to create an opportunity to run away. The girl told the housekeeper that she and her brother wanted to do some shopping by themselves and that they would meet the housekeeper at a pre-arranged place about two hours later. The girl had spoken with her mother by telephone the night before about running away. The mother was later to testify that she tried to discourage her daughter, but the girl went ahead with her plan. After the housekeeper left the children, the boy became frightened and began to cry. The girl then telephoned the mother in Lane County and the mother told the girl to take her brother to the nearby police station and wait there. The mother called the police station to say that she was on her way to Lake Oswego. She picked up the children and took them back to Lane County with her. The children remained there with the mother and stepfather.
On September 14, 1970, the circuit court of Multnomah County issued a show cause order directing the mother to appear and show cause why she should not be held in contempt of the court for having violated the custody provisions of the divorce decree. The sheriff of Lane County was unable to serve this order on the mother.
Thereafter, the father obtained a writ of assistance. Two members of the sheriff's office of Lane County picked up the children from the mother's home and delivered them to the father at the police station in Lane County. The father and children returned to Clackamas County.
The mother filed a petition in the juvenile department of the circuit court of Clackamas County which asked that court to take jurisdiction of the children and declare them wards of the court on the grounds that:
'* * * (T)he person having legal custody of said children * * * has failed to provide them with the care, guidance and protection necessary for their physical, mental and emotional well being by reason of the following facts: they ran away from the father's home on September 1, 1970, and they continually threaten to run from his custody; further, the father's housekeeper fails to provide adequate supervision of them, allowing them on the Lake Oswego streets for periods ranging to at least five hours; and further, the children are emotionally distressed when confronted with living with their father, including vomiting and hysteria.'
On October 30, 1970, the juvenile court held a preliminary hearing on the petition. At that time the father objected to the jurisdiction of the juvenile court on the grounds that the children already were wards of the Circuit Court of Multnomah County by virtue of the divorce decree. The court denied this motion and proceeded to hear testimony. The witnesses at this hearing were the records supervisor and police officer who were on duty at the Lake Oswego Police Station on September 1, 1970, the two Lane County officers who executed the writ of assistance, a marriage and family counselor whom the mother consulted prior to filing the petition, and the girl, Tarraine.
The Lane County officers testified that the girl cried severely when they went to return her to her father and that she stated she did not want to go back to her father's house. The boy did not cry but he vomited at the police station. There was testimony that the mother was acting in a very emotional manner as well.
The children had not appeared emotionally upset when the other witnesses saw them. The girl testified that she and her brother preferred to live with the mother.
The juvenile court directed that an amended petition be filed and took jurisdiction of the case at this point stating, '* * * All I am saying is there is a problem with this girl and I think that's sufficient under the code to give the Court jurisdiction.'
The hearing was continued so that a psychologist, appointed by the court pursuant to a stipulation of the parties, could interview the children, their parents and the stepfather and make a recommendation as to future custody. The father was given temporary custody of the boy and the girl was placed in foster care. A subsequent custody order transferred custody of both children to the mother.
On January 11, 1971, a hearing was held on the amended petition which read as follows:
'* * * (T)he behavior, conditions and circumstances of said children are such as to endanger their own welfare by reason of the following facts: the children left the home of their father, who had their custody, on September 1, 1970, and that thereafter when they were returned to the home of their father, they threatened to run away again.'
The father moved to dismiss the proceedings for lack of jurisdiction. The court again denied the motion to dismiss.
The father, the mother and the girl testified at this second hearing. The testimony of the girl was similar to her testimony at the first hearing. The testimony of the parents, as is to be expected, was conflicting. The mother said the children did well at her home and the father testified that the children became troubled only after visits with their mother. The psychologist's report recommended that custody be given to the mother but was largely conclusory and based on what the children said they wanted. The father called four witnesses who knew the children and all testified favorably as to the care the children had been receiving with him.
The preliminary issue on this appeal is whether the custody order of the divorce court precluded jurisdiction of the juvenile court.
When a court grants a divorce, it has a non-delegable duty to award custody. Christy v. Christy, supra at 578, 419 P.2d 425. The divorce court retains jurisdiction to set aside, alter or modify the custody provisions. ORS 107.130. Appellant relies on the case of Quinn v. Hanks, 192 Or. 254, 267, 233 P.2d 767 (1951), for the proposition that a juvenile court cannot proceed if the children have been the subject of a prior divorce decree. Quinn turned on the fact that, when that case was decided, juvenile courts and divorce courts were c...
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