State ex rel. Juvenile Dept. of Multnomah County v. Bishop

• Decision Date: 08 January 1992
• Parties: In the Matter of Alec D. Bishop, Child. STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. Alec BISHOP, Appellant. 8710-82736; CA A65418.
• Court: Oregon Court of Appeals

Page 1012

823 P.2d 1012

110 Or.App. 503

In the Matter of Alec D. Bishop, Child.

STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. Alec BISHOP, Appellant.

8710-82736; CA A65418.

Court of Appeals of Oregon.

Argued and Submitted Sept. 27, 1991.

Decided Jan. 8, 1992.

Martin W. Reeves, Portland, argued the cause, for appellant. With him on the brief was Reeves, Kahn & Eder, Portland.

Michael C. Livingston, Asst. Atty. Gen., Salem, argued the cause, for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before BUTTLER, P.J., and ROSSMAN and De MUNIZ, JJ.

ROSSMAN, Judge.

Child was determined to be within the jurisdiction of the juvenile court for acts which, if committed by an adult, would constitute first degree rape. ORS 163.375(1)(b); ORS 419.476(1)(a). The issue is whether the court erred in denying child's motion for alternative disposition. ¹

Before the jurisdictional proceeding, child's attorney filed a motion to dispose of the case without criminal prosecution, seeking to have the case resolved by some alternative means, such as an informal disposition agreement, ORS 419.635, amendment of the petition so that it would only allege dependency, conditional postponement of prosecution or dismissal of the petition at the completion of probation. The motion was not then either granted or denied.

At the jurisdictional proceeding, the evidence showed that, at the age of 12, child had on two occasions engaged in sexual intercourse with his sister, who was then 10 years old. ² After finding child within its jurisdiction, the juvenile court denied his earlier motion on the ground that the court was without authority to impose an alternative disposition after a contested hearing. Child was placed on formal probation for two years. On appeal, he challenges the denial of his motion for alternative disposition.

A juvenile delinquency proceeding is not a criminal prosecution. State v. Turner, 253 Or. 235, 238, 453 P.2d 910 (1969). In juvenile proceedings, the court has "greater flexibility" to dispose of cases in a manner that gives primary consideration to the welfare of the child. State v. McMaster, 259 Or. 291, 297, 486 P.2d 567 (1971). ³ Although the juvenile court's discretionary power to fashion appropriate remedies is not limitless, ORS 419.474(2) directs that a child who has come within the court's jurisdiction should receive care, guidance and control that promote the child's welfare and is in the public's best interests. ⁴ Toward that end, the juvenile court "may modify or set aside any order made by it," ORS 419.529(1), may amend a petition sua sponte or on the motion of an interested party, ORS 419.500(1); State ex rel. Juv. Dept. v. Gates, 96 Or.App. 365, 371, 774 P.2d 484, rev. den., 308 Or. 315, 779 P.2d 618 (1989), and may, in appropriate cases, dismiss a petition "at any stage of the proceedings." ORS 419.482(5). The phrase "any stage" encompasses the post-adjudicative stage, so long as the juvenile court has continuing jurisdiction over the child.

The state argues that the juvenile court's authority to dismiss a petition at any stage of the proceedings "does not authorize dismissal for any reason or over any objection that a party might assert." (Emphasis the state's.) That misconstrues the issue. Although the court has an obligation to give due consideration to the reasons for alternative disposition and the objections thereto, it is still within the judge's discretion to order a disposition that is suited to the individual case. For example, if the court finds that a particular case is appropriate for alternative disposition, including the dismissal of the petition upon completion of probation, it may act accordingly. ORS 419.482(5). Similarly, if the court is presented with a delinquency petition, it may amend the petition to allege dependency. See, e.g., State ex rel. Juv. Dept. v. LJ, 26 Or.App. 461, 465, 552 P.2d 1322 (1976).

The state argues that State ex rel. Juv. Dept. v. Gillman, 80 Or.App. 570, 574, 723 P.2d 341 (1986), lists all of the "categories of cases" in which dismissal of a petition is authorized. It then points out that this case does not fall within any of those categories. The state also contends that, because the juvenile court in Gillman lacked authority to dismiss a petition before adjudication, the court in this case lacked authority to dismiss the petition after adjudication. Those arguments rest on faulty logic and a serious misreading of Gillman, in which we held only that the juvenile court should not have dismissed a petition after a preliminary shelter care hearing and before an adjudicatory hearing on whether the court should assert jurisdiction, because early dismissal of the petition deprived the state of its opportunity to investigate the case and present its evidence. 80 Or.App. at 575, 723 P.2d 341. Here, the state was not denied that opportunity.

Finally, the state argues that, once it has proved the allegations of a petition, if there is no basis for challenging the merits of the adjudication, the court would be acting in an "arbitrary" fashion if it dismissed the petition or modified a dispositional order. We disagree. Challenging the merits of the adjudication is not a statutory prerequisite to the court's determination that, for example, an alternative disposition is appropriate for the individual child. See ORS 419.505. All of the parties may agree that child committed the acts that...