State v. L.P.L.O. (In re L.P.L.O.)

280 Or.App. 292

381 P.3d 846

In the Matter of L.P.L.O., a Child.

State of Oregon, Respondent,

v.L.P.L.O., Appellant.

A161023

Court of Appeals of Oregon.

Argued and submitted May 9, 2016; on respondent's motion to dismiss filed April 18, 2016, and appellant's response to respondent's motion filed May 2, 2016. August 17, 2016

Jennifer R. Stoller argued the cause and filed the briefs for appellant.

Cecil A. Reniche–Smith, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

SHORR, J.

In this juvenile dependency case, petitioner L.P.L.O. had petitioned the juvenile court to take dependency jurisdiction over him when he was 17 years old. The juvenile court refused to take jurisdiction and entered a judgment dismissing petitioner's petition. After entry of that judgment, but before filing his appeal, petitioner turned 18 years old. On appeal, petitioner argues that the juvenile court could not decline to take jurisdiction over him because, based on the court's findings, he was within the court's dependency jurisdiction as a matter of law. The state does not dispute the merits of petitioner's appeal. Instead, the state argues that we should not reach the merits because (1) the appeal is moot now that petitioner has turned 18 years old and (2) we and the juvenile court lack subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), ORS 109.701 to 109.834. We conclude that petitioner's appeal is not moot, there is subject matter jurisdiction under the UCCJEA, and petitioner is within the court's dependency jurisdiction. Accordingly, we deny the state's motion to dismiss and reverse and remand for the juvenile court to take jurisdiction over petitioner and for further proceedings.

The facts are not in dispute. At the time he filed his petition, petitioner was in federal custody in Oregon. Petitioner was born in El Salvador, where he lived with his father until he fled in 2013. Petitioner's mother died in 2006. Petitioner's father would hit petitioner with a belt, cord, or rope, sometimes daily; petitioner believed his father's treatment of him would resume if he returned to El Salvador. Also, while in El Salvador, criminal gangs threatened to kill petitioner if he did not participate in “doing bad things to people,” and he knew of other people who had been killed when they refused similar requests.

In August 2013, petitioner left El Salvador, making his way to the United States, where he was apprehended and placed in the custody of the federal Office of Refugee Resettlement (ORR). ORR allowed petitioner to live with his siblings in Massachusetts until April 2015. Petitioner's siblings never attained legal guardianship of petitioner.

Petitioner filed for dependency jurisdiction in August 2015, while he was 17 years old, after he had been placed in a facility in Oregon. Petitioner sought juvenile court jurisdiction so that he could qualify for federal special immigrant juvenile status, which requires a state juvenile court to declare the juvenile immigrant a dependent based on findings that the juvenile cannot be returned to his or her parents due to abuse, neglect, or abandonment. See 8 USC § 1101(a)(27)(J) (defining special immigrant juvenile status).

After petitioner filed his petition, the juvenile court referee held a preliminary hearing to determine if the court had jurisdiction under the UCCJEA, and concluded that it had temporary emergency jurisdiction under ORS 109.751(1). The referee found that “[t]his child is present in Oregon with no parents available to provide safe care for the child. Mother is deceased; father is in El Salvador. Child reports that he cannot safely return to El Salvador due to gang violence there.” The referee then set a jurisdictional hearing date in October 2015.

Petitioner's father received proper notice of the jurisdictional hearing but did not appear. At the hearing, the evidence consisted of petitioner's testimony and an investigator's report that included confirmation from petitioner's sister that their father would hit petitioner with a belt. The state argued that the juvenile court did not have jurisdiction under the UCCJEA and, if it did have jurisdiction, that petitioner had not met his burden to prove a risk of harm from his father's alleged abuse.

After taking evidence, the juvenile court dismissed petitioner's petition. In the judgment dismissing the case, the juvenile court first determined that it had temporary emergency jurisdiction under the UCCJEA and that no other state had jurisdiction. It then found that the following paragraphs of the allegations in petitioner's petition were proven true:¹

“2. * * *

“A. * * *

“i. The child's mother is deceased.

“ii. The child's father repeatedly physically abused him throughout his childhood and until the child left El Salvador.

“iii. The child ran away from the home of his father.

“iv. The child has been threatened with physical harm by criminal gangs in El Salvador and is at risk of harm if he returns to El Salvador.

“v. The child has no legal guardian in the United States.

“* * * * *

“vii. The child is currently in the physical custody of the U.S. Department of Health and Human Services, Office of Refugee Resettlement, which has been unable to identify any relatives with whom the child could live.”

The court also found that petitioner was under 18 years old and had “left El Salvador in August 2013.” The court concluded that “the petitioner failed to sustain his burden and his petition for jurisdiction is denied.”

Petitioner timely appealed the court's decision, but, as noted, he appealed after he had turned 18 years old.

MOTION TO DISMISS FOR MOOTNESS

As a preliminary matter, we must first address the state's motion to dismiss petitioner's appeal. The state argues that petitioner's appeal is moot because, now that petitioner has turned 18 years old, this appeal cannot afford him any practical relief. That is so, the state argues, because the juvenile court can take dependency jurisdiction only over a child who is under 18, ORS 419B.100. Thus, even if we were to reverse the juvenile court's decision, the state asserts that the juvenile court cannot now, on remand, enter a judgment taking jurisdiction over petitioner and making him a ward of the court because the juvenile court is without authority to do so. In making that argument, the state points to In re Conner, 207 Or.App. 223, 140 P.3d 1167 (2006).

Petitioner responds that nothing in ORS 419B.100 prevents this court from directing a juvenile court to enter a jurisdictional judgment after a child appeals a denial of jurisdiction that was made before the child turned 18 years old. Petitioner urges us to apply the rule from delinquency cases—that a child's age is determined, for jurisdictional purposes, at the time proceedings are instituted—to dependency proceedings. Petitioner further argues that the juvenile court has continuing jurisdiction over this matter because he filed his petition when he was 17 years old, the jurisdictional hearing occurred when he was still 17 years old, and he timely appealed the court's dismissal of his petition.

We have not previously confronted the legal question raised by the state's motion to dismiss. “We analyze the scope of a statutory grant of jurisdiction in the same manner as we analyze other statutes.” McIntire v. Forbes , 322 Or. 426, 429, 909 P.2d 846 (1996), abrogated on other grounds by Kellas v. Dept. of Corrections , 341 Or. 471, 486, 145 P.3d 139 (2006). Thus, in construing ORS 419B.100(1), “[w]e give primary weight to the text and context of the provision in light of any legislative history that may be appropriately considered.” Greenfield v. Multnomah County , 259 Or.App. 687, 698, 317 P.3d 274 (2013).

The juvenile dependency jurisdiction statute, ORS 419B.100(1), provides that, subject to two exceptions not at issue here, “the juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and” meets one of the statutory criteria listed in subsections (a) to (h).² There is no dispute that, when petitioner filed his petition, he was under 18, thus, it was a case involving a person who is under 18 years of age. Therefore, the question we must confront is whether a court having exclusive jurisdiction of an initiated dependency proceeding involving a 17 year old, nonetheless loses its authority to exercise that exclusive jurisdiction if the child turns 18 before a jurisdictional judgment is entered. The text of ORS 419B.100(1), alone, does not conclusively resolve that question.

Significantly, however, our case law has confirmed that a juvenile court does not so lose its authority in similar circumstances in juvenile delinquency matters based on identical statutory text, and those cases provide useful context for interpreting ORS 419B.100(1). See Weber and Weber , 337 Or. 55, 67, 91 P.3d 706 (2004) (recognizing that “this court presumes that the legislature enacts statutes in light of existing judicial decisions that have a direct bearing upon those statutes”); State v. Biscotti , 219 Or.App. 296, 302, 182 P.3d 269 (2008) (“We ordinarily assume that the legislature is aware of other statutes in pari materia and case law interpreting them existing at the time of enactment.”).

The juvenile delinquency jurisdiction statute, ORS 419C.005(1), provides:

“Except as otherwise provided in ORS 137.707, the juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and who has committed an act that is a violation, or that if done by an adult would constitute a violation, of a law or ordinance of the United States or a state, county or city.”

(Emphasis added.) The relevant jurisdictional wording is identical to that used in juvenile dependency matters...