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In re S.C.C.V.

Court of Appeals of Oregon

May 14, 2014

In the Matter of S. C. C. V., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
J. B. V., Appellant. In the Matter of H. B. B. V., aka H. H.-B., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
J. B. V., Appellant

Argued and Submitted March 7, 2014.

Douglas County Circuit Court. 1000517. Petition Number 10JU366, 12JU297. William A. Marshall, Judge.

Douglas County Circuit Court. 1000518. Petition Number 10JU366, 12JU297. William A. Marshall, Judge.

Valerie Colas, Deputy Public Defender, argued the cause for appellant. On the opening brief were Peter Gartlan, Chief Defender, and Kimberlee Petrie Volm, Deputy Public Defender, Office of Public Defense Services. With her on the reply brief was Peter Gartlan, Chief Defender.

Karla H. Ferrall, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

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

OPINION

Page 565

[262 Or.App. 747] EGAN, J.

In this juvenile dependency case, father appeals two judgments that changed the permanency plan for two of his children from reunification to adoption. See ORS 419B.476. He assigns error to the juvenile court's denial of his motion to dismiss the juvenile court's jurisdiction over the children, the court's decision to change the permanency plans from reunification to adoption, and the court's admission of certain exhibits for the purpose of making those two decisions.[1] Those assignments each spring from father's legal argument that the trial court improperly relied on the exception to the rules of evidence created by ORS 419B.325(2) to receive the challenged exhibits. He contends that the statute does not apply to either juvenile court jurisdictional determinations or to certain aspects of permanency hearings. We agree with father that, for purposes of ruling on father's motion to dismiss, the juvenile court's admission and consideration of the challenged exhibits was error. We therefore vacate the parts of the judgments denying father's motion to dismiss and remand for further consideration of that motion under the applicable evidentiary rules. Otherwise, we affirm.

The pertinent facts are undisputed and involve procedural matters. The juvenile court asserted jurisdiction over the two children as to father on four separate bases that generally pertained to his inability to safely parent them. The children were placed in foster care and a plan to reunite them with father was implemented. Father subsequently filed a motion to dismiss the juvenile court's jurisdiction. The juvenile court considered that motion at a contested permanency hearing at which the Department of Human Services (DHS) and the children sought to change the permanency plan from reunification to adoption. Early in the hearing, the parties and court agreed that the motion to dismiss and the permanency plans should be considered simultaneously; accordingly, the parties did not specify the purpose for which any given testimony or evidence was introduced.

[262 Or.App. 748] At the hearing, DHS moved to admit several exhibits into evidence, including a psychological evaluation of father, a police report describing an incident involving father and the children, counseling records, and certain of the children's medical records. Father objected to the admission of the exhibits on the ground that they " are hearsay and contain hearsay" ; he argued that the exhibits were not admissible for purposes of either the motion to dismiss jurisdiction or the permanency-plan determination. In response, DHS did not attempt to argue that the exhibits, or any portion thereof, were admissible under the rules of evidence. Instead, in an argument that was opposed by father, DHS urged that the challenged exhibits were admissible for both purposes under the exception to the rules of evidence created by ORS 419B.325(2).

Page 566

The trial court relied on that statute to receive the challenged exhibits.

The trial court denied father's motion to dismiss the jurisdictional petitions and also changed the permanency plan from reunification to adoption. In a letter addressed to the parties, the court explained those decisions, in part, by citing ...


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