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In re B. H. C.

Court of Appeals of Oregon

October 4, 2017

In the Matter of B. H. C., a Youth.
v.
B. H. C., Appellant. STATE OF OREGON, Respondent, In the Matter of B. H. C., a Youth. STATE OF OREGON, Respondent,
v.
B. H. C., Appellant. In the Matter of B. H. C., a Youth. STATE OF OREGON, Respondent,
v.
B. H. C., Appellant.

          Submitted January 31, 2017

         Union County Circuit Court 5251J; Petition Number 5251J02, 5251J03, 5251J01; Russell B. West, Judge.

          Angela Sherbo fled the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.

         Case Summary:

         Youth, who is under the juvenile court's delinquency jurisdiction, challenges two conditions of probation imposed by the juvenile court: Condition 26 and Condition 31. Condition 26 authorizes the juvenile department to sanction youth with detention for probation violations without a court hearing in some circumstances. Condition 31 authorizes the juvenile department to electronically monitor youth and possibly require youth to pay for such monitoring. Youth contends that both conditions are not authorized by the juvenile code. The state argues that youth's challenges are not ripe and fail on their merits.

         Held:

          Youth's challenges to both conditions were ripe for review. The text, context, and legislative history of ORS 419C.453 all indicate that the legislature intended to authorize the use of detention to punish a youth for a probation violation only in the manner provided for by that statute. Condition 26 does not comply with that statute because it authorizes someone other than the juvenile court to decide whether detention should be used to punish a probation violation, and because it authorizes that decision to be made without a hearing before the court. The Court of Appeals rejected as unpreserved youth's assertions that the juvenile code does not permit electronic monitoring at all, and that the juvenile court erred by requiring youth to pay for any monitoring required. The court rejected on the merits youth's contention that the juvenile code precludes the juvenile court from giving the juvenile department discretion whether to use the electronic monitoring that the juvenile court has expressly authorized, assuming the juvenile code allows for electronic monitoring in the first instance.

         Reversed and remanded with directions to strike Condition 26; otherwise affirmed.

         [288 Or. 121]LAGESEN, J.

         The primary issue presented in this appeal is whether a condition of probation imposed by the juvenile court is within the court's authority under the juvenile code. Since 1979, the juvenile code has authorized juvenile courts to sanction juvenile probationers with detention for their probation violations. See ORS 419C.453(1).[1] The condition at issue, in effect, delegates that authority to the juvenile department in some circumstances, eliminating the participation of the court. The question for us is whether the legislature, in giving juvenile courts the authority to punish probation violations with detention, intended to permit juvenile courts to give that authority to the juvenile department, thereby eliminating court involvement. We conclude that it did not. For that reason, we reverse and remand to the juvenile court to strike that condition of probation, but otherwise affirm.

         I. BACKGROUND

         The facts relevant to the issues on appeal are largely procedural and not disputed. This is a consolidated appeal from judgments in three separate delinquency cases involving youth. In those cases, youth admitted to conduct [288 Or. 122] that, if committed by an adult, would constitute two counts of theft in the second degree, ORS 164.045; one count of unlawful possession of methamphetamine, ORS 475.894; and one count of criminal mischief in the second degree, ORS 164.354. Based on youth's admissions, the juvenile court determined that youth was within the jurisdiction of the court and placed youth on probation for a period of time not to exceed five years. The court imposed a number of conditions of probation in each case, including two conditions that are the focus of this appeal.

         The first condition-Condition 26-authorizes the juvenile department to sanction youth with detention for up to eight days for probation violations admitted by youth:

"The Court is authorizing the use of 30 days of detention to be used by the Juvenile Department at their discretion. The Juvenile Department is authorized to utilize up to 8 days without further order of the court on a given violation if the youth admits to the Juvenile Department that the probation violation has occurred, and the youth consents to the sanction. If the youth does not admit that a violation has occurred, or does not consent to the sanction, but the Juvenile Department has probable cause to believe a violation has occurred, the Juvenile Department may detain the youth and request a hearing before the Court which shall be held as soon as is practicable."

         As the terms of the condition state, the juvenile department may do so without either a judicial determination that youth violated a condition of probation or a judicial determination that detention is an appropriate sanction under the circumstances.

         The second condition-Condition 31-authorizes the juvenile department to electronically monitor youth. It may or may not require youth to pay for that monitoring. It states that youth is "[s]ubject to Electronic Monitoring (suspended) at the discretion of the Juvenile Department. If utilized, youth will be responsible for payment of $per day."[2]

         [288 Or. 123]Youth objected to both conditions. Youth's view was that both conditions delegated to the juvenile department the authority to make decisions that the juvenile code required be made by the juvenile court.[3] The juvenile court rejected that argument and imposed the challenged conditions.

         On appeal, youth assigns error to the imposition of each of those conditions. With respect to the first condition, she contends, as she did below, that it represents an unlawful delegation of the court's authority under ORS 419C.453 to adjudicate probation violations and sanction a youth with detention. Youth argues that the terms of the statute demonstrate that the legislature intended the juvenile court, not the juvenile department, to adjudicate probation violations and make any decision regarding the use of detention as a sanction for a probation violation. As to the second condition, youth again argues that the condition represents an unlawful delegation of the juvenile court's authority. In addition, youth makes new arguments about that condition: that the juvenile code does not authorize the use of electronic monitoring at all, that the juvenile court erred by requiring youth to pay for the cost of monitoring, and that, in all events, the condition is unauthorized because the court did not place sufficient limitations on how the department may use electronic monitoring.

         The state makes several different responsive arguments. It first contends that youth's challenges to the two conditions of probation are not ripe for our review. The state asserts that it is speculative as to whether youth will violate the conditions of probation, whether the juvenile department will impose detention as a sanction, whether the juvenile department will employ electronic monitoring, and whether it will require youth to pay for any such monitoring. Consequently, according to the state, we lack jurisdiction to consider youth's challenges at this point in time and may not consider them unless and until the conditions are enforced [288 Or. 124] against youth. As to the merits, the state recognizes that no statute specifically authorizes either challenged condition. However, it argues that, to the extent that youth has preserved the issues that she raises on appeal, the challenged provisions are generally consistent with various other provisions of the juvenile code and asks that we infer from those provisions that the challenged conditions are authorized.

         II. ...


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