Oregon Appellate Ct - Jan 11, 2017
by: Sara Werboff • January 13, 2017 • no comments
Appeal and Review - Declining to Exercise Discretion to Review for Plain Error when Error Could Have Been Fixed in the Trial Court
The court rejects defendant's claim that the trial court entered a judgment that entered two separate convictions for stalking. Below, the trial court agreed that the two counts merged. The prosecutor prepared a judgment that indicated that Count 5 should merge with Count 4. Defense counsel and the trial court reviewed the judgment before it was entered and the trial court indicated that if the judgment was erroneous, it would enter an amended judgment. Assuming without expressly deciding that the judgment was erroneous, the court declines to exercise its discretion to review the error. Defense counsel had an opportunity to review and object to the judgment, either at the time it was entered or afterwards. Additionally, the trial court register does not reflect that a separate conviction was ever entered. And finally, the court admonishes that these kinds of errors can be corrected in the trial court "in a way that would consume less time and resources from the parties and the courts", via a motion to modify or correct the judgment under ORS 138.083, because the error in this case was clerical. The court, in a footnote, makes a pitch for trial courts to use the Uniform Criminal Judgment to avoid such confusion in future cases.
State v. Chesnut, 283 Or App 347 (2017) (Duncan, P.J.)
Termination of Parental Rights - DHS Met Burden of Proof under Indian Child Welfare Act (ICWA)
On de novo review, the court affirms the termination of parents' parental rights applying the heightened standards under ICWA. Under ICWA, DHS must prove that it made active efforts to provide remedial services and rehabilitative programs to prevent the breakup of the Indian family and that parents' continued custody of their child is likely to result in serious emotional or physical damage to this child. Those determinations must be supported by evidence beyond a reasonable doubt, including testimony of a qualified expert witness who possesses special knowledge of social and cultural aspects of Indian life.
The court concludes that DHS made active efforts. The court rejects father's argument that "active efforts" require efforts that are current up to the termination trial because the statute imposes no fixed time periods during which services must be provided. Here, DHS engaged in considerable efforts starting from before the child's birth and provided an "extensive array" of services to address parents' mental health and parenting issues. Those efforts were not successful. Parents, although they made a little progress, continue to suffer from mental health conditions that prevented them from learning the parenting skills they needed to care for their child. Additionally, the evidence establishes that reintegration into parents' home is improbable within a reasonable time, therefore continued custody with the parents is likely to result in serious emotional or physical damage to the child. The termination of parental rights is in the best interest of the child.
DHS v. M.L.M., 283 Or App 353 (2017) (Flynn, J.)
DHS v. S.J.M., 283 Or App 367 (2017) (DeHoog, J.)
State v. Civil, 283 Or App 395 (2017) (Haselton, S.J.)
Per Curiam - Juvenile Dependency - No Evidence that Mother Continued to Have Domestically Violent Relationships
The court reverses and remands for an entry of judgment in this juvenile dependency case because DHS failed to prove one of the grounds of jurisdiction (although it proved other bases). Specifically, DHS alleged that the child was endangered because domestic violence in mother's home created a harmful environment. The evidence, however, established that mother's violent relationship had ended long before the dependency hearing and there was no evidence that mother continued to engage in domestically violent relationships.
DHS v. S.P.R., 283 Or App 419 (2017) (per curiam)
