author: HADLOCK, P. J. AOYAGI, J., dissenting.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Jameson Cole PLUEARD, Defendant-Appellant.
    A162112
    Court of Appeals of Oregon.
    Submitted on remand September 24, 2018. March 20, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jordan R. Silk, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   HADLOCK, P. J.

This case is on remand from the Supreme Court for reconsideration in light of State v. Henley , 363 Or. 284, 422 P.3d 217 (2018). At trial, defendant was convicted of first-degree sexual abuse, ORS 163.427, and using a child in display of sexually explicit conduct, ORS 163.670. Defendant raised three assignments of error on appeal, including an argument that the trial court erred by admitting testimony relating to "grooming" without requiring a scientific foundation. We affirmed without opinion. The Supreme Court remanded the case to us after it issued its opinion in Henley , in which it held that-at least as offered in the context of the trial in that case-evidence about sexual grooming of children "was 'scientific' evidence under OEC 702" that could not be admitted "without first requiring the state to establish its scientific validity." Henley , 363 Or. at 304, 422 P.3d 217. That remand implicates only defendant's first assignment of error, in which he argues that the trial court erred in admitting grooming evidence without a scientific foundation. We therefore adhere, without further analysis, to our previous rejection of defendant's second and third assignments of error. With respect to the first assignment of error, we reverse and remand for further proceedings in light of Henley for the reasons set out below.

We review the trial court's determination that evidence is not scientific for legal error. Brenner v. Nooth , 283 Or. App. 868, 877, 391 P.3d 947, rev. den. , 361 Or. 671, 399 P.3d 1002 (2017). In determining whether any evidentiary error was harmless, we "look at all pertinent evidence." State v. Blaylock , 267 Or. App. 455, 456 n. 1, 341 P.3d 758 (2014), rev. den. , 357 Or. 299, 353 P.3d 594 (2015). We briefly summarize the pertinent evidence below, acknowledging that the trial was lengthy and included much evidence about the victim's mental state that is not discussed here.

At the time of trial, T was a developmentally disabled 13-year-old boy who had also experienced significant mental-health challenges, including periods of psychosis. T frequently spent time at a game store that is set up so that groups of people can play games there, including a card game called Magic: The Gathering. Defendant is an adult who also spent time at that game store and was an experienced Magic player and collector of Magic cards. Defendant invited T to go home with him one night after they had played Magic at the store. T spent the night with defendant, partly at defendant's home and partly at a restaurant where they played games. T went home the next morning. Later that day, T told his mother that defendant had sexually abused him. Police were called and T spoke with them, with some neighbors, and with a CARES interviewer, Petke, whose testimony we discuss below. The details of T's descriptions of the alleged crimes are not important to our analysis. Generally speaking, although T did not give the same details to each person with whom he spoke, T reported that defendant had induced him to engage in sexual conduct and that defendant had given him Viagra. T also suggested to some people that defendant had offered him Magic cards to get him to allow the sexual contact.

T testified at trial. He described having met defendant at the game store, when defendant was "just sitting there playing with his cards" and T asked him if he wanted to play a game. T did not leave the store with defendant that day. On a different day, T testified, he played Magic with defendant, then went home with him. T's testimony included descriptions of the sexual abuse that followed. On cross-examination, defense counsel asked T why he went to defendant's home:

"Q. Did you want to go to [defendant's] house?
"A. He offered me cards and I wanted to get some cards so I can upgrade my deck. And this is a * * * 60 card deck and he helped me very numerous times on my deck and he's very nice. He was very nice at it, like making decks and stuff and-and so, yeah."

At defendant's house, T showed defendant his penis "for cards"; defendant also gave T Viagra and touched his penis.

T was interviewed at CARES by Petke, whose testimony about grooming is at issue in this case. T told Petke that he had gone to the game shop and had seen defendant-whom T had previously seen playing games at the shop-outside with another person. Defendant, T, and that third person went inside and played Magic. Defendant then invited T over to spend the night at his house; T told Petke that defendant "was going to (inaudible) for a Magic deck and he was going to like fix it up and stuff." Defendant told T that they would "figure out some price later or something." T told Petke that, after the group arrived at the house, they played Magic for a while and defendant gave him some particularly valuable cards. T then described the abuse that occurred during the course of the evening.

Over defendant's objection, Petke also testified about grooming. She first informed the jury about her training and experience:

"I have a master's degree in social work. I'm a licensed clinical social worker and I have been since 1998. I've worked at CARES for over 11 years and as a part of my work there I attend ongoing conferences and trainings. And, also, * * * our team, we meet regularly to go over cases and review our work and kind of provide feedback and ongoing training to each other as well."

Petke also informed the jury that she had conducted over 1,200 interviews with children. The prosecutor specifically questioned Petke about grooming:

"Q. In your training and experience with conducting these interviews * * * for kids who have been referred for suspicions of child abuse, child sexual abuse, have you become familiar with a phenomenon called grooming?
"A. Yes.
"Q. Can you describe what that terms mean [sic ] to you in your work?
"A. Yes. So grooming is a gradual process of building trust with a child in-with the purpose of establishing such a level of trust to allow for an opportunity for sexual abuse."

On cross-examination, Petke acknowledged that grooming usually occurs "over a time," when a person tries to gain the trust of a child. Petke responded affirmatively when asked whether her "explanation of grooming in this case," based on the information she had, "would be focused in on that [two-day] time period" during which T spent the night at defendant's home. She acknowledged that grooming "often * * * takes place over a longer period of time."

Because the court had overruled his objection to Petke's grooming testimony, defendant called his own defense expert, Johnson, to testify on that topic. Johnson described grooming in terms generally similar to those that Petke had used. He also testified that grooming typically involves conduct over a period of time that is "not isolated to a 24-hour period" and is sometimes "much longer than that."

Defendant testified on his own behalf at trial. He acknowledged that he had played Magic with T at the game store and had invited T to his house, asserting that T had said that he was scared to go home. Defendant denied giving Viagra to T or sexually abusing him. While cross-examining defendant, the prosecutor referred to Petke's testimony about grooming, tying it to the specific conduct that T had described:

"Q. If someone were to offer Magic cards to a 13-year-old slow, odd, magic card-playing boy in return for him to take a Viagra, would you agree that that would-could be construed as sexual grooming of that child?
"A. Yes.
"Q. Would you agree that offering that same child Magic cards in order to get-induce that child to show you their penis could be construed as sexual grooming?
"A. Yes.
"Q. Preparing the child for sexual contact or-other forms of sexual abuse?
"A. Yes."

Both lawyers referred to the grooming testimony in their closing arguments. Defense counsel suggested that the jury should not consider the interactions between defendant and T to be grooming, both because those interactions made sense in the context of what was going on at the game store and because defendant took actions that, according to his lawyer, were inconsistent with grooming (such as taking T to a public place like a restaurant). In rebuttal, the prosecutor reminded the jury of "all the testimony about grooming," suggesting that it helped explain T's statement that defendant "was trying to touch my penis." The jury found defendant guilty of two of the three counts charged.

The question before us on remand is whether Petke's testimony about grooming was "scientific evidence" for purposes of OEC 702 and, therefore, the trial court erred when it admitted the testimony without requiring the state to lay an adequate foundation establishing its scientific validity. OEC 702 states that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." Scientific evidence is "[t]ypically, but not necessarily, * * * presented by an expert witness who can explain data or test results and, if necessary, explain the scientific principles which are said to give the evidence its reliability or accuracy." State v. Brown , 297 Or. 404, 407-08, 687 P.2d 751 (1984). Evidence that is "scientific" may be admitted only if the proponent makes "a foundational showing of scientific validity." Henley , 363 Or. at 295, 422 P.3d 217.

Although Oregon courts have not "precisely defined what makes evidence 'scientific,' " State v. Marrington , 335 Or. 555, 561, 73 P.3d 911 (2003), the Supreme Court recently synthesized the underlying principles in Henley :

"[T]he fact that the proponent of expert evidence at trial disclaims that the evidence is scientifically grounded does not obviate the possibility that it nevertheless constitutes 'scientific' evidence under OEC 702. Expert evidence is 'scientific' under OEC 702 when it is expressly presented to the jury as scientifically grounded * * *. Expert evidence also is 'scientific' under OEC 702 when it 'draws its convincing force from some principle of science,' * * * or 'implies a grounding in the methods and procedures of science,' and would likely be perceived by the jury as imbued with the 'persuasive appeal of science.' "

363 Or. at 301, 422 P.3d 217 (internal citations omitted).

In Henley , the grooming evidence at issue was delivered through the testimony of a witness who had extensive pertinent education and professional experience. Her education included both a bachelor's degree and a master's degree in social work and specialized forensic interview training. Her pertinent experience included over a decade of work in child welfare and protection, and she had conducted over 600 forensic interviews. Id. at 289, 422 P.3d 217. Importantly, the state attempted to disclaim that the Henley witness was basing her testimony on science. The prosecutor elicited testimony that the witness was not "a psychologist or anything like that" and the witness did not cite scientific literature in her testimony; she was presented to the jury as testifying based on her training and experience. Nonetheless, the witness detailed her education and training in grooming, described specific grooming behaviors, and said that behavior that the complainant had described could be grooming. Id. at 290-92, 422 P.3d 217. In closing arguments, the prosecution relied on that testimony to describe the defendant's behavior as "classic grooming behavior." Id. at 293, 422 P.3d 217.

The court held in Henley that the witness's grooming testimony was scientific evidence because it "implied that it was grounded in science and the jury likely would have viewed the evidence that way." Id. at 301, 422 P.3d 217. The court held that the evidence implied that it was grounded in science because (1) the witness offered it in the context of her education and experience, (2) the prosecution treated the testimony as authoritative, and (3) "grooming behavior has been the subject of research in behavioral science." Id. at 301-03, 422 P.3d 217. The court further determined that the jury likely would have viewed the testimony as scientific evidence because (1) "[the witness] appeared to the jury as an expert on identifying child sexual abuse" and (2) she provided the jury with information about grooming that was not common knowledge. Id. at 303-04, 422 P.3d 217.

Henley controls here. Under the reasoning of that case, Petke's testimony about grooming was scientific evidence. First, as in Henley , the testimony implied that it was grounded in science. Petke responded affirmatively when the prosecutor asked her whether, through her training and experience, she had "become familiar with a phenomenon called grooming." That phrasing itself can evoke, at least in certain contexts, a kind of scientific air, as it suggests the existence of a recognized pattern of conduct that has been determined to have particular significance. As Henley recognizes, there is a body of behavioral science research on grooming behavior. And the context in which Petke testified would have confirmed that scientific nature of the "phenomenon"; she testified about grooming shortly after she described her education and experience, which included a master's degree in social work, over 11 years of experience at CARES, and over 1,200 interviews of children. The prosecution also treated that testimony as authoritative when it questioned defendant about whether his conduct could be construed as grooming. Together, those circumstances would have suggested to the jury that Petke's testimony was grounded in science.

Second, as in Henley , the jury would have viewed Petke's testimony as scientific evidence. Given her education, training, and pertinent experience, Petke would have appeared to the jury to be an expert on the subject of grooming. And, like the witness in Henley , Petke offered the jury a definition of grooming, which was not common knowledge. We conclude that the grooming testimony and the context in which it was given in this case do not differ meaningfully from the testimony at issue in Henley . As in that case, the trial court erred when it admitted the evidence.

Having found error, we next must determine whether it presents a basis for reversal. We do not reverse if there is little likelihood that an evidentiary error affected the verdict. Id. at 307, 422 P.3d 217. The state argues that any error was harmless in this case because Petke gave only a "brief, general description" of grooming and "did not relate the concept of grooming to any specific conduct on the defendant's part," and because "other evidence in the record permitted the jury to consider whether defendant's predicate conduct evinced a nefarious sexual motive."

We disagree. As in Henley , the accuracy of the complainant's description of defendant's conduct, including the behaviors that the prosecution sought to characterize as grooming, was a central issue at trial. Defendant offered substantial evidence seeking to cast doubt on T's ability to accurately perceive, remember, and describe events in his life. Evidence that bolstered T's version of events could therefore play a significant role at trial. See Henley , 363 Or. at 308, 422 P.3d 217 (grooming testimony was prejudicial because, among other things, it bolstered the complainant's testimony). We acknowledge, as the dissent emphasizes, that defendant did not engage in a long-term pattern of behavior aimed at gradually gaining T's trust. Rather, the evidence shows, at most, that defendant interacted with T on only one day other than the evening in question. Nonetheless, neither Petke nor defendant's expert testified that defendant's acts of playing Magic with T, taking him home, and giving him cards could not be considered grooming, and defendant himself testified that two specific acts that T had described could be considered grooming. Petke's testimony gave the jury a scientific lens through which to view not only those two specific incidents, but all of defendant's reported conduct-including, in T's words, having "helped [T] very numerous times on [his Magic] deck" and having been "very nice." Viewed through that lens, defendant's conduct could be seen as part of a plan to sexually abuse T. Given those circumstances, and Henley 's reiteration of the principle that "scientific evidence or evidence perceived by lay jurors to be scientific in nature possesses an unusually high degree of persuasive power," 363 Or. at 307, 422 P.3d 217, we cannot say that there was little likelihood that Petke's testimony affected the verdict.

Reversed and remanded.

AOYAGI, J., dissenting.

I agree with the majority that, under State v. Henley , 363 Or. 284, 422 P.3d 217 (2018), the trial court erred in admitting Petke's testimony that "grooming is a gradual process of building trust with a child with the purpose of establishing such a level of trust to allow for an opportunity for sexual abuse," without requiring the state to establish the requisite level of scientific validity and reliability of that evidence. I disagree with the disposition, however, because I believe that the error was harmless on this record. In my view, the majority makes two errors in its harmlessness analysis. First, it imputes certain of defendant's testimony to Petke, which is inappropriate on this record. Second, it fails to recognize that, even if defendant's testimony were understood as scientific, that scientific overlay could not have affected the verdict under the particular circumstances of this case.

Unlike the witness in Henley , Petke provided only a general definition of "grooming." She did not provide any examples, nor did she opine on whether any of defendant's specific conduct (as reported by T) could be considered grooming. Cf. Henley , 363 Or. at 304, 422 P.3d 217 (expert testified about grooming generally and as applied to the defendant's specific conduct, and the "testimony [of the state's expert] about grooming was 'scientific' evidence under OEC 702"). The majority treats that as a distinction without a difference. It reasons that Petke's testimony "gave the jury a scientific lens" through which to view the evidence and that her doing so necessarily could have affected the verdict. State v. Plueard , 296 Or. App. 580, 590, 439 P.3d 556 2019. I disagree on this record.

In arguing that the admission of Petke's definition of "grooming" was not harmless, defendant relies on his own testimony. The prosecutor posed two hypotheticals and asked defendant whether either "could be construed as sexual grooming." The first was "offer[ing] Magic cards to a 13-year-old slow, odd, Magic card-playing boy in return for him to take a Viagra." The second was "offering that same child Magic cards in order to induce that child to show you their penis." Defendant answered "yes" to both questions.

The difficulty is that neither of those acts meet Petke's definition of "grooming." According to Petke, "grooming is a gradual process of building trust with a child with the purpose of establishing such a level of trust to allow for an opportunity for sexual abuse." There is nothing trust-building (or gradual) about bribing a child you do not know, or barely know, to do something sexual. To illustrate, providing alcohol to a 15-year-old girl on several occasions to build a relationship of trust in aid of later taking advantage of that trust to sexually abuse her would be grooming under Petke's definition. However, approaching a 15-year-old girl you do not know and offering her alcohol in exchange for showing her vagina, or in exchange for taking a Rohypnol so that she will be less resistant to sexual abuse in an hour, would not be grooming under Petke's definition.

Applying that distinction here, bribing a child to take a Viagra or to show his penis is not a trust-building act but, rather, is itself a criminal act or prefatory to a criminal act. Indeed, the reason that defendant's conduct "that the prosecution sought to characterize as grooming" was a "central issue at trial," 296 Or. App. at 589, 439 P.3d at 560, was because that conduct was the basis for a charge. Count 2 was based on the pant-removal incident, which occurred shortly after defendant bribed T to take a Viagra. That is very different from Henley , in which the defendant had given the young victim massages in the past, and the "scientific" witness testified that massages can be grooming behavior, but defendant's massages themselves were not criminal acts or part of the charges and could have been viewed as innocuous. See Henley , 363 Or. at 286-89, 422 P.3d 217.

That difference matters for two reasons. First, it is inappropriate to impute to Petke defendant's testimony that his own alleged conduct could be construed as "grooming" when the prosecutor did not ask defendant to use Petke's definition, when defendant did not reference Petke's definition, and when defendant's answers were plainly inconsistent with Petke's definition. If the jury was using the "scientific lens" that Petke provided-i.e. , Petke's definition of grooming (which was erroneously admitted)-then it would have immediately recognized that defendant's answers did not apply that scientific lens but instead apparently relied on his own understanding of grooming. In other words, the jury would have understood Petke's testimony as scientific, but it would not have understood defendant's testimony as scientific. Indeed, the inconsistency between defendant's testimony and the "scientific" definition of grooming was driven home to the jury by defendant's own expert. After defendant testified, his counsel elicited a definition of "grooming" from defendant's own expert witness, Dr. Johnson, that was consistent with Petke's definition and would have reinforced that defendant's answers were not scientific answers.

Because the jury would not have understood defendant's testimony as scientific in nature, that testimony should not be ascribed to Petke and should not affect the determination whether the admission of Petke's testimony was harmless. Nor did anything else occur at trial might have caused the jury to rely on Petke's definition of "grooming" in a manner that could have affected the verdict. The majority points to brief testimony by T that (1) T had seen defendant at the game shop on at least one prior occasion and defendant had asked on that occasion if he wanted to play a game of Magic, and (2) part of the reason that T wanted to go to defendant's house on the night of the charged incidents was because defendant was "very nice," had helped T "very numerous times" on his deck, and was "very nice" at "making decks and stuff." See 439 Or. App. at 583, 590, 439 P.3d at 557, 562. But both the prosecutor and defense counsel indicated to the jury that there had been no significant interactions between defendant and J before the night of the charged incidents, the prosecutor never suggested that any grooming occurred before the night of the charged incidents, and defendant has never mentioned the testimony cited by the majority in his harmlessness argument. T's brief mention of one prior interaction and defendant being "very nice" does not change the harmlessness analysis in my view. Similarly, the majority's description of the closing arguments overstates the record. In response to defense counsel's statements in closing argument about the lack of grooming evidence, the prosecutor made a brief reference to grooming in rebuttal that is meaningless as transcribed for purposes of appellate review.

There is also a second and equally important reason that the trial court's error in admitting Petke's definition of "grooming" was harmless. Even if it were appropriate to impute defendant's testimony to Petke, the only conduct that was ever presented to the jury as being potentially "grooming" behavior was itself charged conduct (bribing T to remove his pants) or closely related inappropriate conduct (bribing T to take a Viagra ). When a defendant has admitted to innocuous conduct with a child but denies sexual conduct, "grooming" evidence can make the admitted conduct look not so innocuous after all. But, here, the two acts that defendant testified could be construed as "grooming" were themselves sexually-charged acts, which defendant denied committing, and which went to the heart of the charges against him. If the jury found, as a matter of fact, that defendant did bribe T to take a Viagra and did bribe T to remove his pants to expose his penis, it is inconceivable that it could have any effect on the verdict whether the jury also thought that that conduct met the scientific definition of "grooming."

For both reasons, the admission of Petke's testimony was harmless. I would affirm the judgment and therefore, respectfully, dissent.

      When the Supreme Court remanded for further proceedings in Henley , it suggested that the parties might-on remand-develop "the evidentiary record concerning admissibility" of the proffered grooming evidence and that the trial court could then determine, in the first instance, whether the state had established the scientific validity of that evidence. It appears that, under Henley , the trial court has that option in this case on remand. If it determines that the evidence was, after all, admissible, then no new trial will be necessary.

      In his closing argument, the prosecutor characterized defendant as a "stranger" to T. However, the jury could infer from T's testimony, described above, that the two had interacted before the night in question.

      Even on that point, the evidence on the extent of grooming behavior in this case is not entirely dissimilar to that in Henley . When the expert witness in that case testified about what conduct of the defendant could constitute "grooming," she was referring to only a single massage that the complainant had referenced in her CARES interview. 363 Or. at 318, 422 P.3d 217 (Kistler, J., dissenting). Although the complainant testified that the defendant gave her additional massages "once in a while," id. at 312, 422 P.3d 217 (Kistler, J., dissenting), it does not appear that the Henley expert testified that a long-term pattern of grooming had occurred in that case. Notwithstanding that the identified grooming conduct was limited-perhaps consisting only of occasional massages-the Henley majority suggested that the expert's grooming testimony was prejudicial in part because it allowed the jury to view that conduct "as a lead-in to sexual abuse." Id. at 306, 422 P.3d 217. Albeit in a very different context, the same is true here.

      Again, those two acts were offering Magic cards to T in return for him taking a Viagra and offering T Magic cards to induce him to display his penis. The dissent asserts that, because those actions "were themselves sexually charged," if the jury found that the acts occurred, the jury would not care whether the acts also qualified as grooming. 296 Or. App. at 594, 439 P.3d at 563 (Aoyagi, J., dissenting). That argument overlooks that the jury could consider all of defendant's interactions with T, not just those two specific incidents, in determining whether he engaged in grooming. In addition, the point is similar to one the dissent made, and the majority necessarily rejected, in Henley . See 363 Or. at 319, 422 P.3d 217 (Kistler, J., dissenting) (noting, in explaining why the dissent would hold that any error in introducing grooming testimony was harmless: "If the jury found that defendant had massaged his stepdaughter's chest, lower back, and upper thighs over her objection, the ability to label that behavior grooming added nothing to the facts that the jury found. Defendant's invasive behavior spoke for itself.").

      Similar to the hypothetical, the state alleged (and defendant denied) that defendant had offered to give Magic cards to T if he took a Viagra.

      Similar to the hypothetical, the state alleged (and defendant denied) that defendant had offered to give Magic cards to T if he removed his pants to expose his penis.

      Johnson defined "grooming" as "actions taken by an individual * * * to develop a relationship of trust typically with the child-and very often with the child's family-so as to then be able to take advantage of that trust." He further stated that grooming "typically involves isolating the child from their normal support structures," "typically involves a phase of maintenance in which the perpetrator attempts to maintain that relationship with the child [and] maintain access to them in a manner that they won't get caught," and generally occurs "over a period of time."

      In the midst of the prosecutor's closing argument, the transcript states:
      "The lesser included offenses. The judge is instructing you on those because that's the law and there are some facts in this case to support that the defendant took a substantial step towards touching T's penis. Remember all the testimony about grooming and that those are-those are actions for a certain (inaudible). T's statement, T's descriptions, can you make sense of the fact that he told some people, 'He was trying to touch my penis'? Sure."
      (Emphasis added.)


source: Caselaw Access Project

author: AOYAGI, J.

license: Public Domain

text:
    Daniel HILL, Plaintiff-Appellant, v. CITY OF PORTLAND, Defendant-Respondent.
    A164569
    Court of Appeals of Oregon.
    Argued and submitted September 28, 2018. March 6, 2019
    Christopher P. Koback, Portland, argued the cause for appellant. Also on the briefs was Hathaway Larson LLP.
    Denis M. Vannier argued the cause for respondent. On the brief was Julia Glick.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   AOYAGI, J.

Plaintiff utilized the City of Portland's Early Assistance program to obtain advice regarding likely requirements for a possible development. Displeased with the response, plaintiff pursued the matter further with the city, culminating in the Public Works Appeals Board denying plaintiff's appeal. Plaintiff then petitioned for a writ of review in the circuit court. The circuit court dismissed the petition and quashed the writ for lack of jurisdiction. Plaintiff appeals. For the reasons that follow, we affirm.

The relevant facts are undisputed. In 2014, plaintiff purchased real property on NE Prescott Street in Portland. He planned to eventually divide it into multiple lots. In February 2016, plaintiff filed an application with the Early Assistance program, an informal program through which the City of Portland assists landowners in identifying potential land use issues for development projects, prior to submittal of formal land use review or permit applications. The program is voluntary and is not addressed in the Portland City Code. Plaintiff sought advice regarding the possible division of his property into four or six lots. He completed an Early Assistance application in which he provided the address of the property, briefly described the proposed land division, and identified "[q]uestions to be discussed." Specifically, his description stated,

"The proposal is to divide the site into 4 (Option 1) to 6 (Option 2) lots. Under Option 2, a Property Line Adjustment will be accomplished with the adjacent property to the west [to] increase the size of the site. The existing house is proposed to be retained on Lot 1. The existing garage with finished living space is proposed to be retained on Lot 2, with an addition to increase the size. Stormwater disposal for the homes is proposed via drywells on each lot. Stormwater for the public street is proposed to match [other] improvements."

He then listed his questions, including, "What street improvements will be required?"

City staff met with plaintiff on or about March 16. On April 1, the city provided a written response to plaintiff's Early Assistance application, titled "Early Assistance Appointment Response." It began, "Portland Transportation/ Development Review (PBOT) staff has reviewed the early assistance materials to identify potential issues and requirements." It then addressed various potential issues and requirements. As to frontage improvements on NE Prescott, the response stated:

"The applicant will be required to construct frontage improvements on NE Prescott to consist of a curb 19-ft from centerline and the 16-ft wide sidewalk corridor. An approximate 5-ft dedication of property for ROW purposes is necessary to accommodate standard improvements. The exact amount of property dedication required to accommodate these improvements to be determined during the Public Works process and will depend upon stormwater needs and site specifics."

(Emphases omitted.) The response further stated that, "[i]f the applicant wishes to propose an alternative to the required frontage improvements identified herein, they may apply for a Public Works Alternative Review."

Plaintiff applied for a Public Works Alternative Review on April 29. He requested "that the dedication and improvements along NE Prescott be eliminated." He argued that they were "impractical," would "serve no function and provide no benefit," and would "treat the applicant different than owners on the south side of NE Prescott." He argued also that they would amount to an unconstitutional exaction under federal law. On May 16, the Public Works Alternative Review Committee denied plaintiff's request and issued a short written decision explaining why it was "not supportive of removing the frontage requirements along NE Prescott Street."

On May 20, plaintiff filed an appeal request with the Public Works Administrative Appeals Panel, in which he attested that he was appealing a "permit decision." The Appeals Panel held a hearing on the matter on June 14; if any record was made of that hearing, it is not in the record on appeal. In a document of the same date, the city addressed plaintiff's constitutional arguments. The city first noted that the "potential requirements identified during the Early Assistance review" did not qualify as "conditions placed on development" and therefore were not subject to federal takings law. Nonetheless, "for the sake of transparency and cooperation," the city treated the potential requirements as if they were actual conditions of approval so that it could reach the merits, and it proceeded to argue why such requirements, if imposed, would not be an unconstitutional taking. After the hearing, both parties submitted additional materials. On July 6, the panel denied plaintiff's appeal by email, stating its decision: "Deny the appeal. Staff has applied code and policies appropriately in this case."

Plaintiff appealed to the Public Works Appeals Board, asserting that the Appeals Panel had not made adequate findings to support its decision. He again attested that he was appealing a "permit decision." The Appeals Board held a hearing on August 17; that hearing is summarized in the board's meeting minutes. Toward the end of the meeting, a representative for the Bureau of Transportation expressly

"noted that no application for a land division has been submitted and *** this is an Early Assistance request. When the land division application is submitted, a full evaluation and findings will be done on individual parking, pedestrian traffic and facilities, traffic and bike use. This is an Early Assistance request that evaluates what will be required during the land division application process. The Early Assistance process prepares the owner for what's to come."

Soon thereafter, one of the three voting panel members stated that it "[wa]sn't far enough into the process to warrant additional findings." The same panel member then described the board's role as being only to decide "if the City's Bureau staff is consistently applying the rules and codes from project to project." In his view, "Staff on this project has been consistent with other projects in applying the rules and codes," so he proposed to deny the appeal. The other two panel members agreed. The minutes note the board's decision to deny plaintiff's appeal and uphold the Appeal Panel's decision "based on the determination that [the] City has applied its code, rules, and standards consistently."

On September 7, plaintiff petitioned for a writ of review in the circuit court. He described the Appeals Board's decision as "a final decision" of "the City, through its Public Works Appeals Board," which had "den[ied] [plaintiff's] appeal and uph[eld] the requirement that [plaintiff] dedicate property and complete public improvements along [plaintiff's] NE Prescott frontage." Plaintiff asserted that the decision was "not supported by substantial evidence in the whole record, improperly construed applicable law, and was unconstitutional, thus causing substantial injury to [plaintiff's] interests."

The city moved to dismiss plaintiff's petition and quash the writ. The city asserted that plaintiff "seeks review of a matter in which there is no final decision by the City." It made several arguments as to why that was fatal to obtaining a writ of review, including that the court lacked subject matter jurisdiction because the matter was not ripe. The city emphasized the nature of the Early Assistance program-describing it as "general advice from the City about requirements that could be applied to [plaintiff's] development once the City is presented with concrete plans for it" (emphasis in original)-and argued that the provision of Early Assistance advice regarding a hypothetical land division had not caused any "injury" to a "substantial interest" of plaintiff's, as required to obtain a writ of review under ORS 34.040.

Plaintiff opposed the city's motion. He argued that the city's Early Assistance Appointment Response imposed "requirements" for his proposed land division, that such "requirements" were appealable to the Appeals Panel and the Appeals Board under the city code, and that the Appeals Board's decision was the final decision on the "requirements." He also argued that the city should be "estopped" from contesting the finality of the Appeals Board's decision, because, in his view, that position was inconsistent with the city code's appeal provisions.

After a hearing, the circuit court ruled that it lacked jurisdiction because the matter was not ripe. The court stated that it was "sympathetic to [plaintiff's] argument that he was led down a path to thinking a final decision was being made." Nonetheless, it explained, "this is not a case that's ripe for my decision," because "the early assistance process is not one that is designed to be a final determination of what restrictions are going to be imposed on the property." Rather, the early assistance process is only "a preview of what a land owner can expect." The court emphasized that it was "not making a decision on the merits" of plaintiff's constitutional takings argument. Indeed, the court noted, given the preliminary nature of early assistance, it did not have "the fully developed robust record that would be needed ultimately to determine whether or not this is a constitutional taking." The court also rejected plaintiff's estoppel argument. After ruling, the court asked the city to prepare an order, using the "language of subject matter jurisdiction, because the dispute is not ripe for my determination, based on its procedural history." Plaintiff appeals the resulting judgment.

We begin with plaintiff's first assignment of error, in which he argues that the circuit court erred when it ruled that it lacked jurisdiction because the matter was not ripe for review. We review legal conclusions regarding jurisdiction for errors of law. Magar v. City of Portland , 179 Or. App. 104, 106, 39 P.3d 234 (2002).

The process for obtaining a writ of review is codified in ORS 34.010 to 34.102. The availability of a writ of review is governed by those statutes and their requirements, including statutory justiciability requirements. In that vein, ORS 34.040 provides:

"The writ shall be allowed in all cases in which a substantial interest of a plaintiff has been injured and an inferior court including an officer or tribunal other than an agency as defined in ORS 183.310(1) in the exercise of judicial or quasi-judicial functions appears to have:
"(a) Exceeded its jurisdiction;
"(b) Failed to follow the procedure applicable to the matter before it;
"(c) Made a finding or order not supported by substantial evidence in the whole record;
"(d) Improperly construed the applicable law; or
"(e) Rendered a decision that is unconstitutional."

(Emphasis added.) See also Strawberry Hill 4 Wheelers v. Benton Co. Bd. of Comm. , 287 Or. 591, 611, 601 P.2d 769 (1979) (plaintiff must have "suffered an identifiable injury to an interest of some substance" to obtain a writ of review).

As used here, "ripeness" refers to " 'an aspect of the doctrine of justiciability, specifically, the requirement that there be an actual, as opposed to a hypothetical, injury to the individual invoking the judicial power.' " Beck v. City of Portland , 202 Or. App. 360, 366, 122 P.3d 131 (2005) (quoting Coast Range Conifers v. Board of Forestry , 192 Or. App. 126, 129, 83 P.3d 966 (2004), rev'd on other grounds , 339 Or. 136, 117 P.3d 990 (2005) ). In U.S. West Communications v. City of Eugene , 336 Or. 181, 81 P.3d 702 (2003), the court concluded that ORS 28.020 -which allows a person to seek a declaratory judgment if the person's rights "are affected by a constitution, statute, municipal charter, ordinance, contract or franchise"-codifies a ripeness requirement for justiciability of a declaratory relief action. 336 Or. at 191, 81 P.3d 702 ; see also Beck , 202 Or. App. at 366, 122 P.3d 131 (describing U.S. West Communications as "appl[ying] the test for ripeness set out in [two prior cases] in which the court explicitly identified ripeness as a jurisdictional issue"). "[T]he legislature's use of the present tense phrase 'are affected' implies [that] the controversy must involve a dispute based on present facts rather than on contingent or hypothetical events." U.S. West Communications , 336 Or. at 191, 81 P.3d 702. Similarly, ORS 34.040 requires that "a substantial interest of a plaintiff has been injured " (emphasis added), thereby codifying a ripeness requirement for justiciability of a writ of review proceeding.

Plaintiff does not dispute that ORS 34.040 imposes a justiciability requirement. Instead, he argues that this matter is ripe and that he has suffered an injury. That argument is premised on plaintiff's view of the Early Assistance Appointment Response as imposing "the public improvement requirements"

for his proposed land division and his view of the Public Works Appeals Board's decision as the "final decision to uphold a requirement that [plaintiff] dedicate property and construct off-site public improvements." We disagree with both characterizations.

As previously noted, the Early Assistance program is an informal, voluntary program through which the city assists landowners in understanding the procedure and requirements for land use reviews and building permits. The city's Early Assistance Appointment Response was based on plaintiff's one-paragraph description of two potential land division proposals for his property and whatever other information plaintiff chose to provide in the meeting with city staff on March 16. The response begins with the express statement that staff "has reviewed the early assistance materials to identify potential issues and requirements ." (Emphasis added.) Any "requirements" thereafter discussed in the response must be understood in that context, i.e. , as potential requirements for a hypothetical project.

We therefore disagree with plaintiff that the Early Assistance Appointment Response imposed "requirements." The city simply responded to plaintiff's questions and identified requirements that would likely be imposed on a hypothetical land division for which no application had yet been filed. Of course, city staff presumably tried to predict accurately what requirements would be imposed, based on the existing city code and city policies, if plaintiff ultimately filed such an application. In that sense, plaintiff might well be correct that, if he were to file a land division application, the city likely would impose the same frontage requirements for NE Prescott as described in the Early Assistance Appointment Response. Indeed, to assume otherwise would be to assume that the city's early assistance response was inaccurate. But no matter how accurate the information in that response might prove to be, a prediction of the requirements that the city would impose on a hypothetical future land division application is still a prediction and, as such, does not injure the advice recipient's substantial rights. See U.S. West Communications , 336 Or. at 191, 81 P.3d 702 (a ripe dispute is "based on present facts rather than on contingent or hypothetical events").

As for the appeals decisions, the mere availability of a city appeals process did not transform the Early Assistance Appointment Response into something more than it otherwise was. The limited nature of the appellate review also is significant. The Appeals Panel denied plaintiff's appeal on the basis that city staff "ha[d] applied code and policies appropriately." Similarly, the Appeals Board denied plaintiff's appeal "based on the determination that [the] City ha[d] applied its code, rules and standards consistently." In other words, both bodies were unpersuaded that city staff had applied the city's code, policies, rules, or standards incorrectly or inconsistently in answering plaintiff's early assistance request, and neither body addressed any-thing beyond that, such as plaintiff's constitutional argument. Nothing in the appeals decisions elevated the Early Assistance Appointment Response to a binding determination of conditions for a land division.

Moreover, plaintiff was reminded in both the Appeals Panel and the Appeals Board proceedings that the City's early assistance response was preliminary in nature. In the Appeals Panel proceeding, city staff specifically noted the preliminary nature of early assistance in its written legal analysis, which was shared with plaintiff and the Appeals Board, and engaged with the merits of plaintiff's arguments only "for the sake of transparency and cooperation." In the Appeals Board proceeding, both a city representative and a voting panel member commented on the prematurity of making additional findings, until and unless plaintiff actually applied to divide the property, which is significant because the stated basis for plaintiff's appeal was that the Appeals Panel had not made adequate findings to support its decision.

Accordingly, the circuit court correctly concluded that it lacked jurisdiction to review the Appeals Board's decision in a writ of review proceeding under ORS 34.040. The Early Assistance Appointment Response was based on contingent or hypothetical events, not present facts, and the Appeals Board's decision did not alter that reality. The circuit court properly dismissed the petition and quashed the writ for lack of jurisdiction, because a statutory justiciability requirement of ORS 34.040 -that "a substantial interest of [the] plaintiff has been injured"-was not met.

That leaves plaintiff's second assignment of error. Plaintiff contends that the circuit court erred when it declined to estop the city from arguing that the Appeals Board's decision was not a final decision and therefore not ripe for review. "As a general proposition, a governmental agency may be estopped from asserting a claim that is inconsistent with a previous position that it has taken." City of Mosier v. Hood River Sand , 206 Or. App. 292, 319, 136 P.3d 1160 (2006). However, even if it were appropriate to apply estoppel in this situation (a matter on which we express no opinion), that would not allow the circuit court to ignore a jurisdictional defect under ORS 34.040. We therefore reject plaintiff's second assignment of error.

Affirmed.

      Plaintiff characterizes the Early Assistance program as a "phase" of the permitting process. However, it appears to be undisputed that the program is voluntary; that is, it is not a prerequisite to applying for a permit or land division. If plaintiff contested the city's description of its own program, he presumably would have pointed the court to legal authority or evidence that the city's description of its own program was inaccurate.

      Plaintiff's constitutional argument has become more detailed over time, but the essence of his argument was (and is) that, with respect to the development "conditions" in the Early Assistance Appointment Response, the City has not satisfied the "essential nexus" requirement of Nollan v. California Coastal Comm'n , 483 U.S. 825, 837, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), or the "rough proportionality" requirements of Dolan v. City of Tigard , 512 U.S. 374, 391, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994).

      We note that plaintiff's paperwork initiating both appeals represented that plaintiff was appealing a "permit decision," and it is not clear that the Appeals Panel or the Appeals Board had actual authority to decide plaintiff's appeals once they realized that there was no permit decision. See Portland City Code 17.06.050(A), (B) (allowing for appeal of "permit decisions, requirements, and conditions" to the Appeals Panel); Portland City Code 17.06.050(F) (allowing for appeal of an Appeals Panel decision to the Appeals Board). We assume for present purposes, however, that they did have the necessary authority to hear and deny the appeals on the bases that they did.


author: JAMES, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Jared Kelly WHITE, Defendant-Appellant.
    A164188
    Court of Appeals of Oregon.
    Argued and submitted November 5, 2018. March 6, 2019
    Mary M. Reese, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Greg Rios, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and James, Judge, and Haselton, Senior Judge.
   JAMES, J.

The primary issue in this case is whether Child Abuse Response and Evaluation Services (CARES) Northwest-a group formed by Kaiser Permanente, OHSU Doernbecher Children's Hospital, Providence Children's Health, and Randall Children's Hospital at Legacy Emanuel that pairs physicians and nurse practitioners with forensic child interviewers to provide child abuse evaluations in law enforcement investigations-was a victim for purposes of criminal restitution under ORS 137.103(4)(b), which defines "victim" as someone who "has suffered economic damages as a result of the defendant's criminal activities." Based on this record, we hold that CARES, as a provider of services in this case did not suffer economic damages by providing those services, and accordingly reverse the trial court's award of $1,343.85 in restitution to CARES on Count 1. On the remaining assignments of error, each of which challenges the award of restitution to insurance providers, we affirm.

The facts underlying this appeal are undisputed. Defendant pleaded guilty to two counts of first-degree sodomy; two counts of first-degree unlawful sexual penetration; and one count of first-degree sexual abuse, against three foster children who were in the care of defendant's grandparents. Defendant, at the time of the crimes, was between 15 and 18 years old. At some point, there was a disclosure by the children that resulted in a Department of Human Services (DHS) employee, Van Rees, referring the three children to CARES. The three children received medical evaluations at a CARES facility. Van Rees, who was at the time working as the "out of home care assessor," testified that DHS "typically will refer kids to CARES when we have * * * concerns of abuse or neglect." Van Rees testified that a referral to CARES under those circumstances was indicative of one of the "broader purposes" for DHS's use of CARES, as opposed to a referral to CARES being made only when DHS has a belief that there could be prosecution or police involvement. Another caseworker for two of the victims, Coomes, testified that CARES helps to "clarify what happened if something happened, a lot of times there's questions when an allegation is made, * * * they conduct interviews, they do the physical exam, and they make recommendations as to whether those allegations are true or not. And then help [DHS] kind of drive where the case goes from there." Coomes then clarified that by "case" she meant that a criminal case is part of what she was referencing but also case management in terms of how to "help the children and the family cope after what's happened."

The Medical Director of CARES averred that "CARES is a specialized child abuse medical clinic ***." As he testified, when a child is seen for a medical evaluation, the standard of care consists of a medical exam of the child's body, and a recorded forensic interview. The exam and the forensic interview are provided to children at CARES

"without regard for ability to pay. When a child patient is insured, CARES will bill the insurer for the cost of the medical evaluation. While some insurers will cover the full cost of a medical evaluation, others will cover less than the full cost. When an insurer covers less than the full cost, CARES suffers an economic loss."

CARES does not bill or request payment from the child patient's family if insurance will not cover the total costs. The Medical Director of CARES also averred that he believes that "the medical evaluation [of the child victims] resulted, in whole or in part, from the criminal activity of this defendant."

At the close of the restitution hearing, defendant argued that CARES was not a "victim" that was eligible to receive restitution. The state argued that CARES was a "victim" under ORS 137.103(4)(a) or ORS 137.103(4)(b). The trial court ordered $1,343.85 in restitution to CARES on Count 1. Implicit in that order was the conclusion that CARES was a "victim." The trial court then explained its application of our decision in State v. Herfurth , 283 Or. App. 149, 388 P.3d 1104 (2016), rev. den. , 361 Or. 350, 393 P.3d 1176 (2017), to defendant's case:

"So in terms of the evidence in this case, I'm drawing some inferences. I read the affidavit from the CARES Northwest Director, and what he says is that CARES doesn't bill the families, and that they provide the services without regard to the ability of the family to pay, unless they have an insurer, and if they have insurance then they do bill the insurer. And I think that that record, along with the documents that have been submitted established sufficiently for me to draw the inference that under civil law *** that's sufficient for these costs to have been incurred under the civil statute that's referenced in the restitution statute.
"* * * * *
"The fact that CARES only bills people who have insurance and doesn't seek recovery from the patient, in this case the victim, and the fact that there are no agreements between the person who comes to CARES for reimbursement, someone could argue, eliminates that link that the State normally has to prove. That is, some responsibility on the part of the victim for the bill. But the reason why I don't come to that conclusion is because in this case, they did bill the insurance company, and I think that's sufficient for purposes of that analysis."

At trial, the arguments of the parties and the focus of the trial court was on whether CARES met the definition of ORS 137.103(4)(b). The state had sought restitution for CARES as a victim because it "takes a financial loss from the difference between the actual cost of treatment and the amount reimbursed through insurance," which "qualifies as economic damages." In defendant's briefing on appeal, that core question remained the same, but the arguments shifted to whether CARES provided medical or criminal investigatory services. However, at oral argument, this court brought the parties' focus back on the issue of where in the statutory scheme CARES would fit. The arguments thus framed, we turn to our analysis.

"Whether a trial court complied with the requirements for imposing restitution is a question of law, which we review for errors of law." Herfurth , 283 Or. App. at 152, 388 P.3d 1104. The applicable statutory definition of "victim" is found in ORS 137.103 :

"(4) 'Victim' means:
"(a) The person or decedent against whom the defendant committed the criminal offense, if the court determines that the person or decedent has suffered or did suffer economic damages as a result of the offense.
"(b) Any person not described in paragraph (a) of this subsection whom the court determines has suffered economic damages as a result of the defendant's criminal activities.
"(c) The Criminal Injuries Compensation Account, if it has expended moneys on behalf of a victim described in paragraph (a) of this subsection.
"(d) An insurance carrier, if it has expended moneys on behalf of a victim described in paragraph (a) of this subsection.
"(e) Upon the death of a victim described in paragraph (a) or (b) of this subsection, the estate of the victim.
"(f) The estate, successor in interest, trust, trustee, successor trustee or beneficiary of a trust against which the defendant committed the criminal offense, if the court determines that the estate, successor in interest, trust, trustee, successor trustee or beneficiary of a trust suffered economic damages as a result of the offense."

An explanation of economic damages is also included in ORS 137.103 :

"(2) 'Economic damages':
"(a) Has the meaning given that term in ORS 31.710, except that 'economic damages' does not include future impairment of earning capacity[.]"

"Economic damages" is defined in ORS 31.710 :

"(2) As used in this section:
"(a) 'Economic damages' means objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less."

Finally, as explained in State v. Ramos , 358 Or. 581, 368 P.3d 446 (2016), restitution is "a process to allow a victim to ask the criminal court to award the damages that the victim would be able to obtain in a civil action." Id. at 590, 368 P.3d 446.

We now apply those principles to this case. First, CARES does not meet the definition of victim under ORS 137.103(4)(a) because CARES is not the "person or decedent against whom the defendant committed the criminal offense." Similarly, CARES does not meet the definition of victim under ORS 137.103(4)(c)-(f) in that it is not the "Criminal Injuries Compensation Account," an "insurance carrier," an "estate of the victim," nor finally, "[t]he estate, successor in interest, trust, trustee, successor trustee or beneficiary of a trust against which the defendant committed the criminal offense." Therefore, if CARES were to qualify as a victim under the restitution statute it could only be under ORS 137.103(4)(b) if it can be said to have "suffered economic damages as a result of the defendant's criminal activities." Synthesizing the principles articulated in the statutory scheme and Ramos , restitution to CARES would be appropriate under paragraph (b) of the statute only if a theory of civil recovery would permit a provider of medical services to recover not from the patient and recipient of those services but from the third-party tortfeasor who caused the patient to seek the services.

Here, the state has never articulated a cognizable theory in which CARES itself-as opposed to the child victims-could be said to have suffered "economic damages" recoverable from defendant. Both below and on appeal, the state's arguments have assumed that a medical services provider incurs "economic damages" from "the difference between the actual cost of treatment and the amount reimbursed through insurance." Operating from that assumption, the state's focus has been on the significance of the fact that CARES provided a service to the actual crime victim. But, paragraph (b) of the statute requires the state to articulate a theory by which defendant would have civil liability directly to CARES itself. See Ramos , 358 Or. at 596, 368 P.3d 446 ("The legislature adopted the definition of 'economic damages' that applies in civil actions and described the required causal connection between a defendant's criminal activities and a victim's damages in terms that are used in civil actions. We can presume that the legislature was cognizant of the limitation that the civil law imposes on the recovery of such damages.").

The state asserts that there exists a theory of civil recovery under White v. Jubitz Corp ., 347 Or. 212, 219 P.3d 566 (2009). The state misconstrues Jubitz . There, the Oregon Supreme Court held that an injured plaintiff could recover the entirety of a medical bill from the tortfeasor as "economic damages" even if "a third party satisfies medical charges" and the plaintiff has no obligation to repay the third party. Id . at 234, 219 P.3d 566. Jubitz does not supply a theory by which an injured party's doctors or other third party would have suffered "economic damages." Rather, Jubitz was concerned with the source of satisfaction of an obligation owed to the injured party, not whether it existed originally or whether third parties themselves could recover from the tortfeasor.

By analogy, a doctor ordinarily has not suffered "economic damages" recoverable against a third-party tortfeasor by providing medical services to someone injured by the tort, nor has a mechanic ordinarily suffered economic damages recoverable against the person who caused an auto accident by repairing the car of someone hit in the auto accident. See generally Hale v. Groce , 304 Or. 281, 283-84, 744 P.2d 1289 (1987) ("[W]ithout a duty to plaintiff derived from defendant's contractual undertaking, plaintiff's tort claim would confront the rule that one ordinarily is not liable for negligently causing a stranger's purely economic loss without injuring his person or property."). Rather, it is the patient of the doctor, or the customer of the mechanic, who has suffered "economic damages" by virtue of incurring a legally enforceable obligation to compensate for those services. Under these circumstances, where the state sought restitution for CARES but provided no explanation for why its provision of services constitutes "economic damages" within the meaning of the restitution statutes, we reverse that award.

Accordingly, the award of $1,343.85 in restitution to CARES on Count 1 was error.

Supplemental judgment awarding restitution to CARES on Count 1 reversed; otherwise affirmed.

      The trial court also ordered defendant pay $717.32 in restitution to Family Care c/o Subrogation Services, Inc., on Count 1; $3,083.00 in restitution to Providence Health Plan on Count 31; and $2,621.00 in restitution to Providence Health Plan on Count 53. Based on the arguments raised by the parties in this appeal, we affirm those restitution awards without discussion.
      Defendant also agreed to pay $352.55 in restitution for miscellaneous medical treatment. Defendant does not challenge the $352.55 amount on appeal.

      See State v. Daniel , 109 Or. App. 680, 681, 820 P.2d 901 (1991), wherein "[t]he [trial] court ordered defendant to pay $355.70 as restitution to Holy Rosary Medical Center for its expenses in examining the woman after her sexual contact with defendant." The defendant argued and the state conceded that the medical center could not recover restitution. We accepted the state's concession and reversed the grant of restitution to the hospital.

      Rather than articulate a theory of "economic damages," the state simply asserts that "defendant does not dispute that CARES suffered losses that were the direct and foreseeable result of defendant's sexual abuse of the three minor victims." That assertion sweeps too broadly; defendant argues that CARES "has not suffered economic damages, is not a victim, and is not entitled to restitution." We need not decide, in this case, whether there is any circumstance in which CARES itself could be said to be a "victim" under the restitution statutes. It suffices to say that the state has not advanced any cognizable legal theory in this case under ORS 137.103(4)(b).


author: PER CURIAM

text:
    In the MATTER OF A. O., a Child.
    Department of Human Services, Petitioner-Respondent, and A. O., Respondent, v. A. O., Appellant.
    A168821
    Court of Appeals of Oregon.
    Submitted January 4, 2019. March 20, 2019
    Shannon Storey, Chief Defender, Juvenile Appellate Section, and Tiffany Keast, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General, filed the brief for respondent Department of Human Services.
    Adrian T. Smith filed the brief for respondent A. O.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Mother appeals a denial of her motion to set aside a judgment terminating her parental rights by default when she failed to appear at the termination trial. Mother sought to set aside the judgment based on "excusable neglect." See ORS 419B.923(1) ("Except as otherwise provided in this section, on motion and such notice and hearing as the court may direct, the court may modify or set aside any order or judgment made by it. Reasons for modifying or setting aside an order or judgment include, but are not limited to: * * * (b) Excusable neglect."). At the hearing on the motion to set aside, mother was not present at the start of the hearing, but her counsel was present and argued the motion. The juvenile court then denied mother's motion based on a "lack of prosecution, given that mother is not here."

Mother argues that the juvenile court abused its discretion in denying her motion based on her failure to be present at the start of the hearing. See Dept. of Human Services v. K. M. P. , 251 Or. App. 268, 272, 284 P.3d 519 (2012) (reviewing the denial of a motion to set aside a judgment under ORS 419B.923 for an abuse of discretion). Both DHS and mother's child concede that the court abused its discretion in denying mother's motion on the basis on which the court denied it and agree that the case should be reversed and remanded for a hearing on the merits of mother's motion to set aside. We agree with and accept the concessions. Under ORS 419B.923(1), it was not necessary for mother to be personally present for the juvenile court to rule on the merits of mother's motion. Accordingly, we reverse and remand for a hearing on the merits of mother's motion to set aside the termination judgment.

Reversed and remanded.

      Based on our disposition of this assignment of error, we do not address mother's assignment of error to the juvenile court's denial of her motion for a short continuance of the hearing on her motion to set aside.


text:
    In the MATTER OF R. B. S., a Child.
    Department of Human Services, Petitioner-Respondent, v. N. J. S., Appellant.
    A168678
    Court of Appeals of Oregon.
    Submitted January 16, 2019. March 20, 2019
    Shannon Storey, Chief Defender, Juvenile Appellate Section, and Shannon Flowers, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Father appeals a permanency judgment in which the juvenile court changed the permanency plan for father's child from reunification to adoption. In two assignments of error, father challenges the merits of the juvenile court's decision, arguing that the juvenile court erred in ruling that "no compelling reason" existed to forgo implementing that plan. Specifically, father argues that DHS failed to prove that guardianship was not better suited to meet the child's needs, which included a need to maintain sibling relationships between the child and her half-siblings. See ORS 419B.498(2)(b)(B) (a compelling reason includes that "[a]nother permanent plan is better suited to meet the health and safety needs of the child or ward, including the need to preserve the child's or ward's sibling attachments and relationships"). After father filed his opening brief, the Supreme Court issued its decision in Dept. of Human Services v. S. J. M. , 364 Or. 37, 430 P.3d 1021 (2018). In that case, the court concluded that the party opposing a change in permanency plan-here, father-has the burden to prove the presence of a compelling reason to forgo changing the plan. Id. at 53, 430 P.3d 1021. As explained in our recent decision, Dept. of Human Services v. S. J. K. , 296 Or. App. 416, 418-19, 439 P.3d 578 (2019), that part of the Supreme Court's decision in S. J. M. marked a change in the law. Previously, we had held that the proponent of the plan change-here, DHS-had to prove the absence of a compelling reason to forgo implementing that plan. Id.

Father has now filed a memorandum of additional authorities that implicitly recognizes that the argument he made in his opening brief is no longer viable. However, he requests that we remand the case to the juvenile court in light of the new law announced in S. J. M. so that he has an opportunity to meet the burden described in that case. DHS responds that a remand in this case is not warranted.

As we stated in S. J. K. , "a significant change in the law may, at times, counsel in favor of a remand in order to ensure that a party has a fair opportunity to litigate a case under the correct legal standards." 296 Or. App. at 420, 439 P.3d 578. This, however, is not such a case. Our review of the record reveals that it is unlikely that father could satisfy his burden to show that guardianship, rather than adoption, would be better suited to meet his child's needs, given the evidence that the parties have already presented on that issue below. Additionally, as discussed in S. J. K. , if father now believes that he can come forward with evidence to meet his burden to prove a "compelling reason" to forgo the filing by DHS of a termination petition, he can do that by requesting a hearing under ORS 419B.470(5), which requires the court to hold a new permanency hearing requested by father unless "good cause otherwise is shown." Accordingly, we decline to exercise our discretion to remand. See id. (declining to remand under the circumstances presented in that case); see also Dept. of Human Services v. G. P. B. , 296 Or. App. 391, 395-96, 438 P.3d 477 (2019) (same).

Affirmed.


author: LAGESEN, P. J.

text:
    D. M., Petitioner, v. OREGON HEALTH AUTHORITY and Oregon State Hospital, Respondents.
    A165166
    Court of Appeals of Oregon.
    Argued and submitted January 29, 2019. March 6, 2019
    Matthew Serres argued the cause for petitioner. Also on the briefs was Disability Rights Oregon.
    Jona J. Maukonen, Assistant Attorney General, argued the cause for respondents. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   LAGESEN, P. J.

Petitioner seeks review, pursuant to ORS 183.482, of a final order in a contested case by the Oregon State Hospital. The issue, as it turns out, is jurisdiction: Do we have jurisdiction under the Administrative Procedures Act to review an agency order that has been withdrawn? We conclude that we do not and, therefore, dismiss.

Petitioner was committed to the state hospital under ORS 161.370, because she had been charged with crimes but was not fit to proceed. Once there, the hospital determined that petitioner was gravely disabled and was unable to give informed consent to the course of medications that the hospital determined was the most appropriate to treat petitioner's disorder. It then issued a notice that it had good cause to administer medication without petitioner's consent. Petitioner, with the assistance of hospital staff, requested a contested case hearing and the matter was referred to the Office of Administrative Hearings (OAH). Following the contested case hearing, the administrative law judge issued a final order on behalf of the hospital determining that the hospital permissibly could administer medications to petitioner without her informed consent.

Petitioner sought judicial review of that final order under ORS 183.482. The hospital withdrew it for reconsideration, as allowed by ORS 183.482(6). On reconsideration, the hospital decided to withdraw its notice of intent to involuntarily administer medications to petitioner and withdraw its referral of the matter to the OAH, and issued orders commemorating those actions. Petitioner did not file an amended petition for judicial review after the hospital filed its order on reconsideration. In her opening brief to us, she raises a number of challenges to the withdrawn final order, but does not challenge the hospital's order on reconsideration. The hospital contends that we lack jurisdiction because petitioner did not file an amended petition for judicial review of the revised order on reconsideration, as required by ORS 183.482(6). Petitioner contends that we have jurisdiction to review the withdrawn order because, in petitioner's view, the hospital's order on reconsideration is legally ineffective. Alternatively, petitioner contends that we have jurisdiction to review the withdrawn order under ORS 14.175, which permits review of certain moot cases.

Regardless of whether the hospital's order on reconsideration is an effective reconsideration order, as the hospital contends, or an ineffective one, as petitioner contends, we lack jurisdiction in either circumstance.

What if the order on reconsideration is a legally effective one? When an agency withdraws an order under ORS 183.482(6) and then files an order on reconsideration that does not merely "affirm[ ] *** or modif[y] the order with only minor changes," a petitioner must file a timely amended petition for judicial review of the order on reconsideration if the petitioner seeks to proceed with the case: "If the petitioner is dissatisfied with the agency action after withdrawal for purposes of reconsideration, the petitioner may refile the petition for review and the review shall proceed upon the revised order." ORS 183.482(6). A petitioner's failure to timely file an amended petition for judicial review means that the proceeding must be dismissed for lack of jurisdiction. Haskell Corp. v. Filippi , 152 Or. App. 117, 125-26, 953 P.2d 396, rev. den. , 327 Or. 305, 966 P.2d 219 (1998) ; see Knapp v. Employment Division , 67 Or. App. 231, 677 P.2d 738 (1984) (the petitioner's failure to timely file an amended petition for judicial review of order on reconsideration meant that Court of Appeals lacked jurisdiction). Here, petitioner did not file an amended petition for judicial review after the hospital filed its order on reconsideration. That omission means that we lack jurisdiction under Haskell and Knapp , if we accept that the order on reconsideration is a legally effective reconsideration order.

What if the order on reconsideration is, in effect, a legal nullity? That means that there is no final order properly before us. There is no dispute that the hospital was authorized to withdraw its order, and that it did, in fact, withdraw its order. ORS 183.482(6) expressly gave it that authority: "At any time subsequent to the filing of the petition for review and prior to the date set for hearing the agency may withdraw its order for purposes of reconsideration." ORS 183.482(6). But once an agency withdraws an order, there is nothing before us to review; the case returns to the agency where it remains unless and until it issues an order on reconsideration. SAIF v. Fisher , 100 Or. App. 288, 292, 785 P.2d 1082 (1990) ; see Voelz Oil v. Oregon State Fire Marshal , 138 Or. App. 100, 102, 907 P.2d 251 (1995) (noting dismissal of judicial proceeding once agency reevaluated its position and, as a result, withdrew order on review). Thus, if we accept that the hospital's reconsideration order is a legally ineffective reconsideration order, then the matter remains before the hospital and there is no final order for us to review. This also requires dismissal under our case law. Fisher , 100 Or. App. at 292, 785 P.2d 1082 (dismissing petition for judicial review "because there is no final order" after agency withdrew order and did not replace it).

ORS 14.175 does not provide a way around this problem. That statute allows a court to resolve certain cases that have become moot, such that resolution of the case will not have a practical effect on the party bringing the case. But the issue here is whether we have jurisdiction under ORS 183.482 at all. For the reasons explained, we do not.

Petition for judicial review dismissed.


text:
    In the MATTER OF S. R. K., a Child.
    Department of Human Services, Petitioner-Respondent, v. S. J. K., Appellant.
    A168671
    Court of Appeals of Oregon.
    Argued and submitted January 29, 2019. March 6, 2019
    Holly Telerant, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.
    Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   LAGESEN, P. J.

This is an appeal from a permanency judgment that changed the permanency plan for appellant father's child, S, from reunification to adoption. The law has not remained static during the pendency of this appeal. As a result, the ultimate issue before us is whether, in view of the Supreme Court's recent decision in Dept. of Human Services v. S. J. M. , 364 Or. 37, 430 P.3d 1021 (2018) ( S. J. M. II ), we should remand the case to the juvenile court to provide father an opportunity to contest the plan change under the legal standard articulated in S. J. M. II . For the reasons that follow, we decline to remand and, therefore, affirm.

As noted, the juvenile court changed S's permanency plan from reunification to adoption. It did so over father's general objection that adoption was not the plan that was in S's best interests. Father did not introduce any evidence on the point, opting instead simply to argue that the change was not in S's interests.

In his opening brief to us, father assigned error to the juvenile court's decision to change the plan, contending that the evidence presented by the Department of Human Services (DHS) was legally insufficient to support an affirmative finding that there was no compelling reason under ORS 419B.498(2) to forgo a change of plan to adoption. In support of that argument, father relied on our decision in Dept. of Human Services v. S. J. M. , 283 Or. App. 367, 388 P.3d 417 (2017) ( S. J. M. I ). There, we had held that the proponent of a change in permanency plan to adoption bears the burden of proving the absence of a compelling reason under ORS 419B.498(2) to forgo a change of plan to adoption and, further, that without legally sufficient evidence to support an affirmative determination that no such compelling reasons exist, a permanency plan may not be changed to adoption.

After father filed his opening brief, the Supreme Court decided S. J. M. II , reversing our decision in S. J. M. I , 364 Or. at 40, 430 P.3d 1021. Rejecting our conclusion to the contrary, the court held that the proponent of a plan change to adoption does not bear the burden of proving the absence of a compelling reason under ORS 419B.498(2) in order to establish that a permanency plan should be changed to adoption. S. J. M. II , 364 Or. at 55-56, 430 P.3d 1021. Instead, the court explained, the proponent of the plan change need prove only that DHS made reasonable efforts to reunify the family and that the parents had made insufficient progress to permit reunification. Id . at 57, 430 P.3d 1021. To avoid a plan change under those circumstances, the opposing party bears the burden of proving the presence of a compelling reason under ORS 419B.498(2) to forgo a plan change. Id . at 56, 430 P.3d 1021.

The Supreme Court's conclusion in S.J.M. II regarding the allocation of the burden of proof in a permanency hearing means, necessarily, that, in the absence of evidence that would necessarily compel the determination that there was a compelling reason to forgo a plan change, a decision to change a permanency plan to adoption is supported by legally sufficient evidence when the evidence permits a determination that DHS made reasonable efforts to reunify the family, and that the parent (or parents, as the case may be) has not made sufficient progress to allow reunification. As father recognizes in a reply brief that he filed after the decision in S. J. M. II , that is the state of the record here. We therefore must reject father's contention that the juvenile court's plan change is not supported by legally sufficient evidence.

Although father recognizes that S. J. M . II is dispositive of his sufficiency-of-the-evidence challenge, he requests that we remand to the juvenile court to permit him to litigate the question of whether there is a compelling reason to forgo a change in plan to adoption in view of the allocation of the burden of proof announced in S. J. M. II . Father notes that, in the period of time between our decision in S. J. M. I and the Supreme Court's decision in S. J. M. II , our court routinely adhered to our holding in S. J. M. I regarding the allocation of the burden of proof. He asserts that he reasonably relied on our cases in deciding how to contest DHS's proposed plan change and that the fair thing to do under the circumstances, given the gravity of the interests at stake, is for us to remand to the juvenile court to permit him to frame his case under S. J. M. II .

We acknowledge that our articulation of the allocation of the burden of proof in S. J. M. I and subsequent cases certainly had the potential to affect father's litigation choices. We also recognize that we would have the inherent discretion to grant father's request for a remand and, further, that a significant change in the law may, at times, counsel in favor of a remand in order to ensure that a party has a fair opportunity to litigate a case under the correct legal standards. See, e.g. , State v. Mills , 354 Or. 350, 373, 312 P.3d 515 (2013) (principles of fairness required remand to permit the defendant to challenge venue under new legal standards announced by Supreme Court). However, for two reasons, we are not persuaded that we should exercise that discretion under the circumstances of this case. First, although it is possible that father relied on S. J. M. I in deciding not to present evidence about whether there was a compelling reason to forgo a plan change, the record created in the juvenile court gives us very little reason to think that that was, in fact, the case. Second, perhaps more importantly, as DHS pointed out at oral argument, the juvenile code itself gives father the right to a new permanency hearing on request, even absent a remand from us, unless there is "good cause" not to hold a hearing:

"Unless good cause otherwise is shown, the court shall also conduct a permanency hearing at any time upon the request of *** parents whose parental rights have not been terminated ***. The court shall schedule the hearing as soon as possible after receiving a request."

ORS 419B.470(6). Thus, to the extent that father elected not to make a case about the compelling reasons that might counsel against a plan of adoption because of our decision in S. J. M. I , and, in fact, has such a case to present, he may invoke ORS 419B.470(6) to do so.

Affirmed.

      DHS brought ORS 419B.470(6) to our attention at oral argument in this matter in arguing against a remand. In so doing, DHS did not suggest that it would be able to demonstrate good cause to not hold a permanency hearing, should father request one in order to make a case under the standards established in S. J. M. II .