text:
    Tony NIETO and Tory Nieto, Petitioners, v. CITY OF TALENT, Respondent, and Vernon J. Davis, Trustee of the Rose Marie Davis Revocable Trust; Mary A. Tsui; and Laura E. Cuddy, Intervenors-Respondents.
    A168939
    Court of Appeals of Oregon.
    Argued and submitted November 20, 2018. January 9, 2019
    Thommy A. Brooks argued the cause for petitioners. Also on the brief was Cable Huston LLP.
    Rebekah Dohrman argued the cause for respondent. Also on the brief was Local Government Law Group PC.
    Christian E. Hearn and Davis Hearn Anderson & Turner PC filed the brief for intervenors-respondents.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   DeVORE, J.

Petitioners seek review of a referee's decision affirming a city's denial of their application for an expedited land division (ELD) and remanding the matter to be processed as a land use decision or limited land use decision. See ORS 197.375 (setting forth the ELD process of review before a referee and authorizing judicial review of the referee's decision). In their first two assignments of error, petitioners argue that the referee exceeded his powers. In their third assignment, petitioners assert that the referee's decision is unconstitutional under the Takings Clause of the Fifth Amendment to the United States Constitution. We reject each of those arguments and, therefore, affirm.

The relevant facts, which we take from the referee's order, are undisputed. Petitioners filed an application with the Community Development Department of the City of Talent seeking ELD approval to create 49 lots for single-family development from an existing 26.58 acre parcel. The application proposed an ELD pursuant to ORS 197.360, which would require quicker processing under ORS 197.365. The city determined that the application was ineligible for ELD review, primarily because it failed to meet street and other right-of-way requirements. It noted that the access issues required resolution prior to the subdivision's approval, but set no specific requirements on how that would be accomplished. The request for ELD review was denied.

Petitioners appealed the city's decision to a referee appointed to hear and decide ELD appeals in accordance with ORS 197.375. The referee denied petitioners' appeal, ruling that the application did not qualify for ELD review. The referee remanded the subdivision application to the city for consideration through ordinary proceedings for a land use decision or limited land use decision.

Petitioners seek judicial review of the referee's final order, raising three assignments of error. First, they challenge the referee's statutory analysis in determining that the proposed development was not within an "area subject to an acknowledged refinement plan" under ORS 197.200, which, had the referee found otherwise, would have permitted ELD review. Second, petitioners contend that the standards upon which the referee relied in applying ORS 197.360 in remanding the application to the city violated other applicable statutes. Finally, petitioners assert that the referee erred in rejecting their argument that the city had imposed conditions amounting to an unconstitutional taking.

Our scope of review in this proceeding is unusually narrow, as circumscribed by ORS 197.375(8). That statute authorizes this court to review a referee's ELD decision, but we can reverse or remand only if we find one of the circumstances listed:

"(a) That the decision does not concern an expedited land division as described in ORS 197.360 and the appellant raised this issue in proceedings before the referee;
"(b) That there is a basis to vacate the decision as described in ORS 36.705 (1)(a) to (d) , or a basis for modification or correction of an award as described in ORS 36.710 ; or
"(c) That the decision is unconstitutional."

ORS 197.375(8) (emphasis added).

Paragraph (b) cross-references ORS 36.705(1), a provision of the Uniform Arbitration Act that grants courts authority to vacate arbitrator awards in specified circumstances. ORS 36.705(1) provides, in relevant part:

"Upon petition to the court by a party to an arbitration proceeding, the court shall vacate an award made in the arbitration proceeding if:
"(a) The award was procured by corruption, fraud or other undue means;
"(b) There was:
"(A) Evident partiality by an arbitrator appointed as a neutral arbitrator;
"(B) Corruption by an arbitrator; or "(C) Misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;
"(c) An arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy or otherwise conducted the hearing contrary to ORS 36.665 so as to prejudice substantially the rights of a party to the arbitration proceeding;
"(d) An arbitrator exceeded the arbitrator's powers[.] "

(Emphasis added.)

We have explained that "the grounds for obtaining the vacation of an [arbitration] award are extremely narrow in comparison with the scope of review available to litigants in court." Vasquez-Lopez v. Beneficial Oregon, Inc. , 210 Or. App. 553, 568, 152 P.3d 940 (2007). Courts can vacate arbitrator awards only under very limited circumstances, including when an "arbitrator exceeded the arbitrator's powers." ORS 36.705(1)(d). Whether an arbitrator exceeds the arbitrator's powers is a question of law. Couch Investments, LLC v. Peverieri, 270 Or. App. 233, 239, 346 P.3d 1299 (2015), aff'd , 359 Or. 125, 371 P.3d 1202 (2016) (applying the standard of review for determining whether an arbitrator exceeded the arbitrator's powers from former ORS 36.355 (1997), repealed by Or. Laws 2003, ch. 598, § 57, to ORS 36.705 ).

When a statute empowers an arbitrator to decide a legal issue, "[t]he arbitrator acts within the bounds of his authority not only when he decides [that] question of law correctly according to judicial standards, but also when he applies the law in a manner which a court would regard as erroneous. * * * Neither a mistake of fact or law vitiates the award." Brewer v. Allstate Insurance Co. , 248 Or. 558, 561-62, 436 P.2d 547 (1968) (citation and internal quotation marks omitted). By incorporating that same standard, ORS 197.375(8) does not permit us to reverse a referee's order simply because the decision was predicated on an error of law; rather, the error must relate to the referee's authority .

In petitioners' first two assignments of error, they urge the court to vacate the referee's decision on the ground that he engaged in an improper statutory analysis resulting in a conclusion that failed to reflect favorable evidence. Petitioners also assert that the referee applied standards that ran afoul of other statutes and "exceeded his powers and resulted in error." Neither of those arguments demonstrates that the referee committed an error of law that caused him to act outside of his statutory powers.

The text of ORS 197.375 itself outlines the legal questions under the referee's purview. That law authorizes a referee to decide appeals of ELD applications based on allegations

"(A) Of violation of the substantive provisions of the applicable land use regulations;
"(B) Of unconstitutionality of the decision;
"(C) That the application is not eligible for review under ORS 197.360 to 197.380 and should be reviewed as a land use decision or limited land use decision; or "(D) That the parties' substantive rights have been substantially prejudiced by an error in procedure by the local government."

ORS 197.375(1)(c) ; see also ORS 197.375(2) (requiring the appointment of a referee to decide such appeals). The statute places only a few restrictions on this authority, none of which are alleged to apply here.

Based on the plain text of ORS 197.375, we conclude that the referee did not exceed his powers. He had broad discretion to construe the substantive provisions of land use regulations, to determine eligibility for ELD review, and to remand for land use decision or limited land use decision proceedings. The challenged analyses of ORS chapter 197-even if erroneous-fell squarely within the parameters of the referee's statutorily defined powers. Indeed, petitioners do not allege that the referee examined matters beyond the statute's scope. Under our limited standard of review, we do not scrutinize the substance of those analyses. We therefore reject petitioners' first and second assignments of error, because petitioners have not demonstrated that the referee exceeded his powers.

In petitioners' third assignment of error, they posit another theory for vacating the referee's decision under ORS 197.375(8)(c), arguing that the decision was unconstitutional. They assert that the city's initial decision sought to impose offsite improvements that are unconstitutional exactions and that "[t]he Referee erred when he concluded that the City did not impose any conditions on the Applicant that amounted to an unconstitutional taking."

The predicate for that assignment of error-that the referee determined any constitutional issues with finality-is mistaken. The referee rejected petitioners' arguments but explained that "any constitutional issues are now moot, because the City Decision is no longer in place as a final decision of the City, and the Application is being remanded by this Final Decision and Order to the City for processing as a land use decision or limited land use decision pursuant to ORS 197.375(4)(a)." In other words, the import of the referee's decision is that any constitutional issues remain to be litigated when the matter is processed as a land use decision or limited land use decision rather than through the ELD process. Consequently, we reject petitioners' third assignment of error.

In the end, we conclude that the referee acted within his authority in affirming the city's denial of ELD review and remanding petitioners' application for processing as a land use decision or limited land use decision, and we conclude that any constitutional challenges regarding conditions of approval remain to be decided through that process.

Affirmed.

      The Fifth Amendment to the United States Constitution provides, in part: "No person shall be * * * deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." This provision has been incorporated into the Due Process Clause of the Fourteenth Amendment and is binding on the states. Palazzolo v. Rhode Island , 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (citation omitted).

      Petitioners also suggest that the referee "refus[ed] to consider material evidence," which would constitute separate grounds for reversal under ORS 167.375(b) and ORS 36.705(1). However, we understand this argument to be, again, fundamentally about the referee's choice and application of legal standards. Petitioners challenge the referee's reliance on, and then subsequent interpretation of ORS 197.200(1) to (2), arguing these errors amounted to a "collateral attack" on their evidence. Thus, petitioners' evidentiary argument turns on our rejection of the referee's statutory analysis, which, as we discuss, is beyond our scope of review.

      The referee may not remand the application for reasons other than those set forth in ORS 197.375(4). ORS 197.375(4)(b). The same paragraph also prohibits the referee from reducing the density of the land division application. Other paragraphs provide procedural requirements that the referee must follow. ORS 197.375(3) - (6).


source: Caselaw Access Project

author: JAMES, J.

license: Public Domain

text:
    In the MATTER OF B. J. V., Jr. and B. T. V., Children.
    T. G. W. and R. R. W., Petitioners-Respondents, v. B. J. V., Respondent-Appellant.
    A168119
    Court of Appeals of Oregon.
    Argued and submitted November 20, 2018. January 16, 2019
    George W. Kelly, Eugene, argued the cause and filed the brief for appellant.
    Margaret H. Leek Leiberan, Portland, argued the cause for respondents. Also on the brief was Jensen & Leiberan.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   JAMES, J.

In this step-parent adoption proceeding, birth father appeals a judgment allowing his two children to be adopted without his consent, assigning error to the trial court's finding that he had willfully neglected, without just and sufficient cause, to provide proper care and maintenance for the children for the year preceding mother and step-father's filing of the petition for adoption. ORS 109.324. We affirm.

We review the trial court's legal conclusions for errors of law, but are bound by the court's findings of historical fact so long as there is any evidence to support them. State v. S. T. S. , 236 Or. App. 646, 655, 238 P.3d 53 (2010). In this case, the trial court found that mother and birth father were married on January 30, 2010. The marriage produced two children, the subjects of this appeal. Mother and father divorced April 15, 2014. The General Judgment of Dissolution of Marriage awarded sole custody of the children to mother. Birth father was granted restricted, supervised, nonovernight parenting time on Saturday mornings for a specific three-hour period. As part of that same judgment, birth father was required to enroll in a drug and alcohol evaluation program with a "reputable evaluator," comply with all terms of the drug and alcohol evaluation program, including treatment, and have three consecutive, random urinalysis tests. Birth father did not complete those requirements prior to mother filing the petition for adoption.

Mother relocated to Tillamook, Oregon, in March 2014, to live with her parents. Birth father exercised his supervised visits on three occasions at mother's parents' house in 2014. Birth father has not had physical contact with the children since late June, 2014. In May, 2015, birth father left mother a voicemail informing mother that he would be coming to take his children. Mother contacted the Tillamook County Sheriff's office. She was advised to change her phone number, change her vehicle, and get a post office box for mail. She only changed her cell phone number, and her mailing address remained at her parents' house.

In November 2015, birth father was arrested on criminal charges in Washington, and spent time in and out of jail from November 2015, through March 10, 2016. He was out of custody from March 10, 2016, until June 1, 2016. On June 17, 2016, birth father was convicted of crimes unrelated to his children or ex-wife, and sentenced to 22 months at the Washington Corrections Center. He was transferred to the Clackamas County jail for probation violations in April 2017, where he remained until late May 2017. In July 2016, mother remarried and moved to Carlton, Oregon.

While birth father was incarcerated in August 2016, he sent a letter to mother's parents' house. The letter was addressed to people in addition to the children, including mother, mother's father, mother's mother, and three other relatives of mother's. Around this same time, in August 2016, birth father sent a request to the State of Washington Division of Child Support, requesting mother's address. Birth father testified that the purpose of the request was to contact the children. The State of Washington Division of Child Support denied birth father's request, explaining that it had information that indicated the release of mother's address may result in emotional or physical harm to either the "other party in the case or to the children." Birth father appealed that denial in October 2016, and the denial was upheld on appeal. In December 2016, birth father sent another letter to mother's parents' home. That letter was addressed to birth father's two children. Birth father testified that those were the only two communications he attempted to make to the children. Birth father also testified that he contacted his own mother and father by phone during his incarceration in the year preceding the filing of the adoption petition.

In the 12 months prior to the filing of the petition for adoption, mother received, through support enforcement, $23.10 in child support payments. Mother remarried on July 16, 2016. The petition for adoption was filed on May 25, 2017. The trial court found that mother and step-father proved by "clear and convincing evidence that Birth Father has willfully neglected, without just and sufficient cause, to provide proper care and maintenance for the children for the year preceding the filing of the Petition for Adoption." The court also found that birth father "willfully failed to manifest substantial expressions of concern that show he had a deliberate, intentional, and good-faith interest in maintaining a parent-child relationship during the year preceding the filing of the Petition for Adoption." The trial court found that the two letters sent to mother's parents' house were "the only contacts that Birth Father had or attempted to have with the children from June 28, 2014 to May 25, 2017." The trial court explained that those letters were incidental contacts, and that:

"There was much more that Birth Father could have done to demonstrate a good faith interest in maintaining a parent-child relationship with the children. Birth Father could have sent more letters to the children through the grandparents. Birth Father could have made more effort to obtain telephonic communication with the children through the grandparents. There was some effort of Mother's part to restrict Birth Father's contact with the children; however, Mother's actions were taken with good cause. Although Birth Father was incarcerated during the majority of the one-year period prior to the filing of the Petition for Adoption, and the ways that he could have maintained his relationship with the children were impaired, the incarceration was not just and sufficient cause for his willful neglect of the children."

On May 10, 2018, the trial court ordered that the consent of birth father was not required, and that the adoption could proceed notwithstanding the objection of birth father. Birth father appealed. On appeal, he argues that petitioners' proof was inadequate to prove that he had willfully neglected his children, without sufficient cause, in the year preceding the filing of the adoption petition. Mother argues that there was evidence to support the trial court's findings that the letters constituted "incidental" contact within the meaning of ORS 109.324(3) ; birth father did not have good and sufficient cause to have neglected the children; and therefore the trial court did not err in holding that the adoption should proceed without birth father's consent.

ORS 109.324 provides, in relevant part:

"* * * * *
"(2) Upon hearing or when the parent has failed to file a written answer as required in ORS 109.330 (3), if the court finds that the parent has willfully deserted the child or neglected without just and sufficient cause to provide proper care and maintenance for the child for one year next preceding the filing of the petition for adoption, the consent of the parent at the discretion of the court is not required and, if the court determines that the parent's consent is not required, the court may proceed regardless of the objection of the parent.
"(3) In determining whether the parent has willfully deserted the child or neglected without just and sufficient cause to provide proper care and maintenance for the child, the court may:
"(a) Disregard incidental visitations, communications and contributions; and
"(b) Consider, among other factors the court finds relevant, whether the custodial parent has attempted, without good cause shown, to prevent or to impede contact between the child and the parent whose parental rights would be terminated in an action under this section."

As the Supreme Court has interpreted "willful neglect," in the context or ORS 109.324, we ask whether, during the year preceding the filing of the petition for adoption, the "nonconsenting parent willfully fail[ed] to manifest substantial expressions of concern which show that the parent has a deliberate, intentional, and good faith interest in maintaining a parent-child relationship[.]" Eder v. West , 312 Or. 244, 266, 821 P.2d 400 (1991) (emphasis added). Eder defined "incidental" to mean "occurring merely by chance or without intention or calculation; being likely to ensue as a chance or minor consequence; not receiving much consideration. Webster's Third New Int'l Dictionary 1152 (unabridged 1961)." Id. at 266 n. 24, 821 P.2d 400 (internal citation in original). By statute, the period of time to be examined is the year preceding the filing of the petition for adoption. ORS 109.324(2).

In Pizano-Varela v. Gomez , 103 Or. App. 629, 798 P.2d 724 (1990), we reiterated that "the relevant time period for determining willful neglect is the one-year period just before the filing of the petition for adoption." Id. at 632, 798 P.2d 724. In that case, the mother was 14 years of age when she gave birth to the child, in 1983, who was the subject of the petition for adoption. Id. at 631, 798 P.2d 724. The mother left the state and child roughly two years after the child's birth, and made no child care arrangements. Id. The mother made one visit to the child in 1989 after being served with notice of custody proceedings. Id. Otherwise there had been no contact with the child, including no gifts, no cards, no letters, and no support. Id. The trial court "concluded that mother's actions were not willful [neglect], primarily because she was very young when she abandoned her child." Id. at 632, 798 P.2d 724. We reversed, holding that "the relevant time period for determining willful neglect is the one-year period just before the filing of the petition for adoption," and though acknowledging she was a minor when she left the child, the court noted that in the relevant time period, the mother was 19 or 20 years old, married, raising a second child, and lived in the same area as the father of the child at issue. Id. Because she was capable of making "adult decisions" in the year before the petition was filed, her actions constituted willful neglect. Id. at 633, 798 P.2d 724.

In this case, the court found that, during the year preceding the filing of the petition for adoption, birth father failed to manifest substantial expressions of concern that show he had a deliberate, intentional, and good-faith interest in maintaining a parent-child relationship. The evidence in the record supports that finding. Birth father testified that in the year preceding the petition for adoption, he mailed two letters intended for his children. There was also testimony that birth father contacted the Department of Human Services (DHS) for mother's address after the first letter was sent, but was denied mother's current address. Birth father sent a second letter to mother's parents' house after that denial, and did not send further communications intended for the children. Only the second letter was addressed exclusively to the children, and could be considered more than incidental, i.e. , it was sent with the intent of contacting the children. See Eder , 312 Or. at 266 n. 24, 821 P.2d 400. However, even if we construed both letters as intended for the children, one or two contacts over the course of a year does not rise to the level of a substantial expression of concern in this case. There was no other attempted contact with the children within the relevant time period. The court did not err in finding that birth father failed to manifest substantial expressions of concern in the year preceding the filing of the adoption petition.

Our inquiry does not end there, however. "If a court finds that a parent has neglected his or her children, the relevant inquiry shifts to whether just and sufficient cause excuses the parent's neglect." C. R. H. v. B. F. , 215 Or. App. 479, 486, 169 P.3d 1286, rev. den. , 343 Or. 690, 174 P.3d 1016 (2007). In C. R. H. , the father intentionally committed egregious crimes against a relative who was a minor. Id. at 481, 169 P.3d 1286. DHS determined that the mother was a suitable parent for the children and the mother was allowed to retain custody of children on the condition that she not allow contact between the father and the children. Id. Because of the nature of the crimes, as part of the father's post-prison supervision terms, he was prohibited from having any contact with his children for four years. Id. at 482, 169 P.3d 1286. During the period of time the father was prohibited from contact, the mother and step-father petitioned the court to grant a step-parent adoption over the father's objection. Id. We held that although the father willfully committed the crimes, and could arguably be found to have neglected the children, there was "just and sufficient cause to excuse his failure to provide proper care and maintenance for the children." Id. at 486, 169 P.3d 1286. We so found because "a court order or post-prison supervision condition prohibiting contact with a child is a more significant limitation imposed on the parent's ability to visit or contact the child." Id. at 486-87, 169 P.3d 1286 (internal quotation marks and brackets omitted).

Here, birth father was incarcerated for almost the entirety of the relevant one-year period. However, the mere fact of incarceration alone is not just and sufficient cause to excuse a parent's neglect. Birth father did not testify that there was a court order or term of post-prison supervision, or any other legal prohibition on his contact with the children.

Birth father did testify that he was indigent at the time of his incarceration. The financial hardships of communications on the incarcerated are a difficult reality of which this court is aware. Both letters were sent while father was incarcerated. There are those who are in a position where even the money to pay for postage is difficult to come by. However, birth father testified that he worked in the highest paying position available to him during his incarceration. He also testified that he had telephone contacts with his father and mother during his incarceration. Additionally, he testified that, although email was available to him as a communication tool, he did not send emails to anybody, including mother or other family members, because he did not "want to stand in line and wait for the JPay machine."

On this record, the trial court's finding that birth father's incarceration was not just and sufficient cause for his failure to manifest the required expressions of concern in the year preceding the filing of the petition for adoption was supported by evidence in the record. Accordingly, we conclude that the trial court did not err when it ordered the adoption to go forward without birth father's consent.

Affirmed.

      Birth father also argues that petitioner's proof was inadequate to prove he willfully deserted his children without sufficient cause. Because the order's specific language refers to neglect, we focus our analysis on the "neglect" aspect of birth father's argument.

      On appeal, birth father points to Facebook posts he made regarding his interest in his children to demonstrate he attempted other contacts, but those posts are both before and after the relevant time period. None occurred during the relevant one-year period. We express no opinion on whether Facebook posts made during the relevant time period would bear on our analysis.


author: PER CURIAM

text:
    STATE of Oregon, Plaintiff-Respondent, v. Robin Dean MILLER, Defendant-Appellant.
    A167808
    Court of Appeals of Oregon.
    Submitted December 7, 2018. January 24, 2019
    Robin D. Miller filed the briefs for appellant pro se.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   PER CURIAM

Defendant, who was pulled over and cited for failing to move over when passing a police car that was stopped on the shoulder of the road with its overhead lights activated, ORS 811.147, asserts that the trial court erred in concluding that he violated the law. In this case, defendant, who was cited on January 21, 2018, contested the citation and testified that when he passed the police car in question he was traveling at least 5 miles per hour under the posted speed limit. The trial court, however, was not persuaded that making a lane change was unsafe, and found that he had, therefore, violated ORS 811.147.

ORS 811.147 (2010) provided, in relevant part, that "a person operating a motor vehicle commits the offense of failure to maintain a safe distance from an emergency vehicle * * * that is stopped and is displaying required warning lights" if the person

"(a) On a highway having two or more lanes for traffic in a single direction, fails to:
"(A) Make a lane change to a lane not adjacent to that of the emergency vehicle * * *; or
"(B) Reduce the speed of the motor vehicle to a speed that is at least five miles per hour under the speed limit established in ORS 811.111 or a designated speed posted under 810.180, if making a lane change is unsafe. "

(Emphasis added.) However, in 2017, the legislature amended ORS 811.147 and, among other things, deleted the italicized text. Or. Laws 2017, ch. 305, § 1. Thus, under the current version of the statute, it is lawful, in response to approaching a police car stopped on the side of the road with its warnings lights activated, for a driver to slow down to a speed that is at least five miles per hour under the speed limit; changing lanes need not be unsafe for a driver to choose to respond by slowing down. That amendment to the statute became effective January 1, 2018. Or. Laws 2017, ch. 305, § 2, see ORS 171.022. In light of the amendment, the state agrees with defendant that we should reverse the trial court's judgment, observing that the trial court appears to have relied on the prior version of the statute, despite the fact that the incident in question occurred on January 21, 2018, after the amendment to the statute had gone into effect and that there is no evidence from which a trier of fact could find that defendant was traveling at a speed greater than five miles per hour under the speed limit. We agree, and accept the state's concession.

Reversed.


text:
    In the MATTER OF J. O. B., a Person Alleged to Have Mental Illness.
    State of Oregon, Respondent, v. J. O. B., Appellant.
    A168501
    Court of Appeals of Oregon.
    Submitted December 7, 2018. February 13, 2019
    Joseph R. DeBin and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
   PER CURIAM

Appellant seeks reversal of a judgment committing appellant to the Mental Health Division for a period not to exceed 180 days and an order prohibiting appellant from purchasing or possessing a firearm based upon a finding that appellant has a mental illness. ORS 426.130. Appellant's commitment hearing was postponed by the trial court "due to Court availability"-on the court's own motion-to a date that was more than five judicial days after appellant was taken into custody for involuntary treatment. Appellant moved to dismiss the civil commitment proceeding for failure to hold the hearing within five judicial days. See, e.g. , State v. E. R. , 283 Or. App. 282, 283, 387 P.3d 497 (2016) (citing ORS 426.232(2), ORS 426.233(1), and ORS 426.095(2)(a) in reversing a commitment order because the hearing was held more than five days after the appellant was taken involuntarily into custody for mental health treatment).

The court denied the motion to dismiss on the basis that the court's unavailability was good cause for postponing the hearing. However, although ORS 426.095(2)(c) permits a "good cause" postponement of a commitment hearing past the five-judicial-day deadline, the court is not statutorily permitted to request postponement. See ORS 426.095 (2)(c)(A) - (C) (person alleged to have mental illness, that person's legal counsel or guardian, or the person representing the state are allowed to request a postponement for good cause). The state concedes that the court erred in failing to dismiss appellant's case for that reason, and we accept the state's concession. We therefore reverse the judgment of commitment and the order prohibiting appellant from purchasing or possessing a firearm. See State v. L. O. W. , 292 Or. App. 376, 424 P.3d 789 (2018) (reversing order of commitment when the appellant was involuntarily hospitalized for more than five days without a hearing); State v. R. C. S. , 291 Or. App. 489, 490, 415 P.3d 1164 (2018) (reversing both the order of commitment and the order prohibiting the appellant from purchasing and possessing firearms).

Reversed.


author: HADLOCK, P. J.

text:
    In the MATTER OF E. R., a Child.
    Department of Human Services, Petitioner-Respondent, v. C. L. R. Appellant.
    A168446
    Court of Appeals of Oregon.
    Submitted December 20, 2018. January 24, 2019
    Shannon Storey, Chief Defender, Juvenile Appellate Section, and Holly Telerant, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   HADLOCK, P. J.

Mother appeals a juvenile court judgment asserting dependency jurisdiction over her 12-year-old, E, on the basis that mother's mental health problems impair her parenting ability. Mother contends that the record in the juvenile court proceeding does not include evidence sufficient to establish that, at the time of the dependency hearing, her mental health challenges put E at risk of serious harm or loss that was reasonably likely to be realized. For the reasons set out below, we agree that the record in this case is not sufficient to justify the juvenile court's exercise of dependency jurisdiction. Accordingly, we reverse.

Mother has not requested de novo review and this is not an exceptional case in which such review would be appropriate. Accordingly, in reviewing the juvenile court's judgment, we "view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome." Dept. of Human Services v. N. P. , 257 Or. App. 633, 639, 307 P.3d 444 (2013). We are bound by the juvenile court's explicit and necessarily implied findings of historical fact as long as any evidence in the record supports them. Id. at 639-40, 307 P.3d 444. We describe the facts consistently with those standards.

Mother has longstanding mental health issues. By her own report, she has been a patient at Western Psychological and Counseling Services since she was nine years old. Her treatment provider since November 2016 is psychiatric nurse practitioner Rosanski, who manages mother's medications. Those medications are for several diagnosed conditions, including bipolar disorder, post traumatic stress disorder (PTSD), and attention deficit disorder. At the dependency hearing, mother, testified about her PTSD, which she said was caused by having been violently victimized. Mother acknowledged that she has "a long list" of additional diagnoses, but she was not able to identify what all of them are. Nor did mother recall the names of all of her medications.

On the evening of April 2, 2018, mother had what she later described as a "mental breakdown." Mother mistakenly thought that somebody had intruded or was attempting to intrude into the apartment where she and E lived. She thought she heard a drill and believed that "somebody was trying to get in the house." Mother, describing herself as having been "very paranoid," "went in attack mode," and started throwing things at the imagined intruder, to protect herself and E. Mother took E to a neighbor's apartment, stayed there for about 15 minutes, then went to another neighbor's apartment for a similar length of time before returning home. At that point, E was tired, upset, and crying.

Mother called 9-1-1 a few times and, because she did not believe that police were responding quickly enough, falsely stated that she had slit her own throat. Mother also called father, with whom she was in frequent contact although they had separated a few years earlier. Father described mother as "kind of freaking out" that night and "talking erratically." Mother asked father to come get her and E so he could move them into his home. In a second phone call, mother said that father needed to come get E, but she did not explain why. However, given how mother was speaking and how frustrated she seemed, "it seemed like a major emergency" to father. E then called father, who testified that she "was crying, and she was scared."

Police officers and personnel from the Department of Human Services (DHS) responded to mother's 9-1-1 calls. Officers took mother to a hospital, where she received treatment for a few days. She then checked herself in to another facility "because [she] still wasn't okay." Mother stayed there for two or three weeks, leaving earlier than staff wanted her to because she wanted to see E.

DHS filed a dependency petition shortly after the April 2 episode, alleging that mother's mental health problems impaired her parenting ability, that her resulting behaviors created a risk of harm to E, and that she was not available as a parenting resource because she was hospitalized. DHS also alleged that child could not safely be placed with father, who had been charged with three counts of third-degree sexual abuse against a minor.

The dependency petition was adjudicated at a June 2018 hearing. At that hearing, mother acknowledged that her conduct on April 2 had scared and upset E; "it freaked her out." Mother testified that she "[a]bsolutely" had mental health issues that night and now realizes that "there was nobody in the apartment, and [she] was probably hearing things." She said that she had not previously had any episodes like the one on April 2 and has not had any since then. Mother testified that she takes her medication faithfully and was taking it at the time of her breakdown. Mother also asserted that she is now making appointments for therapy, including family counseling with E. Mother answered affirmatively when the DHS attorney asked whether that counseling was necessary for her and E to have a healthy parent-child relationship.

Rosanski testified that mother's behavior on April 2 was consistent with her diagnoses; he agreed with mother's characterization of the event as "a breakdown." Rosanski has had two medication-management appointments with mother since April 2 and increased the dosage of one of her medications.

Rosanski had most recently seen mother on May 2 because she missed two appointments in the weeks before trial, which caused him concern. However, mother had missed appointments before and had made them up quickly. At the time of trial, mother had an appointment with Rosanski scheduled for the following week.

Rosanski testified that the April 2 incident was the only time that mother had reported hallucinating sounds or voices. Rosanski has not seen mother decompensate in a similar way on other occasions, and he believes that he would have been made aware of that if it had happened. Mother has not had other psychiatric hospitalizations while she has been his patient. Rosanski believes that mother will decompensate if she does not take her medications; he also believes that mother would benefit from a psychological evaluation and talk therapy. However, he testified that nothing but speculation would lead him to believe that mother will in fact again decompensate in the way that she did on April 2.

Father testified at the dependency hearing that he had seen "behavior like that" with mother in the past, when she was drinking or taking drugs, but "not to that extent." When asked to describe mother's previous behaviors, father discussed a night when mother woke him up because she thought a man was going to try to break into their house; when father looked outside, nobody was there. Father did not identify any other specific instances of "bizarre behavior" when he testified.

At the close of the hearing, DHS argued that the April 2 incident resulted in trauma to E that continued to affect her relationship with mother. Because mother had not yet engaged with counseling services, DHS argued, there "are still current risks that have not been mitigated." In response, mother argued that DHS had not met its burden of proving that "a current threat" created a risk of serious loss or injury to E. Mother emphasized that the April 2 incident had occurred more than two months before the hearing, that there had not been any recurrences, and that mother's treatment provider had testified that there was not any nonspeculative basis for thinking there would be a similar decompensation in the future. The juvenile court agreed with DHS, ruling that the agency had proved that mother's mental health problems impaired her ability to safely or competently parent E. Accordingly, it entered a judgment establishing dependency jurisdiction over the child.

On mother's appeal, the parties reiterate the arguments they made below. Those arguments implicate ORS 419B.100(1)(c), which provides that a juvenile court may assert dependency jurisdiction over a child whose "condition or circumstances are such as to endanger the welfare of the [child] or of others." That kind of endangerment exists when the child's condition or circumstances "create a current threat of serious loss or injury to the child" and there is "a reasonable likelihood that the threat will be realized."

Dept. of Human Services v. S. P. , 249 Or. App. 76, 84, 275 P.3d 979 (2012) (internal quotation marks and citations omitted). In determining whether such a threat exists, a court's focus must always be on the child's current condition and circumstances, not on some point in the past. Dept. of Human Services v. S. A. B. O. , 291 Or. App. 88, 99, 417 P.3d 555 (2018).

Here, we agree with mother that DHS did not prove that mother's mental health challenges presented a threat of serious loss or injury to E-one that was reasonably likely to be realized-at the time of the dependency hearing. The juvenile court understandably was concerned about both the severity of the April 2 incident and the distress that E suffered as a result. However, the evidence in this record is insufficient to justify an exercise of dependency jurisdiction for two reasons.

First, nothing in the record supports a finding that it is reasonably likely that mother will suffer a comparable episode of decompensation in the future. Although mother has struggled to maintain her mental health for many years and lacks a complete understanding of her diagnoses and medications, nobody testified that she has had such an extreme paranoid episode in the past. Nor is there evidence that mother's lack of complete insight into her own condition either led to the April 2 episode or is reasonably likely to lead to another similarly extreme incident. Moreover, although Rosanski testified that mother will decompensate if she does not take her medications, no evidence suggests that will occur; indeed, Rosanski agreed that nothing other than speculation would lead him to opine that mother will have another episode like the one she experienced on April 2. Although a pattern of behavior sometimes can serve as a basis for finding that similar conduct is reasonably likely to recur in the future, no such pattern has been established here. See Dept. of Human Services v. L. C. , 267 Or. App. 731, 744, 343 P.3d 645 (2014) (when the record does not include evidence of a pattern of relapse, jurisdiction "cannot be based on a parent's past conduct, absent individualized evidence that the parent's conduct is likely to recur and endanger the child"). Second, nothing in this record supports a finding that mother's mental-health challenges put E at risk of serious loss or harm. True, mother's own testimony establishes that the events of April 2 scared E and made her very upset. That a parent's conduct frightens a child is not sufficient, however, to establish that the child has suffered-or is at risk of suffering-such significant psychological harm that juvenile court jurisdiction is justified. State ex rel. Dept. of Human Services v. D. T. C. , 231 Or. App. 544, 554, 219 P.3d 610 (2009) (evidence that father's conduct frightened his children and made him "mean and 'controlling' " did not establish harm to the children sufficient to "justify state intervention into the parent-child relationship"). The record includes no evidence that E has suffered significant or persistent psychological harm from the April 2 episode or would be at risk of such harm even if a similar episode occurred in the future.

Nor is a risk of serious harm established by mother's acknowledgement that she needs counseling to have a healthy parent-child relationship with E. Mother's testimony on that topic began with her responding affirmatively when the DHS lawyer asked whether the April 2 incident had affected her relationship with E; mother said it had, because E had been scared and tired. Mother went on to observe that she and E did not get to spend much time together at the time of the dependency hearing, which made it "a little difficult" on their relationship with respect to "growing and bonding." Following that testimony, the DHS lawyer asked mother whether she planned to meet with E's counselor, and mother said that she did; specifically, mother planned to meet with the counselor individually to prepare for herself and E to have counseling together. The DHS lawyer then asked mother if she believed that the counseling was something she and E needed to have their relationship "move forward in a healthy parenting, parent-child relationship." Mother answered, "Yes."

That brief testimony regarding the need for counseling does not justify an exercise of dependency jurisdiction. In context, it cannot reasonably be understood to signify more than an acknowledgement that family counseling will be beneficial. More to the point, mother's testimony is not sufficient to establish that, in the absence of such counseling, E presently is in circumstances that threaten her with serious loss or injury that is reasonably likely to be realized. Put differently, mother's acknowledgement that she and E need counseling to move forward with a healthy relationship does not establish that the current state of their relationship somehow endangers E. In the absence of evidence that mother's relationship with E is compromised in a way that puts E at risk, mother's acknowledgement that counseling is needed is not a sufficient basis for an exercise of dependency jurisdiction. Cf. Dept. of Human Services v. S. D. I. , 259 Or. App. 116, 123, 312 P.3d 608 (2013) (DHS failed to establish that transfer of child to mother's custody would create a risk of serious loss or injury because it "provided no evidence that the harm to [the child] would be any greater than the customary distress that a child experiences when she is uprooted from her community and must form social bonds in a new place"). No such evidence is in the record here.

Reversed.

      Father ultimately was convicted of third-degree sexual abuse and admitted to a jurisdictional allegation based on that conviction. He has not appealed and the jurisdictional allegation to which he admitted is not at issue here.

      We observe that, had mother denied that family counseling would be helpful, that could have been considered evidence that she did not understand the dynamics of her relationship with E. Cf., e.g. , Dept. of Human Services v. L. F. , 256 Or. App. 114, 122, 299 P.3d 599, rev. den. , 353 Or. 787, 304 P.3d 466 (2013) (affirming jurisdictional judgment where the child had conditions that required therapy and the mother was unable or unwilling to attend the therapy sessions, which prevented her from understanding the childs' needs).


text:
    In the MATTER OF A. S., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. A. S., Appellant.
    A168152
    Court of Appeals of Oregon.
    Submitted January 4, 2019. March 6, 2019
    Joseph R. DeBin and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and David B. Thompson, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   PER CURIAM

Appellant seeks reversal of an order of continued commitment that extended her commitment to the Oregon Health Authority for a period not to exceed 90 days. See ORS 426.307(6). In her second assignment of error, appellant contends that the record does not contain legally sufficient evidence that, due to a mental disorder, she was unable to provide for her basic needs. See ORS 426.005(1)(f)(B). The state concedes that the evidence was insufficient to prove that appellant was unable to provide for her basic needs and that the order should be reversed. We agree, accept the state's concession, and reverse the order continuing appellant's commitment.

Reversed.

      Our disposition of appellant's second assignment of error obviates the need to address her first assignment of error.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Jason Edwin GREEN, Defendant-Appellant.
    A166466 (Control), A166521
    Court of Appeals of Oregon.
    Submitted January 15, 2019. March 6, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sara F. Werboff, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   PER CURIAM

In this consolidated criminal appeal, defendant seeks reversal of the trial court's imposition of $567 in court-appointed attorney fees in Case No. 17CR22672 and $690 in court-appointed attorney fees in Case No. 17CR38868. Defendant asserts, and the state concedes, that the trial court erred in imposing attorney fees in this case because it did not impose them in defendant's presence in open court. Instead, the imposition of attorney fees in the amounts listed above first occurred in the written judgments. We agree with the parties that the trial court erred when it imposed the attorney fees outside of defendant's presence. See State v. White , 269 Or. App. 255, 257, 344 P.3d 510 (2015) (reversing portion of judgment requiring payment of attorney fees where the trial court erred in imposing those fees in judgment but had not imposed them in open court); see also ORS 137.030 ("For the purpose of giving judgment, if the conviction is for *** [a] felony, the defendant shall be personally present.").

Portion of judgments requiring defendant to pay attorney fees reversed; otherwise affirmed.

      Because we agree that the trial court erred in imposing court-appointed attorney fees without first announcing the amount of fees in defendant's presence in open court, we do not address his contention that the fee award was error in the absence of a finding and evidence that he is or may be able to pay them.

      In 2017, the legislature enacted Senate Bill (S.B.) 896. That bill repealed or amended many statutes in ORS chapter 138, which governs appeals by defendants and the state from circuit court to the Court of Appeals or the Supreme Court in criminal cases. Because the judgments on appeal were entered before the January 1, 2018, effective date of S.B. 896, its provisions do not apply in this case. Or. Laws 2017, ch. 529, § 28 (providing that S.B. 896 applies "on appeal from a judgment or order entered by the trial court on or after the effective date of this 2017 Act").


text:
    In the MATTER OF T. W., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. T. W., Appellant.
    A168537
    Court of Appeals of Oregon.
    Submitted February 1, 2019. March 20, 2019
    Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Kirsten M. Naito, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   PER CURIAM

Appellant seeks reversal of a judgment committing her to the custody of the Mental Health Division for a period not to exceed 180 days. See ORS 426.130. In her sole assignment of error, appellant contends that the record does not contain legally sufficient evidence that, due to a mental disorder, she was unable to provide for her basic needs. See ORS 426.005(1)(f)(B). The state concedes that the evidence was insufficient to support the trial court's determination that appellant was a person with mental illness and that the judgment should be reversed. We agree, accept the state's concession, and reverse the judgment.

Reversed.


text:
    In the MATTER OF T. W., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. T. W., Appellant.
    A167867
    Court of Appeals of Oregon.
    Submitted February 1, 2019. March 20, 2019
    Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Appellant seeks reversal of a judgment committing him to the custody of the Oregon Health Authority for a period not to exceed 180 days and prohibiting him from purchasing or possessing firearms. ORS 426.130. Appellant contends that the state failed to prove by clear and convincing evidence that, because of a mental disorder, he is dangerous to others or unable to provide for his basic personal needs. ORS 426.005(1)(f). The state concedes that the evidence is legally insufficient to support appellant's involuntary commitment and that the judgment should be reversed. We agree, accept the state's concession, and reverse the judgment of commitment.

Reversed.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Shilo Stephen DOCKERY, aka Shilo S. Dockery, Defendant-Appellant.
    A165415
    Court of Appeals of Oregon.
    Submitted February 1, 2019. March 20, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Joshua B. Crowther, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jamie K. Contreras, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   PER CURIAM

Defendant appeals his conviction for unlawful possession of methamphetamine, ORS 475.894. He assigns error to the trial court's denial of his motion to suppress evidence. He argues that the traffic stop that eventually led to discovery of evidence of methamphetamine was unlawfully extended because the circumstances did not give rise to reasonable suspicion of a drug possession offense that would justify the inquiries leading to the evidence that was seized. The state concedes that, under our case law, the state trooper who stopped defendant lacked reasonable suspicion that would justify an extension of the stop, and the trial court therefore erred by denying the motion to suppress. We agree and accept the state's concession.

A person is unlawfully seized when a traffic stop is extended without reasonable suspicion of an offense to justify the further detention. State v. Rodgers/Kirkeby , 347 Or. 610, 627-28, 227 P.3d 695 (2010). Here, the trooper, after conducting a traffic stop, made inquiries related to his subjective suspicion that the vehicle might contain drugs, and he subsequently seized evidence. Although the trooper made observations that could give rise to suspicions that defendant and a passenger were drug users, the circumstances he recounted could not support an objectively reasonable inference of current drug possession. "[E]ven if [an officer] could reasonably infer that defendant was a drug user, evidence of a person's past or even routine drug use, without additional evidence, does not give rise to the reasonable inference that the person currently possesses drugs."

State v. Oller , 277 Or. App. 529, 538, 371 P.3d 1268 (2016), rev. den. , 361 Or. 803, 401 P.3d 1187 (2017). The trial court therefore erred by denying the motion to suppress.

Reversed and remanded.


text:
    In the MATTER OF M. M. B., aka M. B., a Child.
    Department of Human Services, Petitioner-Respondent, v. A. M. S., Appellant.
    In the Matter of D. M. S., a Child.
    Department of Human Services, Petitioner-Respondent, v. A. M. S., Appellant.
    A168969 (Control) A168970
    Court of Appeals of Oregon.
    Submitted February 1, 2019. March 20, 2019
    Matthew J. Steven 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.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Grandmother, the children's guardian, appeals judgments taking dependency jurisdiction of the children. The children are wards of the court and were placed in durable guardianships with their maternal grandparents in 2011. In 2018, the children were removed from the guardians' care. The juvenile court took jurisdiction over the children based on mother's admissions and allegations regarding grandfather's substance abuse, grandmother's failure to protect the children from grandfather's substance abuse, and grandmother's leaving the children with unsafe care-givers. Grandmother argues that there was legally insufficient evidence that grandfather's substance abuse presented a current risk of serious harm to the children and, as a result, all of the allegations against grandparents are unsupported. DHS concedes that the evidence is legally insufficient to support dependency jurisdiction over the children and that the judgments should be reversed. See Dept. of Human Services v. C. J. T. , 258 Or. App. 57, 61, 308 P.3d 307 (2013) ("To 'endanger' the welfare of a child means to expose the child to conditions or circumstances that present a current threat of serious loss or injury.").

In reviewing the juvenile court judgment, we "view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the [juvenile] court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome." Dept. of Human Services v. N. P. , 257 Or. App. 633, 639, 307 P.3d 444 (2013). Here, we agree with and accept DHS's concession that the evidence is legally insufficient. Accordingly, we reverse the jurisdictional judgments.

Reversed.


author: Per Curiam Opinion

text:
    STATE of Utah, Appellee, v. Shiloh D. RINEHART, Appellant.
    No. 20170185-CA
    Court of Appeals of Utah.
    Filed May 10, 2018
    Emily Adams, Attorney for Appellant
    Sean D. Reyes, Salt Lake City and William M. Hains, Attorneys for Appellee
    Before Judges Gregory K. Orme, Michele M. Christiansen, and Kate A. Toomey.
   Per Curiam Opinion

PER CURIAM:

¶1 Shiloh D. Rinehart appeals the restitution order entered following her conviction of burglary, a third degree felony. Rinehart raises two issues on appeal, both of which rely on evidence found outside the record. Therefore, Rinehart also filed a motion seeking a remand under rule 23B of the Utah Rules of Appellate Procedure. We deny the motion for remand and affirm the restitution order.

¶2 "A remand under rule 23B will be granted only upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective." State v. Hand , 2016 UT App 26, ¶ 2, 367 P.3d 1052 (quotation simplified). To demonstrate ineffective assistance, a defendant must demonstrate "that counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgment," and "that counsel's deficient performance was prejudicial-i.e., that it affected the outcome of the case." Id. (quoting State v. Litherland , 2000 UT 76, ¶ 19, 12 P.3d 92 ). "It stands to reason that if the defendant could not meet the test for ineffective assistance of counsel, even if [the] new factual allegations were true, there is no reason to remand the case, and we should deny the [ rule 23B ] motion." State v. Griffin , 2015 UT 18, ¶ 20 ; see also State v. Heywood , 2015 UT App 191, ¶ 40, 357 P.3d 565 (stating that an appellate court considers affidavits supporting rule 23B motions "solely to determine the propriety of remanding ineffective assistance of counsel claims for evidentiary hearings" (quotation simplified) ). Because we conclude that the facts alleged in the rule 23B motion, even if true, could not support a determination that counsel was ineffective, we deny Rinehart's motion and affirm the restitution award.

¶3 Rinehart first claims that counsel was ineffective in failing to investigate and introduce evidence to support Rinehart's claim that items she pawned on the day of the burglary were her own property and testimony of a potentially helpful witness. Rinehart also claims that trial counsel was ineffective in failing to present evidence related to Rinehart's ability to pay restitution by introducing evidence related to her health conditions.

¶4 Rinehart pleaded guilty to the burglary of the victim's (Victim) home, resulting in reduction of the level of the burglary offense and dismissal of another charge. At a restitution hearing, Rinehart testified that she took nothing from Victim's home after she was discovered by Victim's daughter and climbed out of a window to escape in a vehicle. Victim testified for the State at the restitution hearing, and the State provided a multiple-page exhibit. This exhibit included (1) a list compiled by Victim listing jewelry, coins, and sports memorabilia with estimated values; (2) a receipt from Xtreme Pawn listing several items pawned by Rinehart on the day of the burglary; and (3) a text from Platinum Sports listing values on some sports cards. The pawn receipt indicated that Rinehart pawned five pieces of jewelry, including "L's BLK Hills Gold Single, not a [pair] .8 grams earrings." The receipt stated the "date made" as November 6, 2015, and the "time made" as "09:56." In response to the pawn receipt, Rinehart claimed that the items were actually her own property and that she had pawned the items prior to the time she burglarized Victim's home.

¶5 At the conclusion of the restitution hearing, the district court found Victim's testimony credible and Rinehart's testimony not credible. The court did not believe Rinehart's testimony that she did not take anything from Victim's home. The district court noted that Rinehart had a significant history of crimes involving dishonesty. It also observed that Victim was able to "match up two of the items of jewelry with other earrings she already had with their mate" and "on that basis the Court would find Ms. Rinehart's testimony incredible."

¶6 Rinehart asserts trial counsel should have presented evidence showing "that Ms. Rinehart actually did pawn her items two hours before the burglary occurred." Appellate counsel's affidavit in support of the rule 23B motion attaches items obtained in discovery, including "a screenshot of [Victim's] cell phone showing text messages that Rinehart sent her on November 6, 201[5] at 12:29 pm, 12:47 pm, and 12:52 pm and a photograph taken from a neighbor's security camera showing a blue Ford Explorer driving away from [Victim's] home at 12:59 pm on November 6, 2015." Counsel attests that those documents established the time of the burglary. Appellate counsel further attests that she called Xtreme Pawn-where Rinehart pawned some items on November 6, 2015-and spoke to an employee who has worked there since 2012. The employee stated that the store was only open from 9 am to 6 pm on weekdays in 2015. The affidavit does not indicate that the employee possessed any direct knowledge of the transaction with Rinehart or purported to vouch for the accuracy of the receipt's time stamp. Still, Rinehart speculates that the 9:56 time indicated on the pawn receipt could only mean 9:56 am, thus supporting Rinehart's claim that she pawned her own items because the transaction must have occurred before the burglary of Victim's home. Rinehart points to the times on her text messages intended to lure Victim out of her home and the date and time stamp on a surveillance video showing Rinehart escaping Victim's home to establish that the burglary occurred around noon. The latter materials were not introduced into evidence, but they were provided in discovery.

¶7 Appellate counsel's affidavit does not contain information to support the accuracy of the time indicated on the pawn receipt. Even assuming that it is accurate, this must be viewed in light of Victim's identification of the items in the possession of the pawn shop as her property. The listed items included a single earring from a set of earrings taken, while its mate remained in Victim's possession. Even assuming that the proof of the pawn shop hours and the time of the burglary would bolster Rinehart's credibility, the allegation that the pawn shop receipt shows that Rinehart pawned her own items hours before the burglary remains speculative. The State also notes that Rinehart was in Victim's home on the day prior to the burglary and might have had the opportunity to take the items then.

¶8 At the restitution hearing, trial counsel presented Rinehart's testimony that the pawned items were her own property and that the transaction at the pawn shop occurred before the burglary. The district court rejected this claim as not credible. A remand to introduce evidence of the time line for the burglary and the alleged time of the pawn transaction would be based upon speculation, especially when weighed against Victim's identification of the pawned items as her property. Introduction of the evidence is more likely to raise questions about how Rinehart came to be in possession of Victim's property. As such, the rule 23B motion seeking a remand is not based upon nonspeculative facts that would demonstrate deficient performance or resulting prejudice.

¶9 Furthermore, Victim testified about an encounter with a person at a local business who, upon learning her name, said that he may have a bag of sports memorabilia belonging to her. She also testified that a woman in possession of one of her rings had told her that she was given the ring by Rinehart's father. Rinehart's claim that the restitution award was principally based upon her criminal history and the pawn receipt is incorrect. Other evidence supported a determination that Rinehart's testimony that she took nothing in the burglary was not credible.

¶10 Rinehart also claims that her trial counsel "failed to investigate a witness who saw [Victim] attempting to sell the items that she reported stolen." Rinehart's affidavit says that she told trial counsel about the potential witness and that counsel either said that the testimony would not be helpful because the potential witness would not be credible or that he was unable to find the witness. Trial counsel's affidavit states that he remembers being told about the witness, but he does not recall getting a name or other contact information.

¶11 Rinehart argues that if trial counsel had introduced the testimony of the potential witness, that information would serve to damage Victim's credibility. She provides an affidavit of a private investigator stating that he was able to contact someone claiming to be the witness identified by Rinehart. That person texted that Victim "stopped by after [Rinehart] went to jail with a bunch of jewelry and old coins trying to sell them to me and Rodger" and that "she had a huge bag full ... it was probably a day or two after [Rinehart] went to jail." Even assuming that the statements are true, they are insufficient to demonstrate that the items allegedly offered to the potential witness were the same items that Victim claimed were taken from her home. Thus, the allegations are speculative. Furthermore, there is no evidence that Rinehart provided enough contact information to allow trial counsel to locate this witness. Rinehart also stated that her trial counsel expressed doubt that the testimony of someone Rinehart met in jail would be helpful, demonstrating that counsel strategically evaluated the potential testimony.

¶12 Finally, Rinehart asserts that counsel did not present evidence about her background that might have persuaded the district court that she was unable to pay the amount of restitution ordered due to chronic health problems. Rinehart's affidavit represents that she has an eye condition that she characterizes as debilitating, and for that reason, she could not produce enough income to pay restitution. Rinehart herself stated at the restitution hearing that the district court judge was familiar with her and her history from her frequent court appearances. The transcript reflects that the district court considered Rinehart's age, her impending parole date, and her ability to work for at least thirty more years. The court stated, "I believe in that time she would be able to pay off the amount of restitution." Therefore, the court set the court-ordered restitution in the amount of $67,710. "She could, even if she paid $2000 a year, she would be able to pay most of this off and she could easily do that if she elects to get a regular job which she's capable of doing." Based upon the district court's determination that Rinehart was capable of employment, trial counsel did not perform deficiently in failing to present this additional information and in focusing his efforts on trying to obtain a lower restitution award.

¶13 Because we deny the motion for a remand pursuant to rule 23B, and because the arguments on appeal are based upon evidence that would be added to the record on a remand, there are no remaining claims regarding the restitution award based on the record before this court. Accordingly, we affirm.

      Because Rinehart pleaded guilty to burglary, the district court received evidence only at the restitution hearing.


author: ORME, Judge:

text:
    Kevin FAUCHEAUX, Appellant, v. PROVO CITY, Appellee.
    No. 20160738-CA
    Court of Appeals of Utah.
    Filed August 9, 2018
    Sara Pfrommer, Park City, Ronald D. Wilkinson, Provo, Nathan S. Shill, and Marianne P. Card, Orem, Attorneys for Appellant
    Robert D. West, Provo, J. Brian Jones, and Gary D. Millward, Attorneys for Appellee
    Judge Gregory K. Orme authored this Opinion, in which Judge Michele M. Christiansen Forster concurred. Judge Jill M. Pohlman concurred in the result.
    Opinion
   ORME, Judge:

¶1 Kevin Faucheaux appeals the dismissal of his suit against Provo City. The district court dismissed the suit for lack of subject matter jurisdiction on the basis that Faucheaux, who seemingly brought this action as personal representative of the estate of Helen M. Faucheaux, did not have legal authority to bring a wrongful death suit. We reverse.

¶2 In 2009, Faucheaux called 911 after finding his wife, Helen Faucheaux, "unable to even complete a full sentence," "stumbling around the house," and "stumbl[ing] into the bathroom" where he "heard snorting noises." Faucheaux informed the 911 operator that Helen had a history of drug abuse and that he was concerned that she "had overdosed." Provo City police officers were dispatched, arrived at the Faucheaux home, and concluded that Helen was intoxicated and needed to "sleep it off." They also advised Faucheaux to "leave her alone" since she was upset with him. Faucheaux insisted that his wife needed to be evaluated by a medical professional because she had previously attempted suicide and was possibly overdosing. Despite his pleas, the officers told him "to have a good night" and left. He did not have a good night. Approximately two hours later, Faucheaux went to check on his wife and found her dead.

¶3 Faucheaux brought a wrongful death suit against Provo City, claiming its officers "negligently failed to protect" Helen when they responded to "his request for a welfare check" because, in answering that request, they "undertook a specific action to protect" Helen. Provo City, then discerning no problem with standing or subject matter jurisdiction, simply answered the complaint and later filed a motion for summary judgment on the grounds that "its police officers had no legal duty to take [Helen] into custody against her will and deliver her for involuntary commitment" and that "[t]he discretionary acts of [Provo City's] police officers also provide [Provo City] with governmental immunity." Granting summary judgment to Provo City, the district court ruled that the city owed no duty of care to Helen and that, even if it did, it was immune from suit. Faucheaux appealed.

¶4 On appeal from the initial summary judgment against Faucheaux, we determined that the district court erred in concluding that "the public-duty doctrine shields Provo from liability." Faucheaux v. Provo City , 2015 UT App 3, ¶ 37, 343 P.3d 288. And we concluded "that the Governmental Immunity Act does not immunize Provo from [responsibility for] the officers' actions and omissions." Id. We then remanded the case for further proceedings, id. , expecting the case would proceed to the discovery phase and then on to settlement or trial.

¶5 But on remand, Provo City instead latched on to a new procedural bar to Faucheaux's suit and moved to dismiss the case because "the Estate of Helen M. Faucheaux had no capacity to sue for wrongful death, and no real party in interest may be substituted." Faucheaux filed a response to the city's motion, arguing that Provo City forfeited the right to file a motion to dismiss when it filed its answer and that he brought his claim against Provo City as a personal representative of the heirs of Helen's estate, with the caption of his complaint identifying the estate as the party bringing the suit being merely a technical error. The district court dismissed the case, concluding it lacked subject matter jurisdiction because the estate did not have legal authority to bring a wrongful death suit under Utah Code section 78B-3-106(1) (LexisNexis 2012). Faucheaux again appeals.

¶6 "Because the propriety of a motion to dismiss is a question of law, we review for correctness, giving no deference to the decision of the trial court." Krouse v. Bower , 2001 UT 28, ¶ 2, 20 P.3d 895. And "the question of whether subject matter jurisdiction exists is one of law," which we likewise review without deference to the trial court. Van Der Stappen v. Van Der Stappen , 815 P.2d 1335, 1337 (Utah Ct. App. 1991).

¶7 Faucheaux argues that the district court's rationale for dismissing his complaint on remand "conflated a standing issue with the issue of real party in interest, and wrongly concluded that it lacks jurisdiction to determine ... the real party in interest in this case." He argues that "real party in interest" is not a question of subject matter jurisdiction that can be raised at any time, but rather one of legal capacity to sue, and for that reason, Provo City waived its objection when it failed to raise it in a timely way.

¶8 Rule 17 of the Utah Rules of Civil Procedure requires that "[e]very action shall be prosecuted in the name of the real party in interest." Utah R. Civ. P. 17(a). "The real party in interest is the person entitled under the substantive law to enforce the right sued upon and who generally, but not necessarily, benefits from the action's final outcome." Orlob v. Wasatch Med. Mgmt. , 2005 UT App 430, ¶ 17, 124 P.3d 269 (citation and internal quotation marks omitted). As we recognized in Haro v. Haro , 887 P.2d 878 (Utah Ct. App. 1994), the real party in interest for a wrongful death suit is the decedent's heirs because Utah's wrongful death statute intends "to provide compensation to those who were dependent upon the decedent as a sole or supplemental means of economic and emotional support." Id. at 879 (citation and internal quotation marks omitted). Utah's wrongful death statute therefore permits only the heirs of the decedent, the personal representative of the decedent for the benefit of the decedent's heirs, or the heirs' guardian to bring a wrongful death suit. See Utah Code Ann. § 78B-3-106(1) (LexisNexis 2012). A wrongful death action on behalf of a decedent's estate, per se, has no legal basis under the statute. See Haro , 887 P.2d at 879.

¶9 Accordingly, the district court in the present case concluded that the estate-and by implication, Kevin Faucheaux as personal representative on behalf of the estate-lacked standing and that the court was therefore unable to exercise subject matter jurisdiction over the suit. But "subject matter jurisdiction concerns a court's broad authority to hear the sort of case before it." Iota LLC v. Davco Mgmt. Co. , 2016 UT App 231, ¶ 44, 391 P.3d 239. It also encompasses issues of justiciability, such as whether a party has standing. In re adoption of B.B. , 2017 UT 59, ¶ 121, 417 P.3d 1. See also Alpine Homes, Inc. v. City of West Jordan , 2017 UT 45, ¶ 2 ("Standing is a question of subject matter jurisdiction that raises fundamental questions regarding a court's basic authority over the dispute.") (brackets, citation, and internal quotation marks omitted). Had Faucheaux lacked standing in this sense, the court would have been correct in dismissing the suit for lack of subject matter jurisdiction, notwithstanding Provo City's dereliction in raising the issue so late in the game. See Utah R. Civ. P. 12(h) (permitting a defendant to raise the issue of subject matter jurisdiction at any time during the proceedings).

¶10 But as we explained in Elite Legacy Corp. v. Schvaneveldt , 2016 UT App 228, 391 P.3d 222, "standing is not the same as legal capacity to sue." Id. ¶ 51 (citation and internal quotation marks omitted). "A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority," whereas "a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy." Id. (emphases in original) (citation and internal quotation marks omitted). Questions about whether a party is authorized by statute to bring suit on behalf of the real party in interest "affects a plaintiff's capacity to sue, not its standing," and therefore "the failure is not jurisdictional." Id. ¶ 54.

¶11 Consequently, the lack of capacity to sue "is an affirmative defense, which may be waived ... by failure to bring it before the trial court." Id. ¶ 53 (omission in original) (citation and internal quotation marks omitted). Cf. Wall Inv. Co. v. Garden Gate Distrib., Inc ., 593 P.2d 542, 544 (Utah 1979) ("[F]ailure to comply with the assumed name statute does not disqualify [a party] as a plaintiff in this suit."). Because capacity to sue is not a jurisdictional issue, the suit is merely voidable, not void. See Schvaneveldt , 2016 UT App 228, ¶ 54, 391 P.3d 222. Moreover, an objection on real-party-in-interest grounds must be timely. And when it is clear on the face of the complaint that the party lacks the capacity to sue on behalf of the real party in interest, the defense must be raised early in the pleading stage since "there is no good reason why the claimed defect should not be treated as waived" if it is not asserted in timely fashion, as would be the case in "all other civil proceedings." Taslich v. Industrial Comm'n of Utah , 71 Utah 33, 262 P. 281, 286 (1927) (Straup, J., dissenting).

¶12 Because the error of which Provo City now complains was evident on the face of Faucheaux's complaint, Provo City, if truly concerned about Faucheaux's capacity to sue as an heir or on behalf of Helen's heirs, should have presented the issue as an affirmative defense in its answer or in an early motion to dismiss. Given its failure to do so, Provo City has waived the defense that Faucheaux does not have the capacity to sue on behalf of the real party or parties in interest, Helen M. Faucheaux's heirs, of which he is one and perhaps the only one.

¶13 Accordingly, we reverse and remand for resolution of Faucheaux's complaint on the merits.

      "On appeal from a motion to dismiss, we review the facts only as they are alleged in the complaint. We accept the factual allegations as true and draw all reasonable inferences from those facts in a light most favorable to the plaintiff." Peck v. State , 2008 UT 39, ¶ 2, 191 P.3d 4 (citation and internal quotation marks omitted).

      An estate is not a legal entity that can bring suit. See 31 Am. Jur. 2d Executors & Administrators § 1085 (2012). It is a decedent's bundle of property rights that, once claims against the decedent have been settled or paid, might be bequeathed, devised, or transferred to a decedent's heirs or devisees. See Utah Code Ann. § 75-1-201(14) (LexisNexis Supp. 2017); id. § 75-3-101 (Michie 1993). If the executor or administrator believes a decedent has a cause of action that survives her death, he may bring suit on behalf of the estate. See 31 Am. Jur. 2d Executors & Administrators § 1085 (2012). A wrongful death action is not such an action. It is a claim that is personal to the decedent's heirs and not one that accrued to the decedent, that survived her death, and that may be pursued on behalf of the estate. See Utah Code Ann. § 78B-3-106 (LexisNexis 2012).
      In the prior appeal, we appear to have recognized the technicality of the defect in the complaint to some extent. The complaint identified "Estate of Helen M. Faucheaux" as the plaintiff, but our prior opinion names Kevin Faucheaux as the plaintiff and appellant.

      Faucheaux also raises two other issues on appeal. However, for both issues, he essentially argues that the district court erred by not recognizing that the caption of his complaint merely contained a technical error. Faucheaux asserts that he substantially complied with Utah Code section 78B-3-106(1) in bringing suit against Provo City, albeit purportedly as the personal representative of his wife's estate, because the body of his complaint states, with our emphasis, that "Kevin Faucheaux is the personal representative, or will soon be named the personal representative, of the Estate of Helen M. Faucheaux and brings this action on behalf of and for the benefit of Helen M. Faucheaux's heirs ." See Utah Code Ann. § 78B-3-106(3) (LexisNexis 2012) ("The [wrongful death] action may be brought by either the personal representatives of the adult deceased person, for the benefit of the person's heirs, or by the guardian for the benefit of the heirs[.]"). He argues that the complaint's caption, naming the plaintiff as "Estate of Helen M. Faucheaux," was a technical error which he should be allowed to correct under rule 15(c) of the Utah Rules of Civil Procedure so that the caption reflects the substance of his complaint.
      Nevertheless, it is clear to us from the complaint and the record as a whole that Faucheaux purportedly brought this suit on behalf of the estate, and therefore in the first appeal we noted that Faucheaux was bringing the suit as the "personal representative of Helen's estate." Faucheaux v. Provo City , 2015 UT App 3, ¶¶ 1, 10, 343 P.3d 288. But we recognize that there is a fine line in a case where the decedent dies intestate between a recovery for the estate, which will be distributed to the heirs once any bills have been paid, and a recovery directly for the heirs. The line is even finer where, as here, the personal representative who brought the suit is also the primary-if not exclusive-heir. In sum, Faucheaux's technical-error argument takes him only so far. It supports our conversion of the plaintiff named in the caption in the earlier appeal from "Estate of Helen M. Faucheaux" to Kevin Faucheaux but does not warrant ignoring the complaint's references, and our prior opinion's recognition, that he brought the action as personal representative of the estate, albeit expressly for the benefit of Helen's heirs.

      Utah courts have broad authority over wrongful death claims. See Utah Code Ann. § 78A-5-102(1) (LexisNexis 2012) ("The district court has original jurisdiction in all matters civil and criminal, not excepted in the Utah Constitution and not prohibited by law."); id. § 78B-3-106(1) (creating a cause of action "when the death of a person is caused by the wrongful act or neglect of another").

      Our holding in Haro v. Haro , 887 P.2d 878 (Utah Ct. App. 1994), stated that when a party "does not have the capacity to sue on behalf of the 'real party in interest,' the suit is a nullity." Id. at 880. But the lack of capacity to sue makes an action voidable, not void. In Haro the motion to dismiss was timely because the defendant brought the motion soon after the amended complaint was filed, see id. at 879, not, as here, years later and only after summary judgment on an unrelated ground had been entered, the judgment reversed on appeal, and the case remanded.

      Faucheaux also contends that rule 17(a) of the Utah Rules of Civil Procedure should have prohibited the court from dismissing the complaint "until a reasonable time has been allowed after objection for ratification, joinder or substitution of the real party in interest." While the general proposition has merit, because Provo City waived the issue of real party in interest and Faucheaux is already before the court-with the capacity in which he brought the action being comparatively insignificant in the context of this case-it is unnecessary for us to reach this issue.