418
Submitted January 26; vacated in part and remanded for written findings
under ORS 419C.478(1), otherwise affirmed March 16, 2022
In the Matter of S. D. M.,
a Youth.
STATE OF OREGON,
Respondent,
v.
S. D. M.,
Appellant.
Crook County Circuit Court
18JU04108; A174075
506 P3d 1190
Annette C. Hillman, Judge.
Erica Hayne Friedman and Youth, Rights & Justice filed
the brief for Appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patricia G. Rincon, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
PER CURIAM
Vacated in part and remanded for written findings under
ORS 419C.478(1); otherwise affirmed.
Cite as
318 Or App 418 (2022) 419
PER CURIAM
Youth appeals from a delinquency probation disposition judgment. That judgment provides that youth violated
his probation, extends the probation, commits youth to the
custody of the Oregon Youth Authority (OYA), and directs
youth to enter and successfully participate in a residential
program through OYA. Youth raises two assignments of
error. In his first, he contends that the juvenile court erred
in concluding that youth violated his probation because, in
youth’s view, there was insufficient evidence that he willfully
failed to comply with his probation requirements. In his second, he contends that the juvenile court erred in failing to
include written findings pursuant to ORS 419C.478(1)1 that
describe why it was in youth’s best interests to be committed
to OYA. We reject youth’s first assignment of error without
written discussion. However, we agree with youth’s second
assignment of error, because the juvenile court failed to
include the written findings required by ORS 419C.478(1).
As a result, we vacate and remand so that the juvenile court
may issue written findings on whether it is in youth’s best
interests to be placed in the custody of OYA.
A full recitation of the facts is not necessary to
understand the narrow issue that we address on appeal.
Youth was found within the jurisdiction of the court for an
act which, if committed by an adult, would constitute the
crime of first-degree sodomy. Youth committed the act just
before he turned 12 years old. The victim was another child.
Youth was initially placed on probation for 24 months. Youth
was also ordered to “enter and successfully complete sexoffender treatment with [the] J Bar J” program and “to follow all rules of the program.”
The state later moved for an order to show cause
why youth’s probation should not be revoked because youth
had not successfully completed the J Bar J program and
had failed to follow its rules. After hearing the evidence,
the juvenile court extended youth’s probationary period and
committed youth to the custody of OYA in a noncorrectional
1
ORS 419C.478(1) was amended after the relevant events in this case. See
Or Laws 2021, ch 489, § 2. However, those amendments do not affect our analysis
and we cite to the current version throughout this opinion.
420 State v. S. D. M.
facility. The order committing youth included a preprinted
form that provided a space for the court to describe why
it was in youth’s best interests to be committed to the
legal custody of OYA. In that space, the court wrote that
“youth violated the requirements of probation; he did not
follow the rules of sex offender treatment.” Youth assigns
error to the trial court’s failure to provide sufficient written findings under ORS 419C.478(1) describing why it was
in youth’s best interests to be committed to the custody of
OYA.
Youth did not raise this issue with the court during
the hearing. However, the state concedes, and we agree,
that youth is excused from preservation requirements under
these circumstances. The written order that youth objects
to was issued after the hearing. Thus, youth did not have
a practical opportunity to object to any error in the written order. In these circumstances, youth is excused from
our preservation requirements. State ex rel DHS v. M. A.
(A139693), 227 Or App 172, 182,
205 P3d 36 (2009) (stating
same in similar circumstances where order lacking required
written findings was issued after hearing).
We turn to the merits of this appeal. ORS 419C.478(1)
provides:
“The court may, in addition to probation or any other dispositional order, place an adjudicated youth who is at least
12 years of age in the legal custody of the Oregon Youth
Authority for care, placement and supervision or, when
authorized under subsection (3) of this section, place an
adjudicated youth in the legal custody of the Department
of Human Services [DHS] for care, placement and supervision. In any order issued under this section, the court shall
include written findings describing why it is in the best
interests of the adjudicated youth to be placed with the youth
authority or the department.”2
(Emphasis added.) Thus, a dispositional order that places a
youth in the legal custody of OYA, as occurred here, “shall
include written findings describing why it is in the best
interests of the adjudicated youth to be placed” with OYA.
2
Youth was over 14 years old at the time of the relevant dispositional hearing.
Cite as 318 Or App 418 (2022) 421
Youth contends that the court’s written findings
that youth had violated the requirements of his probation
and had not followed the J Bar J program rules do not
describe why it was in youth’s best interests to be placed
in the custody of OYA. We agree. The trial court’s findings
merely state that youth had violated the requirements of
his probation and how youth had violated the requirements
of his probation, which were necessary precursors to the
court’s decision to extend youth’s probation and issue a new
probation disposition judgment. The legislature, however,
has required that juvenile courts also consider and then
separately provide a written explanation of why it is in a
youth’s best interests to be in the custody of OYA or DHS
and not with youth’s family or in the community. See M. A.
(A139693), 227 Or App at 183-84 (noting that when a statute
requires written findings in an order, the legislature has
expressed its intent that the trial court carefully evaluate
and address the statutory requirements).
Something more is needed to describe why it is in
a youth’s best interests to be committed to OYA’s custody
other than the mere fact of a probation violation. Here, the
probation violation and the basis for that violation could
perhaps lead to an explanation of why it would be in the
best interests of youth to be committed to a custodial setting rather than to remain with family or in the community,
but it is not an explanation itself. Although the court may
have discussed some aspects of why it was committing youth
to OYA custody at the hearing, the legislature mandated
that the court issue written findings in the order regarding
youth’s bests interests.
We turn to the appropriate disposition. The parties both cite to case law that requires that we vacate the
judgment and remand for the juvenile court to express in
writing whether, and why, it is in youth’s best interests to
be committed to the custody of OYA. See State v. J. R. C.,
289 Or App 848, 850,
412 P3d 1201 (2018) (vacating and
remanding for juvenile court to make necessary findings
under ORS 419C.478(1)). We agree that is the appropriate
disposition. However, because we also reject youth’s argument that the trial court erred when it extended youth’s
422 State v. S. D. M.
probation after it concluded that youth willfully violated his
probation requirements, we affirm the rest of the judgment.
Vacated in part and remanded for written findings
under ORS 419C.478(1); otherwise affirmed.
