49
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted December 23, 2022, affirmed February 1, 2023
In the Matter of N. I. B.,
a Youth.
STATE OF OREGON,
Respondent,
v.
N. I. B.,
Appellant.
Washington County Circuit Court
20JU05523;
A176673 (Control), A176674
Brandon M. Thompson, Judge.
Ginger Fitch and Youth, Rights & Justice filed the brief
for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
Before Egan, Presiding Judge, and Kamins, Judge, and
Hadlock, Judge pro tempore.
EGAN, P. J.
Affirmed.
50 State v. N. I. B.
EGAN, P. J.
Youth appeals a juvenile court judgment that
committed him to the legal custody of the Oregon Youth
Authority (OYA) with a recommendation for placement in
a youth correctional facility. Youth admitted acts, that if
committed by an adult, would constitute one count of firstdegree sex abuse (ORS 163.427), two counts of second-degree
sex abuse (ORS 163.425), and two counts of third-degree sex
abuse (ORS 163.415). Youth raises one assignment of error,
arguing that the trial court abused its discretion when it
committed youth to OYA custody for placement in a youth
correctional facility.
Youth brings various arguments in support of his
assignment of error. First, youth argues that the state
failed to rebut a presumption that placement with youth’s
parents, rather than OYA, was in youth’s best interests.
Second, youth argues that the best-interests requirement
of ORS 419C.478 is a stand-alone predicate that must be
established before consideration of other factors listed in
ORS 419C.411. Lastly, youth argues that the court did not
provide a “firm factual basis” for its conclusion that youth
“could not be safely maintained in the community.”
As all of youth’s arguments on appeal concern the
juvenile court’s best-interests determination, the appropriate standard of review in this case is for abuse of discretion. Sjomeling v. Lasser, 251 Or App 172, 187,
285 P3d 1116,
rev den,
353 Or 103 (2012). Therefore, we reverse the trial
court’s discretionary determination only if it is not a legally
permissible one.
Id.
First, we decline to address youth’s argument that
the best-interests requirement of ORS 419C.478 is a stand-alone predicate, as that argument is unpreserved, and youth
has not requested plain error review. Peeples v. Lampert,
345 Or 209, 219-20,
191 P3d 637 (2008) (noting that “preservation fosters full development of the record, which aids the
trial court in making a decision and the appellate court in
reviewing it”); State v. Ardizzone,
270 Or App 666, 673,
349
P3d 597, rev den,
358 Or 145 (2015) (“[W]e ordinarily will
Nonprecedential Memo Op:
324 Or App 49 (2023) 51
not proceed to the question of plain error unless an appellant has explicitly asked us to do so.”).
As for youth’s argument that the state failed to rebut
a presumption that placement with youth’s parents was in
youth’s best interests, we reject that contention. Youth’s
counsel does not provide analysis for the proposition that the
text of ORS 419C.478, ORS 419C.411, or the juvenile delinquency case law, establishes an evidentiary burden on the
state to demonstrate that parental placement is inadequate
when considering a youth’s best interests. Furthermore, the
record in this case demonstrates that there were concerns
regarding parental placement as there were instances of
inadequate supervision while youth was on a conditional
release plan.
Lastly, the record does establish a firm factual basis
for the court’s conclusion that placement in OYA custody
was in youth’s best interests as youth “cannot be maintained in the community.” Under ORS 419C.411, the court
was allowed to consider various factors, including “the
immediate and future protection required by the victim,
the victim’s family and the community,” as well as “[t]he
adjudicated youth’s juvenile court record and response
to the requirements and conditions imposed by previous
juvenile court orders.” Furthermore, the court may consider “the gravity of the loss, damage or injury caused,”
and “[w]hether the manner in which the adjudicated youth
engaged in the conduct was aggressive, violent, premediated
or willful.” Id. After consideration of multiple factors, the
court found that youth was aware of his actions and posed
a danger to the community based on youth’s perception of
the world in terms of power and control, as well as youth’s
actions in using his size and strength to overcome the victims, combined with concerns regarding adequate supervision, which led the court to conclude that youth must be
committed to OYA custody for proper rehabilitation and
treatment. The record clearly demonstrates that the trial
court believed that commitment to OYA custody was in
youth’s best interests; notably, the court stated that it did
not commit youth to “punish” him but rather in the hopes
that youth will “complete treatment” and become a better
52 State v. N. I. B.
citizen who understands the effects of his actions upon
others.
Youth has not demonstrated that the trial court’s
decision was legally impermissible and, as such, we conclude
that the court did not abuse its discretion in committing
youth to OYA custody for placement in a youth correctional
facility.
Affirmed.
