No. 107 February 22, 2024 1
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of X. E. W., a Youth.
STATE OF OREGON,
Respondent,
v.
X. E. W.,
Appellant.
Jefferson County Circuit Court
15JU04613; A176848
Annette C. Hillman, Judge.
Submitted November 30, 2022.
Ginger Fitch and Youth, Rights & Justice filed the brief
for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Reversed.
2 State v. X. E. W.
ORTEGA, P. J.
In this juvenile delinquency appeal, youth assigns
error to the juvenile court’s denial of his petition for relief
from registration as a sex offender under ORS 163A.030(1).
In denying youth’s petition, the juvenile court opined that
youth had not proven by clear and convincing evidence
that he is rehabilitated and does not pose a threat to public
safety. Youth challenges the factual bases for that ruling
and contends that the record did not support the juvenile
court’s ruling as a matter of law. The state contends that
the juvenile court’s findings are supported by the record and
that we must therefore affirm.
As we explain in more detail below, the juvenile court
may have failed to consider the factors in ORS 163A.030(8)
in light of youth’s current risk of reoffending. Absent de novo
review, our review is limited to whether the juvenile court’s
explicit findings were supported by the record, but we exercise our discretion to review the record de novo in order to
apply the legal principles outlined in State v. A. R. H., 371 Or
82,
530 P3d 897 (2023), which the Supreme Court issued after
the parties submitted their briefs in this case. On de novo
review, we find that youth proved by clear and convincing
evidence that he is rehabilitated and does not pose a threat to
public safety that supports registration. See ORS 19.415(3)(b),
ORAP 5.40(8)(c). Consequently, we reverse the juvenile court’s
order requiring youth to report as a sex offender.
We begin with the legal framework applicable to the
hearing before the juvenile court. When a youth has been
found to be within juvenile court jurisdiction for conduct
that would constitute a felony sex crime if committed by an
adult, the youth is required to report as a sex offender under
ORS 163A.025(1). However, the juvenile court must “hold a
hearing on the issue of reporting as a sex offender,” before
the youth is ordered to register, and in general, the hearing
must be held in the six-month period before juvenile court
jurisdiction is terminated. ORS 163A.030(1)(a); see ORS
163A.030(1)(b)(A) (timing).
If a youth is being supervised by the Oregon Youth
Authority (OYA), at least 45 days before the hearing, unless
Cite as 331 Or App 1 (2024) 3
good cause is shown, OYA is required to file certain records
and materials for the court’s consideration at the hearing.
OYA must provide the court with any sex offender evaluations and treatment recommendations in its possession
regarding the youth, including any recommendations regarding the need for the youth to register in order to protect
the public from future sex crimes. ORS 163A.030(10)(a)(A).
OYA must also provide all polygraph examinations and
records conducted by or for a treatment provider or OYA.
ORS 163A.030(10)(a)(B).
At the hearing, the youth “has the burden of proving by clear and convincing evidence that [the youth] is
rehabilitated and does not pose a threat to the safety of the
public.” ORS 163A.030(7)(b). In determining whether the
youth has met that burden, the juvenile court may consider
18 factors under ORS 163A.030(8), though it is not limited
to those factors. Broadly speaking, that statute identifies
considerations related to pre-adjudicatory factors, such as
the nature and circumstances of the youth’s offense and the
impact of the youth’s conduct on the victim. It also identifies
post-adjudicatory factors regarding the youth’s accountability, performance on supervision, and participation in any
sex-offender treatment.
When a youth has engaged in sex offender treatment,
ORS 163A.030(8)(L) outlines four areas for consideration:
“(A) The availability, duration and extent of the treatment activities;
“(B) Reports and recommendations from the providers
of the treatment;
“(C) The person’s compliance with court, board or
supervision requirements regarding treatment; and
“(D) The quality and thoroughness of the treatment
program.”
Additionally, the statute includes other potential
considerations regarding the youth’s engagement and support in the community, including the youth’s school attendance, employment, and family support. Finally, the statute
notes that the court may consider the “protection afforded
the public by records of sex offender registration.” ORS
4 State v. X. E. W.
163A.030(8)(r). The statute also expressly authorizes the
juvenile court to consider “[a]ny other relevant factors.” ORS
163A.030(8)(s).
Finally, if the juvenile court finds that the youth
has not met the burden of proving by clear and convincing
evidence that the youth is rehabilitated and does not pose a
public-safety risk, “the court shall enter an order requiring
[the youth] to report as a sex offender under ORS 163A.025.”
ORS 163A.030(7).
With that legal framework in mind, we begin with
the facts that brought youth under the jurisdiction of the
juvenile court in 2015. We then summarize the record of the
evidence submitted during the hearings before the juvenile
court in 2021.
In 2015, when youth was 12 years old, he admitted to sexually touching a six-year-old girl while at the local
Boys and Girls Club. He and the victim did not know one
another, and his conduct involved putting his hands down
her underpants and touching her vagina several times,
including after she communicated that she wanted him to
stop.1 The conduct to which youth admitted would constitute first-degree sexual abuse, ORS 163.427, if committed
by an adult, and the juvenile court took jurisdiction based
on youth’s admission to that offense.
After youth completed extended residential and outpatient sex offender treatment, a hearing was scheduled to
consider early termination of OYA and registration requirements. A hearing was held in March 2021, when youth was
18 years old, nine months after he had completed his treatment. We summarize below the materials that were considered by the court, including youth’s psychological evaluations, polygraphs, and risk assessments.
In 2015, the juvenile court delayed disposition on
youth’s case until completion of a psycho-sexual evaluation
on youth. After evaluation, Dr. Eric Johnson concluded that
1
There was disputed evidence in the record that youth penetrated the victim’s vagina during the incident. Youth was originally charged with first-degree
sexual abuse as well as first-degree unlawful sexual penetration, which was dismissed when youth admitted to the sexual abuse charge.
Cite as 331 Or App 1 (2024) 5
there was no evidence to indicate that youth had more serious behavior problems or that he had a delinquent or antisocial orientation or hyperactivity that would indicate a risk
of reoffending. To the contrary, Johnson reported that youth
“displays good moral reasoning, he respects authority, he
typically accepts responsibility for his behavior, and he is
protective of his family and pets.” Johnson concluded that
youth’s offense appeared to be an isolated incident, likely a
product of curiosity and sexual experimentation, and that
he was at low risk to reoffend, based on psychological testing as well as the ERASOR assessment tool.2
Johnson, who saw youth while he was in a severalweek period of detention, recommended outpatient treatment and for youth to be returned home, and the juvenile
court followed that recommendation. Youth was returned
home and placed on 60 months’ probation and required to
participate in outpatient treatment. During his initial outpatient treatment, youth struggled a bit. His first mental
health treatment provider was not a good match, and his
attendance at weekly sessions with a second provider was
inconsistent. He also struggled with completing assignments. He passed his first full disclosure polygraph in
September 2017, indicating that he had not engaged in any
further offending behavior. However, before the examination, he disclosed several additional behaviors that he had
not discussed in treatment, including use of pornography as
well as having sexual contact with a girl he considered to be
his girlfriend. Those problems resulted in youth’s commitment to OYA, and his placement in residential treatment at
Cordero, which he began in October 2017.
Youth successfully participated in treatment at
Cordero from October 2017 through January 2020. After a
few months of treatment, when youth was 15 years old, he
was referred for another psychological evaluation. Dr. Myco
Van evaluated youth and concluded that youth did not have
2
ERASOR (Estimate of Risk of Adolescent Sex Offense Recidivism) is
a 25-item risk assessment tool that was commonly used in Oregon to assess
risk that an adolescent will commit a new sex offense. In 2017, one of the original authors of the ERASOR, Dr. James Worling, developed and published the
PROFESOR, as an alternative to the ERASOR. That assessment tool looks at
protective and risk factors instead of solely focusing on risk factors.
6 State v. X. E. W.
a conduct disorder or psychosis but was affected by stressful experiences in his childhood. Van diagnosed youth with
other specified trauma- and stressor-related disorder and
other specified depressive disorder. He made recommendations for the focus of treatment based on youth’s responses
suggesting that he had “poor impulse control and [was] prone
to have intense emotional outbursts” and was struggling
with trauma, depression, and anxiety. Van recommended
that youth continue in treatment focused on healthy sexuality, consent, and boundaries and other targeted treatment
to address youth’s mental health, impulsivity, and coping,
along with peer relations.
During his time in residential treatment, youth
had no major rule violations that were sexually offensive
in nature. By early 2019, he had progressed to a treatment
level that enabled him to attend Tigard High School, instead
of Cordero’s in-house educational program. Then, in March
2019, youth’s clinical team learned that he was hiding a
relationship with a female peer at the high school, and he
was removed from unsupervised community outings, struggled to pass a maintenance polygraph, and was required to
redo some assignments. Once he resolved his anxiety and
was fully honest about his relationship, he rarely had behavioral struggles for the rest of his time at Cordero and, when
he graduated, the program noted that he was a strong role
model for his peers in following expectations.
Learning to take accountability for actions in the
community was part of youth’s treatment at Cordero, which
aimed to address his tendency to focus on what went right
and omit the whole truth. Youth was unable to have a direct
clarification (a process in which an offender can provide the
victim with information regarding the offense) with the
victim and her family because the family was not willing
to participate, so he was provided an opportunity to do a
“walk-through” clarification.
In his discharge summary from Cordero, youth’s
clarification walk-through was described as “compassionate,
empathic, polite, courageous, emotional and honest through
the process.” The program also noted that youth made progress regarding repairing his family relationships, building
Cite as 331 Or App 1 (2024) 7
better peer relationships, and improving his mental health
goals. The program noted that, despite youth’s struggles in
early childhood, he appeared to have mental well-being and
stability on par with most of his same-aged peers. He was
noted to have acquired tools and resources to navigate the
struggles regarding his mental health in the future. The
program recommended that youth participate in outpatient
treatment to assist in his transition home.
After returning home, youth successfully completed
aftercare at J Bar J, with counselor, Matthew Griffith, from
January through June 2020. His aftercare included passing
an exit treatment polygraph which indicated that he had
remained compliant regarding his probation requirements,
having refrained from any sexually inappropriate conduct
as well as from the use of any sexually explicit material. At
the end of treatment, Griffith noted that youth demonstrated
application of specific treatment tools with an emphasis on
understanding his sexual offense cycle and the relapse prevention model. Griffith noted that youth “excelled in reintegrating back into the community”; he demonstrated the
ability to establish age-appropriate peer relations through
his high school, abstained from engaging in any violation
behavior, and demonstrated appropriate impulse control.
Griffith used the Protective + Risk Observations
for Eliminating Sexual Offense Recidivism (PROFESOR) to
assess youth at the conclusion of aftercare treatment. The
PROFESOR, a structured checklist, helps to identify and
summarize protective, neutral, and risk factors for individuals aged 12 to 25 who have offended sexually and is
designed to inform intervention goals. Out of the 20 factors
in the PROFESOR checklist, youth was assessed as having
18 protective factors, two factors scored as neutral, and no
risk factors. Thus, youth was assessed as “predominantly
protective.” In his discharge summary, Griffith concluded
that there was no need for continued specialized intervention or supervision to assist youth “in developing healthy
sexual relationships in the future and in preventing abusive
sexual behavior.”
McKague, youth’s OYA probation officer, submitted an OYA sex offender registration hearing report in
8 State v. X. E. W.
November 2020. That report indicated that youth’s successful completion of treatment demonstrated his willingness “to accept personal responsibility and accountability
for his sexually offending behaviors.” Also, no violations or
“red flags” had been observed by OYA or Griffith. Further,
passing his exit treatment polygraph with no red flags and
continuing to meet for check-ins with McKague indicated
compliance and accountability. There were no indications of
drug or alcohol use before, during, or after youth’s time in
treatment. Protective factors identified included that youth
had acquired employment, was enrolled in school, and had
paid off his restitution.
During the March 2021 hearing, Collinson, youth’s
counselor at Cordero, testified that youth had always accepted
responsibility for his offense and had never minimized his
actions. Griffith, who worked with youth in his aftercare,
testified and affirmed that youth had been assessed as low
risk upon his discharge from aftercare in July 2020, but
noted that he had not had recent opportunities to observe
youth by the time of the hearing that would enable him to
update that assessment. In response to a question regarding
any concerns regarding unsupervised contact with children
three years younger at a park or in a playground or babysitting, Griffith responded that, in his experience with youth,
youth could manage an unsupervised visit at the park, but
Griffith did not have experience with youth acting in a position of authority so he could not ascertain the level of risk for
babysitting.
McKague testified that youth had been compliant
on supervision and had done well. Thus, OYA was requesting early termination of his supervision and probation. OYA
did not take a position on whether youth should be required
to register. The victim’s mother requested that youth be
required to register until he could prove himself by more
time in the community and on supervision. She testified
that after the abuse, the victim “talked a little bit” with the
family’s pastor, did not suffer physical injury, and had more
questions about sex compared to her other siblings.
At the end of the March hearing, the juvenile court
deferred making a decision and scheduled a review hearing
Cite as 331 Or App 1 (2024) 9
in August “just to see what’s gone on at school and give you
some more time in the community to establish some additional factors for the court to consider.”
At the August hearing, McKague and youth
appeared and were the only witnesses. McKague reported
that youth had graduated from high school and was working
two days a week at a commercial cleaning company, spending time with friends, hanging out at home playing video
games, and doing family activities. Things were “pretty low
key” and “everything [was] going well.” OYA still sought dismissal of the case and had no opinion on registration. When
asked how often he was seeing youth, McKague responded
that, given how long youth had been out with no violations
of probation or law and no red flags, he was requiring only
a self-report on the first of every month. He noted, in an
exchange with the attorney for the state:
“We heard testimony from both of his [treatment counselors] that [youth] has been assessed at low risk, which you
will never—I wouldn’t think we’d ever hear in court anybody say ‘no risk’ because I don’t think it happens, but I
think the reports we have—
“…
“[STATE]: Is—yeah, I think you’re probably right
about no evaluator is going to say there’s no risk because in
fact … Griffith said it’s impossible to clearly assess potential danger in his report, right?
“[McKAGUE]: Yeah, I think—I think we do the best
we can. I mean, I think people—there’s an assessment tool
called the ERASOR, and I think recently we moved over to
the PROFESOR, which looks at the protective factors and
maybe risk factors.
“And in [youth’s] case, he was basically assessed as
low, low risk because he presents with a lot of protective
factors around the completion of residential sex offender
treatment, outpatient treatment, passed polygraphs, and
no further law violations or probation violations, those type
of things.
“So I think to his credit, he’s been—he’s done very well.”
10 State v. X. E. W.
The court terminated youth’s custody to OYA, resulting in one less year of probation, and acknowledged youth’s
successes, but explained its remaining concerns:
“[T]here’s a number of factors in the statute that the Court
can review, in [ORS] 163A.030(8). In looking at that, the
Court’s taking into consideration the nature of the act, the
age of the victim and the age that you were at the time of
the offense. In addition, statements made by the victim and
parents of the victim in this case, as well as the additional
factors in here of your psychological examinations, the testimony before the Court, the vulnerability of the victim as
well, the extent and impact of the emotional injury on the
victim.
“Based on that, the Court is finding that there is not
clear and convincing evidence today that you’re rehabilitated to the point that you don’t pose a public safety threat.
“Therefore, the Court will order today that you be
required to report as a sex offender under ORS 163A.025.”
As noted, the Supreme Court issued its decision in
A. R. H. after the parties filed their briefs in this case. That
decision emphasizes five important aspects of the meaning
and application of ORS 163A.030, which inform our review of
this case. First, the court notes that the juvenile court’s determination under ORS 163A.030(7)(b) is to be a factual “ ‘finding’ that the court is or is not persuaded ‘that the [youth] is
rehabilitated and does not pose a threat to the safety of the
public.’ ” A. R. H., 371 Or at 91. The statute assigns to the
youth the burden of making the case for that finding by clear
and convincing evidence. ORS 163A.030(7)(b).
Second, the court noted that the legislative history
makes clear that “the ‘threat to the safety of the public’ with
which the legislature was concerned was the threat that
the youth will commit future sex offenses … rather than a
wider variety of generic threats.” A. R. H., 371 Or at 94.
Third, the court noted that “the proponents of the
proposed changes to the reporting requirements for juveniles made clear their understanding that requiring an
individualized ‘threat’ inquiry would ‘retain registration
only for those juvenile offenders who continue to be considered at relatively high risk to commit new sex crimes.’ ” Id.
Cite as
331 Or App 1 (2024) 11
at 95. Among the portions of the legislative history cited by
the court were comments “describing the final bill as reflecting a ‘good compromise,’ with ‘some youth who are considered low risk being able to avoid registration in the future,
but still setting a fairly high bar before they can avoid that
requirement.’ ”3
Id.
Fourth, the court noted that, despite the extensive
body of research and evidence that youth who complete sex
offender treatment are at low risk of recidivism, the legislature did not create a statutory presumption favoring relief
from registration for youth who have successfully completed
treatment. Id. at 97-99. Instead, the court observed that
both the text and the legislative history confirm that the
juvenile court must make an individualized inquiry for each
youth, with no particular factors entitled to greater weight.
Id. at 98-100.
Finally, to the extent that a court’s determination of
youth’s risk is based solely on preadjudicatory factors, there
must exist a nonspeculative nexus to youth’s current risk
of recidivism; the court has an “obligation to distinguish
between inferences that can reasonably be drawn from the
evidence and inferences that are mere speculation.” Id. at
104 (quoting State v. Hedgpeth,
365 Or 724, 732,
452 P3d
948 (2019)). As the court explained:
“That standard means that we will not automatically affirm
a finding that a youth’s evidence is unpersuasive simply
because the record contains evidence that the youth has
engaged in concerning sexual conduct prior to adjudication.
“As emphasized, the inquiry under ORS 163A.030(7)(b)
focuses on the youth’s current status, including all treatment to address the threat that the youth may once have
presented. Thus, a youth’s pre-adjudication conduct, alone,
will support the court’s finding only when there is a ‘nonspeculative connection’ between that pre-adjudication conduct and the youth’s status at the time of the hearing under
ORS 163A.030.”
Id.
3
See Audio Recording, Joint Committee on Ways and Means, Subcommittee
on Public Safety, HB 2320, June 22, 2015, at 7:39 (comments of Mark McKechnie).
12 State v. X. E. W.
In the usual case, we will review for whether there
is “any evidence in the record to support” the juvenile court’s
factual finding as to whether the youth can be relieved of
the registration requirement. Id. at 95-96 (citations omitted). That is, “whether the juvenile court finds that a youth
has proved—or not proved—by clear and convincing evidence that the youth is rehabilitated and not a threat to the
safety of the public, the reviewing court accepts that finding
unless the record required the juvenile court to answer that
factual question in a different way.” Id. at 96.
Here, youth contends that the juvenile court was
required, on this record, to conclude that youth had met his
burden. The state argues that the juvenile court’s findings
demonstrate that it diligently applied the statute and the
correct legal standard of proof. Our review suggests some
gaps in the juvenile court’s findings that complicate our
review.
First, it is not clear that the juvenile court considered the evidence of youth’s current risk of recidivism. The
court’s findings did not reference post-adjudicatory factors
regarding youth’s treatment, rehabilitation, or current functioning, as anticipated in ORS 163A.030(8)(j) to (r), though
significant evidence existed as to those issues. And though
the court mentioned that it considered youth’s psychological
evaluations, it did not address how those evaluations, conducted in 2015 and 2017, spoke to a lack of rehabilitation or
evidence of risk in 2021, when the hearing occurred. To the
contrary, Johnson’s report in 2015 indicated that youth was
at “low risk” of reoffending and recommended outpatient
treatment while living at home. In 2017, youth was moved
to inpatient treatment, but not because he reoffended. Van’s
evaluation in 2017 recommended a course of treatment that
was implemented at Cordero. Both evaluations suggested
reason to believe that youth was amenable to treatment,
and the course of youth’s treatment and his successful completion of treatment bears out their predictions.
The juvenile court’s findings otherwise noted only
pre-adjudicatory factors regarding victim impact, statements from the victim and her family, youth’s age, the victim’s vulnerability, and the age difference between youth
Cite as 331 Or App 1 (2024) 13
and the victim. Those factors are among those anticipated
by the statute, ORS 163A.030(8)(a), (b), (f), (g), and (i).
However, as the court in A. R. H. emphasized, “a youth’s pre-adjudication conduct, alone, will support the court’s finding
only when there is a ‘nonspeculative connection’ between
that pre-adjudication conduct and the youth’s status at the
time of the hearing under ORS 163A.030.”
371 Or at 104
(internal citation omitted). Here, the record suggests that
the juvenile court may have denied youth’s petition solely
based on its consideration of preadjudicatory factors without
a nonspeculative connection to his current status. Further,
the psychological evaluations, also referenced by the court,
do not clearly establish that connection, and the court did
not otherwise offer one.
Moreover, the juvenile court’s oral findings suggest
that it may have denied youth’s petition based on an impermissible standard of “no risk” rather than “low risk.” As the
Supreme Court recognized, however, the legislative history
reflects an understanding that registration will be required
only for those youth who continue to be at relatively high
risk to commit new crimes, and an expectation that some
youth who are considered low risk may avoid registration.
Id. at 95. We take that to mean that the burden on youth
to prove by clear and convincing evidence that he does not
pose a threat to the safety of the public does not require him
to meet a standard of “no risk.” Indeed, such a finding is
likely not achievable for any youth whose history may give
rise to the registration requirement, since having committed
an offense that would subject one to the registration requirement is itself a risk factor. Given the burden of registration,
and without a sufficient basis to determine whether the
trial court applied the factors consistently with the Supreme
Court’s observations in A. R. H., we find that this is an exceptional case in which we choose to exercise our discretion to
review de novo whether youth proved by clear and convincing
evidence that he does not pose a threat to the safety of the
public under ORS 163A.030(8). See ORS 19.415(3)(b) (allowing an appellate court discretion to review de novo an appeal
from an equitable proceeding); ORAP 5.40(8)(c) (“The Court
of Appeals will exercise its discretion to try the cause anew
on the record … only in exceptional cases.”).
14 State v. X. E. W.
We begin with the relevant preadjudicatory factors
relating to the nature of the offense and its impact on the
victim.4 As noted, the victim was six years old and the six-year age difference between youth and the victim made her
particularly vulnerable. The incident took place in a public
setting where youth was not in a position of trust or authority in relation to the victim. There was evidence that youth
continued his conduct even after the victim asked him to
stop, though there was no evidence that he used overt force
or explicit threats. During an initial interview, the victim
reported experiencing swelling and pain and expressed a
fear of returning to the club where the incident happened.
After the incident, the victim spoke to her pastor some but
did not see a counselor. When asked about the emotional
impact of youth’s offense, the victim’s mother explained that
she did not see signs that the victim had been very affected
by what happened. The victim’s mother did, however, express
concern about youth’s level of continued risk given his lack
of time in the community and her belief that youth’s mother
had minimized the seriousness of youth’s conduct.
We next address actions youth has taken toward
personal responsibility and accountability for his conduct.5
4
ORS 163A.030(8) provides that the court may consider:
“(a) The extent and impact of any physical or emotional injury to the
victim;
“(b) The nature of the act that subjected the person to the duty of reporting as a sex offender;
“(c) Whether the person used or threatened to use force in committing
the act;
“(d) Whether the act was premeditated;
“(e) Whether the person took advantage of a position of authority or trust
in committing the act;
“(f) The age of any victim at the time of the act, the age difference
between any victim and the person and the number of victims;
“(g) The vulnerability of the victim;
“(h) Other acts committed by the person that would be crimes if committed by an adult and criminal activities engaged in by the person before and
after the adjudication;
“(i) Statements, documents and recommendations by or on behalf of the
victim or the parents of the victim[.].”
5
ORS 163A.030(8) provides that the court may consider:
“(j) The person’s willingness to accept personal responsibility for the act
and personal accountability for the consequences of the act;
Cite as 331 Or App 1 (2024) 15
From the outset, youth admitted his wrongdoing. According
to Johnson’s evaluation in 2015, youth was able to explain
why his behavior was wrong in that the victim was too
young and the touching was not consensual. Youth admitted that he knew his actions were wrong immediately afterwards but explained that he had an uncontrollable urge and
was acting on hormones. In later polygraphs, evaluations,
and treatment settings, youth continued to work on taking
accountability, understanding the impact on his victim, and
making amends. Treatment notes and the discharge summary described youth’s progress on rehabilitation as significant regarding victim empathy, establishing healthy sexual
boundaries, understanding consent, and healthy, nondeviant sexuality. Although the victim and her family declined
to participate in a clarification process, youth participated
in a walk-through clarification process with Cordero staff
who described him as empathetic and compassionate. Youth
paid his court-ordered restitution using money he earned at
Cordero and Thriftway.
We next address youth’s participation in treatment
and his compliance with supervision.6 Although youth’s initial outpatient treatment was not successful, he successfully
completed an intensive 27-month residential treatment program at Cordero that involved seven treatment levels with
“(k) The person’s ability and efforts to pay the victim’s expenses for counseling and other trauma-related expenses or other efforts to mitigate the
effects of the act[.]”
6
ORS 163A.080 provides that the court may consider:
“(L) Whether the person has participated in and satisfactorily completed
a sex offender treatment program or any other intervention, and if so the
juvenile court may also consider:
“(A) The availability, duration and extent of the treatment activities;
“(B) Reports and recommendations from the providers of the treatment;
“(C) The person’s compliance with court, board or supervision requirements regarding treatment; and
“(D) The quality and thoroughness of the treatment program;
“(m) The person’s academic and employment history;
“(n) The person’s use of drugs or alcohol before and after the adjudication;
“(o) The person’s history of public or private indecency;
“(p) The person’s compliance with and success in completing the terms of
supervision;
“(q) The results of psychological examinations of the person[.]”
16 State v. X. E. W.
progressive stages of accountability and work. Despite some
acknowledged setbacks, the program and McKague both
commended youth for his significant progress, including in
his management of impulsivity and emotional regulation
and in other areas that would enable him to better manage
and internalize changes regarding his mental health and
his family and peer relationships. Youth followed through
with all of Cordero’s recommendations regarding outpatient
treatment, including an assessment by Griffith to create an
offense-specific treatment plan for five months of aftercare.
Griffith explained that he used cognitive behavioral therapy
in working with his clients and that he discussed with youth
how he would address pornography; youth’s final polygraph
indicated that he had not used pornography. In aftercare,
youth was at a point in his treatment that he was allowed
to have a relationship, but he had not engaged in one. He
participated in weekly sessions with Griffith over the five
months of aftercare and, at trial, Griffith testified that
youth had made further improvement and that he had no
concerns about youth manipulating or grooming a younger
child, though he would recommend adult supervision around
younger children as a safety net for youth. Griffith assessed
youth as low risk upon discharge and noted that youth’s
expressed sexual interest, apart from the index offense, was
always age appropriate.
Throughout his six years under supervision, youth
passed all of his polygraphs except one maintenance polygraph in March 2019 related to keeping secret his relationship with a peer at school. Treatment notes do not indicate
any specifics as to how youth misrepresented the relationship, though some notes indicate that youth apparently
became aroused when hugging the peer and focus on his
lack of honesty about that as being the issue. Ultimately,
treatment notes indicate that youth was truthful and passed
all later polygraphs.
The discharge summaries for youth’s treatment
with Cordero and J Bar J reflect significant evidence of
rehabilitation. Further, McKague had supervised youth for
almost two years by the time of the final hearing, longer than
his supervision of any other youth. None of the treatment
Cite as 331 Or App 1 (2024) 17
providers recommended that registration was necessary to
protect the public. In the 19 months that youth had been
living at home after residential treatment, there was no
evidence of violations and no noted increase in youth’s risk
level. Youth was employed and did not use substances and
did not reoffend during the six years of supervision.
On de novo review, we are persuaded that youth
proved by clear and convincing evidence that he is rehabilitated and does not pose a threat to the community. The only
testimony arguing in favor of registration was that of the
victim’s mother. The treatment providers did not urge that
registration was necessary and, although youth’s offense
six years earlier was serious, his conduct under supervision consistently showed a pattern of taking responsibility,
acquiring new skills, and applying what he learned in treatment. We do not discern a nonspeculative basis connecting
his preadjudication conduct to a need to protect the public
by requiring registration.
Accordingly, the juvenile court’s order denying
youth’s petition for relief from registration is reversed.
Reversed.
