State ex rel. Juvenile Department v. Richardson

FOLEY, J. This is an appeal by the parents of Rodney, Walter and Nancy Richardson, minor children who are wards of the Multnomah County Juvenile Court and who are in the legal custody of the Children’s Services Division pursuant to ORS 419.507 (2). The parents moved the juvenile court for an order requiring the Children’s Services Division to arrange periodic visits between them and their children. The juvenile court denied their motion on the ground that it had no authority to order the Division to arrange visitation, but could only recommend that it be done. The parents appeal from this denial. The question presented to this court is that of the power of the juvenile court, once it has placed its wards with the Children’s Services Division, to.order the Division to make arrangements for visitation. The controlling statute is ORS 419.507, which provides in pertinent part as follows: “A child found to be within the jurisdiction of the court as provided in subsection (1) of ORS 419.476, may be made a ward of the court. Where a child has been found to be within its jurisdiction, — 261 — and when the court determines it would be in the best interest and welfare of the child, the court may: “(1) * * * [The court may make its own placement by probation or under protective supervision, including, but not limited to, restrictions on visitation, etc.]① “(2) Place the child in the legal custody of the Children’s Services Division for care, placement and supervision. “(a) The division may place the child in a child care center authorized to accept the child. “(b) If the child has been placed in the custody of the Children’s Services Division, the court shall make no commitment directly to any residential facility, but shall cause the child to be delivered into the custody of the Children’s Services Division at the time and place fixed by rules of the division. No child so committed shall be placed in the Oregon State Penitentiary or the Oregon State Correctional Institution. “ (c) Uniform commitment blanks, in a form approved by the Administrator of the Children’s Services Division, shall be used by all courts for plac — 262 — ing children in the legal custody of the Children’s Services Division. “(d) To insure effective planning for children, the Children’s Services Division shall take into consideration recommendations and information provided by the committing court before placement in any facility certified by the Children’s Services Division. ^ ?? The juvenile court in this case took the position that when a juvenile court places its ward with the Division it relinquishes control over such day-to-day administrative matters as visitation. It ruled that while it could recommend visitation (it did, in fact, recommend limited visitation), and while the Division was required to take such recommendations into consideration, the court could not compel the Division to take particular action. We agree with this interpretation of ORS 419.507, and we therefore affirm the order of the juvenile court. The primary rule of statutory construction is to ascertain the legislative intent. Haas v. Myers, 10 Or App 495, 500 P2d 1068 (1972). In this case a brief consideration of the legislative history is useful in determining what that intent was. Cf. Thies v. Barnes, 11 Or App 158, 501 P2d 1305 (1972). ORS 419.507 was substantially amended by the 1971 legislature. In its previous form, subsection (1) was basically the same as it is now, but subsection (2) provided as follows: “Subject to ORS 179.473 and 419.509, place the child in the legal custody of a public or private institution or agency authorized to accept the child or, if the child is at least 12 years of age, to the Corrections Division. If the commitment is made — 263 — to the Corrections Division the court shall make no commitment directly to any juvenile training school, as defined in ORS 420.005, hut shall cause the child to be delivered into the custody of the Corrections Division at the time and place fixed by rules of the division. No child so committed shall be placed in the Oregon State Penitentiary or the Oregon State Correctional Institution.” The 1971 legislature amended that subsection to reflect the existence of the newly created Children’s Services Division. In its first form (Oregon Laws 1971, ch 401, § 91), the amended subsection read as follows: “(2) Subject to ORS 179.473 and 419.509, place the child in the legal custody of a public or private institution or agency authorized to accept the child or, if the child is at least 12 years of age, to the Children’s Services Division. If the commitment is made to the Children’s Services Division the court-shall make no commitment directly to any juvenile training school, as defined in ORS 420.005, but shall cause the child to be delivered into the custody of the Children’s Services Division at the time and place fixed by rules of the division. No child so committed shall be placed in the Oregon State Penitentiary or the Oregon State Correctional Institution.” (Emphasis supplied.) It can be seen that this was simply a “housekeeping” measure, which deleted the term “Corrections Division” and substituted for it the term “Children’s Services Division.” Subsequently, extensive amendments were made by a subcommittee of the House Ways and Means Committee, and the statute emerged in its present form (Oregon Laws 1971, ch 698, § 2). The subcommittee kept no minutes, so that we have before us no explicit — 264 — statement of the reasons which underlay the amendments. However, the legislative intention appears to have been to spell out clearly the scope of authority of the juvenile court and the Children’s Services Division.② By referring to CBS 419.507, it is noted that subsection (1) authorizes the juvenile court to go into a great deal of detail in specifying the requirements to be observed if the court places its ward in the custody of any of the persons or facilities set out in that subsection. Subsection (2), on the other hand, contains no such authorization when the court decides to exercise its option of placing the child in the custody of the Children’s Services Division. This disparity of authority is so patent that we cannot conclude that it was the product of legislative oversight. Application of the principle of statutory construction, expressio unius est exclusio alterius, leads ns to the conclusion that the legislature intended to give the court the power of specification in the one instance, while denying that power to it in the other. 2 Sutherland Statutory Construction 412-418, §§ 4915, 4916 (3d ed 1943). Cf. Cabell et al v. Cottage Grove et al, 170 Or 256, 281-82, 130 P2d 1013, 144 ALR 286 (1943). In addition, the language of ORS 419.507 (2) (d) compels the conclusion that the legislature intended to limit the function of the juvenile court vis-a-vis the Children’s Services Division to an advisory capacity — 265 — only in such matters as visitation. That subsection provides: “To insure effective planning for children, the Children’s Services Division shall take into consideration recommendations and information provided by the committing court before placement in any facility certified by the Children’s Services Division.” (Emphasis supplied.) Had the legislature intended that the juvenile court have the power to order the Division to take certain action, it could hardly have chosen more inappropriate language. Our conclusion does not mean that the juvenile court is powerless if it feels that the Division is not acting in the best interest of the children. Despite the grant of legal custody to the Division, the juvenile court retains jurisdiction over the children, and it may at any time remove the children from the Division’s custody and utilize the placement options provided by ORS 419.507 (1). In this case, the juvenile court concluded that while limited visitation may be desirable, it is not so desirable as to outweigh the facilities which Children’s Services Division offers the children. Affirmed. Footnotes [①] ORS 419.507 (1) reads: “Place the child on probation or under protective supervision. The court may direct that the child remain in the legal custody of his parents or other person with whom he is living or may direct that the child be placed in the legal custody of some relative or some person maintaining a foster home approved by the court, or in a child care center or a youth care center authorized to accept the child. The court may specify particular requirements to be observed during the probation or protective supervision consistent with recognized juvenile court practice, including but not limited to restrictions on visitation by the child’s parents, restrictions on the child’s associates, occupation and activities, restrictions on and requirements to be observed by the person having the child’s legal custody and requirements for visitation by and consultation with a juvenile counselor or other suitable counselor. Restitution for property taken, damaged or destroyed by the child may be required as a condition of probation.” [②] The title of ORS 419.507, prior to the 1971 revision, was: “Child within court’s jurisdiction made ward of court; court’s power concerning custody of child.” The title that emerged in 1971 reads: “Child as ward of the court; court’s authority over child; Children’s Services Division’s authority over child.”