In the Matter of M. M., L. M., O. M., L. M., J. M., P. M., N. M., and J. M., Children. DEPARTMENT OF HUMAN SERVICES, Respondent on Review, v. S. M. and R. M., Petitioners on Review.
CC J110590, J110591, J110592, J110593, J110594, J110595, J110596, J110597; CA A151376 (Control), A151377, A151378, A151379, A151380, A151381, A151386, A151388; SC S061386 (Control), S061387
Supreme Court of Oregon
April 24, 2014
323 P.3d 947
Argued and submitted November 5, 2013, at Franklin High School, Portland, Oregon, decision of Court of Appeals and judgments of circuit court affirmed April 24, 2014
With her on the brief were Peter Gartlan, Chief Defender, and Sarah Peterson, Deputy Public Defender.
Michael A. Casper, Deputy Solicitor General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna Joyce, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters, Linder, Landau, and Baldwin, Justices.**
KISTLER, J.
**KISTLER, J.
The juvenile court took jurisdiction over parents’ children and appointed the Department of Human Services (DHS) as the children‘s legal custodian and guardian while the children were wards of the court. The question that this case presents is whether the legislature gave DHS, in its capacity as either the children‘s custodian or their guardian, authority to have the children immunized against common childhood diseases. Both the trial court and the Court of Appeals held that the legislature gave DHS that authority. See Dept. of Human Services v. S. M., 256 Or App 15, 300 P3d 1254 (2013). We allowed parents’ petition for review and now affirm the Court of Appeals decision and the trial court‘s judgments.
Mother and father are the parents of eight children, who ranged in age from one to 10 years old when this case began. After a neighbor notified DHS about the conditions in parents’ home, a DHS caseworker checked on those conditions, spoke with parents, and also spoke with the children. Among other problems, the caseworker found the house bestrewn with garbage and food, the children dirty, and the children‘s educational needs barely addressed by mother‘s home-schooling curriculum. DHS filed a petition with the juvenile court, alleging that the children were within the court‘s jurisdiction because the “condition or circumstances [of the children were] such as to endanger [the children‘s] welfare or others[’ welfare].”
Over the next several weeks, DHS worked with mother to improve the family‘s living conditions. By then, father had moved to Utah for work. Despite some improvement in the family‘s living conditions, the court ordered that the children be placed in foster care, and, in January 2012, parents and DHS reached an agreement. As part of that agreement, parents admitted all the allegations in DHS‘s jurisdictional petition, except the allegations of medical neglect. They also stipulated that the admitted facts supported a finding that the juvenile court had jurisdiction over the children. Accordingly, the juvenile court took jurisdiction over the children and issued a dispositional judgment for each child. It also appointed DHS as each child‘s legal custodian and legal guardian.
Four months later, DHS requested a review hearing. During a discussion of the
The juvenile court commended mother‘s interest in medical research about immunizations: “You‘ve done your research and I appreciate that.” It also noted that mother had made medical decisions about her children in the past, including a decision to immunize some of the older children. But the court ultimately concluded that, because “the children are in the care and custody of the [s]tate at this point,” it would allow “the children [to] be immunized as per the decision of the medical provider when the foster parents take them in for evaluation ***.”
After that hearing, the juvenile court entered a “review judgment” for each child, which provided that “[each] child may be immunized over the parents’ objection based on medical advice.” Parents moved to stay any immunization pending appeal, and the juvenile court stayed that part of its judgments. Parents then filed a consolidated appeal of the eight review judgments, assigning error to the juvenile court‘s determination that DHS could approve the immunization of the children based on medical advice. On appeal, parents argued that DHS lacked statutory authority to make medical decisions because medical neglect was not one of the factual allegations on which the juvenile court had based jurisdiction. Alternatively, they relied on Troxel v. Granville, 530 US 57, 120 S Ct 2054, 147 L Ed 2d 49 (2000), for the proposition that, even if DHS had the requisite statutory authority, DHS could not exercise that authority unless it established that parents were unfit to make decisions about immunizations and that immunizations were necessary for the children‘s short-term health. The Court of Appeals disagreed with both arguments. See Dept. of Human Services v. S. M., 256 Or App at 31. We allowed parents’ petition for review.
On review, parents renew their argument that DHS lacked statutory authority to immunize the children. They recognize that
When a child‘s “condition or circumstances are such as to endanger [the child‘s] welfare,” a juvenile court may exercise jurisdiction over the child and his or her family.
Once a child is a ward of the court, the juvenile court may direct that the ward remain in the legal custody of the ward‘s parents, or it may direct that the ward be placed
When a juvenile court appoints DHS as a ward‘s legal custodian,
In addition to the authority that a legal custodian has to make decisions for the ward,
Although the juvenile court may act as the ward‘s legal guardian as an incident of its wardship, the court also may transfer its authority as a guardian to the ward‘s legal custodian.
With that statutory background in mind, we turn to the issue that divides the parties—whether DHS, as either the children‘s legal custodian or their guardian, has statutory authority to have the children immunized against common childhood diseases over their parents’ objection. On that issue, DHS identifies two sources of statutory authority to approve immunization. DHS notes initially that, as the children‘s legal custodian, it may “authorize ordinary medical, dental *** or other remedial care and treatment.”
We need not decide whether DHS‘s first argument is correct; that is, we need not decide whether immunizations constitute “ordinary medical care” that DHS may authorize as the children‘s legal custodian. The juvenile court appointed DHS as the children‘s legal guardian as well as their legal custodian. As DHS notes, its authority as the children‘s legal guardian includes but is not limited to authorizing “surgery for the ward” and making “other decisions concerning the ward of substantial legal significance.”
Under
Parents’ argument faces a difficult but not insurmountable hurdle. Ordinarily, a later legislature‘s understanding of a previously enacted statute has no bearing on what that statute means. See DeFazio v. WPPSS, 296 Or 550, 561, 679 P2d 1316 (1984) (explaining that “[t]he views legislators have of existing law may shed light on a new enactment, but it is of no weight in interpreting a law enacted by their predecessors“). However, this court has recognized a limited exception to that general rule. Later amendments that materially change the text or context of an earlier statute can change the meaning of the earlier statute when the changed meaning is either “expressly declared or necessarily implied.” State v. Ofodrinwa, 353 Or 507, 529-30, 300 P3d 154 (2013) (holding that, even if the phrase “does not consent” initially referred only to a lack of actual consent, the later addition of a defense that assumed that the phrase included the lack of capacity to consent necessarily altered the phrase‘s meaning); State v. Swanson, 351 Or 286, 292, 266 P3d 45 (2011) (holding that the later-enacted definition of crime in the 1971 substantive criminal code necessarily narrowed the meaning of that term in the earlier-enacted procedural code).
As we understand parents’ argument, they contend that, in authorizing durable and permanent guardianships, the legislature either expressly declared or necessarily implied that guardianships that arise as an incident of wardship carry with them less authority than
Because each of the three guardianships (a guardianship that arises as an incident of wardship, a durable guardianship, and a permanent guardianship) requires a different amount of proof, parents infer that each guardianship carries with it a different level of decision-making authority. The greater the proof, the greater the level of authority, or so parents’ argument runs. It follows, in parents’ view, that the legislature intended to limit the authority of a guardianship that arises as an incident of wardship to something less than the authority set out in
Alternatively, the fact that greater proof is required to establish durable and permanent guardianships does not necessarily imply that those guardianships confer greater decision-making authority. Rather, the greater proof requirement can be understood as a function of the fact that durable and permanent guardianships are long-term alternatives to termination, as opposed to a guardianship that arises as an incident of a wardship and that usually lasts only until the long-term alternative determined at the permanency hearing is implemented. If the 1995 and 2003 amendments are understood that way, then
Were there any doubt about the matter, we note that parents’ argument is difficult to reconcile with the legislative history of the 2003 amendments. The 2003 amendments authorized juvenile courts to establish durable guardianships and also provided for judicial oversight of a guardian‘s exercise of his or her responsibilities. Or Laws 2003, ch 229, §§ 2-4. Those amendments were the result of a bill that the Oregon Law Commission proposed in 2002. Minutes, Senate Committee on the Judiciary, SB 70, Feb 5, 2003 (statement of Lisa Kay); Id., Ex D (Oregon Law Commission Report). Lisa Kay chaired the Law Commission subcommittee that drafted the proposed bill. See id., Ex D (Oregon Law Commission Report). She also appeared before the Senate Committee on the Judiciary to explain how the bill, if enacted, would work. In distinguishing the different types of guardianships (permanent, durable, and incident to wardship), Kay clarified existing law. She explained that, when the juvenile court takes jurisdiction of a ward, a guardianship incident to wardship arises and that the juvenile court can designate the ward‘s legal custodian as the ward‘s guardian. Testimony, Senate Committee on the Judiciary, SB 70, Feb 5, 2003, Tape 18, Side A. She also explained, in response to a question from the committee chair, that “[t]here are some of the legal duties and authorities of a guardian that you want somebody with legal custody to be able to do such as authorize surgery and whatnot for the child.” Id.
Kay thus made clear that a guardianship that arises as an incident of wardship permits the guardian to “authorize surgery *** for the child.” That is, Kay made clear that a guardianship that arises as an incident of wardship carries with it the authority that
Two other issues remain. First, parents argue that we should interpret
The second issue is related to the first. Although parents have not raised, on review, an independent constitutional challenge to DHS‘s decision to have the children immunized against common childhood diseases, we recognize that a legal custodian or guardian could make other decisions on a child‘s behalf that potentially could implicate the child‘s or the parent‘s constitutional rights. DHS has been sensitive to those concerns and, as a result, has promulgated administrative rules to guide the exercise of its authority as the child‘s legal guardian. For example, OAR 413-020-0170(3)(a) and (4) direct DHS, as the legal guardian, to “[c]onsider the impact of the proposed action upon the welfare of the child, the child‘s family and the community prior to deciding whether to consent to or authorize the proposed action.” If a child is not in DHS‘s “permanent custody,” OAR 413-020-0170(3)(c) requires DHS to “make reasonable efforts to consult the child‘s legal parent(s) or guardian(s) about the action proposed and consider the parent(s) or guardian‘s preference” about a proposed action. Finally, OAR 413-020-0170(4) provides that DHS may “notify the juvenile court, and/or seek the court‘s concurrence” concerning a proposed action described in
We recognize that those rules provide procedural rather than substantive limits on DHS‘s exercise of its authority as a ward‘s legal guardian. However, those procedural rules provide assurance that DHS‘s decisions as a ward‘s legal guardian will take into account the parents’ concerns and that DHS, having presented the issue to the juvenile court, will abide by its ruling. DHS‘s rules also provide an avenue for a parent to raise a statutory or constitutional challenge to DHS‘s proposed action if the parent believes that DHS has exceeded either its statutory authority or constitutional bounds. In this case, parents have argued that DHS lacks statutory authority to immunize the children against common childhood diseases. On that issue, we agree with the trial court and the Court of Appeals that DHS has that authority.