In the Matter of A. L. M., a Youth. STATE OF OREGON, Respondent, v. A. L. M., Appellant.
14JU02574; A166888
Crook County Circuit Court
Argued and submitted May 21, 2019, affirmed July 8, 2020
petition for review denied October 22, 2020 (367 Or 218)
305 Or App 389 | 469 P3d 244
Daniel Joseph Ahern, Judge.
Christa Obold Eshleman argued the cause for appellant. On the brief was Adrian T. Smith. Jonathan N. Schildt, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Before DeHoog, Presiding Judge, and Aoyagi, Judge, and Hadlock, Judge
Youth was adjudicated delinquent in relation to two counts of attempted first-degree sodomy, and the juvenile court ordered him to serve probation. Near the end of his probationary term, youth requested to be relieved of the obligation to report as a sex offender, in accordance with
Affirmed.
HADLOCK, J. pro tempore
Youth was adjudicated delinquent in relation to two counts of attempted first-degree sodomy, and the juvenile court ordered him to serve probation. As the end of his probationary term approached, youth requested to be relieved of the obligation to report as a sex offender, pursuant to
The sole question before us is whether the juvenile court erred when it denied youth‘s request to be relieved of the obligation to report as a sex offender. Accordingly, we describe only those aspects of the record that are pertinent to the challenged decision. In doing so—and for reasons we discuss later in this opinion—we describe the pertinent facts consistently with the trial court‘s factual findings, “reviewing for any evidence that supports those findings.” Husk v. Adelman, 281 Or App 378, 383, 383 P3d 961 (2016). Where the trial court has not made express findings, we describe the evidence “consistently with the trial court‘s implicit findings in support of its conclusion.” State v. J. D. S., 242 Or App 445, 448, 263 P3d 1017 (2011).
When youth was 15 years old, he sexually abused two of his young relatives, then ages
In August 2014, the state filed a delinquency petition in juvenile court alleging that youth had committed acts which, if done by an adult, would constitute multiple counts of third-degree sodomy and attempted first-degree sodomy. Before the petition was adjudicated, youth was evaluated by a psychologist at his attorney‘s request. The psychologist reported that youth‘s “behavior appears to have been largely impulsive rather than a sexual preference,” and concluded that youth did not qualify for a diagnosis of pedophilia, although “one must rule out the possibility of *** paraphilia.” The psychologist reported that youth was not antisocial, that his prognosis was positive, and that he needed treatment, which could dramatically reduce his recidivism risk.
Youth subsequently admitted to two counts of attempted first-degree sodomy, one involving each of the victims, and the juvenile court adjudicated youth delinquent on those two counts in early 2015. As part of its disposition, the court placed youth on probation for 36 months, ordered him to enter and successfully complete sex-offender treatment with counselor Jeff Rex, and ordered him to take and pass a “full disclosure polygraph and maintenance polygraphs as directed by” Rex. Youth began treatment with Rex as ordered.
In July 2015, youth took a polygraph that indicated deception in relation to youth‘s conduct toward the younger of his two victims. At that point, youth had been in treatment for five months, but he still was denying having sexually abused that child. A few months later, another polygraph examination reflected “full disclosure” by youth.
In November 2015, Rex reported that, “[a]lthough [youth had] struggled at times with complete transparency and work ethic,” he was “doing very well” at the time of the report. Youth had passed “a full-disclosure polygraph” and “an incident specific examination clarifying details regarding the adjudicated offenses.” He was also progressing well in other areas and, as part of his treatment, had written “clarification letters” to the victims in which he apologized for his behavior.2 Youth completed his sex-offender treatment in 2016. At that point, youth had completed all assignments and benchmarks, including “being able to discuss [his offenses] with *** Rex and being able to document what had taken place and the effects that it had on the victims of the case.”
In 2017, the county juvenile department notified the court that youth‘s probation would expire soon and that youth “wishe[d] to address his registration requirements.” A hearing was held in January 2018, and the parties submitted exhibits that included documentation of the victims’ reports of abuse, as well as youth‘s 2014 psychological examination and a 2016 discharge report from counselor Rex. Youth called a single witness, his counselor with the county juvenile department (Scott Grasle), who testified that youth had met the requirements of his probation, had successfully completed sex-offender treatment, and had paid restitution.
Grasle also testified that youth had not been charged with any additional offenses or probation violations. However, during an April 2016 polygraph examination, youth disclosed that he had once smoked marijuana, which was unlawful. Youth agreed to submit to urinalyses so Grasle could monitor his performance. An early urinalysis showed a
The state also called one witness, the victims’ mother, who testified about how the abuse had affected her children. Before the abuse occurred, the victims had “idolized” youth, “wanted to be like him,” and “wanted to hang out with him all the time.” Now, though, both victims exhibit an “extreme amount of anger.” One of the victims “lets everything build up *** and then flies off the handle at the smallest thing,” while the other boy has “more of just a constant anger” that shows “in almost everything he does.”
In making their closing arguments to the juvenile court, both parties acknowledged that the juvenile court‘s decision about whether to relieve youth of his reporting requirement would involve consideration of many factors, including those listed in
some of the statutory factors “weigh in favor of registration,” but he characterized those factors as centering “around the original events, the circumstances, the youth, the age, the gender” and being “from early on.” Youth argued that consideration of the factors related to the progress he had made in the years following the abuse weighed “more heavily” and should lead the court “to find by clear and convincing evidence that [youth] is rehabilitated and that he does not pose a danger to society and that he not be required to register.”5
The state emphasized several factors in arguing to the contrary: the young ages of the victims; that the abuse happened repeatedly, at separate times over the course of a weekend; the nature of youth‘s conduct; and how physically painful youth‘s abusive acts had been for the victims. The state also pointed out that youth had acted illegally in using marijuana.
In announcing its ruling, the juvenile court expressly recognized youth for having done well on probation and for having successfully completed community-based treatment. The juvenile court then explained its remaining concerns, which focused on the nature and circumstances of youth‘s sexual assault of the victims. The court noted that the abuse was not “an isolated incident,” but “occurred over three days.” Moreover, youth‘s acts were not the type of conduct “that could be confused as to what‘s horseplay and what‘s inappropriate behavior.” To the contrary, the court found that the state had been accurate when, in closing argument, it described the evidence of youth‘s conduct as including forcible anal sex, oral sex, intimidation, forced masturbation, and pornography. The court also focused on the age difference between youth and the victims, that youth had been entrusted with their care, and that the victims were vulnerable in that situation and because of their young ages and their family relationship to youth. Finally, the court also took into account youth‘s marijuana use, given the court‘s understanding that youth had used marijuana “as an offer or an incentive at the time of this abuse.” The court was concerned that, when youth used drugs or thought about using drugs, he did that in connection “with things that aren‘t necessarily healthy.” The court concluded by stating that youth had not “convince[d it] by clear and convincing evidence that the requirement of registering as a sex offender should be eliminated in [youth‘s] case.” The court therefore ordered that youth “register as a sex offender pursuant to
On appeal, youth argues that the juvenile court erred “when it found that youth had failed to prove by clear and convincing evidence that he was ‘rehabilitated and [did] not pose a threat to the safety of the public’ as
In response, the state takes on youth‘s characterization of the standard of review on appeal:
“Although the state agrees that whether youth failed to meet his ‘burden of proof’ is reviewed ‘as a matter of law,’ *** the more precise question here is whether the evidence in the record compelled the juvenile
court to find that youth had met his burden.”
Applying that standard, the state argues that the evidence did not require the juvenile court to find itself persuaded that youth had met his burden. Put differently, the state argues that it was permissible for the juvenile court to find itself unpersuaded that youth had met his burden, even if another court might have reached a different conclusion, given “the severity and characteristics” of youth‘s offenses, his victimization of vulnerable children, and his repeated unlawful use of marijuana while on probation.
We begin our analysis by setting out the pertinent statutory provisions and discussing the standards of review we apply on appeal. When a youth has been found within juvenile court jurisdiction for conduct that would constitute a felony sex crime if committed by an adult, the juvenile court must “hold a hearing on the issue of reporting as a sex offender,” generally in the six-month period before juvenile-court jurisdiction is terminated.
Thus,
Those different aspects of
But with respect to the juvenile court‘s factual findings themselves, “our appellate function is limited to resolving whether there was sufficient evidence for the trial court, sitting as the trier of fact, to have made the required findings ***” Husk, 281 Or App at 383 (emphasis in original) (addressing a different statutory scheme that also put the burden on one party to establish certain facts by clear and convincing evidence). We do not substitute our judgment for that of the juvenile court, deciding whether the evidence would have satisfied us that youth was rehabilitated and did not pose a public-safety threat. See id. (“[B]ecause we are not undertaking de novo review, we do not endeavor to make our own findings of fact or to determine for ourselves whether” a party met its burden of persuasion.). Rather, the question is whether, based on the evidence in the record, any reasonable juvenile court could have made the factual findings that the court did in this case.
That standard of review—that we review the juvenile court‘s factual findings only to determine whether evidence in the record supports them—applies even though the burden on youth was high, viz., to establish rehabilitation and lack of a public-safety threat by clear and convincing evidence. See J. D. S., 242 Or App at 447-48 (in reviewing trial court‘s decision in an involuntary commitment case, “we review the sufficiency of the evidence by viewing the evidence in the light most favorable to the
And that standard—reviewing only to determine if the record includes evidence supporting the juvenile court‘s factual findings—applies even though we are reviewing the juvenile court‘s finding that it was not persuaded that youth met his burden of proof, rather than reviewing (as we more frequently do) a trial court‘s finding that it was persuaded by a party‘s evidence. See State v. Johnson, 335 Or 511, 523, 73 P3d 282 (2003) (explaining that an appellate court is “bound by a trial court‘s ‘finding’ that a party‘s evidence is not sufficiently persuasive” and is “equally bound by a trial court‘s acceptance or rejection of evidence“).
Thus, the juvenile court‘s finding that it was not persuaded by clear and convincing evidence that youth was rehabilitated and did not pose a public-safety threat will withstand appellate challenge “unless the evidence in the case is such that the [juvenile] court as finder of fact could decide [the] factual question in only” the other way. Id.; see id. at 526 (reviewing trial court‘s finding that a party had not met its burden of proof to determine whether “the evidence was of such a character or of such weight that the trial court was required to rule” in that party‘s favor). That is, we will disturb the juvenile court‘s finding that it was not persuaded that youth had met his burden of persuasion only if the record would compel every reasonable juvenile court to be persuaded that youth had met that burden. State v. T. C., 268 Or App 615, 621, 342 P3d 1112 (2015) (reviewing to determine whether the evidence was such as to compel the trial court to find that a party had met its burden of proof). In reviewing the trial court‘s decision, we view the evidence “in the light most favorable to the juvenile court‘s determinations and assum[e] the correctness of that court‘s explicit factual findings if any evidence in the record supports them.” Dept. of Human Services v. T. J., 302 Or App 531, 532-33 & n 2, 538, 462 P3d 315 (2020) (so stating in appeal from juvenile-dependency proceeding in which the court assumed, without deciding, that the petitioning party bore the burden of proving certain facts by “clear and convincing” evidence).
Although the foregoing appellate principles are well-settled, we discuss them here because youth does not acknowledge that we review the trial court‘s factual findings only to determine whether evidence in the record supports them. To the contrary, relying heavily on our decision in Patterson, youth argues that we should determine, “as a matter of law, whether the trial court correctly determined that youth failed” to meet his burden of proof. (Emphasis added.)
Youth‘s reliance on Patterson is understandable but, ultimately, misplaced. In Patterson, a person who had been convicted of a misdemeanor sex offense petitioned to be relieved from the duty to report as a sex offender, pursuant to former
We reversed, holding that the trial court had misconstrued what the petitioner had to prove to meet his burden. Specifically, we rejected the idea that a petitioner can prove that he or she is “rehabilitated” only by establishing, as the trial court had suggested, “that he or she is now absolutely free of any risk—however small—of future error.” Id. at 113 (emphasis in original). Put differently, we rejected the idea—urged by the state in that case—that the statute required the petitioner to supply “an absolute guarantee of future perfection.” Id. Rather, we held, the statute required the petitioner “to demonstrate by clear and convincing evidence” that, as a result of successfully completing services that were “designed to ameliorate his or her previous behavioral and psychological patterns and to prevent a recurrence of unlawful conduct,” the petitioner “does not present a threat, that is, he or she is not likely to reoffend.” Id. at 114-15. Applying that legal standard to the evidence in Patterson, we observed that the evidence of the petitioner‘s successful completion of sex-offender treatment and his extremely low recidivism risk was uncontroverted, that is, “there [was] a complete absence of evidence to the contrary, either factual or in the form of an opinion.” Id. at 115. The record included a letter from the petitioner‘s victim, who addressed how she had been affected by the petitioner‘s crime, but that letter “provided no information pertinent to the ultimate criteria for obtaining relief, viz., that the petitioner is rehabilitated and does not pose a threat to public safety.” Id. Given those circumstances, we held that the trial court had erred in determining that the petitioner had not met his burden of proving the prerequisites to obtaining relief from the reporting requirement. Id.
If that is all that Patterson said, we would easily read it—including the standard of review it applied to the trial court‘s decision—in keeping with the principles discussed earlier in this opinion. Given the compelling evidence of the Patterson petitioner‘s rehabilitation and “virtually nil” recidivism risk, and the “complete absence” of any evidence to the contrary, id., we would readily view Patterson as being one of those rare cases in which the evidentiary record would compel every reasonable trial court to find that the petitioner had met his burden of persuasion.
But the opinion in Patterson is more complicated than we have yet described. In reaching our conclusion in that case, we interpreted former
That part of Patterson suggests that—unlike in other circumstances where we acknowledge that an evidentiary record might support a range of permissible factual findings, and we review only to determine whether the evidence would allow any reasonable trial court to make the findings that were made—former
For at least three reasons, we decline to follow that aspect of Patterson here. First, because Patterson involved a statute different
the same statute at issue in that case. Cf. State v. Civil, 283 Or App 395, 405-06, 388 P3d 1185 (2017) (explaining that we will overrule our own prior construction of a statute only when it is “plainly wrong“).
Second, although we discussed the standard of review in some detail in Patterson, that discussion ultimately was unnecessary to our decision. As explained above, given the compelling and one-sided evidentiary record in Patterson, the opinion can be understood to hold that no reasonable trial court could find that the petitioner had not met his burden of proof. Because the evidentiary record in Patterson could not support a case-specific finding that the petitioner had not met his burden of proof, we had no need to go further and explore whether there is only one “correct answer” in all sex-offender-reporting cases. Put differently, we had no need to depart from our ordinary standards of review in Patterson to determine that the evidentiary record did not support the trial court‘s finding.
Third, we find Patterson‘s discussion of the standard of review under former
extend Patterson‘s announcement of that standard beyond the context of the statute at issue in that case.
We therefore apply our ordinary standard of review to the juvenile court‘s decision under
So framed, we answer the question affirmatively.
The record in this case supports each of those findings. This is not a case, like Patterson, where there was both compelling evidence of rehabilitation (there, a psychologist‘s opinion that the petitioner posed a “virtually nil” risk of recidivism) and “a complete absence of evidence” suggesting a lack of rehabilitation. 226 Or App 104. Given the evidence before the juvenile court, we cannot say that no court could find itself unpersuaded that youth was rehabilitated and no
longer presented a threat to public safety (even though other juvenile courts might have found, on the same record, that youth had been rehabilitated). To the contrary, a reasonable juvenile court could determine—as this one did—that the evidence did not demonstrate clearly and convincingly that youth was unlikely to reoffend, given the severity of his repeated sexual offenses against very young and vulnerable victims, his continued unlawful use of a drug that he had utilized in association with those offenses, and the fact that no evidence yet existed of how youth would perform when he no longer was being supervised.8 Accordingly, the juvenile court did not err when it ordered youth to report as a sex offender pursuant to
Affirmed.
Notes
“In determining whether the person has met the burden of proof, the juvenile court may consider but need not be limited to considering:
“(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;
“(j) The person‘s willingness to accept personal responsibility for the act and personal accountability for the consequences of the act;
“(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;
“(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;
“(r) The protection afforded the public by records of sex offender registration; and
“(s) Any other relevant factors.”