State ex rel. Juvenile Department v. Adams

DURHAM, J.,

dissenting.

The majority holds that the preliminary hearing required by ORS 109.560(1) may be, and was, waived by the minor’s request that the court grant a decree of emancipation “immediately.” I dissent, because both of those conclusions are incorrect.

*139 ORS 109.5601 requires both apreliminary and a final hearing on a minor’s application for emancipation. Subsection (1) requires the court to conduct the preliminary hearing within 10 days after the filing of the application for emancipation. Subsection (4) requires the court to advise the minor at the preliminary hearing of the minor’s criminal and civil rights and liabilities and to recite that advice in the decree of emancipation. Subsection (5) expressly authorizes a waiver of the final hearing, but the statute does not provide that the preliminary hearing may be waived.

The majority concludes that the absence of a provision authorizing waiver of the preliminary hearing renders the statute ambiguous. I disagree. We must construe the statute as a whole, relying primarily on its express terms. See McKean-Coffman v. Employment Div., 312 Or 543, 549, 824 P2d 410 (1992). The inclusion of a waiver provision concerning the final hearing and the omission of a waiver provision concerning the preliminary hearing is strong evidence that the legislature did not intend to authorize waiver of the preliminary hearing.

“Ordinarily, when the legislature includes an express provision in one statute, but omits such a provision in another statute, it may be inferred that such an omission was deliberate.” Oregon Business Planning Council v. LCDC, 290 Or 741, 749, 626 P2d 350 (1981).

*140 The purpose of the preliminary hearing also supports my conclusion. The majority is partially correct in stating that the purpose “is to make sure that the child understands what the emancipation petition is all about.” In addition, it is designed to make a record of the court’s oral advice to the minor at the hearing, to enable the court to file a decree of emancipation that recites the court’s advice and to add a desirable air of solemnity to the emancipation proceeding.

The legislature imposed the requirements for the protection, not only of the minor, but also of the persons or entities who might have business with the minor after emancipation. The preliminary hearing, record and decree requirements were designed not only to inform the minor of the consequences of emancipation, as the majority acknowledges, but also to foreclose an objection from anyone that the court did not fully apprise the minor of those consequences. The majority’s decision undermines the legislature’s intention, because it effectively eliminates those requirements.

The majority discounts the problems because, in its opinion, “the objectives of the hearing were satisfied” in this case.2114 Or App at 138. Even assuming that those objectives were satisfied, we cannot make the same assumption for future cases. However, the majority errs in suggesting that the legislature’s objectives were met. Contrary to ORS 109.560(1), no preliminary hearing occurred. The state invites us to assume that the court discussed the consequences of emancipation with the minor on June 18, 1990, during a hearing on another juvenile court petition. I accept that assumption only for the sake of argument, but that hearing occurred many weeks before the emancipation application was filed on August 6, not within 10 days of the filing. Although the court recited on this record that the consequences of emancipation “were discussed” at the earlier hearing, we have no record of that discussion. The decree of emancipation recites

*141 “[t]hat the minor, Kenneth Jay Adams, has been advised of the civil and criminal rights and liabilities of an emancipated minor * * (Emphasis supplied.)

Contrary to ORS 109.560(4), it does not recite the advice given. In short, neither the record nor the decree of emancipation fulfills statutory requirements.

Even assuming that a preliminary hearing can be waived, the majority errs in concluding that the minor waived it here. A waiver is an intentional relinquishment of a known right. Drews v. EBI Companies, 310 Or 134, 150, 795 P2d 531 (1990); see Moore v. Mutual of Enumclaw Ins. Co., 113 Or App 574, 833 P2d 1310 (1992). The minor and his parents filed a document that recited that they

“waive a final hearing in this emancipation proceeding and request that the court grant a decree of emancipation immediately.” (Emphasis supplied.)

That is not a waiver of the preliminary hearing; neither is anything else in the record. The court is not free to omit the preliminary hearing required by statute because the minor and his parents request that the court emancipate the minor immediately.

The minor sought to nullify the emancipation decree, because he was charged with crimes as an adult and desired the perceived advantages of juvenile court adjudication of those matters. I have no sympathy for that motive. However, he is correct that the emancipation procedure employed here violated ORS 109.560(1) and (4). Those requirements cannot be waived. They were promulgated for the protection of the public as well as of the minor. Emancipation is a status created by statute, and it can come into existence only after compliance with statutory requirements. Because they were not satisfied, the decree of emancipation was a nullity.

I dissent.

ORS 109.560 provides:

“(1) The juvenile court shall conduct a preliminary hearing on the minor’s application for emancipation within 10 days of the date on which it is filed. At the time of the preliminary hearing, the court may issue a temporary custody decree, stay any pending proceedings or enter any other temporary order appropriate to the circumstances. No action of the court pursuant to this subsection may be extended beyond the date set for a final hearing.

“(2) The final hearing shall be held no later than 60 days after the date on which the application is filed.

“(3) Notice to the parent or parents of the applicant shall be made pursuant to ORS 419.486.

“(4) At the preliminary hearing, the court shall advise the minor of the civil and criminal rights and civil and criminal liabilities of an emancipated minor. This advice shall be recited in the decree of emancipation.

“(5) The hearing mentioned in subsection (2) of this section may be waived by the minor and parent or parents.

“(6) A reasonable filing fee not to exceed $50 shall be set by the court for each application for emancipation.”

The majority does not explain why that is relevant to its analysis, which authorizes the minor to waive the preliminary hearing. If it is waived, no one has a duty to conduct it. Whether the minor and the court have substantially complied with a requirement that has been waived is irrelevant.