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Attorney(S)

Clifford B. Alterman, Portland, argued the cause for appellants. On the briefs were Kell Alterman, Portland. Charles S. Evans, Deputy District Attorney, Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, District Attorney, Portland.

Judges

DENECKE, J.

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Smart Summary

Case Summary: In the Matter of Deena Marie Hoppe

Factual and Procedural Background

The Juvenile Court of Multnomah County adjudicated Deena Marie Hoppe, a 10‑year‑old part‑Klamath Indian child, a ward of the court, placed her temporarily in the home of Mr. and Mrs. Calvin Jones under court supervision, and directed that parental visitation be under the sole direction of a court counselor. The mother, Ida Belle Hoppe, and Edith and William Walker (maternal aunt and uncle) appealed. The father, Merrill Hoppe, and the Joneses were also parties below. Deena had lived with the Joneses in Sandy for approximately two years after the Joneses asked Mrs. Hoppe in August 1961 to allow Deena to live with them (Mrs. Hoppe agreed and offered $50 monthly).

In 1963 petitions under ORS 419.482 alleged that on January 4, 1963, while visiting her divorced parents at the mother's Portland home both parents were drinking and fighting, causing Deena to seek refuge at a neighbor's house; police were called and arrested Mrs. Hoppe for public intoxication. The house was described as in disarray with little food and nearly 100 whiskey bottles on the back porch. After a hearing the juvenile court entered the orders described above. The Oregon Supreme Court affirmed the juvenile court's ruling.

Legal Issues Presented

Whether ORS 419.480 (requiring a juvenile proceeding to be commenced in the county where the child resides or is found) is a jurisdictional statute barring the Multnomah Juvenile Court from proceeding where the child allegedly resided elsewhere, or instead a venue statute subject to waiver.
Whether the conditions authorizing juvenile court jurisdiction under ORS 419.476(1)(e) (abandonment, failure to provide support, cruelty or failure to provide necessary care, guidance or protection) were proved in the circumstances shown.
Whether the juvenile court abused its discretion in placing Deena with the Joneses rather than with her maternal aunt and uncle (the Walkers), and in directing that parental visitation be supervised by a court counselor.

Arguments of the Parties

Appellants' Arguments

The Multnomah Juvenile Court lacked jurisdiction because Deena resided with the Joneses in Clackamas County and thus venue (or jurisdiction) was improper under ORS 419.480.
The juvenile court could not exercise jurisdiction under ORS 419.476(1)(e) because Deena was being adequately cared for by the Joneses and the statutory conditions for court intervention were not proved.
The court erred in placing Deena with nonrelatives (the Joneses) instead of with her maternal aunt and uncle (the Walkers).
The court erred in directing that parental visitation be under the sole direction of a counselor of the court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mutzig v. Hope, 176 Or. 368, 386, 158 P.2d 110 (1945)	Authority that failure to object to venue in the juvenile court waives the venue objection.	Applied to hold that ORS 419.480 is a venue statute and appellants waived their venue objection by not objecting at the juvenile hearing.
State v. Young, 180 Or. 187, 174 P.2d 189 (1947)	Illustrates a petition deficiency: the petition did not allege the child was in the care of defendants when the alleged neglect occurred.	Distinguished: in the present case the child was in the physical care of her parents at the time of the neglect alleged in the petition.
Sneed v. Sneed, 230 Or. 13, 368 P.2d 334 (1962)	Reiterates that juvenile court cannot assume jurisdiction under ORS 419.476(1) unless the person having actual physical custody has neglected the child.	Applied to explain the requirement of neglect by the person having actual physical custody; court found that requirement satisfied here because the parents had physical custody when the neglect occurred.
Parmele v. Mathews, 233 Or. 616, 379 P.2d 869 (1963)	Example of cases addressing parental custody rights versus those of strangers or the state.	Distinguished: court explained this case turned on the child's welfare, and relatives' preference does not override welfare considerations.
Chandler v. State, 230 Or. 452, 370 P.2d 626 (1962)	Another example concerning parental custody rights against strangers or the state.	Distinguished for the same reason as Parmele; court emphasized child welfare as controlling factor.
Crowell v. Crowell, 184 Or. 467, 198 P.2d 992 (1948)	Authority affirming a trial court's order denying visitation when that denial is in the child's best interest.	Cited to support the juvenile court's limitation of parental visitation (the opinion notes prior affirmances where visitation was denied in the child's best interest).

Court's Reasoning and Analysis

The court proceeded in distinct analytical steps:

Venue versus jurisdiction: The court held ORS 419.480 (the requirement that a juvenile proceeding be commenced in the county where the child "resides or is found") is a statute of venue rather than one of jurisdiction. Because appellants did not object to venue at the hearing below, that objection was waived. The court reinforced this characterization by reference to the juvenile transfer statutes (ORS 419.545 and 419.557), which provide mechanisms for transferring proceedings between counties and thereby manifest that the statutory scheme contemplates venue flexibility and waiver if not timely raised.
Statutory grounds for jurisdiction under ORS 419.476(1)(e): The court examined the allegations and evidence (parents drinking and fighting while Deena visited the mother's home; the police arrest of the mother for intoxication; the home's state of disarray and scarcity of food; testimony that the mother had recently mistreated Deena by grabbing her hair). The court distinguished prior cases in which petitions failed to allege neglect by the person having actual custody (citing State v. Young and Sneed v. Sneed). Here, because the parents had actual physical custody when the neglect occurred and additional testimony supported a pattern of parental neglect and mistreatment, the court concluded the statutory conditions for juvenile jurisdiction under ORS 419.476(1)(e) were satisfied.
Placement and visitation decisions: In choosing to place Deena with the Joneses rather than with relatives (the Walkers), the court emphasized the welfare of the child as the controlling consideration. It noted Deena had lived with the Joneses for about two years and attended school there; although the Walkers could provide a stable home, the presence of the mother in that household would not be in Deena's interest. Regarding visitation, the court found the mother's history provided adequate grounds for supervised visitation under a court counselor's direction, and it observed precedent affirming complete denial of visitation where that is in the child's best interest.

Holding and Implications

Affirmed. The Oregon Supreme Court affirmed the juvenile court's order making Deena a ward of the court, placing her temporarily with Mr. and Mrs. Calvin Jones under court supervision, and directing that parental visitation be under the sole direction of a court counselor.

Implications: The direct effect is that the juvenile court's determinations and placement/visitation orders remain in force as to the parties. The opinion treats ORS 419.480 as a venue statute subject to waiver and confirms that juvenile jurisdiction under ORS 419.476(1)(e) requires proof of neglect by the person having actual physical custody; it applied those principles to the facts at hand. The opinion does not announce or purport to establish a new broad precedent beyond applying and distinguishing existing authorities to the case's particular facts.

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IN THE MATTER OF DEENA MARIE HOPPE, A CHILD. STATE OF OREGON v. HOPPE ET AL

DENECKE, J.

The Juvenile Court of Multnomah County ordered that Deena Marie Hoppe be made a ward of the court, that she be placed temporarily in the home of Mr. and Mrs. Calvin Jones under supervision of the court, and that the visitation rights of the mother and father be under the sole direction of a counselor of the court.

Deena is a 10-year-old part-Klamath Indian girl. Her mother, Ida Belle Hoppe, a Klamath Indian, and Edith and William Walker, Deena's maternal aunt and uncle, have appealed. Merrill Hoppe, Deena's father and Mrs. Hoppe's ex-husband, was also a party. Mr. and Mrs. Hoppe were divorced in 1953, but frequently thereafter they lived together. In the divorce, custody of Deena was awarded to Ida Hoppe. Mr. and Mrs. Calvin Jones, Deena's foster parents, were also parties to the proceeding.

During the two years preceding this case, Deena had been living in Sandy, Oregon, with Mr. and Mrs. Jones, former Portland neighbors of Mrs. Hoppe. Prior to August, 1961, Mrs. Hoppe had frequently hired Mrs. Jones to baby-sit for Deena, but in August, 1961, Mr. and Mrs. Jones moved to Sandy, Oregon, and then asked Mrs. Hoppe to allow Deena to live with them. Mrs. Hoppe agreed and offered to pay $50 a month for Deena's care.

In 1963 petitions were filed pursuant to ORS 419.482 alleging that Deena was within the jurisdiction of the court and praying for an investigation and disposition by the court. The petitions alleged that on January 4, 1963, Deena was visiting her divorced parents at her mother's house in Portland. Both parents were drinking and fighting in the home, causing Deena to run to a neighbor's home. The police were called and subsequently arrested Mrs. Hoppe as drunk on the street. The police found the house in a state of disarray with little food and no milk in the refrigerator and nearly 100 whiskey bottles on the back porch.

A hearing was held on the petition and the court made the order above stated.

The appellants urge that the court erred in declaring the child a ward of the court. They contend the Multnomah Juvenile Court had no jurisdiction because the child did not reside in the county. ORS 419.480 provides:

"A juvenile proceeding shall be commenced in the county in which the child resides or is found. The proceeding is transferable as provided in ORS 419.545 to 419.557."

Appellants argue that the child resided with the Joneses in Clackamas County; therefore, the Multnomah Court had no jurisdiction. It could be determined that, regardless of where the child "resided," she was "found" in Multnomah County and, therefore, that the court had jurisdiction. However, we base our decision on the ground that ORS 419.480 is a venue, not a jurisdictional, statute. At the hearing below the appellants did not object to the court's considering the matter; therefore, the objection to venue is waived. Mutzig v. Hope, 176 Or. 368, 386, 158 P.2d 110 (1945).

The decision that the above statute is one of venue is bolstered by a consideration of the transfer statutes of the juvenile laws. ORS 419.545 provides that if it is determined that the child resides in a county other than the one in which the proceeding is pending the case shall be transferred to the county of residence unless both the juvenile courts involved agree to the contrary. Other grounds are stated which would permit the proceeding to continue in the county in which it was initially brought. ORS 419.545, 419.557 create flexibility between the various juvenile courts and are clearly venue provisions. They are waived if not brought to the attention of the juvenile court.

The mother and the uncle and aunt also claim the court erred in declaring Deena a ward because conditions for the exercise of the court's jurisdiction under ORS 419.476(1) (e) were not proved. ORS 419.476 provides:

"(1) The juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and:

"* * * * *

"(e) Either his parents or any other person having his custody have abandoned him, failed to provide him with the support or education required by law, subjected him to cruelty or depravity or failed to provide him with the care, guidance and protection necessary for his physical, mental or emotional well-being; * * *."

The appellants contend that Deena was adequately cared for by Mr. and Mrs. Jones and, therefore, the juvenile court had no basis upon which to exercise jurisdiction. Defendant cites, among others, State v. Young, 180 Or. 187, 174 P.2d 189 (1947).

In State v. Young, supra, we stated:

"The petition does not allege that when the alleged neglect occurred, or at any time the child in question * * * was in the care of defendants or either of them." ( 180 Or at 193)

That fact is not true in this case and its absence distinguishes the relevant cases cited from this case. In Sneed v. Sneed, 230 Or. 13, 368 P.2d 334 (1962), this court reiterated:

"* * * the [juvenile] court cannot assume jurisdiction of a child, pursuant to the above statute [ORS 419.476(1)], unless the person having the actual physical custody of the child, even though a stranger to the child, has neglected the child. * * *" ( 230 Or at 17)

In this case the child was in the actual physical care of its parents when the blatant incident of parental neglect related in the petitions occurred. In addition to the proof of the facts alleged in the petition, there was testimony that on the same weekend Mrs. Hoppe had mistreated Deena by grabbing her hair and "jerking her around."

The conduct referred to in the petitions was no isolated incident. Mrs. Jones testified:

"* * * the reason I wanted Deena so much to come out with me was because at that time [prior to Deena going to live with the Joneses] Ida [Mrs. Hoppe] was drinking and there were times in the middle of the night that Deena would call our house. We would calm her down and tell her to quiet down and go back to bed, or my husband would go over and talk to her and bring her over to our house in the night. * * *"

Appellants also contend the juvenile court erred in placing Deena with the Joneses rather than with her aunt and uncle, the Walkers, and in directing that all visitation of the parents be under the direction of a counselor of the court.

It was conceded that the mother should not have custody. In ordering Deena to remain with the Joneses the court noted Deena had been there for about two years and had been attending school there. The court stated that the Walkers would provide a stable home but that, if Deena were placed there, Mrs. Hoppe would be there, creating a situation which would not be in Deena's interest.

This is not the case of a parent's right to custody versus that of a stranger or the desires of the state, as in Parmele v. Mathews, 233 Or. 616, 379 P.2d 869 (1963), or Chandler v. State, 230 Or. 452, 370 P.2d 626 (1962). Relatives do have some preference over strangers, but the controlling consideration is the welfare of the child. The record amply demonstrates that the juvenile court had good reason to place the child with the Joneses.

With reference to visitation, the mother's history provides the grounds for the court's placing her visits under the counselor's direction. It is conceded the mother was not the proper person to have custody of the child; for the same reasons the mother's temporary contacts with her child should be controlled. When it was deemed to be in the child's best interest to deny any visitation privileges to the father we have affirmed the trial court's order completely denying visitation. Crowell v. Crowell, 184 Or. 467, 198 P.2d 992 (1948).

Affirmed.

STATE v. HOPPE