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FILED: May 25, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

In the Matter of the Application for Delayed Registration of Birth of
Jorge Garcia-Eusiquio.

NICOLAZA EUSIQUIO,

Petitioner-Appellant,

v.

STATE OF OREGON,
by and through the Department of Human Services,
Center for Health Statistics,

Respondent-Respondent.

Marion County Circuit Court
08C19393
A141109

En Banc

Dennis J. Graves, Judge.

Argued and submitted on March 31, 2010.

Brenda M. Bradley argued the cause for appellant. With her on the briefs were Janice R. Morgan and Legal Aid Services of Oregon.

Linda Wicks, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before Brewer, Chief Judge, and Haselton, Armstrong, Wollheim, Schuman, Ortega, Sercombe, Duncan, and Nakamoto, Judges, and Rosenblum, Senior Judge.

ORTEGA, J.

Reversed and remanded with instructions to enter judgment consistent with this opinion.

Armstrong, J., dissenting.

ORTEGA, J.

Petitioner appeals from a general judgment denying her petition for a court-ordered birth certificate for her minor son. ORS 432.142. On de novo review, we reverse and remand.

Petitioner, a resident of Washington State, alleges that she gave birth to her son in a migrant camp near North Plains, Oregon, on January 22, 2005. She testified that she lived at the migrant camp in North Plains with her cousin Rosaura Hernandez from November 2004 to February 2005. She asserted that she gave birth to her son while in Oregon, but that she never sought prenatal care or any medical care in Oregon after the birth. According to petitioner, due to an incident around the time of her oldest daughter's birth, she feared that her son's father would be arrested if authorities were informed that petitioner and the father had conceived another child. Petitioner testified that Hernandez was the only other person present at the birth and that Hernandez helped deliver the baby. She asserted that she never sought medical care in Oregon, that she "hardly ever" left Hernandez's house after the birth, and that she did not apply for a birth certificate at that time. Further, she admitted that she had no documentation that would verify that she was in Oregon at the time of her son's birth.

Hernandez also testified and corroborated petitioner's account. She acknowledged that she and petitioner were the only attendees to the birth and that she assisted with the delivery. Hernandez confirmed that, during petitioner's time in Oregon, petitioner rarely left the house because it was winter.

Petitioner applied to the State Registrar of the Center for Health Statistics of the Department of Human Services under ORS 432.140 for issuance of a delayed birth certificate. That statute provides, in relevant part:

"(1) When a certificate of birth of a person born in this state has not been filed within one year after the date of birth, a delayed certificate of birth may be filed in accordance with rules of the State Registrar * * *. No delayed certificate shall be registered until the evidentiary requirements as specified by rule have been met.

"* * * * *

"(4)(a) When an applicant does not submit the minimum documentation required by rule of the state registrar for delayed registration or when the state registrar has cause to question the validity or adequacy of the applicant's sworn statement or the documentary evidence, and if the deficiencies are not corrected, the state registrar shall not register the delayed certificate of birth and shall enter an order to that effect stating the reasons for the action. The state registrar shall advise the applicant of the right to appeal under ORS 183.480 to 183.484."

ORS 432.140. In accordance with the statute, the state registrar has promulgated rules that establish the minimum documentation required for issuance of a delayed birth certificate. See OAR 333-011-0043(4) - (11). In this case, the state registrar denied petitioner's application because the rule required petitioner to submit two pieces of documentary evidence in support of the delayed birth certificate, but petitioner submitted only one acceptable document, an affidavit in which she attested to her son's birth in Oregon.(1) OAR 333-011-0043(7) (requiring two pieces of documentary evidence when the application is filed within seven years of the birth date, only one of which can be an affidavit of personal knowledge). Petitioner then, as provided by ORS 432.142, filed the petition that is at issue on appeal.

ORS 432.142 provides the procedure for an applicant to seek a court-ordered birth certificate in the event that the state registrar has refused to issue a delayed birth certificate. We set out that statute in full because it is important to the discussion that follows.

"(1) If the [state registrar] refuses to file a delayed certificate of birth under the provisions of ORS 432.140, the applicant may file a signed and sworn petition with a court of competent jurisdiction seeking an order establishing a record of the date and place of birth and the parentage of the person whose birth is to be registered.

"(2) The petition shall be made on a form prescribed and furnished or approved by the state registrar and shall allege:

"(a) That the person for whom a delayed certificate of birth is sought was born in this state;

"(b) That no certificate of birth of the person can be found in the records of the Center for Health Statistics;

"(c) That diligent efforts by the petitioner have failed to obtain the evidence required in accordance with ORS 432.140 and rules adopted pursuant thereto;

"(d) That the state registrar has refused to file a delayed certificate of birth; and

"(e) Such other allegations as may be required under ORS 183.480 and 183.484.

"(3) The petition shall be accompanied by a statement made in accordance with ORS 432.140 and all documentary evidence which was submitted to the state registrar in support of the filing.

"(4) The court shall fix a time and place for hearing the petition and shall give the state registrar notice of the hearing. The state registrar or an authorized representative may appear and testify in the proceeding.

"(5) If the court finds, from the evidence presented, that the person for whom a delayed certificate of birth is sought was born in this state, it shall make findings as to the place and date of birth, parentage and such other findings as may be required and shall issue an order, on a form prescribed and furnished or approved by the state registrar, to establish a court-ordered certificate of birth. This order shall include the birth data to be registered, a description of the evidence presented and the date of the court's action.

"(6) The clerk of the court shall forward each order to the state registrar not later than the 10th day of the calendar month following the month in which it was entered. The order shall be registered by the state registrar and shall constitute the certificate of birth."

ORS 432.142.

In this case, the testimony of petitioner and Hernandez was the only evidence presented on petitioner's behalf at the hearing; the affidavits that she had submitted to the state registrar under ORS 432.140 were also attached to her petition to the court. At the start of the hearing, the state registrar took the position that if the court "believe[d that] the testimony of the witnesses is not determinative of the fact--the alleged fact of whether [petitioner's son] was born in the [S]tate of Oregon * * * we ask that you deny the delayed birth certificate." The court then asked the state registrar if the law allowed the court to grant the petition if it found that the "testimony is determinative of that fact[.]" The state registrar responded that the court could grant the relief requested if the court found the testimony sufficient to establish the facts at issue because the court's determination was subject to a "totality of the evidence standard." At the close of testimony, petitioner urged the court to grant the petition based on the testimony of the two witnesses, and because the state did not offer any contradictory evidence.

The court then filed a letter opinion denying the petition, but stated that the court would "be pleased" to review any additional corroborating evidence submitted by petitioner before judgment was entered. In its letter opinion, the court explained that, although this is an "unfortunate case," there is

"simply no evidence in the record to corroborate the testimony of [petitioner,] who has not lived in Oregon for more than 3 years. The court is certainly mindful of the need for a birth certificate for [son], but absent corroborating evidence, I do not find that [p]etitioner has met [her] burden of proof. * * * If there is additional evidence that can be presented, I would be pleased to review that."

Curiously, while no documentary evidence was submitted to corroborate petitioner's testimony, petitioner did produce corroborating testimonial evidence, and the court did not indicate any problems with that evidence. In all events, the court subsequently entered a general judgment denying the petition.

On appeal, petitioner assigns error to the trial court's ruling that she failed to meet her burden of proof because she lacked documentary evidence of her son's birth. In particular, she argues that the trial court misinterpreted ORS 432.142 because it denied her petition specifically because she lacked documentary evidence. That is, petitioner contends that the statute allows the court to enter a court-ordered birth certificate based solely on testimonial or other nondocumentary evidence, and the court erred as a matter of law by determining otherwise.

The state registrar takes issue with petitioner's characterization of the trial court's decision, maintaining that the letter opinion does not, as petitioner contends, require petitioner to present documentary evidence to qualify for a court-ordered delayed birth certificate under ORS 432.142.(2) Rather, the state registrar contends, the court's letter opinion simply recounts the types of evidence that petitioner did and did not present and indicates that, ultimately, the court was not persuaded by the evidence presented. That is, the decision was based on a failure of proof, rather than an incorrect interpretation of the statute.

Before we can reach the merits of this appeal, we must determine the source of our appellate jurisdiction because it dictates our standard of review. In her brief, petitioner asserts that she is appealing pursuant to ORS 183.500, which authorizes appeals from judicial review proceedings in a circuit court under the Administrative Procedures Act (APA). The state registrar cites ORS 19.205(5) as the source of our appellate jurisdiction. ORS 19.205(5) grants the right to appeal from a circuit court decision in any "special statutory proceeding." However, both parties merely reference the statutes in passing and, despite their apparent disagreement, they offer no argument on the issue.

A careful reading of the relevant statutes clarifies that the process set forth in ORS 432.142 is separate from any judicial review proceedings available under the APA. However, before we discuss the specific statute at issue in this case, we begin with some background and historical context of Oregon's vital statistics laws in general and the statutes addressing delayed birth certificates in particular.

In general, Oregon's vital statistics laws have closely tracked the provisions found in the Model State Vital Statistics Act (Model Act). The federal Bureau of the Census submitted the first Model Act in 1907 in an effort to bring some uniformity to national vital records and statistics. Alice M. Hetzel, National Center for Health Statistics, Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, U.S. Vital Statistics System Major Activities and Developments, 1950-95, 5 (1997). In an effort to continually improve the national vital statistics system and keep the Model Act current with "changing demands upon State vital records systems," the act was revised in 1941, 1959, 1977, and 1992. Id. at 6. After each such revision, the Oregon legislature has generally revised Oregon law to reflect those changes and to keep Oregon's system of issuing vital records and collecting vital statistics in conformity with the national standards. See Or Laws 1941, ch 130 (enacting comprehensive vital statistics statutes); Or Laws 1983, ch 709 (revising ORS chapter 432 to reflect changes from the 1977 Revision to the Model Act); Or Laws 1997, ch 783 (revising ORS chapter 432 to reflect changes from the 1992 Revision to the Model Act).

As for delayed birth certificates, the Oregon legislature enacted a series of laws from 1939 through 1943 that established a method for registering previously unrecorded births. Briefly, the legislature created a judicial procedure in 1939 whereby a person with an unregistered birth could file an application, supported by affidavits, with the county probate judge. Or Laws 1939, ch 165. The judge was required to examine the application, take testimony as needed, and then issue an order, if satisfied that the facts were as stated, to the state health officer to register the birth. Id.

In 1941, the legislature enacted a comprehensive rewrite of Oregon's vital statistics laws, which included a provision that stands as a precursor to ORS 432.140. Or Laws 1941, ch 130,