Lufkin v. DHS

“The general rule in Oregon is that, although waivers of constitutional and statutory rights may be expressed through contract terms, those terms must clearly indicate an intention to renounce a known privilege or power.” Assn. of Oregon Corrections Emp. v. State of Oregon, 353 OR 170, 183, 295 P3d 38 (2013) (internal quotation marks omitted).

Petitioners sought judicial review from a Department of Human Services (DHS) decision which determined that their right to appeal a Child and Adolescent Needs and Strengths (CANS) assessment was waived following an Adoptive Assistance (AA) Agreement providing a monthly adoption assistance award. DHS argued that, because the monthly award in the AA agreement was based in part on the CANS assessment, Petitioners waived their right to appeal the CANS assessment; additionally, DHS argued that the communication between the parties evidenced a further waiver of that right. Petitioners maintained that the AA Agreement did not contain any explicit waiver of their right to appeal. “The general rule in Oregon is that, although waivers of constitutional and statutory rights may be expressed through contract terms, those terms must clearly indicate an intention to renounce a known privilege or power.” Assn. of Oregon Corrections Emp. v. State of Oregon, 353 OR 170, 183, 295 P3d 38 (2013) (internal quotation marks omitted). The Court held that, because the AA Agreement did not contain an explicit waiver of Petitioners’ right to appeal the CANS assessment, that right was not in fact waived. Reversed and remanded.