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In re N. D. A. M.

Court of Appeals of Oregon

January 2, 2014

In the Matter of N. D. A. M., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
A. D. G., aka A. D. S. Appellant. In the Matter of G. A. M., Jr., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
A. D. G., aka A. D. S., Appellant.

Argued and submitted on October 11, 2013.

Douglas County Circuit Court Nos.1000185, 1100376 Ronald Poole, Judge, Petition Nos.12JU130TPR, 12JU193TPR

Shannon Storey, Senior Deputy Public Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Valerie Colas, Deputy Public Defender, Office of Public Defense Services.

Inge D. Wells, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and De Muniz, Senior Judge.

NAKAMOTO, J.

Mother appeals from the juvenile court's order denying her motion to set aside its default judgment terminating her parental rights to her two children. For the reasons that follow, we conclude that the court abused its discretion in denying mother's motion, and we reverse and remand to the court for further proceedings.

I. PROCEDURAL HISTORY

The relevant facts are procedural and not in dispute. The procedural history has three major components: (1) the termination proceedings for the children ending in a default judgment, (2) mother's attempted appeal of that judgment, which we dismissed, and (3) mother's resultant motion to set aside the judgment, which the juvenile court denied, leading to this appeal.

A. The termination petitions and default judgment

The Department of Human Services (DHS) initiated termination of parental rights (TPR) proceedings for mother's two children in two separate cases on two different schedules. DHS filed a petition to terminate mother's parental rights to N in May 2012. In June, mother was served with the petition regarding N, along with a summons ordering mother to personally appear on July 24, 2012 "and at any subsequent court-ordered hearing" to "admit or deny the allegations of the petition" regarding N. In July, DHS filed a second petition to terminate mother's parental rights to G. Later that month, mother was served with the petition as to G, as well as the same form of summons, but that one ordered her to appear on August 28.

Mother did not appear as summoned on July 24, the initial appearance in N's case. Accordingly, DHS stated that it intended to move for default, and the court scheduled a TPR prima facie hearing for September 10, 2012. DHS served its motion for a default order as to N on mother's court-appointed attorney. The court granted the motion and entered an order of default in N's case in late July.

Mother did appear on August 28, the initial appearance in G's case. Mother denied the allegations contained in the petition, informed the court that she no longer wanted to be represented by her court-appointed counsel, and stated that she was in the process of retaining an attorney named Megan Shift who, according to mother, had agreed to represent her. The court informed mother that retained counsel would need to file a notice of appearance within 10 days. The court then scheduled the TPR trial regarding G for December 18, 2012.

DHS then moved for an order postponing the September 10 prima facie hearing regarding N to allow any private counsel mother retained to timely file an appearance. The court granted the motion and reset the hearing for October 8, 2012. Next, later in September, DHS moved and the juvenile court agreed to consolidate N's and G's cases. At the same time, the court again changed the date of the prima facie hearing regarding N, setting it on December 18, the same date of the previously scheduled TPR trial regarding G.

DHS also subpoenaed mother to appear at the hearing scheduled in late September for N's father's initial appearance. Father did not appear, but mother did. DHS stated that it had subpoenaed mother due to its concern that she would appear at trial without counsel and ask for a continuance. Mother assured the court that she had raised half of the money needed to retain Shift and that she anticipated raising the remainder "[h]opefully by next month." Mother declined the court's invitation to accept a court-appointed lawyer. The court then directed mother to appear on October 23 to update the court on her progress and cautioned mother that she needed representation.

On October 23, however, mother failed to appear, and DHS requested that the court find mother in default. DHS argued that, by statute, if parents fail to "appear as ordered in all appearances in a termination case they can be found in default." The attorney for the children agreed and suggested that the court set the prima facie hearing for both G and N on December 18, because mother had notice of that trial date for G's case. DHS then added that, although at the September hearing, mother "had indicated she was hiring Megan Shift who was an attorney out of Salem[, ] [a]ccording to the Bar Journal there is no one that's even remotely along those lines with that name in the State of Oregon[.]" The court then ordered that the December 18 proceeding would serve as the prima facie hearing for both children. Thereafter, the court entered a default order against mother in G's case based on her failure to appear at the status hearing on October 23.

More than two weeks later, on November 8, mother submitted a letter to the court requesting a postponement of the December 18 proceeding until February 2013. She told the court that she needed to raise additional money to retain counsel. DHS submitted a written objection, arguing that mother had not filed a notice of representation and that there was not good cause to allow a continuance.

The court denied mother's motion by issuing a notice on December 5 indicating that the prima facie hearing remained scheduled for December 18. Under the caption "Additional Information, " the notice read, in part, "As to Mother & Mother's Motion to Postpone Trial." The notice also stated, "Failure to appear at the [December 18 hearing] may result in an order being rendered against you in this case."

Mother appeared in court on December 18. The juvenile court told mother that, because she had failed to appear at a hearing in each of her two cases, the court had entered an order of default against her in both cases. The court also informed mother that, "[w]hen a person is served and they don't make an appearance, then an order of default is entered. So long as that order of default stands, then the person is not entitled to be heard in future proceedings[.]" Mother protested, "Even though I wasn't notified by the Court until the (inaudible)" and "(Inaudible) completed everything." The court then acknowledged that mother had appeared for the first appearance in G's case but explained that DHS was entitled to a default order. Apparently addressing mother's concern about the denial of her requested continuance, the court stated to mother:

"Now, while I was gone you wrote a letter requesting that the trial--I'm not sure exactly if you were--be continued and that's what the state objected to, but the truth of the matter is if I had been here and somebody had shown me this letter * * * I would have said mother is in default so, so long as that order of default stands, she's not entitled to a trial anyway."

The court continued, "[t]here's a lot of confusion here and you're representing yourself and you're here and basically they are entitled today, if they choose to, to go ahead without you." Mother then declined an invitation from the court to accept court-appointed counsel, stating that she still intended to retain private counsel. The court acknowledged that mother was "entitled to do that, " but warned mother that, "by the time that lawyer gets involved other things are going to happen and that's the reality * * *." The court then informed mother that she had to "keep back in the audience[, ]" and invited DHS to begin its prima facie case.

As the hearing continued, DHS clarified for the court that DHS was proceeding against both mother and father, stating that "one of the confusing things about this, your Honor, has been a problem[, ] is the two cases, unfortunately, were not tracking each other for [G] and [N] * * *." A short while later, during DHS's examination of mother's caseworker, the following colloquy occurred:

"[DHS]: Your honor, could you please request [mother] to quit laughing and making comments in court.
"THE COURT: I heard the laugh. I didn't hear the comment.
"[MOTHER]: (Inaudible) I'm sorry.
"THE COURT: Here's your options. Your option is to be quiet like anybody else does in a courtroom or to leave.
"[MOTHER]: (Inaudible) stand. I have nothing--
"THE COURT: Ma'am. Ma'am. [Your] options are to be quiet or to leave.
"[MOTHER]: (Inaudible).
"THE COURT: Thank you.
"[MOTHER]: (Inaudible).
"THE COURT: Leave. Go. Go. Go ahead."

Following mother's departure from the courtroom, the attorney for the children cross-examined the lone witness, DHS completed its presentation of evidence, and the hearing was adjourned.

On the court's "Journal Entry" for the day, under the heading "Appearances, " the court listed the names of the assistant attorney general who argued the case on behalf of DHS, the DHS caseworker who testified, the attorney appearing on behalf of the children, and mother. Below that list, under the heading "Notes, " the Journal Entry contained the annotation, "Mother is not a party." The court entered a judgment terminating mother's parental rights to both children the same day. The judgment stated that "[m]other ...


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