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In re A.P.

Court of Appeals of Oregon

April 23, 2014

In the Matter of A. P., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
S. C. P., Appellant. In the Matter of J. G., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
S. C. P., Appellant

Argued and Submitted January 2, 2014.

Clackamas County Circuit Court. 110449J, Petition Number 110449J02. Clackamas County Circuit Court. 110450J, Petition Number 110450J02. Jeffrey S. Jones, Judge.

Megan L Jacquot argued the cause and filed the brief for appellant.

Judy C. Lucas, 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 Ortega, Presiding Judge, and Duncan, Judge, and DeVore, Judge.

OPINION

Page 634

[262 Or.App. 375] ORTEGA, P. J.

Mother appeals, challenging the juvenile court's denial of her motion to set aside her relinquishments of parental rights to her two children.[1] She contends that she signed the relinquishments under duress and that the juvenile court erred when it denied her motion, failed to appoint new counsel, and did not allow mother to present testimony on the issue of duress. We do not reach the merits of mother's motion to set aside the relinquishments because we conclude that the court's findings in support of its denial of the motion were based, in large part, on testimony by mother provided to the court without the assistance of counsel, which violated her due process right to a fundamentally fair hearing. Accordingly, we vacate and remand for further proceedings.

The relevant undisputed facts are largely procedural. In 2011, the juvenile court took jurisdiction over mother's two children pursuant to ORS 419B.100. The children, who were then three and five years old and who have special developmental and medical needs, were placed in foster care. On September 25, 2012, mother, represented by counsel, appeared for a hearing regarding the termination of her parental rights. At that point in time, the Department of Human Services (DHS) had identified the foster parents as the adoptive placement for children. The foster parents and children's attorney were present at the September 2012 hearing.

The court took some time at the outset to inform mother of how the trial would proceed, what her rights were, and what factors regarding parental rights the court would consider. The court emphasized that it would also consider the overall question of what was in the best interests of the children and recounted a recent case where it had found that the content of psychological evaluations and the fact that children had special needs to be particularly important factors when it determined parental rights. The court announced that it would break and allow mother to talk with her attorney and the state's attorney for as long as she wanted. Before the break, the court also told mother that her attorney had been involved in many trials and was " very experienced."

[262 Or.App. 376] During the break, mother went into the jury room with her attorney, the state's attorney representing DHS, the DHS caseworker, the Court Appointed Special Advocate (CASA) for children, and children's attorney, and ultimately signed a relinquishment of her parental rights along with a certificate of irrevocability for both children. The state's attorney informed the court that the state would dismiss the termination petition. She added that she

" wanted to let the Court know that the State of Oregon certainly recognizes and commends * * * mother for the thought process. She was very careful in making her decision. Given her past history, this was a very difficult decision for her. And it's not one that I think she took lightly today."

Mother's attorney agreed, saying that he " would thank the State and [children's attorney] for getting involved and maybe explaining in a ...


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