In the Matter of A. H., aka A. R., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Appellant, and A. H., aka A. R., Appellant,
M. H. and B. R., aka B. J. B., Respondents
Argued and Submitted: June 10, 2014.
Josephine County Circuit Court. 100089J. Petition Numbers 100089J02, 100089J03. Michael Newman, Judge.
Inge D. Wells, Senior Assistant Attorney General, argued the cause for appellant Department of Human Services. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Holly Telerant, Deputy Public Defender, argued the cause for respondent M. H. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
George W. Kelly filed the brief for appellant A. H.
Christina Obold-Eshleman filed the brief for respondent B. R.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[266 Or.App. 363] EGAN, J.
In this dependency case, the Department of Human Services (DHS) and child, A, appeal a judgment that set aside earlier judgments terminating mother's and father's parental rights (TPR judgments). We conclude that the juvenile court did not abuse its discretion by setting aside the TPR judgments, and, therefore, we affirm.
We begin by recapping the lengthy procedural history of the case. A, now four years old, has been in DHS custody and substitute care since she was two days old. The juvenile court took jurisdiction over A several months after her birth, in September 2010. In July 2011, the juvenile court entered a permanency judgment changing A's permanency plan from reunification to adoption. Both parents appealed from that permanency judgment, and we affirmed without opinion. Dept. of Human Services v. B.R., 247 Or.App. 766, 274 P.3d 315, rev den, 351 Or. 678, 278 P.3d 18 (mother's petition), and rev den, 351 Or. 761, 280 P.3d 393 (father's petition) (2012). DHS filed petitions to terminate mother's and father's parental rights in August 2011. Approximately one year later, in August 2012, the court held the annual permanency hearing required by ORS 419B.470(6) and entered a permanency judgment continuing the permanency plan of adoption for A. Both parents appealed from that judgment, see Dept. of Human Services v. M. H., 258 Or.App. 83, 308 P.3d 311 (2013).
The juvenile court subsequently held a 12-day termination trial, after which the juvenile court terminated both parents' parental rights and entered judgments to that effect in March 2013. Both parents appealed from the TPR judgments.
Approximately five months later, we issued M. H. In that appeal, DHS conceded that the court had erred in failing to include the " compelling reasons" findings required by ORS 419B.476(5)(d) and ORS 419B.498(2)(b). M. H., 258 Or.App. at 88. However, DHS argued that that error was harmless because those findings " are relevant only to when [266 Or.App. 364] the adoption and termination proceedings should occur" and the termination proceedings had already occurred. We concluded that the error was not harmless because " [a]doption and termination proceedings cannot occur until there is a necessary predicate permanency judgment." M. H., 258 Or.App. at 89 (emphasis in original). We further noted that,
" [h]ad the juvenile court rendered * * * a [predicate permanency] judgment, complete with findings relevant to the timing of adoption and termination proceedings, those [termination and adoption] proceedings might have been deferred, giving parents more of an opportunity to demonstrate their progress. That demonstration, in turn, could have had an effect on the outcome of the adoption and termination proceedings."
Id. Thus, we reversed and remanded the second permanency judgment as to A. Both parents then moved, under ORS 419B.923, to set aside the TPR judgments, and we held the parents' appeal of the TPR judgments in abeyance pending resolution of that motion.
After a hearing in December 2013, the juvenile court granted the parents' motions to set aside the TPR judgments. In doing so, the juvenile court noted, based on our decision in M. H., that " you can't proceed with a termination case when you have an invalid permanency judgment[.]" The juvenile court rejected DHS's argument that it could rely on the first permanency judgment entered by the court. DHS and A appealed. That appeal of the court's order vacating the TPR judgments is now before us.
On appeal, we review the legal questions presented by the parties, underlying the trial court's ruling setting aside a judgment pursuant to ORS 419B.923 for legal
error. Dept. of Human Services v. A. D. G., 260 Or.App. 525, 534, 540, ...