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In re M. L.

Court of Appeals of Oregon

March 4, 2015

In the Matter of M. L., a Child.
T. L., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, In the Matter of R. L., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
T. L., Appellant. In the Matter of T. L., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
T. L., Appellant

Argued and Submitted April 4, 2014.

Clackamas County Circuit Court. 110440J, 110441J, 110442J. Douglas V. Van Dyk, Judge.

Holly Telerant, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Erin K. Galli, 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 Egan, Judge.


Page 1124

[269 Or.App. 456] ARMSTRONG, P. J.

In this consolidated appeal, father appeals judgments changing the permanency plans for his three children.[1] Following a permanency hearing in which father's counsel did not appear, the juvenile court changed the plan for father's oldest child from reunification to " another planned permanent living arrangement" (APPLA) and changed the plans for father's two younger children from reunification to guardianship. The substance of father's challenge on appeal is that his counsel's failure to appear at the permanency hearing constituted inadequate assistance of counsel under State ex rel Juv. Dept. v. Geist, 310 Or. 176, 796 P.2d 1193 (1990) (Geist), requiring reversal of the judgments--an argument that father makes for the first time on appeal. The Department of Human Services (DHS) responds that we should decline to consider that challenge " because father had the option of raising that complaint to the trial court and that court is the more appropriate forum to resolve such challenges." We agree with DHS. ORS 419B.923 provides a trial-level mechanism to set aside judgments in dependency cases, and, because that remedy is available to challenge the adequacy of dependency counsel, Geist is inapplicable. Because father did not preserve his claim of inadequate assistance of counsel in this case, we do not consider it. For that reason, we affirm.

In March 2013, the juvenile court took jurisdiction over mother and father's three children--then ages 8, 12, and 14--based, as to father, on father's stipulation that his use of alcohol and controlled substances interferes with his ability to provide safe, appropriate, and consistent care for the children.[2] Father was ordered to participate in services. Neither parent appeared at the first review hearing on June 5, 2013, though their attorneys were present. The court scheduled a permanency hearing for August 29 to determine whether the permanency plans for the children should be changed from reunification to other plans. Father [269 Or.App. 457] and mother failed to appear at the start of that hearing, and father's attorney also failed to appear. Attorneys for DHS, the children, and mother

Page 1125

were present. The court tried, unsuccessfully, to contact father's attorney and waited 12 minutes before beginning the hearing, noting that it was " very unusual" for father's attorney not to be present. The court then proceeded with the hearing and, after taking evidence and hearing argument (including from children's appointed counsel, who advocated in favor of changing the plans), decided to change the permanency plan for the oldest child, R, to APPLA and to change the plans for the younger children, M and T, to guardianship.

At that point, father and mother arrived, and the court informed them of its decision to change the permanency plans. The court explained:

" This is a legal juncture of significance, but by no means is it the end. As I said the last time, if there was not progress by today, this would be a short hearing. There hasn't been. I don't want anybody to feel bad. I'm not up here to kick people around. Ours is not a punishment oriented system. It is about getting kids back to their parents.
" But if they are unable to distance themselves from things that are risky to kids, like drug use and the like, then the kids are entitled to a safe, permanent home. They are entitled to that sooner, not later. Now, every kid is entitled to that. That's the assumption that the law makes. These decisions are designed to accomplish that.
" The point here for the parents, [mother and father], you can change the circumstance now. I just decided that we were going to keep this hearing on for October. That's because the plan could change back at that next hearing, if you can embrace recovery and put yourself in the position to be a safe parent. You don't have to have it all accomplished by October. But if you could get yourselves into treatment and embrace recovery, then there is the potential that the plan could change back in October."

The discussion that followed was, in large part, devoted to the court's concern about R, who had run away from foster [269 Or.App. 458] care and was, apparently, living on the streets.[3] During the course of that conversation, father told the court--in an unsworn statement--that he " was under the impression that [he] was doing what DHS was requesting of [him]." He stated that he " went through Tigard Detox," was " enrolled in Clackamas County Behavioral Health Program," and had had clean urinalyses. He also indicated that he had, the day before the hearing, dropped off a release to DHS. Father did not say anything about the absence of his attorney at the hearing; nor did he indicate to the court that he was opposed to the change in permanency plans for the children.

The court subsequently entered permanency judgments consistent with its decision at the hearing. Father did not move to set aside the judgments. See ORS 419B.923 (set out below at 269 Or.App. at 460-61).

On appeal, father seeks to have those judgments reversed. He purports to assert nine separate assignments of error; however, he presents a single combined argument in which he contends that, because his counsel failed to appear at the permanency hearing, he received inadequate assistance of counsel, was consequently denied a fundamentally fair hearing, and, under Geist, is entitled to reversal of the permanency judgments.[4] Father acknowledges that he failed to preserve that argument, but contends, quoting Geist, 310 Or. at 184 n 9, that he is " not required to have preserved his claim because 'the general rule that appellate courts will only consider error that has been preserved at trial need not be strictly applied to the issue of appointed counsel's adequacy

Page 1126

in a parental rights termination proceeding.'" We disagree. A close reading of Geist, in light of the enactment of ORS 419B.923 and our cases construing that statute, leads to the conclusion that, as the state contends, father's claim [269 Or.App. 459] as to the inadequacy of his appointed trial counsel must be made in the first instance in the juvenile court.

We begin with Geist. Geist involved the reviewability on direct appeal of a judgment terminating the mother's parental rights. The Supreme Court held that the statutory right to counsel for indigent parents in termination cases included the right to adequate counsel, and that, " [a]bsent an express legislative procedure for vindicating the statutory right to adequate counsel, this court may fashion an appropriate procedure." 310 Or. at 185 (emphasis added). Emphasizing the importance of finality in termination cases, the court noted that " a procedure that allows a terminated parent to make a claim of inadequate counsel only after all direct statutory appeals have been exhausted would only further delay the finality of the termination decisions." Id. at 187. Because of that concern and in the absence of statutes prohibiting it, the court concluded that challenges to the adequacy of appointed trial counsel in termination proceedings were reviewable on direct appeal, notwithstanding the lack of preservation. Id. at 184 n 9 (noting that, " [b]ecause of the important timeliness considerations," the general rule that appellate courts will not consider error that has not been preserved at trial " need not be strictly applied to the issue of appointed trial counsel's adequacy in a parental rights termination proceeding" ). The court also determined that the standard of adequacy required was one that ensured " fundamental fairness" and that the parent making the challenge has the burden of proving that that standard has not been satisfied. Id. at 191.[5]

[269 Or.App. 460] The following year, we extended the reasoning in Geist to allow direct review of appointed counsel's performance in the context of other dependency proceedings. State ex rel Juv. Dept. v. Charles/Austin, 106 Or.App. 628, 810 P.2d 389, rev den, 312 Or. 150, 817 P.2d 758 (1991) (allowing inadequate-assistance-of-counsel claim in appeal of jurisdictional judgment). Those cases provide the foundation for father's argument that we can properly consider unpreserved claims of inadequate assistance of counsel on direct review of juvenile dependency judgments.

The problem with father's reasoning, however, is that the legal landscape has changed significantly--and dispositively--in the almost 25 years since Geist was decided.

As just discussed, a primary rationale for the court's decision in Geist was the absence of a " legislative procedure for vindicating the statutory right to adequate counsel." 310 Or. at 185; see also id. (" The statutory right to adequate trial counsel may prove illusory if there is no procedure for review of claims of inadequate counsel." (Footnote omitted.)). However, in 2001, the legislature enacted ORS 419B.923, which provides:

" (1) Except as otherwise provided in this section, on motion and such notice and hearing as the court may direct, the court may modify or set aside any order or judgment made by it. Reasons for modifying or setting aside an order or judgment include, but are not limited to :
" (a) Clerical mistakes in judgments, order or other parts of the record and errors

Page 1127

in the order or judgment arising from oversight or omission. These mistakes and errors may be corrected by the court at any time on its own motion or on the motion of a party and after notice as the court orders to all parties who have appeared. During the pendency of an appeal, an order or judgment may be corrected as provided in subsection (7) of this section.
" (b) Excusable neglect.
" (c) Newly discovered evidence that by due diligence could not have been discovered in time to present it at the hearing from which the order or judgment is issued.
[269 Or.App. 461] " * * * *
" (3) A motion to modify or set aside an order or judgment must be made within a reasonable time except no order or judgment pursuant to ORS 419B.527 [authorizing post-TPR order placing ward in legal custody of agency authorized to consent to adoption and other dispositions] may be set aside or modified during the pendency of a proceeding for the adoption of the ward, nor after a petition for adoption has been granted.
" * * * *
" (7) A motion under subsection (1) of this section may be filed with and decided by the trial court during the time an appeal from a judgment is pending before an appellate court. * * *
" (8) This section does not limit the inherent power of a court to modify an order or judgment within a reasonable time or the power of a court to set aside an order or judgment for fraud upon the court."

( Emphasis added.) Thus, ORS 419B.923 now provides the statutory procedure for a parent to challenge the adequacy of counsel that was missing in Geist. And it does so--appropriately--in the trial court, the forum that both we and the Supreme Court have recognized provides the more efficient means to resolve such claims, which are inherently fact dependent. See Geist, 310 ...

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