In the Matter of D. D. D., aka B. B. D., a Child.
J. R. D., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
and Submitted February 7, 2017
County Circuit Court 16JU03467; Petition Number 111727; Beth
A. Allen, Judge.
Shannon Storey, Chief Defender, Juvenile Appellate Section,
Offce of Public Defense Services, argued the cause and fled
the brief for appellant.
D. Wells, Assistant Attorney General, argued the cause for
respondent. With her on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Sercombe, Presiding Judge, and Hadlock, Chief Judge, and
DeHoog, Judge. [*]
Summary: Mother appeals a judgment of the juvenile court
taking jurisdiction over her child. When mother failed to
appear at a pretrial conference before a juvenile court
referee, the referee allowed the Department of Human Services
(DHS) to proceed with its prima facie case, and the referee
entered an order taking jurisdiction of mother's child.
Pursuant to ORS 419A.150, mother requested a rehearing before
a juvenile court judge and an opportunity to present
additional evidence at the rehearing. The juvenile court
denied mother's request to present additional evidence,
concluding that it had discretion to decide whether to allow
or deny a party the opportunity to do so under ORS
419A.150(3), which provides, in part, that "additional
evidence may be presented" on rehearing. The court then
entered an order "affirming" the referee's
decision. On appeal, mother reiterates her argument that she
was entitled to an opportunity to present new evidence at the
rehearing. DHS responds that the juvenile court correctly
concluded that the decision whether to allow the parties to
present additional evidence on rehearing is discretionary.
Held: ORS 419A.150(3) unambiguously provides
litigants with permission to present additional evidence at a
rehearing of a referee's decision before the juvenile
court. Litigants, not the court, "present"
evidence. Therefore, the litigants are the implicit subject
of the phrase "additional evidence may be presented,
" who have permission, under ORS 419A.150(3), to present
evidence. Accordingly, the juvenile court erred in denying
mother the opportunity to present additional evidence.
SERCOMBE, P. J.
issue in this juvenile dependency case is whether ORS
419A.150(3) allows a party the opportunity to present new
evidence in a judicial rehearing of a referee's
determination or whether that evidence can be excluded at the
discretion of the juvenile court. Here, when mother failed to
appear at a pretrial conference under ORS 419B.815(2)(b)
before a juvenile court referee, the referee allowed the
Department of Human Services (DHS) to proceed with its
prima facie case, and the referee entered an order
taking jurisdiction of mother's child, D. After the referee
entered that order, mother made a timely request for a
rehearing before a juvenile court judge under ORS 419A.150,
seeking to present additional evidence to rebut DHS's
previously proven case. The court "affirmed" the
referee's order without affording mother the opportunity
to present additional evidence and entered a judgment taking
jurisdiction of D. Mother appeals from that judgment, arguing
that she was entitled to present additional evidence at the
rehearing. DHS responds that the court had discretion to
decide whether to allow mother to present additional evidence
and it did not abuse that discretion. We agree with mother
and, therefore, reverse and remand.
begin by briefly reviewing the relevant portions of ORS
419A.150. ORS 419A.150Q) permits juvenile court judges to
"appoint one or more persons as referees of the juvenile
court." A juvenile court judge may "direct that any
case, or all cases of a class designated by the judge, be
processed or heard in the first instance by a referee, "
who then transmits his or her "findings, recommendations
or order in writing" to the judge. ORS 419A.150(2). A
referee order is "immediately effective, subject to the
right of review provided in [ORS 419A.150]." ORS
419A.150(4). After the referee conducts a hearing, certain
parties-including "a child, ward, youth, youth offender,
the parent, guardian, district attorney, [DHS], juvenile
department or other party affected by the order"-are
entitled to request a rehearing before a juvenile court
judge. ORS 419A.150(3), (7). The court may also order a
rehearing on its own motion. ORS 419A.150(6). If no party
requests a rehearing within 10 days, then the referee's
order becomes "a final order of the juvenile
court." ORS 419A.150(4).
party requests a rehearing, pursuant to ORS 419A.150(3),
"[a] rehearing before a judge of the juvenile court may
be determined on the same evidence introduced before the
referee if a stenographic transcript of the proceedings was
kept, but, in any case, additional evidence may be
presented." ORS 419A.150(8) further provides that the
"rehearing is conducted de novo."
as noted, DHS petitioned for jurisdiction of mother's
child, D. Mother failed to appear for a pretrial conference
before a referee. At the pretrial conference, the referee
permitted DHS to present its prima facie case
without mother present. The referee subsequently entered an
order taking jurisdiction of D. Mother then made a timely
request for a rehearing under ORS 419A.150. She argued that,
on rehearing, she was entitled to a full jurisdictional
hearing before the court, including the right to present
evidence. In response, the state argued that mother had
forfeited any right to present evidence by failing to appear.
The juvenile court agreed with the state, explaining its
reasoning in a letter opinion.
court first concluded that "there was no reasonable
excuse for Mother's absence [.]" Next, the court
explained that "[h]ad Mother been at the hearing, she
would have had the right to call witnesses (including
herself, of course), cross-examine the State's witnesses,
and otherwise participate in the hearing." However,
" [b] ecause she was not present in person at the
hearing, she lost that right." The court further
explained that it "d[id] not believe that it was the
legislature's intention to allow a parent who failed to
appear at the Pretrial Conference and Judicial Settlement
Conference to [present evidence] at rehearing."
court also concluded that, even if mother's failure to
appear did not preclude her from presenting evidence, the
court could nevertheless deny her request to do so. According
to the court, ORS 419A.150(3) "gives the trial court
conducting the rehearing the discretion to review the case
using the evidence presented at the initial hearing and also
gives the trial court discretion to allow the presentation
of'additional evidence.'" The court determined
that, "to the extent that I may allow [mother] to
produce additional evidence, I elect to not exercise that
discretion." As the court explained:
"To exercise my discretion to allow a parent to proceed
to adduce testimony at a rehearing of a hearing to which she
failed to attend in the first instance would be to vitiate
the need to even consider whether an absence was excusable,
and would make ORS 419 [B].815(7) superfluous. A parent,
having missed the hearing as summoned due to her own neglect,
could simply seek a second bite at the apple, despite the
summons and its dire warnings. That would be unfair to the
many parents who are present at their hearings even at great
difficulty or inconvenience, and could lead to rehearings
simply due to a parent's absence at the hearing to which
the parent was summoned originally."
court then stated that it had "reviewed de novo
the evidence presented" at the hearing before the
referee, and it "affirmed" the referee's order
taking jurisdiction over D. The court subsequently entered a
judgment consistent with that decision.
appeal, the parties dispute the scope of the rehearing
available under ORS 419A.150. According to mother, the
statute permits a new hearing on the merits of the case,
including the right to present evidence. The state responds
that the statute allows a party to obtain reconsideration of
the referee's decision on the record created by the
referee, and that whether new evidence may be presented is at
the juvenile court's discretion.
resolve that issue, we must interpret ORS 419A.150 by
examining its text, context, and any relevant legislative
history to determine the intent of the legislature. State
v.Gaines.346 Or. 160, 171-72, 206 P.3d 1042 (2009);
PGE v. Bureau of Labor and Industries,317 Or. 606,
610-12, 859 P.2d 1143 (1993). When the text of a statute
contains words in common usage, we interpret those words in
accordance with their plain, natural, and ordinary meanings.
PGE, 317 Or at 611. Furthermore, if a term has a
"well-defined legal meaning, " we presume that the
legislature intended for it to carry that meaning. Dept.
of Transportation v. Stallcup,341 Or. 93, 99, 138 P.3d
9 (2006). We may rely on dictionaries to discern the meaning
of words in ...