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In re D. D. D.

Court of Appeals of Oregon

June 7, 2017

In the Matter of D. D. D., aka B. B. D., a Child.
v.
J. R. D., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

          Argued and Submitted February 7, 2017

         Multnomah 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.

          Inge 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.

          Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and DeHoog, Judge. [*]

          Case 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.

         Reversed and remanded.

          SERCOMBE, P. J.

         The 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.[1] 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.[2] 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.

         We 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).

         If a 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."

         Here, 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.

          The 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."

         The 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."

         The 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.

         On 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.

         To 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 ...


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