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In re C. D. S.

Court of Appeals of Oregon

June 6, 2018

In the Matter of C. D. S., a Child.
v.
K. D. S., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, In the Matter of G. M. L.-S., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
K. D. S., Appellant.

          Argued and submitted December 19, 2017

          Jackson County Circuit Court 16JU10220, 16JU10221, Kelly W. Ravassipour, Judge.

          George W. Kelly argued the cause and fled the brief for appellant.

          Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         [292 Or. 259]

         Case Summary:

         Mother appeals judgments terminating her parental rights to her two children. The juvenile court terminated mother's parental rights flowing a prima facie showing of grounds to terminate, which the court permitted the Department of Human Services to present when mother failed to personally appear at a pretrial settlement conference as directed. Mother argues that the court abused its discretion when it refused to permit her to appear telephonically at the settlement conference and when it proceeded to hold a prima facie trial in her absence.

         Held:

         Regardless of whether the juvenile court abused its discretion in refusing to permit mother to appear telephonically, the court abused its discretion when it proceeded with the prima facie trial in mother's absence, because the record does not demonstrate that the court either considered the interests at stake or made an adequate record of the basis of its decision.

         Reversed and remanded.

         [292 Or. 260] DEHOOG, P. J.

         Mother appeals judgments terminating her parental rights to her two children, C and G. The juvenile court terminated mother's parental rights following a. prima facie showing of grounds to terminate, which the court permitted the Department of Human Services (DHS) to present when mother failed to personally appear at a pretrial settlement conference as directed. Mother raises three assignments of error; we discuss only the first and second assignments.[1] In her first assignment of error, mother argues that the juvenile court erred when it refused to permit her to appear telephonically at the settlement conference. In her second assignment of error, mother contends that the court abused its discretion by proceeding to hold a prima facie trial, thereby terminating mother's parental rights in her absence pursuant to ORS 4l9B.8l9(7)(a). For the reasons that follow, we conclude that the juvenile court abused its discretion by proceeding with a. prima facie trial. Accordingly, we reverse and remand.

         The facts material to mother's appeal are procedural and largely undisputed. In March 2015, the juvenile court took jurisdiction as to C, who was born in September 2014. Following G's birth in September 2015, DHS filed a dependency petition, and, in February 2016, the court took jurisdiction as to him.[2] In December 2016, the court held a permanency hearing; as a result, the court changed the permanency plan as to both children from reunification to adoption. Shortly thereafter, DHS petitioned the court to terminate mother's parental rights to C and G.

         DHS served mother with the petition and summons, and, on May 10, 2017, mother appeared in court in [292 Or. 261] response. At that time, the juvenile court appointed counsel for mother. The court also issued an "Order to Appear at Settlement Conference and Trial." Mother signed the order, acknowledging its receipt. The order established a settlement conference date of July 14, 2017, and trial dates of September 9 and 10, 2017. The court's order included a text box setting out the following notice in boldfaced type:

"Notice: You must appear personally in the courtroom on the dates & at the times listed above. An attorney may appear with you, but not in place of you. If you fail to appear, the court may terminate your parental rights without further notice."

         (Underscoring, boldface, and emphasis in original; capitalization omitted.) See ORS 4l9B.82O(5)(a) (requiring juvenile court to provide parent with written order including that notice). The order further told mother the name of her appointed attorney, directed mother to maintain contact with him, and gave her the following instructions regarding future court appearances:

"If you show good cause, such as incarceration, ORS 419B.918 allows the judge to give you permission to appear by telephone or other electronic means instead of being physically present. It is your responsibility to make arrangements with the jail/prison and to call the court no later than the day BEFORE the settlement conference or trial to ask permission to appear by telephone."

(Capitalization in original.)

         Mother did not appear at the July 14 settlement conference as directed.[3] Initially, the juvenile court seemed prepared to allow mother to appear by telephone; after confirming that Kochlacs, mother's appointed attorney, had her phone number, the court asked to "get her on the phone." However, the children's attorney, Waliser, objected, noting that mother had received notice of her obligation to appear in person and that there had been no motion to allow a telephonic appearance. DHS's attorney, Kuhn, joined Waliser's [292 Or. 262] objection and began to argue the merits of moving forward with a prima facie trial. Focusing first on the telephonic appearance issue, the court stated:

"Wait, we'll address the telephonic. If Mr. Waliser opposes it then I'm not going to allow telephonic appearance today because the parties have to agree to that. So, you can go on with just regards to the prima facie. I assume * * ...

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