In the Matter of A. R. L. U., a Child.
M. M. R., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, and A. R. L. U., Respondent,
and submitted December 3, 2018; on respondent Department of
Human Service's motion to dismiss fled November 28, 2018,
and appellant's response fled December 19, 2018.
County Circuit Court 16JU09311 David E. Delsman, Judge.
Peterson, Deputy Public Defender, argued the cause for
appellant. Also on the brief were Shannon Storey, Chief
Defender, Juvenile Appellate Section, Offce of Public Defense
D. Wells, Assistant Attorney General, argued the cause for
respondent Department of Human Services. Also on the brief
were Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General.
Christa Obold Eshleman argued the cause for respondent child.
Also on the brief was Youth, Rights & Justice.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Or.App. 49] Case Summary: Mother appeals an order denying her
motion under ORS 419B.923 to set aside a judgment terminating
her parental rights to her daughter, A. After the parties
submitted their briefs, a petition for A's adoption was
granted. The Department of Human Services then moved to
dismiss the appeal as moot, on the ground that ORS
419B.923(3) now precludes mother from obtaining any relief
under ORS 419B.423 in view of the grant of the petition for
A's adoption. Held: Under ORS 419B.923(3), the
grant of the petition for A's adoption rendered this
appeal moot. See Dept. of Human Services v. B. A. S./J.
S., 232 Or.App. 245, 265, 221 P.3d 806 (2009).
Or.App. 50] LAGESEN, P. J.
appeals an order denying her motion under ORS 419B.923 to set
aside a judgment terminating her parental rights to her
daughter A. After the parties submitted their briefs in this
matter, a petition for As adoption was granted. The
Department of Human Services (DHS) then moved to dismiss the
appeal as moot, on the ground that ORS 419B.923(3) now
precludes mother from obtaining any relief pursuant to ORS
419B.923, in view of the grant of the petition for As
adoption. ORS 419B.923(3) (providing, in relevant part,
"no order or judgment pursuant to ORS 419B.527 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"); Dept. of Human Services v. B. A.
S.IJ. S., 232 Or.App. 245, 265, 221 P.3d 806 (2009),
rev den, 348 Or. 280 (2010) (in view of ORS
4I9B.923(3), the grant of an adoption petition mooted appeal
from denial of motion under ORS 419B.923). We agree that, in
view of ORS 4I9B.923(3), the appeal is moot. Accordingly, we
parties recognize, we addressed a similar issue in B. A.
S. IJ. S. There, as here, the parents appealed orders
denying their motions under ORS 4I9B.923(3) to set aside
judgments terminating their parental rights to their
children. B. A. S.IJ. S., 232 Or.App. at 248. During
the pendency of the appeal, the petitions for the adoptions
of their children were granted. Id. We concluded
that that fact rendered parents' appeal moot for three
reasons. First, under ORS 4I9B.923(3), the grant of the
petitions for the children's adoptions precluded the
grant of the parents' motions, regardless of the merits
of those motions. Id. at 253-56. Second, under the
circumstances of that case, the granting of the motions also
would not fall within the court's inherent authority,
which is not displaced by ORS 419B.923. Id. at
254-59; see ORS 4I9B.923(8) (explaining that
statutory procedures do not affect a juvenile court's
inherent authority to modify or set aside a judgment for
fraud). Third, we concluded that the limitations on
post-judgment relief following the completion of an adoption
did not violate the parents' rights to procedural due
process. B. A. S./J. S., 232 Or.App. at 259-65. We
reasoned, among other things, that the parents had sufficient
procedural avenues available to [296 Or.App. 51] them to
protect their rights during the litigation of an ORS 419B.923
motion that the legislative choice to protect the finality of
adoption judgments did not violate procedural due process,
especially in view of the importance of achieving permanency
for affected children. Id. at 265.
its similarities to this case, mother contends that B. A.
S. IJ. S. does not compel dismissal of this appeal. She
advances three primary arguments in support of that
contention. We address each of them.
first contends that, unlike in B. A. S./J. S., the
granting of her motion would be within the juvenile
court's inherent authority and, thus, ORS 4I9B.923(3)
does not operate to displace the court's authority to
grant her motion. ORS 4I9B.923(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."). In particular, mother points out that she
alleged in her ORS 419B.923 motion that she was entitled to
relief from the termination judgment for fraud. Thus, mother
reasons, the court retained the inherent authority to grant
her motion, notwithstanding other provisions of ORS 419B.923,
including ORS 4I9B.923(3).
Oregon law compels us to reject mother's argument. As we
have explained, under that precedent, a court's inherent
authority does not extend to setting aside a judgment for all
types of fraud. Rather, a court has the inherent authority to
set aside a judgment for extrinsic fraud only. Wimber v.
Timpe,109 Or.App. 139, 146, 818 P.2d 954
(1991);see Johnson v. Johnson, 302 Or.
382, 394, 730 P.2d 1221 (1986). "Extrinsic fraud
consists of acts not involved in the fact finder's
consideration of the merits of the [296 Or.App. 52]
case." Wimber, 109 Or.App. at 146. A
court's inherent authority does not extend to setting
aside a judgment for intrinsic fraud, that is, fraud that
"consists of acts that pertain to the merits of the
case, such as perjured testimony." Id. The
reason for that is "because the ...