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In re A. R. L. U.

Court of Appeals of Oregon

February 6, 2019

In the Matter of A. R. L. U., a Child.
v.
M. M. R., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, and A. R. L. U., Respondent,

          Argued 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.

          Linn County Circuit Court 16JU09311 David E. Delsman, Judge.

          Sarah 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 Services.

          Inge 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.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Appeal dismissed.

         [296 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).

         Appeal dismissed.

         [296 Or.App. 50] LAGESEN, P. J.

         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 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 dismiss.

         As the 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.

         Notwithstanding 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.

         Mother 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).

         Longstanding 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);[1]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 ...


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