In the Matter of Z. S. H., a Child.
P. W., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
and submitted February 8, 2019.
County Circuit Court 17JU06436; David B. Connell, Judge.
Peterson, Deputy Public Defender, argued the cause for
appellant. Also on the brief was Shannon Storey, Chief
Defender, Juvenile Appellate Section, Offce of Public Defense
D. Wells, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Mother appeals an order that denied her motion to
set aside a judgment that terminated her parental
relationship with her son. The juvenile court entered the
termination judgment based on a prima facie
presentation of evidence that the court had allowed the
Department of Human Services (DHS) to make after mother
failed to appear at a trial readiness hearing in the
termination case. Mother moved under ORS 419B.923 to set the
termination judgment aside, and the court scheduled a hearing
on the motion. Mother's counsel appeared at the hearing,
but mother did not. The court thereafter entered an order
denying mother's motion. On appeal, mother raises for the
first time a claim that her trial counsel provided her with
inadequate legal assistance in litigating her set-aside
motion. Held: Mother's claim turns on factual
issues not sufficiently [296 Or. App 549] developed in the
record, requiring a remand to the trial court to resolve the
factual issues presented by mother's claim.
Or. App 550] ARMSTRONG, P. J.
appeals an order that denied her motion to set aside a
judgment that had terminated her parental relationship with
her son. The juvenile court had entered the termination
judgment based on a prima facie presentation of
evidence that the court had allowed the Department of Human
Services (DHS) to make after mother had failed to appear at a
trial readiness hearing in the termination case. Mother moved
under ORS 419B.923 to set the termination judgment aside, and
the court scheduled a hearing on the motion. Mother's
counsel appeared at the hearing, but mother did not. The
court thereafter entered an order denying mother's
motion. On appeal, mother raises for the first time a claim
that her trial counsel provided her with inadequate legal
assistance in litigating her set-aside motion. Because
mother's claim turns on factual questions that have not
been sufficiently developed in the record, we vacate and
remand for the juvenile court to hold an evidentiary hearing
under ORS 419B.923 on mother's inadequate-assistance
reviewing a claim of inadequate assistance of counsel, we
consider whether the underlying proceeding was
"fundamentally fair." State ex rel Juv. Dept.
v. Geist, 310 Or. 176, 187-88, 796 P.2d 1193 (1990). If
we conclude that the evidentiary record is insufficient for
us to resolve on appeal an unpreserved claim of ineffective
assistance of counsel, we can, "where appropriate,"
remand to the juvenile court for an evidentiary hearing on
the claim. Dept. of Human Services v. T. L., 358 Or.
679, 703-04, 369 P.3d 1159 (2016). A parent raising such a
claim bears the burden of proving it. T. L., 358 Or
at 702. To be entitled to relief, the parent "must show
not only that trial counsel was inadequate, but also that the
inadequacy prejudiced [the parent's] rights to the extent
that the merits of the juvenile court's decision are
called into serious question." Id. Thus, the
parent must prove both deficient performance and
those principles in mind, we turn to the facts of this case.
DHS filed a petition on July 21, 2017, to terminate
mother's parental rights with her son, Z. Mother appeared
in court on September 26, 2017, as required by the [296 Or.
App 551] summons, and contested the petition. During that
appearance, the court scheduled a "trial readiness"
hearing for December 5, 2017, but that hearing was later
rescheduled for April 6, 2018. Although mother received
notice of the April 6 hearing, she did not appear for it. DHS
moved at the hearing to proceed with a prima facie
case against mother, to which mother's counsel objected
and stated that he did not know why mother was not in court.
Mother's counsel did not raise an objection based on any
deficiency in the notice required to be given to support
entry of a default judgment terminating mother's parental
rights. See ORS 419B.820. The court denied a request
by mother's counsel to set the hearing over, and, after
DHS's presentation of evidence, the court orally granted
the termination petition.
court entered its termination judgment on May 1, 2018. In its
judgment, the court found that mother "did not appear as
summoned, although served as required by law," and that
the court had "granted the state's oral motion to
proceed with a prima facie case in mother's
absence, over mother's attorney's objection." On
May 11, 2018, mother filed a motion to set aside the
termination judgment "pursuant to ORS 419B.923." In
a declaration accompanying the motion, mother's counsel
stated that mother's failure to appear at the trial
readiness hearing was due to the fact that she had moved to
Prineville and "was having transportation
hearing on the motion was held on July 27, 2018. Mother
failed to appear at the hearing. Mother's counsel
represented that he had "hired a private investigator to
find" mother, but he did not know where she was. The
court denied mother's motion, stating that
"[t]he declaration of the attorney that's attached
does not comply with ORS 419B.923(2) and the fact that the
person objecting [to the termination judgment] has not made
it to the hearing once again speaks volumes. There is not
excusable neglect. The court will deny the motion."
appeal, mother contends that her trial counsel provided
inadequate legal assistance to her in three respects on her
motion to set aside the termination judgment: (1) counsel
failed to adequately plead the "excusable [296 Or. App
552] neglect" theory under ORS 419B.923(1)(b) that he
had raised in the written set-aside motion; (2) counsel did
not advance a well-settled theory under ORS 419B.820 on the
notice required to be given mother to support entry of a
default termination judgment against her; and (3) counsel
abandoned his prosecution of the set-aside motion at the
hearing because he could not "find" mother. In her
brief, mother argues that the evidentiary record is
sufficient for us ...