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In re J. R.

Court of Appeals of Oregon

April 24, 2019

In the Matter of J. R., aka A. E., aka A. L., aka A. R., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, M.E., aka M. L., aka T. L., aka D. S., Appellant. In the Matter of J. R., aka A. E., aka A. L., aka A. R., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
E., aka M. L., aka T. L., aka D. S., Appellant. In the Matter of J. P. B., III, aka M. B., aka M. E., aka M. L., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
M.E., aka M. L., aka T. L., aka D. S., Appellant. In the Matter of F. E. S., aka S. E., aka F. L., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
D. S., aka M. E., Appellant.

          Argued and submitted November 16, 2018

         [297 Or.App 234] Multnomah County Circuit Court Nos.17J U0 759 9, 17J U076 0 0, 17J U 0 76 01, 17J U076 02 Petition Numbers 112612, 112612, 112613 Susan M. Svetkey, Judge.

          Valerie Colas, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Offce of Public Defense Services.

          Inge 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.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         [297 Or.App. 235] Case Summary: Mother appeals from judgments terminating her parental rights to her three children, JE, JA, and F. She raises eight assignments of error, which fall into three broad claims: (1) the juvenile court erred when it continued the appointment of mother's guardian ad litem (GAL) from the permanency proceeding in the termination proceeding without holding a hearing; (2) mother's counsel was inadequate for failing to object to the continuation of the GAL's appointment; and (3) as a result, the juvenile court erred when it terminated mother's parental rights to JE, JA, and F. Held: Mother's first claim was unpreserved, and the Court of Appeals concluded that plain-error review was not appropriate. Therefore, the court rejected her frst two assignments of error. Mother's six remaining assignments of error were dependent on her claim that she received inadequate assistance of counsel in her termination proceeding due to her counsel's failure to object to the continuing appointment of the GAL. The record on appeal was inadequate to review that claim. Accordingly, the court vacated the judgment terminating mother's parental rights and remanded to the juvenile court with instructions to hold an evidentiary hearing on mother's claim of inadequate assistance of counsel.

         Vacated and remanded.

          [297 Or.App. 236] TOOKEY, J.

         Mother appeals from judgments terminating her parental rights to her three children, JE, JA, and F. She raises eight assignments of error, which fall into three broad claims: (1) the juvenile court erred when it continued the appointment of mother's guardian ad litem (GAL) from the permanency proceeding in the termination proceeding without holding a hearing; (2) mother's counsel was inadequate for failing to object to the continuation of the GAL's appointment; and (3) as a result, the juvenile court erred when it terminated mother's parental rights to JE, JA, and F.[1] Mother's first claim is unpreserved and we conclude that she was required to preserve that claim of error; furthermore, we conclude that plain-error review is not appropriate in this case. Therefore, we reject her first two assignments of error. Mother's six remaining assignments of error are dependent on her claim that she received inadequate assistance of counsel in her termination trial due to her counsel's failure to object to the continued appointment of the GAL in the termination proceeding. Because this is not the "'rare' case in which the question whether counsel was inadequate will not require the development of an evidentiary record," Dept. of Human Services v. T. L., 358 Or. 679, 702, 369 P.3d 1159 (2016), "the appropriate remedy in this case is to remand for an evidentiary hearing under ORS 419B.923 on mother's claim of inadequate assistance of counsel," Dept. of Human Services v. M. U. L., 281 Or.App. 120, 129, 380 P.3d 1232 (2016) (M. U. L. II). Accordingly, we vacate the judgment terminating mother's parental rights, and remand to the juvenile court with instructions to hold an evidentiary hearing on mother's claim of inadequate assistance of counsel.

         [297 Or.App. 237] For purposes of this appeal, the relevant facts are mostly procedural and undisputed. Mother's three children, 12-year-old JE, ten-year-old JA, and seven-year-old F, were removed from mother's care in December 2013, and were made wards of the juvenile court in April 2014. Among other things, juvenile court jurisdiction was based on mother's admission that her "unresolved mental health issues" interfered with her ability to "safely parent, supervise and discipline" her children.

         In October 2016, the Department of Human Services (DHS) informed the court that DHS would seek to have a GAL appointed for mother in the dependency proceedings. On December 22, 2016, and March 1, 2017, the court held an evidentiary hearing on DHS's motion to appoint a GAL for mother. Further evidence was received by the court on March 29, 2017, before the court made its final written order.

         The court's order made the following findings:

"This court has had this case since signing a shelter case order on December 6, 2013. The court has observed Mother's behavior in court on numerous occasions. This behavior was generally appropriate at most hearings.
"However it has become clear that mother's thinking has become erratic, disorganized, delusional[, and] paranoid. She recently, once again, demanded unrealistic actions of DHS, the court, and presumably her last attorney. Due to her escalating heretofore described behaviors, she has had 3 successive attorneys appointed, each of which can no longer ...

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