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In re E. E. L. R.

Court of Appeals of Oregon

July 31, 2019

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

          Argued and submitted June 10, 2019

          Wasco County Circuit Court 18JU08867; Janet L. Stauffer, Judge.

          Holly Telerant, Deputy Public Defender, argued the cause for appellant. Also on the brief was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office 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.

         [298 Or.App. 691] PER CURIAM

         Mother appeals the judgment terminating her parental rights to her daughter, E, which occurred after a proceeding in which she was not present. Mother asserts that the juvenile court abused its discretion by permitting the Department of Human Services (the department) to proceed with its prima facie case to terminate her parental rights in her absence and that the failure to grant a continuance of the termination proceeding was an error apparent on the record. ORAP 5.45(1). Moreover, the attorney representing her for a concurrent dependency case-but not the case to terminate her parental rights-was present at the termination proceeding, and mother asserts that that attorney provided inadequate assistance of counsel by failing to request a continuance of the termination proceeding. As we explain, our holding in State ex rel Juv. Dept. v. Jenkins, 209 Or.App. 637, 149 P.3d 324 (2006), rev den, 342 Or. 416 (2007), requires us to dismiss mother's appeal.

         In Jenkins, the father had been served with a summons to personally appear at a hearing to terminate his parental rights. Id. at 639-40. The father, however, did not appear at the hearing to contest the department's petition to terminate his parental rights. Id. We reasoned that ORS 19.245(2), which provides that a party may not appeal a judgment given by "confession or want of an answer," governs proceedings to terminate parental rights. And, because a parent in a termination of parental rights proceeding must respond to a petition by appearing at the time and place indicated by the summons to admit or deny the allegations or file an answer, ORS 4I9B.8I9(2), the father's failure to appear was "tantamount to his consent that the court grant the relief requested by the petition." Id. at 645. Moreover, "[o]nce the [department] presented a prima facie case, his failure to contest that evidence left nothing for the trial court to adjudicate." Id. Consequently, we concluded that the father "waived his right to appeal," and his appeal was dismissed for lack of an appealable judgment. Id. at 646.

         Likewise, in this case, mother was served with a summons directing her to personally appear before the court on the date and time indicated in the summons to [298 Or.App. 692] "admit or deny the allegations of the petition." She did not appear as directed, and the department presented a prima facie case in support of the petition to terminate her parental rights. This case is not like other cases in which we have distinguished Jenkins. See Dept. of Human Services v. B. P.,281 Or.App. 218, 233-34, 381 P.3d 1073 (2016), rev den,361 Or. 100 (2017) (because parent answered petition by personally appearing in court, Jenkins did not control); Dept. of Human Services v. S. C. T.,281 Or.App. 246, 254-55, 380 P.3d 1211 (2016), rev den,360 Or. 752 (2017), and rev den,360 Or. 851 (2017) (because parents responded to the summons by appearing personally to admit or deny the petition, Jenkins did not apply). ...


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