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In re A. M. W.

Court of Appeals of Oregon

November 14, 2019

In the Matter of A. M. W., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, C. M. W., Appellant. In the Matter of Z. K. H., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
C. M. W., Appellant.

          Argued and Submitted October 1, 2019

          Clackamas County Circuit Court 18JU08339, 18JU08340 Heather Karabeika, Judge.

          Sarah Peterson, 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 DeHoog, Presiding Judge, and Mooney, Judge, and Hadlock, Judge pro tempore.

         [300 Or.App. 562] Case Summary: Appellant in this juvenile dependency case appeals two judgments terminating her parental rights. Appellant asserts first that the juvenile court plainly erred in terminating her parental rights in her absence when she had not received statutorily required notice of the time and place of trial. Second, appellant asserts that she received inadequate assistance of counsel because her lawyer did not object to the juvenile court proceeding without her when the required notice had not been given. Held: First, the record does not establish that the juvenile court plainly erred because it does not reflect whether or not appellant received the required notice. Second, appellant presents a colorable argument that she might have received ineffective assistance of counsel because of a lack of notice, and a hearing on that claim is therefore required.

         Vacated and remanded.

         [300 Or.App. 563] HADLOCK, J. pro tempore

         After the Department of Human Services (DHS) petitioned to terminate her parental rights to her two children, A and Z, mother appeared for two pretrial hearings. However, mother failed to appear on day that the termination trial was set to begin. Proceeding under ORS 4I9B.8I9(7), the juvenile court allowed DHS to present a prima facie case. The court then ruled in DHS's favor, terminating mother's parental rights. On appeal, mother contends that she did not receive statutorily required notice of the time and place of trial; given that lack of notice, she argues, the juvenile court plainly erred when it terminated her parental rights in her absence. Alternatively, mother contends that she received inadequate assistance of counsel because her trial lawyer did not object to the juvenile court proceeding without her when the required notice had not been given. For the reasons set forth below, we conclude that the record is not sufficient to establish that the juvenile court plainly erred in the way that mother suggests. However, we also conclude that mother has presented a colorable argument that she might have received inadequate assistance of counsel. Accordingly, we vacate the termination judgments and remand for further proceedings on mother's inadequate-assistance claim.

         The pertinent facts are procedural and undisputed for purposes of this appeal. DHS petitioned in October 2018 to terminate mother's parental rights to A and Z, who have different fathers. The court appointed counsel for mother, and she was served with summons directing her to personally appear in the juvenile court on December 18, 2018. Mother made that appearance, and she denied the allegations in the termination petition. At the December hearing, the parties' lawyers and the court also discussed possible dates for a status conference and for trial. A written order, which the court signed on December 18 and subsequently entered in each child's case, informed mother that (among other things) she was required to appear personally at both of those proceedings; the order also set out the dates, times, and locations for each hearing:

"IT IS ORDERED that the parent(s) must personally appear for:
[300 Or.App. 564] "1. Settlement Conference in Clackamas County Circuit Court located at 807 Main Street Oregon City, OR 97045 on:
"Date: ___ Time: ___
"2. Status Conference in Clackamas County Juvenile Court located at 2121 Kaen Road Oregon City, OR 97045 on:
"Date: Feb 19. 2019 Time: 9 AM
"3. Trial in Clackamas County Circuit Court located at 807 Main Street, Oregon City, OR 97045 on:
"Date: March 6-7. 2019 Time: 9 AM"

(Boldface in originals.) The record does not reflect whether those written orders were provided to mother either in the courtroom or by mail.

         The status conference took place as scheduled in February 2019. Mother and her attorney were present, as were the fathers of both children and their lawyers. The juvenile court had a discussion with A's father and his lawyer about the upcoming trial dates:

"THE COURT: [As father], good ...

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