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In re M. E. B.

Court of Appeals of Oregon

December 4, 2019

In the Matter of M. E. B., Jr., aka M. B., Jr., a Child.
v.
M. C. D. B., aka M. B., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

          Submitted October 29, 2019

          Malheur County Circuit Court 18JU09183. Lung S. Hung, Judge.

          Shannon Storey, Chief Defender, Juvenile Appellate Section, and Shannon Flowers, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.

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

         Case Summary: Mother appeals from a judgment terminating her parental rights with respect to her son, which the juvenile court entered after mother failed to appear at the termination hearing. She contends that the juvenile court erred in not granting a continuance, and then erred by proceeding to termination in her absence under ORS 419B.819 without first issuing an order in compliance with ORS 419B.820. Held: In light of the circumstances identified in the juvenile court's order, along with evidence that mother ignored attempts by the Department of Human Services (DHS) to assist her with transportation to the termination hearing, the juvenile court acted well within the bounds of its discretion in denying her motions for a continuance. With regard to mother's arguments that the court erred by proceeding to termination in her absence under ORS 419B.819 without first issuing an order in compliance with ORS 419B.820, the Court of Appeals declined to exercise its discretion to correct those [301 Or.App. 53] unpreserved claims of error. Mother previously had a colloquy with the juvenile court about the consequences of her failure to appear at the termination hearing, and mother demonstrated that she understood the gravity of such a failure to appear. Moreover, many of the same reasons justifying the court's denial of mother's motions for a continuance also militated against the exercise of discretion in this case: Her son had been in custody for more than three and a half years; she chose to move a month before the termination hearing, knowing both that she was required to appear personally and the consequences if she did not; and she thereafter ignored DHS's efforts to arrange for travel to the termination hearing.

         Affirmed.

         [301 Or.App. 54] LAGESEN, P. J.

         Mother appeals from a judgment terminating her parental rights with respect to her son, which the juvenile court entered after mother failed to appear at the termination hearing. She contends that the juvenile court erred in not granting a continuance, and then erred by proceeding to termination in her absence while prohibiting her attorney from participating in the termination hearing. We affirm.

         The relevant background facts are procedural and are not disputed on appeal. Mother had received a summons directing her to appear personally for an initial appearance on January 24, 2019. She appeared as required on that date, and the court listed and explained the future hearing dates, including that the termination hearing was scheduled for April 23 through 26, and that mother was required to appear personally at that hearing. The court also explained, at length, the consequences of failing to appear in person:

"It's important you appear for these hearings. If you do not appear for these hearings, the state can proceed without you. That means they can proceed to present evidence, they could proceed to make arguments, and ask for a judgment from the court.
"If you're not here, your attorney cannot appear. He can be here, but he can't do anything. He can't make any arguments, he can't present any evidence, he can't challenge the state's evidence. So that would mean the state gets to present all the evidence, you would not get to present any evidence, and you probably know what's going to happen there, the side that gets to present evidence is probably going to win most of the time. So it's important that you appear for these proceedings as I've stated and I think you've been summoned to them."

         Mother acknowledged that "the trial dates are the 23rd, 24th, 25th, and 26th of April. And I already-if I understood you correctly, if I don't appear, it's basically the state wins by default." The court then clarified that, if mother did not appear, the Department of Human Services (DHS) would "be able to present evidence, you won't be able to present any evidence through your attorney, and then the court would make a decision. So it's not by default, it's essentially one [301 Or.App. 55] side will get to present their case and the other side doesn't get to present any evidence. And * * * typically that means that side wins[.]"

         Mother subsequently appeared in person at a permanency hearing in February, and the juvenile court again reminded mother to "make sure to appear for" the termination hearing in April. Mother's attorney informed the court that mother was planning to move to Arizona, that he was "concerned about her being here. And she's concerned about not having funds to be here." Mother's attorney stated that he was putting "people on notice" of the move and would like to have mother "speak with DHS to see if there are any ...


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