Department of Human Services v. A. W.
Department of Human Services v. A. W.
Opinion of the Court
Mother appeals a judgment terminating her parental rights to her daughter, Z. The issue on appeal is whether the juvenile court erred in finding mother in default, and terminating her parental rights in her absence, based on mother’s failure personally to appear in court on two occasions. For the reasons explained below, and in light of a key concession made by the Department of Human Services (DHS) on appeal, we conclude that the juvenile court erred. Accordingly, we reverse and remand for further proceedings.
The relevant facts are undisputed and entirely procedural. Mother’s termination-of-parental-rights trial began on December 17, 2014. Mother appeared in person for the first two days, as she had for previous court dates in the case. On the morning of December 18, the second day of trial, mother’s attorney requested a continuance “at least for the day” so that mother could seek medical attention for injuries that she had sustained in an assault by her husband and his girlfriend. Her attorney told the juvenile court, among other things, that mother had not yet gone to the hospital because “she was just concerned about if she didn’t show up [in court] this morning that she would default.” The juvenile court agreed to continue the trial until the afternoon to allow mother to go to the hospital.
When the parties reconvened that afternoon, mother was still at the hospital waiting to be evaluated. Her attorney asked for another continuance, informing the court that she lacked enough information about mother’s medical condition to know whether it would be feasible to resume the trial the next morning. The juvenile court granted the request, stating that, “since we don’t know whether or not her condition would allow her to appear tomorrow, *** [l]et’s find a date to start up again.” Counsel for DHS then suggested that, “for the purposes of judicial efficiency,” it might make sense to schedule the remainder of the termination trial to coincide with separate dependency proceedings involving another of mother’s children, B. Mother’s counsel responded that she had not had an opportunity to discuss that proposal with mother. The juvenile court then scheduled a “status check” for 11 days later, December 29,
Mother’s DHS caseworker informed mother of the December 29 status conference. On that date, mother’s attorney appeared in court, but mother did not. Her attorney informed the court that she had been unable to reach mother and that mother’s phone did not always work. DHS moved for an order of default against mother. The juvenile court noted that DHS was “within its rights to ask for a default” but that there was not time to hear the department’s prima facie case for termination that day. The court scheduled a hearing to do so for December 31, stating that, “if [mother] shows up at that hearing I guess we will figure out what happens at that point in time.”
Mother’s attorney appeared on December 31, but mother did not. Counsel for DHS presented the court with the order of default “that [the court] asked [him] to prepare.” The court invited argument regarding that order, at which point mother’s attorney reiterated that mother “did appear at the first two days of the hearing” and that she had “sustained a concussion” along with some other injuries. The juvenile court declared, “I’m finding that [mother’s] nonappearance on two separate occasions indicates that she is essentially defaulting on this case at this point in time,” and signed the order of default. At her request, the court then excused mother’s counsel from the courtroom. The court proceeded to hear the DHS’s prima facie case for termination of mother’s parental rights and, at the conclusion of that presentation, entered a judgment terminating mother’s parental rights to Z.
On appeal, in six assignments of error, mother argues that the juvenile court erred in finding mother in default because she was not required to attend the December 29 status conference. Mother argues that the juvenile court, therefore, lacked authority to proceed in mother’s
The issues on appeal concern whether the juvenile court’s actions were authorized by ORS 419B.819(7), which permits the court to terminate a parent’s rights if the parent fails to appear for a hearing related to a termination petition as directed by a summons or court order. That is a legal question, which we review for legal error. See Dept. of Human Services v. M. H., 266 Or App 361, 364, 377 P3d 976 (2014).
ORS 419B.819(7) provides as follows:
“If a parent fails to appear for any hearing related to the [termination] petition, or fails to file a written answer, as directed by summons or court order under this section or ORS 419B.820, the court, without further notice and in the parent’s absence, may:
“(a) Terminate the parent’s rights or, if the petition seeks to establish a permanent guardianship, grant the guardianship petition either on the date specified in the summons or order or on a future date; and
“(b) Take any other action that is authorized by law.”
(Emphasis added.)
Mother argues that the December 29 status conference was not a “hearing related to the petition” for purposes of the statute, and that, even if it was, she did not “fail[] to appear” at that conference but, rather, appeared through her attorney.
DHS responds that the requirement to attend any “hearing related to the petition” applies to all scheduled
DHS nevertheless defends the December 31 termination judgment on two grounds. First, any error in holding mother in default on December 29 or in scheduling the continuation of the trial in mother’s absence was “harmless,” according to DHS, because mother’s counsel did participate on December 29, and the juvenile court indicated that it would allow mother to participate if she returned on December 31. Second, regardless of what happened on December 29, DHS argues, mother is still responsible for her failure to appear on December 31 — which alone justifies the termination under ORS 419B.819(7) — because mother’s counsel knew of that date and her knowledge is imputed to mother.
We do not need to resolve all of the parties’ arguments advancing interpretations of ORS 419B.819(7) and other statutory provisions. Under the unique circumstances of this case, which include DHS’s concession that mother did not “default” by failing to appear personally on December 29, it is unnecessary to address all of those arguments in order to determine that the termination judgment must be reversed.
DHS also argues that, regardless of what happened on December 29, mother’s failure to appear on December 31, itself, justified the termination under ORS 419B.819(7). We disagree. There is no evidence that mother actually knew of the December 31 court date, and it is undisputed that, as with the December 29 status conference, the juvenile court did not follow the procedures under ORS 419B.819 to compel mother’s personal attendance on December 31. At oral argument, DHS acknowledged an apparent inconsistency in its position that the statute allowed mother to appear through counsel on December 29 — a hearing date of which mother had actual notice — but prohibited her from doing so on December 31 — a hearing date of which mother did not have actual notice. We share that view and decline to interpret the statute in a fashion that would produce such an incongruous result. In other words, if mother was not in default on December 29, when she was aware of the hearing but appeared through counsel, then she was not in default on December 31, when she was unaware of the hearing but appeared through counsel. Because there was no basis for finding mother in default on either date, it follows that the juvenile court lacked authority to terminate mother’s parental rights in her absence on December 31.
Here, whether ORS 419B.819(7) authorized the juvenile court to terminate mother’s parental rights in her absence, at a hearing of which she had no notice, presents a pure question of law that is not reasonably in dispute. Moreover, our conclusions do not require us to resolve any factual disputes or competing inferences. Accordingly, the error is plain; we have concluded that no default occurred, and the statute does not authorize the termination of parental rights in the parent’s absence under those circumstances. We also readily conclude that the error is one that we should exercise our discretion to correct, given the magnitude of mother’s interest in a fundamentally fair termination proceeding. See State ex rel Juv. Dept. v. Geist, 310 Or 176, 186, 796 P2d 1193 (1990) (noting that the “permanent termination of parental rights is one of the most drastic actions the state can take”).
For the foregoing reasons, we reverse the judgment terminating mother’s parental rights and remand to the juvenile court for further proceedings.
Reversed and remanded.
ORS 419B.820 provides that one of the ways for a court to compel a parent’s personal attendance is “by oral order made on the record.” DHS does not argue, however, that the juvenile court’s statements on the afternoon of December 18 constitute an “oral order made on the record” that required mother to personally attend the December 29 hearing. Instead, as noted, DHS concedes that mother’s personal appearance on December 29 was not required.
Reference
- Full Case Name
- In the Matter of Z. W., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent v. A. W.
- Cited By
- 8 cases
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- Published