Dept. of Human Services v. N. B. ( 2024 )

494 October 16, 2024 No. 732
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of L. D. B.-N.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellant,
and
L. D. B.-N.,
Appellant,
v.
N. B.
and L. N.,
Respondents.
Multnomah County Circuit Court
23JU01463; A183087
Michael S. Loy, Judge.
Argued and submitted July 24, 2024.
Inge D. Wells, Assistant Attorney General, argued the
cause for appellant Department of Human Services. Also on
the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
Sarah Peterson, Deputy Public Defender, argued the
cause for respondent N. B. Also on the brief was Shannon
Storey, Chief Defender, Juvenile Appellate Section, Oregon
Public Defense Commission.
Aron Perez-Selsky filed the brief for appellant L. D. B.-N.
No appearance for respondent L. N.
Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.*
AOYAGI, P. J.
Affirmed.
______________
* Egan, J., vice Jacquot, J.
Cite as 335 Or App 494 (2024) 495
496 Dept. of Human Services v. N. B.
AOYAGI, P. J.
Child, L, and the Department of Human Services
(DHS) appeal a judgment denying DHS’s petition to estab-
lish a permanent guardianship for L. “The grounds for
granting a permanent guardianship are the same as those
for termination of parental rights.” ORS 419B.365(2). In the
guardianship petition, in addition to allegations regarding
mother, DHS alleged that father is “unfit by reason of con-
duct or condition seriously detrimental to the child or ward,”
ORS 419B.504, and that he “failed or neglected without rea-
sonable and lawful cause to provide for the basic physical and
psychological needs of the child or ward for six months prior
to the filing of a petition,” ORS 419B.506. After a three-day
trial at which father failed to personally appear, the juvenile
court denied the petition, concluding that DHS had failed
to prove its allegations regarding father. The court did not
reach the allegations regarding mother, nor did it reach the
issue of L’s best interests.1 On appeal, L and DHS assign
error to the court’s denial of the petition, and they request
de novo review. As explained below, we decline to conduct
de novo review, which is dispositive because neither DHS
nor L has identified any basis for reversal absent de novo
review. We therefore affirm.
We begin by addressing two procedural quirks of
this case. First, mother questions whether DHS timely filed
its notice of appeal, where it did not file it within 30 days of
entry of the judgment as required for an initial appeal under
ORS 19.255(1). We conclude that DHS’s notice of appeal was
timely. L filed an initial notice of appeal within the 30 days,
and DHS filed its own notice within 10 days of L’s filing.
DHS’s notice was therefore timely under ORS 19.255(3),
which provides, “Any other party who has appeared in the
action, suit or proceeding, desiring to appeal against the
appellant or any other party to the action, suit or proceed-
ing, may serve and file notice of appeal within 10 days after
1
Under ORS 419B.365(4), the juvenile court must “grant a permanent guard-
ianship if it finds by clear and convincing evidence” both that “[t]he grounds cited
in the petition are true” and that “[it] is in the best interest of the ward that the
parent never have physical custody of the ward but that other parental rights and
duties should not be terminated.”
Cite as 335 Or App 494 (2024) 497
the expiration of the time allowed by” ORS 19.255(1). DHS
is another party who appeared in the proceeding, so DHS
had 10 additional days to appeal, regardless of which party
DHS was or is aligned with. See Crow v. Junior Bootshops,
241 Or 135, 139, 404 P2d 789 (1965) (concluding that the
10-day provision in an earlier version of the statute before
renumbering—which contained similar language to cur-
rent ORS 19.255(3)—“applies where more than one party
appeals,” and that the first reference to “ ‘[a]ny other party’
means any other than the one who first appeals”).
The second procedural quirk relates to father’s fail-
ure to appear. Despite having been ordered to appear in per-
son, father did not appear at the guardianship trial. When
a parent who has been ordered to personally appear for a
guardianship proceeding fails to appear, “the court, without
further notice and in the parent’s absence, may * * * grant
the guardianship petition * * *.” ORS 419B.819(7). Before the
juvenile court, the parties agreed that, in light of father’s
failure to appear, DHS’s task was to present a prima facie
case on its allegations against father. DHS sought to do
so, but the juvenile court ultimately concluded that DHS’s
evidence was “insufficient” as to father, and it denied the
guardianship petition on that basis.
On appeal, DHS and L request de novo review. In
doing so, they necessarily assume (as does mother in her
answering brief) that the juvenile court weighed DHS’s evi-
dence and, acting as factfinder, was unpersuaded that DHS
had proved the allegations as to father. That is, DHS and
L do not appear to understand the trial court to have con-
cluded, as a legal matter, that the evidence was insufficient,
nor do they make any arguments on appeal about the legal
sufficiency of the evidence. Because that is how the parties
understand the court’s ruling, and it is one plausible inter-
pretation of what the court said, we accept that framing of
the issue for purposes of appeal.2
2
A different possible interpretation of what the court said is that the court
viewed the evidence as insufficient as a matter of law to establish DHS’s case.
That would have implications for the standard of review, as the issue would be
purely legal. For purposes of this appeal, we accept the parties’ framing of the
498 Dept. of Human Services v. N. B.
We now turn to the dispositive issue on appeal:
whether to exercise our discretion to conduct de novo review.
DHS’s arguments to reverse the juvenile court judgment are
all premised on our granting de novo review. That is, DHS
has not developed any argument for reversal in the event
that we deny de novo review. As for L, her arguments on
appeal are limited to the issue of L’s best interests, an issue
that we would potentially reach only in the event that we
granted de novo review.3
In termination-of-parental-rights proceedings, our
review is always de novo. ORS 19.415(3)(a). However, in all
other equitable proceedings, including this one, we have
discretion to “try the cause anew upon the record or make
one or more factual findings anew upon the record,” ORS
19.415(3)(b), and we exercise that discretion “only in excep-
tional cases.” ORAP 5.40(8)(c). If we do not exercise our dis-
cretion to conduct de novo review in whole or in part, “we
view the evidence, as supplemented and buttressed by per-
missible derivative inferences, in the light most favorable
to the trial court’s disposition and assess whether, when so
viewed, the record was legally sufficient to permit that out-
come.” Dept. of Human Services v. N. P., 257 Or App 633,
639, 307 P3d 444 (2013).
DHS contends that we should exercise de novo
review because (1) the juvenile court’s view of the evidence
may have been colored by its expressed view that the ulti-
mate determination of parental unfitness or neglect should
bear some relationship to the bases on which the court took
dependency jurisdiction, which DHS contends is legally
incorrect; (2) the court did not make express findings; and
(3) the court’s ruling does not comport with the uncontroverted
issue and apply the standard of review that applies to what all parties under-
stand the juvenile court to have done.
3
Both DHS and L request that, if we disagree with the juvenile court regard-
ing the allegations as to father on de novo review, then we proceed to decide on
de novo review whether DHS proved the allegations as to mother and whether
it is in L’s best interests to establish a permanent guardianship, rather than
remanding for the juvenile court to address those issues, in the interests of L
obtaining permanency sooner. Because we deny de novo review as to father and
affirm the court’s ruling as to father, we have no occasion to reach the allegations
as to mother or the issue of L’s best interests.
Cite as 335 Or App 494 (2024) 499
evidence in the record. L adopts DHS’s arguments for
de novo review.
Upon consideration, we are unpersuaded to exer-
cise our discretion to conduct de novo review. As to DHS’s
first argument, nothing in the record suggests to us that
the juvenile court’s view of the evidence was colored by its
opinion on an open legal question regarding the relation-
ship between the bases for dependency jurisdiction and
the ultimate grounds for finding unfitness or neglect in a
termination-of-parental-rights or guardianship proceeding.
To the contrary, in announcing its decision, the court specif-
ically stated:
“And if I had to vote now, I would vote that any peti-
tion to establish permanent guardianship would need to be
based on the jurisdictional basis for those allegations. But I
don’t need to get there because in addressing the merits of the
state’s allegations contained in the petition for permanent
guardianship, I don’t believe there’s sufficient evidence.”
(Emphasis added.) Given that statement, and the lack of
anything in the record that causes us to believe that the
court’s view on that issue improperly affected how it viewed
the evidence, we reject DHS’s first argument.
As to DHS’s second argument, it is true that the
juvenile court did not make express findings of fact or cred-
ibility determinations. But DHS’s evidence regarding father
was uncontroverted, so no credibility determinations were
necessary. Moreover, the court’s extended discussion with
DHS’s counsel, during which the court pointedly noted a
variety of gaps in DHS’s evidence and theories, gives sub-
stantial insight into the court’s view of the evidence, not-
withstanding the lack of express findings.
As to DHS’s third argument—that the court’s rul-
ing does not comport with uncontroverted evidence in the
record—it is true that DHS’s evidence was uncontroverted.
However, the court did not disregard that evidence; rather,
it found that the evidence did not persuasively prove either
that father was unfit under ORS 419B.504 or that father had
neglected L within the meaning of ORS 419B.506 during
the relevant time period.
500 Dept. of Human Services v. N. B.
Ultimately, we are unpersuaded that this is the
type of “exceptional” case that merits de novo review.4 ORAP
5.40(8)(c). Neither DHS nor L has identified any basis for
reversal absent de novo review. Accordingly, we affirm.
Affirmed.
4
The parties have not made any arguments as to whether, given the simi-
larities (or differences) between termination of parental rights and placement of
children in a permanent guardianship, we should (or should not) grant de novo
review more readily in appeals involving permanent guardianships. Cf. Dept. of
Human Services v. N. S., 246 Or App 341, 344, 265 P3d 792 (2011), rev den, 351
Or 586 (2012) (considering the differences between durable guardianships, per-
manent guardianships, and termination in deciding not to grant de novo review
in a durable-guardianship appeal). That may be because the permanent guard-
ianship was denied in this case. In any event, we do not foreclose consideration of
such arguments if raised. Here, either way, we are disinclined to grant de novo
review in this case.