Dept. of Human Services v. A. G. ( 2024 )

No. 787 October 30, 2024 797
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of N. E., aka N. E. E.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
A. G.,
aka A. S. G.,
Appellant.
Deschutes County Circuit Court
19JU00645; A181618
Beth M. Bagley, Judge.
Submitted December 20, 2023.
Shannon Storey, Chief Defender, Juvenile Appellate
Section, and Sean Connor, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Inge D. Wells, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
POWERS, J.
Appeal dismissed.
798 Dept. of Human Services v. A. G.
POWERS, J.
Father appeals from a judgment that established a
permanent guardianship for N, his nine-year-old daughter,
after he failed to personally appear at the hearing on the
motion, which resulted in a default judgment. On appeal,
father first asserts that his trial counsel, who did appear
before the juvenile court, provided inadequate assistance of
counsel by not asking for a continuance or offering any legal
argument on father’s behalf. Second, father contends that
the juvenile court erred by establishing a permanent guard-
ianship for N under ORS 419B.365. As we explain below,
because father’s failure to appear resulted in a default judg-
ment, we dismiss father’s appeal without reaching the mer-
its of his assignments of error.
We set out only a limited recitation of the under-
lying facts in this nonprecedential memorandum opinion
because the parties are familiar with the undisputed pro-
cedural and background facts. Briefly stated, N has been
a ward of the juvenile court since 2019, and in September
2022, the Department of Human Services (DHS) filed a peti-
tion to establish a permanent guardianship for N. Father
was personally served with a summons and a copy of the
guardianship petition in April 2023. The summons ordered
father to appear for trial on a specific date in May:
“You must appear personally in the courtroom on the date
and at the time listed above. An attorney may not attend
the hearing in your place. Therefore, you must appear even
if your attorney also appears.”
(Boldface omitted.) Father failed to appear as summoned.
Father’s trial counsel, however, was at the hearing but did
not ask for a continuance. The court allowed DHS to proceed
with its prima facie case. Father’s trial counsel did not object
to hearsay statements during DHS’s case. At the conclusion
of the hearing, the court adopted the findings requested by
DHS and entered a judgment establishing an ORS 419B.365
guardianship over N.
ORS 19.245(2) bars an appeal of a judgment given
for “want of an answer,” subject to three exceptions that are
not applicable here. Under ORS 419B.819(2), a summons
Nonprecedential Memo Op: 335 Or App 797 (2024) 799
to a hearing on a motion for a permanent guardianship
requires that a parent answer the petition by filing a writ-
ten response or appearing personally before the court at the
time and place indicated by the summons. If a parent fails
to properly answer the summons, ORS 19.245(2) will bar
an appeal. See State ex rel Juv. Dept. v. Jenkins, 209 Or App
637, 641-46, 149 P3d 324 (2006), rev den, 324 Or 416 (2007)
(discussing whether the legislature intended ORS 19.245(2)
to apply to default judgments in termination proceedings
and concluding that it did apply because ORS 419B.819(2)
requires an answer). We explained that, if a parent fails to
appear at the time and place indicated by the summons,
that failure is “tantamount to [the parent’s] consent that the
court grant the relief requested by the petition.” Id. at 645.
Moreover, once DHS presents a prima facie case, a parent’s
failure to contest the evidence leaves nothing for the juvenile
court to adjudicate. Id. at 645-46. Consequently, when a par-
ent fails to make an initial appearance at the time and place
as indicated by the summons, the parent waives his, her,
or their right to appeal, and any appeal must be dismissed
for lack of an appealable judgment. See, e.g., id. (dismiss-
ing the father’s appeal that challenged the juvenile court’s
refusal to appoint an attorney to represent him because the
father failed to appear at the termination hearing); Dept.
of Human Services v. A. C. L. R., 298 Or App 690, 691-92,
450 P3d 56 (2019) (dismissing the mother’s appeal that
asserted an inadequate assistance of counsel claim because
the mother failed to appear at the termination proceeding,
which resulted in a default judgment).
Here, father’s failure to appear before the juve-
nile court on the date and time indicated in the summons
resulted in a default judgment. Accordingly, we dismiss
father’s appeal for lack of an appealable judgment and do
not reach the merits of his assignments of error.
Appeal dismissed.