Dept. of Human Services v. M. C. D. B. , 301 Or. App. 52 ( 2019 )

52
Submitted October 29, affirmed December 4, 2019, petition for review denied
March 5, 2020 (366 Or 257)
In the Matter of M. E. B., Jr.,
aka M. B., Jr., a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
M. C. D. B.,
aka M. B.,
Appellant.
Malheur County Circuit Court
18JU09183; A171202
454 P3d 846
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 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 person-
ally and the consequences if she did not; and she thereafter ignored DHS’s efforts
to arrange for travel to the termination hearing.
Affirmed.
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.
Cite as 301 Or App 52 (2019) 53
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.
LAGESEN, P. J.
Affirmed.
54 Dept. of Human Services v. M. C. D. B.
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 termina-
tion 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 with-
out you. That means they can proceed to present evidence,
they could proceed to make arguments, and ask for a judg-
ment 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 argu-
ments, he can’t present any evidence, he can’t challenge the
state’s evidence. So that would mean the state gets to pres-
ent all the evidence, you would not get to present any evi-
dence, 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
Cite as 301 Or App 52 (2019) 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 per-
manency hearing in February, and the juvenile court again
reminded mother to “make sure to appear for” the termina-
tion 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
service—if this comes about, if there are any—if there’s any
way for them to help her with transportation.”
On March 1, mother appeared in person at a hear-
ing set for mother to admit or deny the allegations in the
termination petition, and she denied all allegations regard-
ing her fitness as a parent. During that hearing, mother
informed the court that she was moving to Arizona later that
month, and the parties discussed how visitation would occur
between then and the April termination hearing if mother
were in Arizona. Mother requested airline travel and hotel
accommodations to visit, but DHS considered that request
to be exorbitant under the circumstances, where mother was
electing to move just before the termination hearing; the
court observed that DHS purchasing a bus ticket for mother
would be a reasonable compromise and “more than appro-
priate between now and the April trial.” The hearing ended
without any discussion about how mother would return for
the termination hearing in April.
On April 17, 2019, mother filed a motion to continue
the termination hearing, citing her move to Arizona and
her desire to have an interstate compact investigation of her
new living arrangements. The following day, the juvenile
court denied mother’s motion by written order, explaining
that mother had been on notice of the trial date since at
least January 24, 2019; that mother, who had been living
locally since the child’s birth, had told the court on March 1
that she intended to move at the end of March but gave no
indication that she would not be able to attend the trial;
56 Dept. of Human Services v. M. C. D. B.
and that she had not explained why she needed to move less
than a month before trial if that would prevent her from
complying with the obligation to appear for trial. The court
further explained that a continuation would be “extremely
prejudicial to the parties and the effective administration of
justice” because the child had been in care for over three and
one-half years, the hearing was set for four days to accom-
modate numerous witnesses, and that, because of docketing
issues for a hearing of that length, the court would have
been required to move the hearing into 2020 or bump other
hearings already scheduled.
Mother remained in Arizona and did not show
up for the termination hearing on April 23. Her attorney,
who did show up, asked the court to reconsider the motion
for a continuance and asked the court to allow mother to
appear by telephone. The juvenile court took evidence before
ruling on those motions, including testimony from a DHS
caseworker who said that she had emailed mother with bus
schedules and departure points but that mother had ignored
requests about travel arrangements in her responses,
instead requesting that DHS fly her son to Arizona for vis-
its. The court ultimately denied the motion for mother to
appear by phone and again denied the motion for a continu-
ance, adopting its previous findings in the written order. The
court then explained that it was not a case in which mother
“had missed the bus, something like that,” but rather a case
where mother intentionally had not appeared at trial.
After denying the renewed motion, the court ruled
that mother’s absence precluded participation by her attor-
ney under ORS 419B.819(8). That statute provides that, “[i]f
the summons requires the parent to appear personally before
the court, or if a court orders the parent to appear personally
at a hearing in the manner provided in ORS 419B.820, the
parent may not appear through the parent’s attorney.” The
court then permitted DHS to proceed in mother’s absence
pursuant to ORS 419B.819(7)(a), which authorizes the court
to terminate a parent’s rights “without further notice and
in the parent’s absence” when “a parent fails to appear for
any hearing related to the petition, or fails to file a written
answer, as directed by summons or court order under this
section or ORS 419B.820.” After DHS put on a prima facie
Cite as 301 Or App 52 (2019) 57
case, the court took the matter under advisement; it later
issued a judgment terminating mother’s parental rights to
her son.
Mother appeals from that judgment, advancing
four assignments of error. The first two assignments assert
that the juvenile court abused its discretion in denying her
motions for a continuance. See Dept. of Human Services v.
E. M., 268 Or App 332, 335, 341 P3d 216 (2014) (where a
parent assigns error to the court’s denial of a motion for a
continuance of the termination hearing, “we review whether
the court’s decision was within the range of legally correct
discretionary choices and produced a permissible, legally
correct outcome”). We reject those two assignments without
extended discussion. We agree with DHS that, in light of
the circumstances identified in the juvenile court’s order,
along with evidence that mother ignored DHS’s attempts to
assist her with transportation, the court acted well within
the bounds of its discretion in denying the motions.
In her remaining two assignments of error, neither
of which is preserved, mother argues that the court erred by
(1) precluding her attorney’s participation and (2) proceeding
to termination in her absence, because the statutory pred-
icate for those two actions under ORS 419B.819(7) and (8)
was missing—specifically, a direction to appear at the
termination hearing by court order under ORS 419B.820.
Mother argues that, after mother made an initial appear-
ance pursuant to the summons, ORS 419B.820 required
the court to issue a “written order provided to the parent in
person or mailed to the parent at the address provided by
the parent” or an “oral order made on the record” directing
the parent to appear. According to mother, neither of those
things occurred here, and this court has routinely exercised
its discretion to correct plain error in that regard in light of
the gravity of the error. See, e.g., Dept. of Human Services
v. K. M. J., 276 Or App 823, 830, 370 P3d 1258 (2016) (“On
these facts, we will not assume, on less firm grounds than
those required by the legislature, that mother knew the
consequences of her failure to appear, nor will we use that
assumption as a basis for declining to exercise our discre-
tion to correct error that is plain.”).
58 Dept. of Human Services v. M. C. D. B.
Even assuming that the claimed errors under ORS
419B.819(7) and (8) are plain (which DHS disputes in this
case1), we decline to exercise our discretion to correct them
on this record. See id. at 829 (“Even if an error is plain, we
must still decide whether to exercise our discretion to correct
the error.”). In cases like K. J. M., we have been unwilling to
simply assume that the parent understood the consequences
of not appearing in person. Id. at 830 (concluding that it was
“too tenuous” to conclude that a parent with “mental illness
and borderline intellectual functioning” had actually “read,
comprehended, and remembered” the warning provided in
a summons issued almost a year before the termination
hearing). Here, by contrast, the record leaves no doubt about
mother’s understanding in that regard. Mother engaged in a
colloquy with the court about that precise issue, and mother
demonstrated that she understood the gravity of her failure
to appear: “[I]f I understood you correctly, if I don’t appear,
it’s basically the state wins by default.” Moreover, many of
the same reasons justifying the court’s denial of mother’s
motions for a continuance also militate against the exercise
of discretion in this case: Her son had been in the state’s
care for more than three and one-half years; she chose to
move a month before the termination hearing, knowing both
that she was required to appear personally and the conse-
quences if she did not; and she thereafter ignored DHS’s
efforts to arrange for travel to the termination hearing.
Under the circumstances of this case, we decline to exercise
our discretion to correct any error the juvenile court may
have committed under ORS 419B.819 by not first issuing an
order in compliance with ORS 419B.820.
Affirmed.
1
DHS argues that, given the juvenile court’s extended discussion with
mother at the January hearing about the consequences of her failure to attend
the termination trial in person, it is at least arguable that the court made an oral
order on the record at that hearing that complied with ORS 419B.820. Cf. Dept. of
Human Services v. C. M. W., 300 Or App 561, 570, 453 P3d 628 (2019) (concluding
that the parent had not demonstrated plain error in failing to comply with ORS
419B.820 where it was “plausible to think that copies of the orders might have
been handed to mother at [a] hearing in a way that the record simply does not
reflect”).